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.1 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 their 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 (1961)
AC 290, 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.

1
See Emp. v. Khandu 50 Bom 194; Thabo Meli v. R [1954] 1 WLR 228; Le
Brun,[1992] QB 61.
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 Moloney
(1985) AC 905 and Hancock &Shankland (1986) AC 455, Nedrick
(1986)83 Cr App R 267, 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 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:2

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 people 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 pickpocket differently from that of the numerous
pickpockets 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.
Criminal Liability for Homicide under the IPC

2
Quoted in Wing Cheong Chan et al, Codification, Macaulay and the Indian Penal
Code 63(2011).
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.

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:

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, commits 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 an 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.

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
(See Rawalpenta Venkalu v State of Hyderabad, AIR 1956 SC
171).

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 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).