LAW

Substantive Criminal Law

Culpable Homicide Amounting to Murder
QUADRANT I:

DESCRIPTION OF MODULE

Subject Name Law

Paper Name Substantive Criminal Law
Module on Culpable Homicide amounting to murder

Prerequisites: A basic knowledge of the crime and elements of crime and a

good reading of
Indian Penal Code

Objective: The killing of a person may amount to murder which involves

the highest degree of culpability and can be met with the extreme penalty of
death or the culpable homicide may be of a lesser degree and may not qualify as
murder. The objective of this module is to understand the nuances of culpable
homicide amounting to murder.

Key words: Intention, knowledge, likely, imminently dangerous, mens rea, actus
reus

QUADRANT II: E TEXT

1Introduction

The killing of a human being is the most serious crime known to mankind. The killing
i.e. homicide may be culpable or sanctioned by law. In a country like India where
death penalty figures in the statute book, the execution of a death convict by the
hangman involves killing but it is lawful – sanctioned by law and hence is out of the
culpability zone.1 Any other killing not sanctioned by law will amount to culpable
homicide/murder, if all the basic ingredients of the crime are satisfied. The conduct
element of the offence is the voluntary act of killing and the fault elements may be
intention or knowledge.

In order to appreciate the nuances of culpable homicide and murder, it is important to

first understand the basic principles of criminal liability since all the elements of
crime must be met to establish culpability in a given case. Therefore, mens rea, actus
reus, causation as well as the principle of concurrence of mens rea and actus reus need
to be accounted for in every enquiry of criminal culpability.

2 Mens Rea/ Fault element

1
Section 78, Indian Penal Code, 1860.
One of the most important principles of criminal responsibility is encapsulated in the
Latin maxim “actus non facit reum, nisi mens sit rea” i.e. ‘an act does not make a man
guilty of a crime, unless his mind is also guilty.’ Thus, mens rea is the mental element
of crime which must be established in all cases. It refers to the guilty mind of the
defendant and it is mens rea which attributes culpability to the actus reus. Some
criminal law scholars use the term ‘fault element’. 2 That perhaps is a more apt
terminology especially in the context of Indian Penal Code where the fault elements
are specified in the offence. Moreover there may be just negligence as a fault element
for offence and negligence has nothing to do with state of mind and so the word mens
rea may not be appropriate. In cases of homicide, the fault terms that are generally
used are intention, knowledge, recklessness and negligence.

2.1 Intention
Salmond says that “An intention is the purpose or design with which an act is done.
This may consist of an intention to do some further act, an intention to bring about
certain consequences or perhaps merely an intention to do the act itself.”3 In other
words, intention is an act coupled with the free will in the Kantian sense and the actor
desires it, aims for it, engineers it. However, intention must not be confused with
motive. Motive corresponds to the ulterior end. Motive was defined in R v. Steane4
thus:

The longing for the object desired which sets the volition in
motion is motive. The expectation that the desired motions
will lead to certain consequences is the intention… Motive
has a dynamical whilst intention has a “telescopic aspect”
The one impels the act, the other sees beyond it.

A man may steal to feed his starving children. The motive is to feed his children but
the intention remains of stealing the property of another. Criminal law takes note of
intention alone and not motive in order to determine culpability. While motive has no
relevance in criminal law for imputing or limiting culpability, it may be helpful in
cases of circumstantial evidence or at the stage of sentencing (as an aggravating or
mitigating factor). Since intention is a mental state one has to infer it from the act
itself and by the surrounding circumstances.

