Culpable Homicide and Murder

Author: KUNAL SEHGAL

Student, B.B.A.,LL.B., III semester, FIMT-SCHOOL OF LAW

CULPABLE HOMICIDE

Culpable homicide can either indicate whether or not the killing of a human being involved malice aforethought on the part of the defendant. Malice aforethought exists when an individual acts with:

The intent to kill,

The intent to cause serious bodily harm, or

Reckless disregard of human life so that the person is considered to act with a depraved heart.

The culpable homicide could be done with the intent to commit the action that lead to the death, but this intent may not meet the legal definition of murder. If it does count as culpable homicide but does not qualify as murder, the homicide may be deemed to be manslaughter.

The offences include causing death whether by intention or not.

In India, Under section 299 of the Indian Penal Code (IPC), "[...committer of] Culpable homicide" is defined as "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." "Culpable homicide not amounting to murder" is punishable under section 304 of IPC of the Indian Penal Code. It is a non bailable charge with imprisonment up to 10 years with or without fine

Illustration:

•A lays sticks and turf over a pit, with the intention of thereby causing death or with the knowledge that death is likely to be there by caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

•A knows Z to be behind a bush. B does not know it A, intending to cause or knowing it to be likely to cause Z's death, induces b to fire at the bush.B fires and kills Z. here b may be guilty of no offence: but a has committed the offence of culpable homicide.

•A, by shooting at fowl with intent to kill and steal it, kill and steal it, kills B who is behind a bush; A not intent ending that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.

Explanations:

(1) A person who causes bodily injury to another, who is laboring under a disorder, disease or bodily infirmity and thereby accelerates the death of that other, shall be deemed to have caused his death.

(2) Where death is caused by bodily injury, the person who caused such bodily injury shall be deemed to have caused the death although by resorting to proper remedies and skillful treatment the death might have been prevented.

(3) The causing of the death of child in the mothers womb is not homicide. But it may amount to culpable homicide to cause the death of living child, if any part of that child has been brought forth the child may not have breathed or been completely born.

Murder

Sir Edward Coke refers that "Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth with any country of the realm any reasonable creature in rerum nature under the Kings peace with malice aforethought either expressed by the party or implied by law, so as the party wounded or hurt etc die of the wound etc within a year and a year after the same So we can say that for the purpose of convenience murder is the unlawful of a human being under the Queens peace with malice aforethought.

According to the section 300 " Except in the cases hereinafter excepted, culpable homicide is murder of the act by which the death is caused is done with the intention of causing death.

Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the of the person to whom the caused.

Thirdly 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 or such injury as aforesaid.

Distinction between Culpable homicide and Murder

•Culpable homicide is the genus of which murder is a species. In order that an offence may amount to murder it must fall within in the ambit of culpable homicide, but an offence may amount to culpable homicide without amounting murder It follows, therefore, that all murder are culpable homicide ,but all culpable homicide are not murders . The distinction between culpable homicide and murder has very ably and lucidly been set forth by Melville J.in Reg V. Govinda case. In this case the accused, a young man of 18 years was married to a girl of 15. It appeared that he was habitually ill treating the girl. On the fateful day the accused knocked his wife down, put one knee on her chest and struck her two or three violent blows on the face with closed fist, producing extra vasations of blood on the brain and she died in consequence, either on the spot or very shortly afterwards. The accused was held guilty of offence of murder by the Session Judge The case came up before a Bench of tow Judges of the Bombay High court for confirmation of the death sentence. As there was a division of opinion between the learned Judges constituting the Bench as to whether the fact constituted an offence of murder, or an offence of culpable homicide not amounting to murder, the case was referred for opinion to a third Judge, Melville, J.His lordship compared the provision of section 299 to 300 of Penal Code, viz, culpable homicide and murder, thus

When Culpable Homicide is not murder.

The following Exceptions to section 300 provide for cases where culpable is not murder

Exception : Grave and Sudden provocation Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or cause the death of any other by person by mistake or accident. The above exception is subject to the following provisos

First- That the provocation is not sought or voluntarily provoked by offender as an excuse for killing or doing harm to any person Second- That the provocation is not given by anything done in obedience to the lawful exercise of the right of private defiance.Thirdly- That the provocation is not given by any thing done in the lawful exercise of the right of private defence

Explanation

Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustration:

(a) A. under the influence of passion excited by a provocation given by Z intentionally kills Y, Z's child. This is murder, in as much as the provocation was not given by the child and the death of the child was not caused by accident or misfortune in doing an act causing by the provocation.(b) Y gives grave and sudden provocation to A .A, on this provocation, fires a pistol at Y neither intending nor knowing himself to be likely to kill Z who is near him, but out of sight. A kills Z. Here A has not committed murder, But merely culpable homicide.(c) A attempts to pull Z's nose, Z in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder in as much as the provocation was given by a thing done in the exercise of the right of private defence.

EXCEPTION 2:

Exceeding the Right of Private Defence - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and cause the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration's:

Attempts to horsewhip a, not in such a manner as to cause grievous hurt to A. a, draws out a pistol A Person in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3:

Public Servant Exceeding His Powers Culpable homicide is not a murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law and cause death by doing an act which he in good faith believes to be lawful and necessary for thethe due discharge of his duty as such public servant and without in- will towards the person whose death is caused.

EXCEPTION 4;

Culpable homicide is not a murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel andwithout the offender having taken under advantage or acted in a cruel or unusual manner.

Explanation:

It is immaterial in such case which party offers the provocation or commits the first assault.

Exception 5

Death caused with victims consent- Culpable homicide is not murder when the person whose death is caused, being above the age eighteen years, suffers death or takes the risk the of death with his own consent.

Illustration: A, by instigation, voluntarily causes, Z a person under eighteen years of age to commit suicide. Here on account of Z's youth, he was incapable of giving consent to his own death, has therefore abetted murder.

CONCLUSION

•When culpable Homicide is not murder. The first clause of section 300 is obviously relatable to the first clause of section 299, its second and third clause to the second clause of section 299, and its fourth clause to the last clause of section 299. It is also evident that simply by reason of an offence being covered by any of the clause of section 299 which would not doubt make it culpable homicide ,the offence will not be murder unless ingredient on of the four clause of section 300 it would not be murder and will remain culpable homicide not amounting to murder . In view of the opening words of section 300 an offence of culpable homicide will also amount to murder if any of the five exception mentioned in the section be attracted to the facts of particular case.

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