2.2 Knowledge
A man has three faculties – emotion, volition and cognition. And knowledge of a
particular thing is to have a mental cognition of it. A person may not intend a
particular thing in the sense of ‘desire’ but there is awareness in the part of the person
indicating his mind. 5 In culpable homicide intention or knowledge suffices for
culpability and “in general terms, the requirement of knowledge is regarded as having
the same intensity as that of intention except that knowledge relates to circumstances
forming part of the definition of crime and intention relates to the consequences

2
Neil Morgan, “The Fault Elements of Offences” in Wing- Cheong Chan et al, Codification, Macaulay
and the Indian Penal Code. 59(2011).
3
PJ Fitzgerald, Salmond on Jurisprudence 368( Indian Economy Reprint 2009).
4
(1947) IKB 997, 1004.
5
KI Vibhute, PSA Pillai’s Criminal Law 64(2009).
specified in the definition of crime.” 6 The dividing line between intention and
knowledge is very thin but nonetheless it is there.7

2.3 Recklessness
A situation may arise where there is neither intention nor knowledge but the actor
acted recklessly in relation to another person. In case of homicide, he was reckless in
relation to another’s death. So it is a wrongful disregard of a foreseen risk. It is the
wrongful assumption of a risk. Glanville William states “a consequence is intended if
it is foreseen as certain, even though not desired.” 8 Whether an act can be called
reckless or not depends on the standard of duty and care imposed by law. In cases of
recklessness the person may not be bothered whether the consequences occur or not,
though he may wish that they don’t. However it is important to note that “foresight of
consequences is not the same as intention but merely evidence of it”.9

2.4 Negligence
Negligence needs to be distinguished from recklessness. Negligence means absence
of such standard of care as was required by law in any particular circumstance. Devlin
J. in Roper’s10 case held that negligence which is a case of “constructive knowledge”,
where someone unintentionally fails to make enquiries which a reasonable and
prudent man would make, has no place in criminal law. This observation raised the
foundational question of criminalization of negligence i.e., should negligence be
punished at all? It may be important to bear in mind that criminalization of negligence
emerges from the compromise between two conflicting interests: on the one hand, it is
the public interest that demands restraint (even by criminal law) of all those who
injure or menace the social well being and on the other hand, the individual interest
that seeks maximum liberty and freedom from interference from the state sanctions.

3. Causation

Causation is an issue in the case of result crimes that is to say crime which have a
consequence spelled out in the definition of offence. Culpable homicide is a prime
example of result crime where death is the consequence specified. Causation in
section 299 appears in the form of “whoever causes death” and in section 300 as “an
act by which death is caused”.So in case of culpable homicide amounting to murder
or not amounting to murder the first relevant enquiry is whether the act or omission
by the offender is the cause of death.
In Joginder Singh v. State of Punjab 11 the deceased was being chased by the
accused persons and he jumped into the well. As a result he sustained head injury
resulting in his becoming unconscious and he died due to drowning. The apex court
held that there was no evidence that the deceased was left with no option but the jump
and hence the accused cannot be said to have caused death. The act of the accused
was not the direct cause of the death.

6
Andrew Ashworth, Principle of Criminal Law 182(2009).
7
See Basdev v. State of Pepsu, AIR 1956 SC 488.
8
Glanville L. Williams, The Mental Element in Crime 13 (1965).
9
Georgia Beatty, “Foresight of consequene is not the same as intent” Available at:
www.peterjepson.com/law/Beatty
10
Roper v. Talor’s Central Garage (Exeler) Ltd. (1951) 2T.L.R. 284, 288.
11
AIR 1979 SC 1876. See also Rewa Ram v. State of Madhya Pradesh 1978 CriLJ 858 (MP).
One of the leading cases of causation is Emperor v. Mushnooru Suryanarayana
Murthy.12 The accused gave ‘halva’ in which a poison containing arsenic and mercury
had been mixed to one Appala Narasimhulu who had a portion of it and threw the
rest. Another girl Rajalakshmi ate the ‘halva’ from where it was thrown and
eventually died due to poison. Appalla who was the intended victim was saved. The
accused was held guilty of murder of Rajalakshmi. It was held that the chain of
causation was not broken since the consequence was foreseeable and hence the causal
responsibility rested with the accused.

4. Subjective and Objective Liability

To convict a person both the conduct element and the fault element must be proved by
the prosecution beyond a reasonable doubt and both the elements must be
contemporaneous. 13 As far as the conduct element is concerned the principle of
causation provides a guiding link and forensic science which has over the years
become advanced helps in proving the occurrence of events. However, the problem
arises in cases of proving the fault elements of a crime. To prove what was going on
in the mind at the relevant time is not possible. Brian C.J. in the fifteenth century said
“The devil himself knoweth not the mind of men”. A person may confess as to what
was going on in the mind. It may not always be true and in most of the cases the
confession is absent. The fault elements cannot be assumed through conduct elements.
The conduct elements only impact causal responsibility but the criminal culpability
comes through fault elements. So there has to be a judgment as to the mental direction
or state of mind at the relevant time when the conduct element was present. There are
two ways to do it. One is by way of objective liability and the other is by way of
subjective liability. It is important to recognize that intention is at the end of the day a
matter of inference from the evidence available. A perusal of common law in the era
of DPP v. Smith 14 reveals that an objective approach was adopted to infer fault
wherein the House of Lords held that a person is “deemed to intend the natural and
probable consequences of his acts.” The House of Lords brought in a “reasonable
person” test whereby if a reasonable person would have foreseen the consequences as
being probable the accused would be presumed to have intended the result.

However, the objective liability to establish ‘fault’ is open to criticism. Murder is a

crime of specific intent, hence a subjective approach is more appropriate to undertake
this enquiry. In later cases like Moloney15 and Hancock &Shankland,16 Nedrick17 the
courts seem to haves given a moral elbow room to deal with cases where the conduct
element of murder (i.e. death) is present but the mental blameworthiness required for
the offence of murder is lacking. The Indian Penal Code need not grapple with these
problems as it has has quite a subjective focus which is clear from a perusal of

12
(1912) 22 MLJR 333 (Mad.). See also Palani Goundan v. Emperor 1919 ILR 547 (Mad) and In re
Thavamani, AIR 1943 Mad 571.
13
See Emp. v. Khandu 50 Bom 194; Thabo Meli v. R [1954] 1 WLR 228; Le Brun,[1992] QB 61.
14
(1961) AC 290.
15
(1985) AC 905.
16
(1986) AC 455.
17
(1986)83 Cr App R 267.
offences. Macaulay who drafted the Penal Code was adherent of a subjective liability
and so the Code does not follow the felony- murder rule and hence the concept of
constructive intention does not find a place in the Code. Macaulay remarked thus:18
To punish as a murderer every man who, while committing a
heinous offence, causes death by pure misadventure, is a course
which evidently adds nothing to the security of human life... For
example, hundreds of persons in some great cities are in the habit
of picking pockets. They know that they are guilty of a great
offence... Unhappily one of these hundred attempts to take the
purse of a gentleman who has a loaded pistol in his pocket. The
thief touches the trigger, the pistol goes off, the gentleman is
shot dead. To treat the case of this pick pocket differently from
that of the numerous pick pockets who steal under exactly the
same circumstances, with exactly the same intentions, with no
less risk of causing death...appears to us an unreasonable course.

5 Criminal Liability for Homicide under the IPC

As far as the Indian Penal Code is concerned in most of the cases the definition of the
offence gives an insight into the ingredients of crime and how criminal liability is to
be imputed. The Code specifies not only what the accused must have done but also
the state of mind with regard to the proscribed act. The Code is replete with words
like “intentionally’ “Knowingly” “dishonestly” “fraudulently” etc. When the Code
uses words like intentionally, knowingly, voluntarily a subjective test is mandated. In
case of culpable homicide and murder the predominant thrust of the Penal Code is on
subjective liability.

5.1 Analyzing the offences of culpable homicide and murder

Sections 299 and 300 pertain to culpable homicide and murder respectively. The two
sections are not mutually exclusive. Death of a human being that occurs due to “rash
or negligent act” though punishable (under section 304A) does not fall under the
category of culpable homicide or murder. It is important to note at the outset that the
mental states that evoke section 299 and 300 are intention and knowledge. We will
now examine the distinction between culpable homicide and murder. It has been oft
repeated that culpable homicide is the genus and murder is the species. This means
that murder is a specific sub-set of culpable homicide. Differently put, all cases of
murder are culpable homicide, but all cases of culpable homicide are not murder, and
therefore, there is a residual category called ‘culpable homicide not amounting to
murder’. Culpable homicide which amounts to murder falls in section 299 and as well
as in section 300 and does not fall under any of the exceptions given in section 300. In
the following section, we will contrast section 299 and section 300 to distinguish
between the category of culpable homicides that become murder, from the ones which
fall short of murder.

Section 299 of the Indian Penal Code defines culpable homicide thus:

18
Quoted in Wing Cheong Chan et al, Codification, Macaulay and the Indian Penal Code 63(2011).
 299. Whoever causes death by doing an act with the intention of
causing death or with the knowledge 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, commit the offence of culpable homicide.

The following elements emerge from the definition:-

(1). Death is the sine qua non for an enquiry for culpable homicide.
(2). Death must be caused by an act of the defendant.
(3). There must have been:
(a) an intention to cause death, or
(b) intention to cause such bodily injury as it likely to cause death, or
(c) knowledge that he is likely by such act to cause death.

Section 300 defines murder as:

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.

One may read section 299 in terms of (a) (b) and (c) for its 3 breakups and section
300 in terms of firstly, secondly, thirdly and fourthly corresponding to its 4 breakups.

5.1.1 Section 299 (a) and Section 300 firstly

Killing which is done with the intention to kill is a clear cut example of murder.
Mahatma Gandhi’s assassination is a clear case following under this head and its
application is not thought with any difficulty as such.19

5.1.2 Section 299 (b) and Section 300 secondly

This part of the section 299 imposes liability on the defendant where there is an
intention to cause bodily injury and the bodily injury caused is such that it is “likely”
to cause death. It corresponds with section 300 secondly which also deals with
liability when the intention is to cause bodily injury and there is knowledge of
likelihood that the body injury so caused would result in the death of the person on
whom the harm is inflicted. It deals with a subjective liability i.e. the offender had the
intention to inflict a particular bodily injury which the offender knows will lead to the
death. So for an enquiry under Section 300 Secondly, section 299(b) needs to be

19
See also Rawalpenta Venkalu v State of Hyderabad, AIR 1956 SC 171.
satisfied. However, in section 300 secondly, the offender has specific knowledge that
the injury will result in death. Such specific knowledge is not present in section 299
(b).

5.1.3 Section 299 (b) and Section 300 thirdly

Section 300 thirdly talks about an intention to cause bodily injury to any person and
the bodily injury intended to be inflicted is sufficient in the ordinary course of nature
to cause death. So there is a subjective liability of the intention to cause bodily injury
but objective liability creeps in when the code refers to “sufficient in the ordinary
course of nature to cause death.” As far as section 299 (b) is concerned it also refers
to intention of causing such bodily injury as is “likely” to cause death. The liability
again is subjective as well as objective. In Virsa Singh v. State of Punjab20 the court
held that “the two clauses of section 300 thirdly are disjunctive and separate. The
first is subjective to the offender….[ and the latter part] is purely objective and
inferential and has nothing to do with the intention of the offender.” The Court
observed inter alia that “it must be proved that there was an intention to inflict that
particular injury, that is to say that it was not accidental or unintentional, or that some
other kind of injury was intended.” Same is true for section 299(b) the first is
subjective and for the second part21 there is an objective enquiry. However, there is a
difference of degree between “sufficient in the ordinary course of nature” and
“likely”. Thus, according to the rule laid down in Virsa Singh case, even if the
intention of accused was limited to the infliction of bodily injury sufficient to cause
death in the ordinary course of nature and did not extend to the intention of causing
death, the offence would be murder. Illustration(c) appended to section 300 clearly
brings out this point.22

5.1.4 Section 299 (c) and 300 fourthly

Section 299 (c) and 300 fourthly bring in the fault elements in terms of knowledge.
Intention and knowledge are different mental states though in a practical application
they may merge and the thin dividing line may vanish. But theoretically, knowledge
means to have mental cognition and intention is the desire to achieve a particular
consequence. In Jai Prakash v. State (Delhi Administration)23 it was observed:

the ‘knowledge’ as contrasted with ‘intention’ signify a state

of conscious awareness of certain facts in which human mind
remains supine or inactive. On the other hand, ‘intention’ is a
conscious state in which mental faculties are aroused into
activity and summoned into action for the purpose of
achieving a conceived end.

Section 300 fourthly can be broken into two parts. The first part deals with the
knowledge of the offender that the act is so imminently dangerous that it in all
probability would cause death and the second part deals with the knowledge of the

20
(1991) 2 SCC 32.See B.B. Pande, “Limits on objective liability for murder” 16 JILI(1974).
21
AIR 1958 SC 465. See also State of A.P v. Rayavarapu Punnayya AIR 1977 SC 45; Bhagwan Dass
v. State, 2011 6 SCC 396
22
State of A.P. v. Rayavarapu Punnayya, AIR 1977 SC 45.
23
See also Emperor v. Mt. Dhirajia, AIR 1940 AII 486; Gyarsibai v. State AIR 1953 M.B.61.
offender that the act is so imminently dangerous that it must in all probability cause a
bodily injury that was likely to cause death. These two clauses are qualified by the
words “and commits such act without any excuse for incurring the risk of causing
death or injury as aforesaid. 24 Section 299 (c) also talks about an act with the
knowledge that he is “likely” by such act to cause death, commits the offence of
culpable homicide. The second part of 300 fourthly talks about a bodily injury likely
to cause death and section 299 (c) talks about “likely by such act to cause death.”
However both the sections contemplate knowledge of the likelihood of death. The
knowledge part is a subjective criterion and expression “knows” in section 300
fourthly is the operative part for it. Section 300 fourthly further qualifies the fault
element by putting in a rider of ‘excuse’. If there is evidence that there was an excuse
to do so the offender comes out of the culpability zone of murder. For instance, in
Dhirajia’s case,25 the court held that panic-stricken Dhirajia cannot be held liable for
murder since she was escaping from her husband and thus her act was not “without
any excuse”. In contrast in Gyarsibai’s case, 26the court rejected the contention that
family fights amounted to an acceptable excuse for Gyarsibai to jump into the well
with her children which led to their death. The court in this case held the words
“without any excuse for incurring the risk of causing death or such injury as
aforesaid” indicate that the imminently dangerous act is not murder if it is done to
prevent a greater evil. If the evil can be avoided without doing the act then there can
be no valid justification for doing the act which is so imminently dangerous that it
must in all probability cause death.

5.2 Explanations to section 299

The Indian Penal Code is unique in the sense that the core sections are accompanied
by Explanations and illustrations which are a guide to understand the true import of
the provisions.

Explanation 1. A person who causes bodily injury to another who is labouring under
a disorder, disease or bodily infirmity and thereby accelerates the death that other,
shall be declared to have caused the death. There are two ways of interpreting the
explanation. One way of reading is explanation is to equate it to the “thin skull
principle” employed in certain jurisdictions.27 But some authors have argues that the
word ‘accelerated’ accords a different meaning to the explanation. They argue that the
explanation is limited to those cases where the deceased had a condition because of
which his health was deteriorating and the injury accelerated the death. In this
interpretation those cases where the deceased had a dormant pre-existing condition
but death has taken place, it would not amount to culpable homicide. This view gets
reinforced for culpable homicide amounting to murder as illustration (b) to section
300 negates the “thin skull “principle.
Explanation 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 skilful treatment the death might have been prevented. This

24
See State of Madhya Pradesh v. Ram Prasad, AIR 1968 SC 881.
25
AIR 1940 AII 486.
26
AIR 1953 M.B.61.
27
In Blaue (1975) 61 Cr App R 271 it was held that “those who use violence on other people must take
their victims as they find them.”
explanation takes care of the treatment being not appropriate which may be taken to
break the chain of causation. The intervening treatment or the doctor’s role is taken
as de minimis and not a novus actus interveniens which can break the chain of
causation.

Explanation 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
child, if any part of that child has been brought forth, though the child may not have
breathed or been completely born. This Explanation specifies the point at which life
for human beings is assumed to come into existence for the purpose of homicide
offences.

Overview: