Homicide

HOMICIDE
Homicide from the earliest times has fascinated the human mind and has
always been considered as the most heinous of offences. But then, not all
cases of homicide are culpable as all systems of law do distinguish between
lawful and unlawful homicides.1 Further, with the growth of the concept of
criminal responsibility, the laws of most countries admit gradations of
unlawful homicides according to their heinous nature in order to fix suitable
punishment for each. These distinctions are recognized by the Indian Penal
Code as well. Under the Penal Code punishable homicide may be murder,
culpable homicide not amounting to murder or only homicide by rash and
negligent act. Further in some cases the accused may be punished for a
lesser offence (e.g., hurt) even though death has resulted, if the injury
resulting in death though voluntarily caused was not likely to cause death.
For example, A gives B a blow and B, who suffers from an enlarged spleen
of which A is not aware, dies as a result. A is not guilty of culpable homicide
as his intention was merely to cause an injury that was not likely to cause
death. 2
II
The difference between murder and culpable homicide not amounting to

murder is based upon very subtle distinction of intention and knowledge
involved in these crimes. Intention is a state of mind and it can be proved
only by its external manifestations. In several cases intention to kill was held
to be evident from the facts. When injuries inflicted on vital parts of the
body with sharp edged instruments, the intention to kill was held to be
proved. 3 So also, when a person sets fire to the deceased, after another had
1. Under the Indian Penal Code homicide is excusable when it is governed by the
following general exceptions in Ch. IV of the Code : Mistake of Fact (Ss. 76, 79),
Accident (S. 80), Infancy (Ss. 82-83), Insanity (S. 84), Intoxication (Ss. 85-86) and it
is justifiable when governed by the following general exceptions: acts obligatory or
justifiable according to law (Ss. 76-79), choice of evils (S. 81), Consent (Ss. 88, 89, 92
excluding cases of intentional causing of death), compulsion by threats (S. 94
excluding the case of murder), and Private defence (Ss. 100, 103).
2. R. v. Fox (1879) 2 All. 522.
3. Chahat Khan v. State ofHaryana, AIR 1972 SC 2574; Prabhu v. State ofMP, (1991) Cr
LJ 1373 (SC).
HOMICIDE 293
poured kerosene on his body, there cannot be any doubt that the intention
of the accused was to kill the deceased.4 Similarly, when an accused hit the
deceased on a vital part of the body, the chest, with the blade of a sword-
stick, two feet in length with such force as to impair the liver and the aorta,
it was held that the intention was to kill and the offence was plainly one of
murder. 5 In another case, the accused on seeing the deceased said that he
was searching for him everywhere and stabbed him with a knife, and
especially when the knife which was drawn downwards as if to cut the body
into two, it was held that the intention to kill the deceased was very clear
from the facts.6
The accused pierced a sharp edged weapon in the heart of the deceased
and uttered words of 'doing away with the deceased' before the commission
of the crime, it was held by the Supreme Court that the intention to kill can
be inferred. 7 In the cases, where evidence showing premeditation might be
forthcoming in such cases courts may not have difficulty in establishing
intention, for example, if there was previous enmity between the accused
and the deceased it is easy to establish intention. In one case the accused
drove his jeep on the wrong side and towards the deceased in high speed,
knocked him down and ran over him, killing him. The Supreme Court
found that the accused had deliberately dashed his jeep against the accused
and ran over him with' the intention to cause his death.8
Knowledge and intention suggest existence of positive mental attitude. 9
Both can go together but are different from each other. There may be an
intention without knowledge and knowledge without intention. Knowledge
is an awareness of the consequences of an act. 10 The demarcating line
between knowledge and intention is thin but it is not difficult to perceive
that they connote different things. 1 1 Knowledge is a strong word and
imports a certainty and not merely a probability. 12
Although much legal ingenuity has been expended in differentiating
between these offences the differences are none too precise and clear. The
4. Bandampalli Vendateswarlu v. State ofAP, 1975(3) SCC 492 at 494.

5. Rau Bhagwanta Hargude v. State ofMaharashtra, AIR 1979 SC 1224; 1979 Cri LJ (SC)
1022.
6. Selvaraj v. State of 77V, 1998(9) SCC 308; 1998 SCC (Cri) 1009.
7. Katta Ramudu v. State ofAP, AIR 1997 SC 2428.
8. Vasanth v. State ofMaharashtra, AIR 1998 SC 699; 1998 Cri LJ 844.
9. See Hemraj v. State, AIR 1990 SC 2252; A N Chandra v. State of UP, 1990 (Supp) SCC
717; Bhagubhai Manilal v. State of Gujarat, AIR 1996 SC 2555; Lahhu Ram v. State of
Punjab, 1995 SCW 172; 1996 Cri LJ 399.
10. ]ayaraj v. State ofTN, AIR 1976 SC 1519; Sachidanand Banerjee v. Sita Ram Agarwala,
AIR 1966 SC 955.
11. Basdev v. State ofPepsu, AIR 1956 SC 488.
12. Ramjolaha v. Emperor, AIR 1927 Pat 406.
294 ESSAYS O N THE INDIAN PENAL CODE
probability of the result of an act is an important matter for the court to

consider and can be critical in their determining whether the result was
intended.
The greater the probability of a consequence the more likely it is that
the consequence was foreseen and that if that consequence was foreseen the
greater the probability is that consequence was also intended.
Where a man realizes that it is for all practical purposes inevitable that
his actions will result in death or serious harm, the inference may be
irresistible that he intended that result, however little he may have desired or
wished it to happen.
Taking note of this the Supreme Court observed: "The academic
distinction between "murder" and "culpable homicide not amounting to
murder" has always vexed the courts. The confusion is caused, if courts
losing sight of the true scope and meaning of the terms used by the
legislature in these sections, allow themselves to be drawn into minute
abstractions. The safest way of approach to the i n t e r p r e t a t i o n and
application of these provisions seems to be, to keep in focus the key words
used in the various clauses of Ss. 299 and 300." 13 That is perhaps why
Stephen described the definitions of murder and culpable homicide as the
weakest part of the code. 14 The vagueness of their difference is considered
a major defect of the Penal Code. 15 In the original draft the Penal Code
prepared by Lord Macaulay and his colleagues the treatment of the subject
was very simple. Section 294 of the draft read "whoever does any act or
omits what he is legally bound to do, with the intention of thereby causing
or with the knowledge that he is likely thereby to cause the death of any
person and does by such act or omission cause the death of any person is
said to commit the offence of "voluntary culpable homicide". Under Sec.
295 of the draft, voluntary culpable homicide was murder unless it came
under three specified mitigated descriptions, i.e. when it was committed on
grave and sudden provocation, when it was committed in excess of the right
13. Ruli Ram v. State ofHaryana, (2002) 7 SCC 691, para 8; State of UP v. Virendra Prasad,
(2004) 9 SCC 37 at 42. See also State ofAP v. Rayavarapu Punnayya, (1976) 4 SCC 382;
Abdul WaheedKhan v. State ofAP, (2002) 7 SCC 175.
14. Stephen, History ofEnglish Criminal Law, vol. IH pp. 313-14.
15. See Govindarajulu, "Some aspects of the law of Homicide", M.L.J. (1941) p. 91 at
94. As the learned writer points out, such vagueness and the consequent uncertainty
were sought to be avoided by the Law Commissioners who prepared the first draft.
The Commissioners said "There are two things which a Legislator should always
have in view while he is framing laws: The one is that they should be as far as
possible precise; the other that they should be easily understood .... A loosely
worded law is no law, and to whatever extent a legislature uses vague expressions, to
that extent it abdicates its functions, and resigns the power of making law to the
courts of justice."
HOMICIDE 295
of private defence16 as limited by law, and when it was committed with the
consent of the victim. But there was an attempt in a Code prepared by the
Government of India in 1851, it would appear, to state the law in the
technical terms of the English law. 17 In that Code S. 328 defined murder
thus: "Whoever maliciously kills any other person commits murder"; S. 331
ran "Whoever otherwise than maliciously or by mischance kills any other
person being neither a convict lawfully put to death in execution of a lawful
sentence nor a person lawfully killed in war or in exercise of the right of
defence c o m m i t s man-slaughter." The succeeding sections defined
"Extenuated manslaughter" and "Justified man-slaughter". However, finally
the original draft provisions were enlarged considerably and enacted in their
present form. Section 299 of the Penal Code as it now stands, defines
culpable homicide thus: "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. 18
Section 300 defines murder thus: "Except in the cases 19 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
16. See Nathan v. State ofMadras, AIR 1973 SC 665; 1973 Cri LJ 608; Onkarnatb Singh v.
State of UP, AIR 1974 SC 1550; 1974 Cri LJ 1015, MdMSHameed v. State ofKerala,
AIR 1980 SC 108; Mohinder Pal Jolly v. State ofPunjab, AIR 1979 SC 577; 1979 Cri LJ
584; Hansa Singh v. State ofPunjab, AIR 1977 SC 1801; 1977 Cri LJ 1448; Dattu Genu
Gaikward v. State ofMaharashtra, AIR 1974 SC 387; 1974 Cri LJ 446; In Mannam
Balaswamy v. State ofAP, AIR 1980 SC 44S;Franscis alias Panna v. State ofKerala, AIR
1974 SC 2281; 1974 Cri LJ 1310 (SC).
17. See Rust, Hurt and Homicide, (3rd edn.) p. 45.
18. The following three explanations are given:
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 of that other,
shall be deemed to have caused his death.
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 skillful treatment the death might have been prevented.
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.
19. The excepted cases are (i) homicide under provocation, (ii) homicide by an act done
in excess of the right of self -defence (iii) homicide by a public servant in discharge
of a duty by acts which he believes to be necessary but which are not so in reality (iv)
homicide upon a sudden quarrel (v) homicide by consent of a person over 18 years
of age.
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." The second clause of S. 299 (Intention to cause such
bodily injury as is likely to cause death) as will be seen is an addition and
consequent on it, clause 2 and 3 of S. 300 have become necessary, clause 4
of S. 300 is new. Two further exceptions, exceptions 3 and 4 to S. 300 are
new. The words "or omits what he is legally bound to do" in the original
draft are omitted and a general provision covering illegal omissions (S.32)
added. The new clauses creating more degrees of homicide and defining
fresh extenuating circumstances seem to have been added by Princep, a
Judge of the Calcutta Supreme Court between 1837 and 1851.20 "Except in
cases hereinafter excepted" means that culpable homicide is not murder if
the case falls within any of the exceptions. This has been endorsed by
Supreme C o u r t . 2 1 Culpable homicide is not murder when the case is
brought within the five exceptions to S. 300, IPC. But even though none of
the said five exceptions are pleaded or prima facie established on the evidence
on record, the prosecution must still be required under the law to bring the
case under any of the four clauses of S. 300, IPC. 2 2 The apex court has
clarified that the manner of causing injuries, the nature of the injuries, the
part of the body where they were inflicted, the weapon used and the
conduct of the accused are relevant factors in determining whether the
offence committed is one of murder or culpable homicide not amounting to
murder. 23
Ill
If there is no chance of proving one of the exceptions to S. 300, the simple

question that arises is whether S. 299 or S. 300 will apply to a given case.
Some have been maintaining the view that there is no offence of culpable
homicide not amounting to murder save that which arises from the
application of the exceptions to S. 300.24
20. See Alan Gledhill, "Recent Developments in the Law of Homicide in England",
Jaipur Law Journal 1961, at 2.
21. Kishore Singh v. State ofMP, AIR 1977 SC 2267.
22. Id. at 2269-70.
23. Karu Masik v. State of Bihar, 2001 Cri LJ 2615.
24. Kemp., J in Pooshoo v. Emperor, 1865, 4 W.R. Cr. 33; Wazir Hussain, J., in Ramlal v.
Emperor, I.L.R. 3 Luck 244. Macknay, J, in King v. Aung Nyun, 1940 Rang. 441; Sir
John Beaumount said in his evidence before the Royal Commission:
HOMICIDE 297
Perhaps one of the reasons for this view is the belief that in India, as in
England, every homicide is murder unless the accused proves some
mitigating circumstance to reduce it to a man-slaughter. But as pointed out
by Lord Sankey in Woolmington v. Director of Public Prosecutions,25 this is
certainly not the law in England. There, as in India, it is for the prosecution
to establish beyond doubt the prescribed metis rea for murder (i.e., malice
aforethought). The generally accepted view is, however, that S. 299 and 300
are distinguishable 2 6 on the basis of the mens rea specified and that
exceptions apart, every case of culpable homicide is not necessarily murder.
In fact, in many cases the accused have been acquitted of the charge of
murder and convicted of the offence of culpable homicide not amounting to
murder although there was no question of the applicability of any of the
exceptions to S. 300; the decisions were based on the "fine but appreciable"
distinction between Ss. 299 and 300. 27 In the scheme of the Penal Code,
'culpable homicide' is genus and murder its specie. All murder is culpable
homicide but not vice versa.n Culpable homicide is defined in S. 299 and
m u r d e r is defined in S. 300 of the IPC. Speaking generally, culpable
homicide 'sans' 'special characteristic of murder' is 'culpable homicide not
amounting to murder'. The Supreme Court has reaffirmed this distinction in
many of its decisions. 29
IV
Section 304 3 0 which provides punishment for culpable homicide not

amounting to murder repeats the expressions as to mens rea stated in S. 299.
"It is quite unnecessary to put in that further description of culpable

homicide in S. 300. It always seemed to me, that culpable homicide as
defined in S. 299 is murder unless it comes within one of the exceptions in
S. 300". See Report ofthe Royal Commission on "Capital Punishment" (1949-53)
Cmd. 8932, p.439. Stephen thought it difficult though perhaps not
impossible to suggest any case of culpable homicide, other than the five
excepted cases, which is not murder. See Stephen, History of Criminal Law,
vol. Ill pp. 314-15.
25. 1935 A.C. 462.
26. "Nothing is commoner than the ordinary mistake (that) unless the act is covered by
one of the exceptions to S. 300 culpable homicide is murder", Mayne, The Criminal
Law ofIndia, (4th edn.) p. 478, See Reg. v. Govinda, 1 Bom. 342 for the distinction. See
also Hyam v. Director ofPublic Prosecution, (1975) AC 55: [1974] 2 ER 41 (HL).
27. E.g., Reg. v. Govinda, 1 Bom. 342. InderSingh-v. The Crown of lOLah. 477.
28. State ofA.P. v. R. Punnayya, AIR 1977 SC 45.
29. Dhupa Chamarv. State of Bihar, (2002) 6 SCC 175; Abdul Waheed Khan v. State of A.
P., (2002) 7 SCC 175. See also Hukum Chand v. State ofHaryana, (2002) 8 SCC 421;
Gopal v. State ofU.P., (2002) 9 SCC 744; Patel Hiralal Joitaram v. State of Gujarat, (2002)
1 SCC 22.
30. "Whoever commits culpable homicide not amounting to murder shall be punished
with imprisonment for life or imprisonment of either description for a term which
But S. 304 is also applicable in cases where, though the mens rea of the higher
type specified in S. 300 is present, the exceptions to S. 300 also apply.
Sometimes a judge while sentencing an accused under Section 304 not
merely relies on one of the exceptions but also on the fact that the mens rea
is of the lower type m e n t i o n e d in S. 299. 3 1 The application of the
exceptions implies that notwithstanding that the act is done with the mens rea
specified in S. 300 the offence is still culpable homicide not amounting to
murder and at the same time there is the finding that the mens rea is of the
lower type mentioned in S.299. This leads one to doubt whether in such
cases any effort has been made to determine the specific intention or
knowledge actually present and it tends to obscure the distinction referred
to in the previous paragraph. For the purpose of awarding punishment,
p r o p o r t i o n a t e to the gravity of the generic offence, IPC practically
recognizes 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 S. 300 as 'murder'. The second may
be termed as "culpable homicide of the second degree". This is punishable
under the first part of S. 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 S. 304. 3 2 Section 304 Part II shows that the accused
concerned can be charged under that provision for an offence of culpable
homicide not amounting to murder. However, before any charge under S.
304 Part II can be framed, the material on record must at least prima facie
show that the accused is guilty of culpable homicide and the act allegedly
committed by him must amount to culpable homicide.33 In Sukhdev Singh v.
Delhi State?* an altercation ensued between the appellant (accused) and the
deceased after the accused objected to the parking of the vehicle near the
gate of his employer. In the altercation that followed by a scuffle the
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."
31. Chamru Badhwa v. The State, 1954 Cr LJ 1676, Thommen Thomas v. The State, 1957 Cr.
LJ 635.
32. State ofA.P. v. R. Punnayya, AIR 1977 SC 45; Ruli Ram v. State ofHaryana, (2002) 7
SCC 691, para 7; Dhupa Chamarv. State of Bihar, (2002) 6 SCC 175; Abdul Waheed
Khan v. State ofA.P., (2002) 7 SCC 175; State of UP v. Virendra Prasad, (2004) 9 SCC
37.
33. Keshub Makindra v. State ofMP, (1996) 6 SCC 129 at 156. See also Soni v. State of
Gujarat, (1991) Cr LJ 330 (SC); Randhir Singh v. State ofPunjab, AIR 1982 SC 55.
34. (2003)7 SCC 441.
HOMICIDE 299
accused appellant took out his pistol and fired at the deceased. After the
first bullet missed the target he fired again. The high court held that since
there was n o e n m i t y between the t w o and everything happened in
altercation and consequent scuffle, Exception 1 to S. 300 IPC was
applicable. The Supreme Court held that the high court was not justified in
holding that Exception 1 to S. 300 IPC was applicable. The said exception
deals with homicide committed in the heat of passion or by way of sudden
provocation. The test of grave and sudden provocation is whether a
reasonable man belonging to the same class of society as the accused, placed
in the situation in which the accused was placed would be so provocated as
to lose self control. 35 In the present case gunshots were not held to be the
result of grave and sudden provocation. The case was covered by Exception
4 to S. 300 instead of Exception 1 to S. 300. The apex court altered the
conviction to S. 304 Part II from 304 Part I.
Likewise, a jumbled reference 36 to the different clauses of S.300 without

indicating which of them is applicable, while distinguishing between Ss. 299
and 300 tends to blur the distinction further. For example in William Sidney
v. State ofMadhya Pradesh?7 following a heated exchange of words between
the accused and the deceased, the accused slapped the deceased on the
cheek. The deceased lifted his fist. The accused gave one blow on the head
of the deceased with a hockey stick with the result that the skull was
fractured. The deceased died in the hospital 10 days later. The accused was
convicted under S. 304 Part II (which deals with homicide committed with
knowledge of the likelihood of death resulting from the act). Since the
exceptions to S. 300 were not invoked the discussion should have centered
round the distinction between clause (4) of S. 300 and clause (3) of S. 299
but one finds that all the clauses are loosely expressed and discussed.
Chandrasekara Aiyar, J observes "It is obvious that the appellant did not
intend to kill the deceased. The evidence of the doctor is that the injury was
likely to result in fatal consequences. This by itself is not enough to bring
the case within the scope of S. 300. There is nothing to warrant us to
attribute to the appellant knowledge that the injury was liable to cause death
or that it was so imminently dangerous that it must in all probability cause
death. The fact that Donald lived for ten days shows that it was not
sufficient in the ordinary course of nature to cause death. The elements
35. Id. at 447.

36. State v. Bhairu Sattu Bherad, AIR 1956 Bom 609, Charan Singh v. The State, AIR 1959
All 255, W. Slaney v. State ofMadhya Pradesh, AIR 1956 SC 116, Gahbar Pande v.
Emperor, 7 Part 638.
37. AIR 1956 SC 116.
300 ESSAYS ON THE INDIAN PENAL CODE
specified in S. 300 of the Indian Penal Code are thus wanting. We take the
view considering all the circumstances that the offence is the lesser one".
There is a jumble of clauses 3 and 4 of S. 300 and clause 3 of S. 299 apart
from the use of the expression 'liable to cause death', which is nowhere
found in the C o d e . The sentence italicized w o u l d render b o t h
S. 300 clause 4 and S. 299 clause 3 inapplicable and the conviction then
becomes unsupportable while the reference to the injury not being sufficient
in the ordinary course of nature to cause death is out of place.38 Clause 3 of
S. 299 and 4 of S. 300 apply to cases in which there is no intention to cause
death or bodily injury. Furious driving, firing at a mark near a public road,
would be cases of this description. Whether the offence is culpable
homicide or murder depends upon the degree of risk to human life. If death
is a likely result, it is culpable homicide if it is most probable result, it is
murder. 39
VI
The first clause of S. 300 provides that it is murder if the offender had the
intention of causing death. What is required is a finding as an actual fact that
the accused desired to cause death whether as an end in itself or as a means
to something else.
It is difficult to appreciate the difference between culpable homicide not
amounting to murder and murder unless one keeps in mind the meaning and
import of the word "intention" as used in the Code and its purposeful
separation from mere knowledge of the likelihood of the consequences.
'Intention' in the code is a specific and distinct state of mind which ought
not to be mixed up with the other states of mind provided for in the Code.
The Code recognize besides 'intention', 'knowledge of the likelihood of the
consequence', 'reason to believe the consequence to Be likely' and 'rashness
and negligence' as mens rea which will attract responsibility.
In the civil law responsibility for injury is determined by the well-known
fore-knowledge test which fixes liability if the injury was actually foreseen or
if it would have been foreseen by an average reasonable person in the
position of the wrongdoer. The basis of the test is the maxim that 'every
man is presumed to intend the natural consequences of his act'. N o w this
intention imputed to the wrongdoer is very different from the intention of the
Code for it includes besides the intention of the Code, the other three states
of mind as well. In other words intention under the Code is but a fraction of
'intention' referred to in the maxim. Further, intention under the Code has
to be determined as a fact, the enquiry being purely subjective whereas
38. See further the judgment of Bose, J in the same case who refers to clauses 2, 3 and 4
of S. 300 in a diffused manner, the clauses being not accurately stated.
39. Melville, J in R v. Govinda , ILR (1876) 1 Bom 342.
HOMICIDE 301
according to the maxim it is a fiction of the law. On the other hand, in

England the much discussed decision of the House of Lords in Director of
Public Prosecutions v. Smith40 has adopted the objective test in determining
intention. Such a criterion would be wholly out of place under the Code.
Nevertheless it is not unusual for judges to rely on the maxim to determine
intention under the Code.
The interpretation of the other clauses of S. 300 is by no means simple
and the following are noticeable conflicts in the matter of interpretation.
(1) S. 300 clause 2 reads '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 w h o m the harm is caused." The stress is on the offender's
knowledge (which is a purely subjective consideration) of the likelihood of
death resulting to the victim. One view is that this clause deals with cases
where the injury that is intentionally inflicted is known to be likely to cause
the death of the particular victim to whom it is caused by reason of the
victim's physical infirmity (e.g. enlarged spleen), or peculiarity of the
constitution known to the offender and that it does not cover cases where
the injury is known to be likely to cause the death of a normal person. 41
Another view is that the words of the Section are wide enough to include
the causing of death of a normal individual i.e., if the bodily injury intended
is such as is known to be likely to cause the death of the particular person
normal or abnormal to whom the harm is caused. 42 Even if this view is
conceded, S. 300 clause (2) can be applied only to those cases where the
court can safely conclude that the accused knew that he was likely to cause
the death of the particular (normal) person killed. The intention to cause
bodily injury is common to S. 299 clause (2) and S. 300 clause (2) and the
40. 1960 3 W.L.R. 546; For a critical appraisal of this ruling see Sir Cyril Salmon "The
Criminal Law Relating to Intent" Current Legal Problem; 1961 p.l.
41. See Ratan, 'Culpable Homicide'pp. 55-56 where emphasis is laid on the expression "the
person to whom the harm is caused" Aung Nyun v. R, AIR 1940 Rang. 259 (F.B.);
Waryam Sher Mohammed v. Emperor, AIR 1938 Lah.834, Behari and Others v. The State,
AIR 1953 All. 203. Chacko v. State ofKerala, (2004) 12 SCC 269 at 275.
42. See Govindarajulu : Some Aspects of the Law ofHomicide, 1941MLJ 91, at pp. 105-6; In
Inder Singh v. The Emperor, 10 Lah 477 referring to S.300 cl. (2) it is observed "It has
therefore ordinarily been applied to those cases where the offender has special
knowledge of facts or circumstances whith make the act done particularly dangerous
to the life of the person to whom that harm is done. Thus if A knows that B is
suffering from an enlarged spleen and B dies the offence comes within cl.2 of S.300
and not within S.299 because of the special knowledge of A. I do not propose to lay
down that this is only class of cases which is covered by cl.2 of S.300 but this is the
commonest type of cases falling under S. 300 cl. (2)." In the following cases S. 300
cl. (2) has been applied without any advertence to any peculiarity in the constitution
of the victim. Ghurey and Another v. Rex, 50 Cr LJ 353; Emperhr v. Ratan, AIR 1932
Oudh 186; Kelu Ayyappan v. The State, AIR 1959 Kerala 230; Bahadvin v. Emperor AIR
1927 Lah. 63.
only difference between them is that under the latter there should also be
the knowledge that the injury is likely to cause the death of the person to
whom the injury is caused. As this additional element of knowledge is sub
jective, it should be inferred from the evidence as a matter of fact and
should not be imputed to the accused. S. 300 clause (2), then, really appears
to be a combination of clause (2) and clause (3) of S. 299,43 which from the
stand point of responsibility is equated with an intention to cause death and
hence liability for murder. While considering the circumstantial evidence
regarding homicidal fact the Supreme Court laid down that though witnesses
may lie, but circumstances will not, but at the same time it must cautiously
be scrutinized to see that the incriminating circumstances are such as to lead
only to a hypothesis of guilt and reasonably exclude every possibility of
innocence of the accused.44
(2) Section 300 clause (3) reads "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." 45
This clause is distinguishable from clause (2) of S. 299 on the basis of
the higher degree of probability of death resulting from the injury denoted
by the expression 'sufficient in the ordinary course of nature to cause death'.
Prof. Alan Gledhill considers the distinction between an injury likely to
cause death artificial and observes "In many cases the result of a trial must
turn on the medical evidence and a man's life may depend upon the
unchallenged opinion on the nature of an injury, given by a not over-
competent member of the subordinate medical service who has performed
a casual autopsy." 46 These clauses, clause 2 of S. 299 and cl. 3 of S. 300, are
not only difficult to understand in the abstract but lead to considerable
arbitrariness in their application to any given case.
The distinguishing feature of the mens rea requisite under clause (2) of
S. 300 is the knowledge possessed by the offender regarding the particular
victim being in such a peculiar condition or state of health that the internal
harm caused to him is likely to be fatal, notwithstanding the fact that such
harm would not in the ordinary way of nature be sufficient to cause death of
a person in normal health or condition. 4 7 It is n o t e w o r t h y that the
43. See Rakiman Ismail v. R., AIR 1939 Lah. 245.

44. Joseph v. State ofKerala, (2000) 5 SCC 197 at 203.
45. See Rajwant Singh v. State ofKerala, AIR 1966 SC 1874. See also Augustine Saldanha v.
State ofKarnataka, (2003) 10 SCC 472; State of UP v. Virendra Prasad, (2004) 9 SCC 37;
State ofAP v. Rayavarapu Punnayya, (1976) 4 SCC 382 ; Abdul Waheed Khan v. State of
AP, (2002) 7 SCC 175.
46. See Prof. Alan Gledhill "The Indian Penal Code in the Sudan and Northern Nigeria''Year
Book of Legal Studies 1960, Department of Legal Studies, Madras, p. 17.
47. Augustine Saldanha v. State ofKarnataka, (2003) 10 SCC 472 at 478; Chacko v. State of
Kerala, (2004) 12 SCC 269 at 275.
HOMICIDE 303
"intention to cause death" is not an essential requirement of clause (2). Only

the intention of causing the bodily injury coupled with the offender's knowl
edge of the likelihood of such injury causing the death of the particular
victim, is sufficient to bring the killing within the ambit of this clause. 48
Clause 2 of S. 299 does not postulate any such knowledge on the part of the
offender. The difference between clause 2 of S. 299 and clause 3 of S. 300 is
one of degree of probability of death resulting from the intended bodily
injury. To put it more broadly, it is the degree of probability of death which
determines whether a culpable homicide is of the gravest, medium, or the
lowest degree. The word "likely" in clause 2 of S. 299 conveys the sense of
probable as distinguished from mere possibility.49
(i) The view has been expressed in interpreting the third clause of
S.300 that not only should the injury be intentionally inflicted but
that the accused should have further intended that it should be
sufficient in the ordinary course of nature to cause death. 50 This
would convert the clause into one of intention to cause death i.e.,
clause 1 of S. 300. It is not possible to see how "intention to cause
bodily injury intended to be sufficient to cause death" is different
from intention to cause death. 51
(ii) Another view is that if any serious injury is intentionally inflicted
and that injury actually caused death; it is to be regarded as
sufficient in the ordinary course of nature to cause death; the case
would fall under clause 3 of S. 300.52
(iii) The proper view to take is that the bodily injury suffered by the
deceased and found sufficient to cause death should be actually
48. Augustine Saldanha, ibid.

49. Id. at 479.
50. Roberts, CJ in King v. Abor Ahmed, AIR 1937 Rang. 396; Aung Nyun v. The King AIR
1940 Rang. 441. Manohar Pershad, J., in Mahanandi Reddi in re: (1960) 1 An. W.R. 313
observed, "Section 300 would apply if it were possible to go a step further and say
that the offender intended the injury to be sufficient in the course of nature to cause
death or knew that in the special circumstances of the case, not death merely but the
death of the particular person to whom the injury was caused was likely. If he knew
that, he had knowledge from which the intention to cause the death of such a
person could be inferred." This view has, however, been disapproved of recently in
1962 1. An .W.R. 84 Public Prosecutor v. Veeraiah as being opposed to the view of the
Supreme Court in Virsa Singh's case, AIR 1958 SC 465.
51. See Rahiman Ismail v. R., AIR 1939 Lah. 245.
52. In Public Prosecutor v. Koramutla Narasingadu, 1937 (2) M.L.J. 490 Horwill, J., said
"Having found that the accused had voluntarily caused grievous hurt, the learned
judge really found for the prosecution most of the ingredients necessary for murder.
Now if the assailant causing any grievous hurt, intended to cause that grievous hurt
then undoubtedly under Sec. 300(3) he would be guilty of murder for in the words of
that Section he would have intended to cause bodily injury and the bodily injury
ESSAYS OF INDIAN PENAL CODE
intended by the offender. Whether the injury intended by the

accused and actually caused is sufficient in the ordinary course of
nature to cause death or not must be determined objectively as a
question of fact. In Virsa Singh v. The State53 the Supreme Court
observes "To put it shortly, the prosecution must prove the
following facts before it can bring a case under S.300 "thirdly";
First, it must establish quite objectively that a bodily injury is
present; secondly the nature of the injury must be proved; these are
purely objective investigations. Thirdly, it must be proved that there
was an intention to inflict that particular bodily injury that is to say,
that it was not accidental or unintentional, or that some other kind
of injury was intended. Once these three elements are proved to be
present, the enquiry proceeds further; and fourthly it must be
proved that the injury of the type just described made up of the
three elements set out above is sufficient to caus.e the death in the
ordinary course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with the intention of
the offender." In State of UP v. Virendra Prasad5* the court observed
"the test laid down by Virsa Singh case55 for the applicability of
clause "thirdly" is now ingrained in our legal system and has
become part of the rule of law...[E]ven 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 offence would be murder. 5 6
Though it is thus emphasized that the accused's anticipation of the
nature of the consequences is immaterial sometimes we find that
the knowledge of the accused as to the injury being sufficient in the
ordinary course of nature to cause death considered as being
material. Prof. Alan Gledhill after referring to clause 3 and clause 2
intended to be inflicted was sufficient in the ordinary course of nature to cause

death. One can, however, be guilty of grievous hurt without intending if he knows
the hurt to be likely but a person is considered to intend the probable consequences
of his act and a person who hits another man on the head with such a force as to
cause a complicated fracture of the kind actually caused here must be considered to
have intended such bodily injury as would be sufficient in the ordinary course of
nature cause death." See Baijiba v. Emperor, 18 Cr LJ 1010; See also Ratan, Culpable
Homicide pp. 40-42.
53. 1958 Cr LJ 818; See also Rehman v. Emperor, AIR 1939 Lah. 245; Naga Khwet v. The
King, AIR 1941 Rang. 319. Faquira v. State, AIR 1955 All. 321. Thannoo v. The State,
AIR 1959 All. 131.
54. (2004)9 SCC 37.
55. Supra note 53.
56. Supra note 43 at 45.
HOMICIDE 305
of S. 300 observes "... why, in the case of a victim of normal

health and strength, should the knowledge of the consequences of
the injury intended to be caused be irrelevant, if it is essential when
death is caused to a person suffering from bodily disease or
infirmity? Why, again, when the victim is a person of normal health
and strength must the intended injury be sufficient in the ordinary
course of nature, when intention to cause injury likely to cause
death is enough, if it is caused to an infirm person?" 57 Again, in
some cases, knowledge of the accused that the injury is sufficient in
the ordinary course of nature to cause death is discussed while
applying S. 300 clause 3. 58 Knowledge of the accused can only be
relevant under S. 300 clause 2 but not under S. 300 clause 3. From
the above it is clear that the minute sub-divisions of the state of
mind leads to practical difficulties. Further, the presumption as to
intention and knowledge, sometimes, is scarcely more than a
speculation in the absence of anything in the evidence to disclose
the actual mental condition of the accused. This clause has probably
been introduced by the framers of the code so that persons in
whose cases it may be difficult to prove an absolute intention to kill
may not escape liability.59
(3) Section 300 clause (4) reads "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." This is a good illustration of tautology and the artificial nature of
the criteria laid down". 60 It will be sufficient to say that clause 4 of S. 300
would be applicable where the knowledge of the offender as t o the
57. The Indian Penal Code in the Sudan and Northern Nigeria, Year Book of Legal Studies
(1960) p. 17. See also Varkey Joseph v. State ofKerala, AIR 1960 Ker. 301 Nanhu v. The
State, AIR 1956 M.B. 207. See also Prakash Chand v. State of HP, (2004)11 SCC 381.
5 8. Public Prosecutor v. Ramaswamy Nadar, 1940 (5) M.L.J. 92. Nga Ohu Pe v. The Emperor,
38 Cr LJ 52; and Nga Bau v. The Emperor, 39 Cr LJ 217.
59. See Ratan' Culpable Homicide' p.62.
60. Prof. Alan Gledhill remarks: "Knowledge of a probability of a likelihood envisaged
by the second alternative is a concept which would stagger a grammarian and
logician and the cases held to come within this clause usually ignore it basing the
decision on the first alternative, though the section itself appears to put knowledge
of moral certainty and knowledge of a likelihood on the same footing", Prof. Alan
Gledhill op.cit. p. 17; Fitz Gerald remarks: "The Indian Law of murder in (b), (c), (d)
of S. 300 is universally admitted to be complicated. In an extreme case the Court may
be called upon to find S. 300 clause 4 whether the mind of the accused contained the
certainty of a present risk of a probability of a likelihood". The Reform of the Law of
Murder - Current Legal Problems. (1949) p.37.
probability of death of a person or persons in general as distinguished from

a particular person or persons - being caused from his i m m i n e n t l y
dangerous act, approximates to a practical certainty. Such knowledge on the
part of the offender must be of the highest degree of probability, the act
having been committed by the offender without any excuse for incurring the
risk of causing death or such injury as aforesaid. 61 The Supreme Court
opined that it would be simpler to place reliance on clause 4 to S. 300
because it contemplates only 'knowledge' and no intention. The court held
that though generally the clause is invoked where there is no intention to
cause the death of any particular person, the clause may on its terms be used
in those cases where there is such callousness towards the result, and the
risk taken is such that it may be stated that the person knows that the act is
likely to cause death. In the present case, when the accused poured kerosene
and set fire to his wife, he must have known that the act will result in her
death. As he had no reason for incurring such risk, the offence was held to
fall within clause 4 of S. 300 and would be culpable homicide amounting to
murder. 62
(i) There is a conflict of opinion as to whether this clause applies to a
case in which death has been caused by an act committed with
reference to a particular person. 63 Such a restricted interpretation
of S. 300 clause 4 would mean that cases where the accused
commits an act directed against a particular person with the
knowledge that it is so imminently dangerous that it must in all
probability cause death or such bodily injury as is likely to cause
death without any excuse are not covered either by clause 4 or
clauses 1, 2 and 3 because in such cases the injury is n o t
intentionally caused. As S. 300 is exhaustive, this will mean that the
authors of the Code have failed to provide for such a case.
(ii) In the next place with reference to the operation of the exceptions
to S. 300 an anomalous position seems to exist while construing
S. 300 clause 4. Referring to this a learned commentator observes:
"The operation of the five exceptions to S. 300 is practically
somewhat different in respect to an act which falls within one of
the first three clauses of S. 300 and in respect to an act which falls
61. Chacko v. State ofKerala, (2004)12 SCC 269 at 277.

62. State ofMPv. RamPrasad, AIR 1968 SC 881. Sebaj Ram v. State ofHaryana, AIR 1983
SC614.
63. See Ratanlal, Law of Crimes (19th Edn.) p. 723 and Gour Penal Law of India (5th
edition) p. 988; Shwe Ein v. Emperor 3 Cr.LJ 355; Mahindralal v. Emperor, 38 Cr LJ 868;
For a contrary view see Ratan Culpable Homicide pp. 67-8; Faquira v. The State, AIR
1955 All 321; Garib v. Emperor^ AIR 1919 All. 445; and Parshaeli and Others v. The
Emperor, AIR 1929 All. 160.
HOMICIDE 307
within the fourth clause .... There is no inconsistency involved in

finding that an act falls within one of these clauses and also falls
within an exception, for all the circumstances of an exception may
co-exist with the murderous intentions. When, however, an act falls
within the fourth clause of S. 300, as regards the knowledge with
which it is done, and the circumstances constituting an exception
exist, there is this difference, it cannot consistently be affirmed (at
the end of a trial and upon all evidence) of an act causing death
done with the knowledge, described, in one breath that it was done
without any excuse of running the risk of causing death and in the
next breath that it was done under circumstances which the law
declares to be an excuse for the act of causing death to the extent
of preventing the culpable homicide amounting to murder ". M
To this may be added the further distinction that while the absence
of excuse under S. 300 clause 4 will have to be proved by the
prosecution, the presence of circumstances constituting the
exceptions must be proved by the accused.
(iii) Section 300 clause 4 being concerned with a wholly inexcusable act
of extreme recklessness, it is felt that there are too many gradations
in the categories of criminal negligence and that S. 300 clause 4 is
anomalous in its present context. 65 Clause 3 of S. 299 and clause 4
of S. 300 both require knowledge of the probability of the act
causing death. Clause 4 of S. 300 would be applicable where the
knowledge of the offender as to the probability of death of a person
or persons in general as distinguished from a particular person or
persons - being caused from his imminently dangerous act,
approximates to a practical certainty. Such knowledge on the part of
the offender must be of the highest degree of probability, the act
having been committed by the offender without any excuse for
incurring the risk of causing death or bodily injury.66
64. Ratanlal id. at 726. See also Rust, Hurt and Homicide (3rd Ed.) p. 81.
65. See Rust id. at 83. There is a further suggestion that S. 299 cl. (3) be amended. See
Ratan Culpable Homicide p..70.
66. Augustine Saldanha, supra note 47 at 480; Chacko, supra note 47. See also Tliankachan v.
State ofKerala, Cr. App No. 1068/2005, wherein the Supreme Court acquitted him of
the charges of murder of his son on whose leg he inflicted a chopper injury in a
drunken stage. His son died of excessive bleeding. The court found him guilty under
S. 304 Part II as he knew that the injury inflicted was likely to cause death.
308 ESSAYS OF INDIAN PENAL CODE
VII
Difficulties are occasionally encountered in the field of causation thus:

(A) In one series of cases, the accused strikes and k n o c k s d o w n the
deceased and believing the victim to be dead commits a further act with
a view to remove the traces of his original crime, but it is subsequently
established that the latter act alone caused death, 67 e.g. A strikes B on
the head with a stick and B falls down senseless. Believing B to be dead
A throws the body into the well. B dies due to the drowning and not
due to the initial assault. In such cases the courts have found it none to
easy to decide whether the accused is guilty of murder or not.
(i) One view is that the intention of the accused must be judged not in
the light of the actual circumstances but in the light of what he
supposed the circumstances to be and that it follows that a man is
not guilty of culpable homicide if his intention was directed only
towards what he believed to be a lifeless body. 68
(ii) Another view is that both under S. 299 clause (2) and S. 300 clause
3 the intention provided for is confined to 'bodily injury' and not
the 'death' and what attracts liability for murder is that injury should
be sufficient in the ordinary course of nature t o cause death,
entirely apart from intention or knowledge and as the subsequent
act causes such a bodily injury the offence is murder. 69 In Laxman
Kalu Nikalje v. State ofMaharashtra70 there was a quarrel between the
accused and the deceased and the accused whipped out a knife and
stabbed the accused on the chest near the shoulder. The stab injury
was not on a vital part of the chest, but since the knife cut the
artery inside, it resulted in death, the Supreme Court held that there
was no proof that the injury caused was the injury intended, as but
for the severing of the artery, death might not have ensued. It was
67. Khandu v. R. 15 Bom. 194 : Palani Goundan v. Emperor, (1919) 42 Mad. 547; Kaliappa
Goundan v. Emperor, 57 Mad. 158; Thavamani v. Emperor, 1943 (2) M.L.J. 13;
Chinnathambi in re: 1952 (2) M.L.J. 550; Lingaraj Das v. R,. 24 Pat. 131; Emperor v.
Dalusardar, 18 C.W.N. 1270; Emperor v. Khubi, 25 Cr LJ 703; Emperor v. Gajjan Singh,
32 Cr LJ 413.
68. Sadasiva Aiyar, J in Palani Goundan v. Emperor 42 Mad. 547; In re Chinnathambi 1952,
2 M.L.J. 550; Emperor v. Dalu Sardar, 18 C.W.N. 1270; Birdwood, J and Sergeant, CJ
in Khandu v. R , 15 Bom. 194. See also ThaboMeliv. The King, (1954) I.W.L.R. 228
and the criticism thereof in Russel on Crimes (Xlth Edition) at 62.
69. Napier, J in Palani Goundan v. Emperor, 42 Mad, 547; State ofMP v. Ram Prasad, AIR
1968 SC 881.
70. AIR 1968 SC 1390.
71. See also Jagrup Singh v. State ofBihar, AIR 1972 SC 952; 1972 Cri LJ 587, Hardev Singh
v. State ofPunjab, AIR 1975(3) SCC 731, Anda v. State ofRajasthan, AIR 1966 SC 148;
1966 Cri LJ 171; Gokul Parshram Patil v. State of'Maharashtra, AIR 1981 SC 1441.
HOMICIDE 309
held that the case would not fall under clause 3 of S. 300.
Accordingly, the accused was convicted under S. 304, IPC. 71
(iii) A third and better opinion from the commonsense point of view is
that if the accused began with the intention of causing death and if
the two acts committed by him so closely follow upon and are so
intimately connected with each other that they cannot be separated
but must both be ascribed to the original intention which prompted
the commission of those acts, the offence would be culpable
homicide. 72 "In these cases the accused intends to kill and does kill;
his only mistake is as to the precise moment of death and as to the
precise act that effects death. O r d i n a r y ideas of justice and
commonsense require that such a case shall be treated as murder. 73
But where the original intention is merely to cause hurt the offence
will not be culpable homicide but hurt simple or grievous as the
case may be.
(B) The problem of causation takes a different form in those cases in which
the accused intends to kill a certain person, but in fact kills another
towards whom he had no malice.74 Such cases will ordinarily fall under
S. 301 75 and the accused would be found guilty of murder. Also, S. 299
does not require that the accused should intend to kill any particular
person. This is clear from illustration (a) to S. 299 which reads : "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 thereby caused. Z believing
the ground to be firm treads on it, falls in and is killed. A has committed
the offence of culpable homicide." But complications arise when both
the person whom the accused intended to kill and a third person die as
a result of the criminal act, and also when the effect is not due merely to
the act of the accused but to the intervening acts of the deceased or
other third person. One view is that the accused should not be held
guilty of the death of those whose death was not intended by him and
72. Parsons, J in R. v. Khandu, 15 Bom. 194; at 200; Thavamani v. Emperor, 1943 2 M.L.J.
13; R. v. Khubi, 25 Cr LJ 703; Lingarajadas In Re, 24 Pat. 131; Thabo Meli v. The King,
(1954) 1 W.L.R. 288 and the criticism of that case at 60-62 Russel on Crimes Xlth
Edn. See Mayne The Criminal Law ofIndia, 4th Edn. 538.
73. Glanville Williams Criminal Law Edn. 2, p. 174.
74. In rejeoti 39 All. 161; In re: Suryanarayanamurthy, 22 M.L.J. 333. Gurmail Singh v. State
ofPunjab, AIR 1982 SC 1466.
75. Section 301 reads : "If a person, by doing anything which he intends or knows to be
likely to cause death commits culpable homicide by causing the death ofany person whose
death he neither intends nor knows himself to be likely to cause the culpable
homicide committed by the offender is of the description of which it would have
been if he had caused the death of the person whose death he has intended or know
himself to be likely to cause."
could have been foreseen by him as likely and that S. 301 is confined to
those cases in which one person alone dies and that not the one whose
death was intended. 76 It is also felt that a person's conduct should not
be held to be the cause of a consequence which would not result
without the intervention of another human agency. The other view is
that S. 301 should be applied to such cases. 77 It is difficult to be
categorical in these cases when the result is due to a series of causes. We
have to consider in each case the relative value and efficiency of the
different causes. In Kurien v. State o/Kerala7S the appellant was convicted
by the sessions judge, Ernakulam for an offence under S. 302 of the
Indian Penal Code, for causing the death of a baby aged eight months.
There was a verbal quarrel and mutual beating between PW1 and the
accused. The accused appellant had drawn knife and threatened to kill
PW1. Hearing the noise PW2, wife of PW1, came out of the house with
the baby in her arms and requested the accused not to create trouble.
The appellant retorted that he would kill her and aimed a stab at PW2.
The knife hit the baby on his head. The child died. The trial judge found
him to be guilty holding that the injury was on vital part and was
sufficient in the ordinary course to cause the death of the child. He was
convicted under S. 302 of the Indian Penal Code. On appeal the high
court held that no intention to kill the child could be proved, the
appellant's conviction cannot be sustained only on the basis of the
doctrine of transfer of malice embodied in S. 301 of the Indian Penal
Code. Therefore, appellant was held liable only under S. 326 of the
Indian Penal Code and hence sentenced to rigorous imprisonment for
three years. Similarly, in another case, there was an argument between
two parties B and G on the one hand and the accused on the other,
over cracking of some indecent jokes by the accused before B's wife.
The deceased T intervened to stop the two sides from fighting. The
accused raised a barchha to give a blow to B, which fell on the deceased,
of which he died. The session court convicted the accused under S. 302
IPC. When the matter reached the apex court, it held that the accused
had no animosity against the deceased. Even if transmission of malice
from accused to the deceased can be inferred, in view of the fact that
there is no evidence to show that the accused intended to cause the
injury he inflicted, his conviction was converted from S. 302 to S. 304
Part II, IPC. 79
Sometimes the facts are so intertwined and the second and the third
stages so telescoped into each other, that it may not be convenient to give a
76. Sundara Aiyer, J in Suryanarayanamurthy In Re, 22 M.L.J. 333.

77. Benson, J in ibid.
78. 1975 KLT 748.
79. In Qurmail Singh v. State ofPunjab, AIR 1982 SC 1466.
HOMICIDE 311
separate treatment to the matters involved in the second and third stages.80
The Supreme Court held that the connection between the primary cause and
the death should not be too remote. 81 The court further held that if the
supervening causes are attributed to the injuries caused, then the person
inflicting the injuries is liable for causing death, even if death was not the
direct result of the injuries.82
VIII
In the above paragraphs it was pointed out that where an offence satisfies
only the requirements of S. 299 and not those of S. 300, it would be culpable
homicide not amounting to murder and not murder. But even where the
offence amounts to murder the Code recognizes certain extenuating
circumstances which reduce it to culpable homicide not amounting to
murder. This is not something unique to the Code. Almost all the legal
systems provide for some mitigating factors. As already stated in the original
draft prepared by Macaulay, three exceptions were listed and subsequently,
two more were added to raise the total to five. The idea in providing these
exceptions is that the accused should not be made entirely responsible for
an offence that he was caused to commit by an external factor like
provocation. Exception I to S. 300 provide: "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 causes the death of any other person by mistake or accident.
In the original draft of the Code it was explained 83 that the provocation
would be grave when it is such as passion, but in the explanation of
exception to S. 300 there is now no reference to "ordinary person". The
explanation reads "whether the provocation was grave and sudden enough
to prevent the offence from amounting to murder is a question of fact". The
Law C o m m i s s i o n e r s in their first report t h o u g h t that the special
circumstances relating to the offender will have to be considered 84 in
judging the effect of the provocation. The English authorities lay down that
80. Augustine Saldanha Supra note 45 at 481; State ofUPv. Virendra Prasad, (2004) 9 SCC
37 at 45; Cbacko , Supra note 41 at 277.
81. Moti Singh v. State of UP, AIR 1964 SC 900; 1964(1) Cri LJ 727.See also Joginder Singh
v. State ofPunjab, AIR 1979 SC 1876; 1979 Cri LJ 1406.
82. Rewa Ram v. State ofMP, 1978 Cri LJ 858 (MP) see also Vina Singh v. State ofPunjab,
AIR 1958 SC 465, Kishore Singh v. State ofUP, AIR 1977 SC 2267.
83. Explanation 1 to S. 297 of the draft.
84. "These remarks are deserving of attention but it seems to us that Mr. Payne has
overlooked the discretion which is purposely left to the court to judge whether the
provocation be such as would be likely to move a person of ordinary temper to
violent passion, not any person, it is to be understood, but a person of the same
habits manners and feelings. A discreet judge would of course take into
consideration such points as were adverted to by Mr. Payne and would probably
in considering a plea of provocation the jury must consider whether a

reasonable man would have been deprived of self-control and the peculiar
susceptibilities of the accused are irrelevant. 85 The view has been taken in
some Indian cases that it is the standard of the accused that should be
adopted in judging the effect of provocation86 while a contrary view is taken
in other cases that the standard of the "reasonable m a n " should be
adopted. 8 7 But who is this reasonable man and what is the standard of
reasonableness? Does it refer to the man on the Clapham omnibus as in
English law, i.e., to a mythical man of reasonable prudence? Is there an
abstract standard of reasonableness to be applied faithfully in every case?
The Supreme Court in a case88 has answered these questions in the negative
and has stated that the standard of reasonableness varies from one social
group to another. As Subba Row, J., delivering the judgment of the Bench,
put it "what a reasonable man will do in certain circumstances depends
upon the customs, manners, way of life, traditional values etc. in short, the
cultural, social and emotional background of the society to which an accused
belongs. In our vast country there are social groups ranging from the lowest
to the highest state of civilization. It is neither possible nor desirable to lay
down any standard with precision; it is for the court to decide in each case,
having regard to relevant circumstances." In other words the test is not what
a reasonable man judged by some abstract standard would do, but what a
reasonable man belonging to the same social group as the accused would do.
To put it differently, if the accused is found, as a- matter of fact, to be a
reasonable man, would he have done what he actually did? The objective
test is that qualified by the circumstances mentioned by the Supreme Court.
Similarly Madhavan v. State ofKerala®* is interesting. The appellant Madhavan
was convicted of the murder of his wife Madhavi under S. 302 of the Indian
Penal Code and sentenced to the lesser penalty of imprisonment for life.
There was a celebration in the temple near the house of appellant. He went
reject the plea of provocation by insulting words in one case while he could as
properly admit in another accordingly as the party might be shown to belong to a
class sensitive to insults of this kind or otherwise." First report on the Penal Code by
the Indian Law Commissioners (1846) para 271.
85. See Bedderv. Director of Public Prosecutions, 1954, 1 W.L.R. 1119. The Royal
Commission while sympathizing with the view that provocation must be judged by
the standard of the accused however expressed, the view that a change in the law was
not called for; paras 144-45 of the report of the Royal Commission on the Abolition
of Capital Punishment Cmd. 8932 (1949-53).See also Lee Chun -Chuen v. Reginam,
(1963)1 All ER 73.
86. Bhuranga Uraon v. The Emparor 37 Cr LJ 221; Channan v. Emperor AIR 1943 Lah 123;
Empress v. Khogaayi 2 Mad. 122.
87. Dinahandhu Oriya v. The Emperor AIR 1930 Cal 199; Sohrab v. Emperor 5 Lah 67; Das
Raj v. Emperor 20 Lah 345; Khadim Hussain v. Emperor 7 Lah. 488.
88. Nanavati v. The State ofMaharashtra AIR 1962 SC 605 at 630.
89. AIR 1966 Ker 258.
HOMICIDE 313
to the temple with the chopper to cut the overhanging branches of trees on
the route through which the deity had to be taken in procession. In the
night the wife of the appellant went to the temple to see the festival. When
they were coming back from the temple to the house the appellant and his
wife quarreled. During the heated discussion between the two the wife
swore that she would never go back to his house. The appellant wanted to
know the reason and therefore took the child which was with his wife.
When he resisted the deceased from taking forcibly the child from him the
chopper injured her abdomen. Then she broke her thali chain and threw it
on the face of appellant. This infuriated him who cut her by the chopper
which was already in his hand. She died instantaneously. The high court held
that the accused was provoked and he was convicted under S. 304. It was
argued on behalf of the appellant that the conduct of the Madhavi towards
the appellant was such as to provoke a reasonable man to the extent of
depriving him of his power of self- control and the provocation therefore
was grave and sudden within the meaning of Exception 1 to S. 300 of the
Indian Penal Code. The law is now well established that Exception 1 to S.
300 can apply only when the accused is shown to have been deprived of the
power of self control by grave and sudden provocation which is caused by
the person whose death is caused. The test of sudden and grave provocation
is whether a reasonable man belonging to the same class of society as the
accused placed in the situation in which he was placed would be so
provoked as to lose his self control and the provocation must be such as
would upset not merely a hot-tempered or a highly sensitive person but one
of ordinary calmness. The law referring to Nanavati case90 was summarized
thus: (1) The test of 'grave and sudden' provocation is whether a reasonable
man, belonging to the same class of society as the accused, placed in the
situation in which the accused was placed would be so provoked as to lose
his self control. (2) In India, words and gestures may also, under certain
circumstances, cause grave and sudden provocation to an accused so as to
bring his act within the first exception to S. 300 of the Indian Penal Code.
(3) The mental background created by the previous act of the victim may be
taken into consideration in ascertaining whether the subsequent act caused
grave and sudden provocation for committing the offence. (4) The fatal
blow should be clearly traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time, or
otherwise giving room and scope for premeditation and calculation.91
For bringing in operation the Exception 4 to S. 300 IPC it has to be
established that the act was committed without premeditation, in a sudden
fight in the heat of passion upon a sudden quarrel without the offender
90. Supra note 91 at 629 and supra note 88.

91. See Venkatesan v. State of Tamil Nadu, (1997) 3 Crimes 146 (Mad).
having t a k e n u n d u e advantage and n o t having acted in a cruel or u n u s u a l

m a n n e r . 9 2 It is t o be n o t e d t h a t the "fight" o c c u r r i n g in E x c e p t i o n 4 t o
S. 300 I P C is n o t defined in the Code. It takes t w o t o m a k e a fight. Heat of
passion requires that there must be n o time for the passions t o cool down. 9 3
T h e said exception deals with a case of prosecution n o t covered by the first
e x c e p t i o n , after w h i c h its place w o u l d have been m o r e a p p r o p r i a t e . T h e
exception is founded u p o n the same principle, for in b o t h t h e r e is absence
of p r e m e d i t a t i o n . B u t , w h i l e in t h e case of E x c e p t i o n 1 t h e r e is t o t a l
deprivation of self-control, in case of exception 4, there is only that heat of
passion w h i c h clouds m e n ' s sober reason and urges t h e m t o deeds w h i c h
t h e y w o u l d n o t o t h e r w i s e d o . T h e r e is p r o v o c a t i o n in E x c e p t i o n 4 as in
E x c e p t i o n 1; b u t t h e i n j u r y d o n e is n o t t h e direct c o n s e q u e n c e of t h a t
provocation. 9 4 A fight is a combat between t w o and m o r e persons w h e t h e r
w i t h or w i t h o u t weapons. 9 5 In fact Exception 4 deals w i t h cases in w h i c h
n o t w i t h s t a n d i n g that a b l o w m a y have been struck, or s o m e p r o v o c a t i o n
given in the origin of the dispute or in whatever way the quarrel m a y have
originated, yet the subsequent conduct of b o t h parties puts t h e m in respect
of guilt u p o n equal footing. 96 It is not possible to enunciate any general rule
as t o w h a t shall be deemed t o be a sudden quarrel. It is a q u e s t i o n of fact
and w h e t h e r a quarrel is sudden or n o t must necessarily d e p e n d u p o n the
p r o v e d facts of each case. 9 7 T h e expression " u n d u e advantage" as used in
the provision means "unfair advantage". 98 Exception 5 which provides that
culpable h o m i c i d e is n o t m u r d e r w h e n the p e r s o n w h o s e d e a t h is caused
being above the age of 18 years, suffers death w i t h his o w n consent, raises
an interesting point. T h e point is w h e t h e r this exception can be applied t o
bands of rioters w h o go out with the premeditated d e t e r m i n a t i o n t o meet
and fight each other and are armed with deadly weapons. O n e view is that
exception 5 is n o t applicable 9 9 t o such cases because exception 4 makes it
92. See also Mabesb Balmiki v. State ofMP 2000(1) SCC 319, Jaipal v. State ofHaryana,
2000(3) SCC 436; Prakash Chandv. StateofHP, (2004) 11 SCC 381 at 383.
93. Dhirajbhai Gorakbbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 at 327; Sachcbey Lai
Tiwari v. State of UP, (2004) 11 SCC 410 at 415.
94. Prakash Chand v. State ofHP, (2004) 11 SCC 381 at 383; Dhirajbhai Gorakhbhai Nayak
v. State of Gujarat, (2003)9 SCC 322 at 327; Sridhar Bhuyan v. State ofOrissa, (2004) 11
SCC 395 at 397; Sachcbey Lai Tiwari v. State of UP, (2004) 11 SCC 410 at 415.
95. Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 at 327; Sachcbey Lai
Tiwari v. State of UP, (2004) 11 SCC 410 at 415.
96. Sridhar Bhuyan Supra note 94. Sachcbey Lai Tiwari v. State of UP, (2004) 11 SCC 410 at
415; Ravi Kumar v. State ofPunjab,(2005) 9 SCC 315. Also see Suresh Chandra v. State of
U.P. Cr. App No. 747/2003,748/2003) wherein the Supreme Court refused to apply
exception 4 of S.300. The court has, however recommended the prisoners to seek
remission of sentence. This seems to require review.
97. Dhirajbhai Gorakbbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 at 327.
98. Sridhar Bhuyan v. State of Orissa,(2QM) 11 SCC 395 at 397.
99. Ainsle, J in Emperor v. Rhomuddin & Others 5 Cal. 31.
HOMICIDE 315
clear that to reduce murder to culpable homicide not amounting to murder,

a fight should be sudden, without premeditation and in the heat of sudden
passion on a sudden quarrel. The opposite view is that if the facts make out
that the deceased did consent to suffer death or take the risk of death at the
hands of a member of the hostile party, it will come under Exception 5. 100
Mayne is of the view that there is no question of consent to suffer death in
these cases; the question is what does he take the chance of? The answer to
this depends upon the facts of the case. If the party is armed with sticks
then obviously the case will not fall under Exception 5.
Much discussion has taken place on the subject of Euthanasia. Under
Indian Law it would be culpable homicide under S. 300 Exception (5). The
Royal Commission in England felt that no change in existing law was
necessary.101 However, in view of the changed outlook as to the purpose of
punishment, the topic of euthanasia as well as that of suicide102 may be re-
examined.
In England the rule of law whereby it is a crime for a person to commit
suicide has been abrogated by S.l of the Suicide Act 1961 (9 and 10 Eliz. 2
C. 60). The Act, however, provides that persons abetting suicide shall be
punished.
Life does not mean 'animal existence'.103 This principle is recognized by
Supreme Court. 104 In Mckay v. Bergstedi,105 a patient filed a petition to the
court for permitting disconnection of his respirator. The District Court
granted the permission, against which State appealed to the Supreme Court
100. Pigot, J in Queen Empress v. Nayamuddln & Others 18 Cal. 484.

101. Paragraphs 1770180 of the Report of the Royal Commission (1949-53) Cmd. 8932.
See Glanville Williams The Sanctity of Life and the Criminal Law, ch. 8 for an
exhaustive discussion.
102. (1) "True as all this is, we are however forced to admit that suicide belongs to those
anti-social actions which cannot be fought with the weapons at the disposal of
modern criminal law. In a Penal System that is not excessively cruel or stigmatizing
punishment cannot act as a deterrent on an individual who has already shown his
readiness to throw away his life." Hermann Manheim, Criminal Justice and Social
Reconstruction (1946) p. 10.
(2) "While it is desirable to discourage suicide as much as possible by indirect
means there can be no possible justification for penalizing any one for attempting
to destroy his own life, since there could be no right more fundamental than the
right to dispose of one's own life The punishment of attempted suicide is
based in large part upon the theological notion that only God has the right to take
away the life which he is alleged to give. But it is also partly for the prevention of
suicide
103. Munn v. lllionis, (1877) 94 US 113.
104. Kharak Singh v. State of UP, AIR 1963 SC 1295; Sunil Batra v. Delhi Administration,
AIR 1978 SC 1675; Maneka Gandhi v. Union ofIndia, AIR 1978 SC 597.
105. Referred to in P. Rathinam v. Union ofIndia, AIR 1994 SC 1844.
of N e v a d a . T h e Supreme C o u r t affirmed the o r d e r passed b y the District

C o u r t . I n U K such m e r c y killing is p e r m i t t e d . In Airdale NH S Trust v.
Blandm it was observed: 106 *
E u t h a n a s i a is n o t lawful at c o m m o n law. It is of c o u r s e well
k n o w n that there are m a n y responsible m e m b e r s of o u r society
w h o believe t h a t euthanasia s h o u l d be m a d e lawful; b u t t h a t
result c o u l d , I believe, o n l y be achieved b y legislation w h i c h
expresses t h e d e m o c r a t i c will t h a t so f u n d a m e n t a l a c h a n g e
should be made in o u r law, and can, if enacted, ensure that such
legislated killing can o n l y be carried out subject t o a p p r o p r i a t e
supervision and control.
As far as I n d i a n p o s i t i o n is c o n c e r n e d t h e B o m b a y H i g h C o u r t has laid
d o w n in Maruti Shripati Dubai:107
[R]ight to live of which Article 21 speaks of can said t o b r i n g in
its trail right not t o live a forced life. 108
T h e constitutional validity of S. 309, I P C was challenged before the Supreme
Court in P. Rathinam v. Union of India.109 The court held the provision cruel,
irrational, unconstitutional and violative of Article 21 of the Constitution. 1 1 0
In Gian Kaur,ni however, the Supreme C o u r t overruled Rathinam112. The
court observed:
W h a t e v e r m a y be t h e p h i l o s o p h y of p e r m i t t i n g a p e r s o n t o
extinguish his life by c o m m i t t i n g suicide, we find it difficult t o
construe A r t . 21 t o include within it the "right t o die" as a part
of fundamental right guaranteed therein.
T h e r e is d i f f e r e n c e b e t w e e n s u i c i d e a n d e u t h a n a s i a . D i s t i n g u i s h i n g
euthanasia from suicide, L o d h a J, in Naresh Marotrao Sakhre v. Union of
Indiani observed: 1 1 4
S u i c i d e b y its v e r y n a t u r e is an act of self k i l l i n g o r self
destruction, an act of terminating one's o w n act and w i t h o u t the
106. (1993) 1 All ER 821.

106a. Id. at 890.
107. 1987 Cri LJ 743.
108. Ibid.
109. P. Rathinam Supra note 105.
110. Ibid. For arriving at this conclusion the court relied on Forty-Second Report of the law
Commission of India. See B.B. Pandey, "Right to Life or Death ?: For Bharat Both
Cannot be 'Right', (1994) 4 SCC (Jour) 19.
111. Gian Kaur v. State ofPunjab, (1996)2SCC 648.
112. Supra note 105.
113. 1995 Cri LJ 96 (Bom).
114. Id. at 99. See also Kumar Amarsekhara, "Euthanasia and Quality of Legislative
Safeguards" (1997) 23 Mon LR2; Shreyans Kasliwal, "Should Euthanasia be
legalized in India?" (2003) PL Web jour 16.
HOMICIDE 317
aid o r assistance of any o t h e r h u m a n agency. E u t h a n a s i a a n d

mercy killing on the other hand means and implies the
intervention of other h u m a n agency to end the life. Mercy killing
is thus n o t suicide and an attempt at mercy killing is not covered
b y the provisions of S. 309. The t w o concepts are b o t h factually
and legally distinct. Euthanasia or m e r c y killing is n o t h i n g but
h o m i c i d e w h a t e v e r the circumstances in which it is effected.
In t h e q u e s t i o n of right t o die an additional argument can be: E v e n if
t h e i n d i v i d u a l ' s i n t e r e s t in t e r m i n a t i n g his life a c c o r d i n g t o his w i s h is
considered as well deserved and w o r t h y of recognition, can it be accorded
p r i o r i t y over m a n y o t h e r ' m o r e ' deserving interests? 1 1 5 W e have still n o t
been able t o recognize a right t o basic necessities of life like food, shelter,
clothing, medical care and even pure drinking water. 1 1 6
T h e law relating t o euthanasia is still in confusion and courts generally
s h r i n k a w a y from g r a n t i n g it even w h e n an individual is suffering f r o m
i n c u r a b l e disease or severe pain. T h e H i g h C o u r t of the A n d h r a P r a d e s h
h a d rejected the plea of a terminally ill y o u t h t o be put t o death so that he
can d o n a t e his vital organs. 1 1 7 Euthanasia is outlawed in India and orga^
d o n a t i o n m a y only take place if the d o n o r is declared brain dead. T h e ca.
h a s p r o m p t e d s o m e e x p e r t s t o d e m a n d a c h a n g e in t h e l a w s . T h e
T r a n s p l a n t a t i o n of H u m a n O r g a n s A c t , 1995 a l s o h a s n o s u c h
p r o v i s i o n s . 1 1 8 In A p r i l 2 0 0 1 , N e t h e r l a n d s b e c a m e t h e first E u r o p e a n
c o u n t r y t o legalise e u t h a n a s i a a n d assisted suicide. Since J a n u a r y 2002,
s t r i n g e n t D u t c h c o n s t i t u t i o n a l legislation has b e e n in p l a c e , w h e r e b y
r e g i o n a l e u t h a n a s i a c o m m i t t e e s , m a d e u p of judges, medical a n d ethic
professionals, assisted b y a second medical o p i n i o n , can grant incurah
p a t i e n t s ' r e q u e s t s ( i n c l u d i n g c h i l d r e n a b o v e t h e age of 12 - 15 w i t h
p a r e n t a l c o n s e n t ) t o h a v e t h e i r life s h o r t e n e d b y a m e d i c a l e x p e r t . 1 1 9
B e l g i u m f o l l o w e d suit in M a y 2002, w i t h s i m i l a r l e g i s l a t i o n . T h o u s h
euthanasia r e m a i n s unlawful in the U K , there have been recent cases that
have advanced t h e legal, medical and ethical debate. 1 2 0
115. B.B. Pandey, supra note 110 at 24.

116. Kishen Pattanayak v. State ofOrissa, 1989 Supp (1) SCC 258.
117. "India court rejects euthanasia plea" BBC News, 15.12.04. Venkatesh, 25, had a
genetic neurological disorder and wanted his life support system turned off before
his organs suffered irreparable damage.
118. Available at http://www.rediff.com/news/ap.htm
119. Euthanasia, Special Report by Ursula Smartt, Senior Lecturer at I
Criminology at Thames Valley University in West Lond, BBC News, 23.
120. Pretty v. DPP, [2002] ECHR. Diane Pretty was terminally ill with Motor Neurone
Disease. She wanted to obtain the right to be able to request medical help to die at
a time of her choosing. Particularly to be given a guarantee that her husband would
not be prosecuted for assisting her suicide in an active way. Permission was
refused.
IX
T w o further exceptions t o S. 300 m a y be suggested. O n e of t h e m is t h a t

infanticide 1 2 1 (Infanticide is here used in the sense of killing of a child b y
the parent), should n o t be treated as murder. Infanticide a n d discrimination
against the girl child still prevails in Indian society. T h e traditional system of
female infanticide whereby the female baby was done away w i t h after b i r t h
by poisoning or letting her choke o n husk continues in a different form by
t a k i n g a d v a n t a g e of a d v a n c e d m e d i c a l t e c h n i q u e s . 1 2 2 U n f o r t u n a t e l y ,
developed medical science is misused to get rid of a girl child before birth.
This has affected overall sex ratio in various states. 1 2 3 F o r controlling the
situation the Pre-natal Diagnostic Techniques (Regulation and Prevention of
M i s u s e ) A c t , 1994 w a s e n a c t e d , r e n a m e d after a m e n d m e n t as " t h e
P r e c o n c e p t i o n a n d Prenatal Diagnostic T e c h n i q u e s ( P r o h i b i t i o n of Sex
Selection) Act. T h e abortion law is liberal and there are n o mechanisms to
m o n i t o r t h e e n f o r c e m e n t of t h e M T P A c t ( M e d i c a l T e r m i n a t i o n of
Pregnancy Act, 1971). T h e state's indirect sanction to use t h e M T P Act as a
tool to reduce population size implies that sex selective a b o r t i o n indirectly
enjoys legitimate sanction from the state. A b o r t i o n is a value-based question
on w h e n life is considered sufficiently valuable for protection b y the law. If
life in its earlier stages assumes value, t o take it away m a y amount to murder.
This m a y depend u p o n the value placed o n 'conceived but not-yet b o r n ' or
'just b o r n b a b i e s ' . 1 2 4 T h e misuse of m o d e r n science a n d t e c h n o l o g y b y
p r e v e n t i n g the birth of a girl child by sex d e t e r m i n a t i o n before b i r t h a n d
thereafter a b o r t i o n is evident from the 2001 C e n s u s figures w h i c h reveal
g r e a t e r decline in sex r a t i o in t h e 0-6 age g r o u p in states like H a r y a n a ,
Punjab, Maharashtra and Gujarat, which are, t h o u g h , economically better
off.125 T h e Indian Substantive Criminal Law contains n o special provision
dealing w i t h infanticide 1 2 6 as a less serious type of h o m i c i d e . T h e English
121. "Social anthropologists distinguish between infanticide and murder. Infanticide is

the killing of a new born child committed by the parents or with their consent. The
killing of another man's child is according to this definition, simple murder; it is
killing by or on behalf of the parent that raises special problems." Glanville
Williams The Sanctity ofLife and the Criminal Law p. 26.See also K.E. Thankamani v.
State ofKerala, 1998 SCC (Cri) 1357.
122. CEHATv. Union of India, (2001)5 SCC 577.
123. Ibid.
124. KN Chandrasekharan Pillai, General Principles of Criminal Law,T> 15 (2003) .See also The
people v. Cbavez,77 Cal App 2d 621: 176 P 2d 92 (1947).
125. See CEHA T v. Union ofIndia, (2003) 8 SCC 398.
126. Rule 260. The Criminal Rules of Practice (Madras) however provides "In all cases
where women are convicted fro the murder of their infant children a reference
should be made through the High Court to the Government with an expression by
the Sessions Judge of this opinion as to the property or otherwise of reducing the
sentence." The Female Infanticide Prevention Act (Act VIII of 1870) relates to the
HOMICIDE 319
l a w 1 2 7 in c e r t a i n specified circumstances deals w i t h it as m a n s l a u g h t e r .

H a v i n g regard t o t h e social and economic causes that lead t o infanticide it
w o u l d be desirable t o make special provision for punishment of infanticide.
It m a y be that a m o t h e r loving her children kills them to save t h e m from the
m e n a c e of i n s a n i t y o r desparate p o v e r t y or p e r h a p s t o save t h e m from
bearing the stigma of illegitimacy. A n d after all as D r . Glanville Williams
says "a w o m a n w h o kills her child under the stress of any of these adverse
circumstances is almost certainly not dangerous t o a n y o n e but her o t h e r
children and n o t necessarily t o them". 1 2 8 In any case infanticide does n o t
cause a sense of i n s e c u r i t y in the society. In England, the o u t c o m e of an
infanticide trial is merely probation or discharge but still a severe judge m a y
send a w o m a n t o p r i s o n . In India as the offence is m u r d e r t h e c o u r t has
little choice and has t o sentence the m o t h e r to death or i m p r i s o n m e n t for
life t h o u g h there have been instances of judges r e c o m m e n d i n g a r e d u c t i o n
in sentence. 1 2 9 Killing of a new-born or causing death of an u n b o r n child by
act a m o u n t i n g t o culpable homicide are offences u n d e r Ss. 315 and 316 of
t h e I n d i a n P e n a l C o d e p r e s c r i b i n g p u n i s h m e n t of 10 y e a r s each. It is
s u b m i t t e d t h a t p u n i s h m e n t s h o u l d n o t be g o v e r n e d b y s u c h
recommendations and that infanticide should be recognized as an exception
to S. 300. 1 3 0
T h e o t h e r s u g g e s t i o n is t h a t t h e P e n a l C o d e s h o u l d r e c o g n i z e t h e
concept of d i m i n i s h e d responsibility and this is really a criticism of S. 84.
S e c t i o n 8 4 1 3 1 insists t h a t t h e accused s h o u l d be of u n s o u n d m i n d t o be
preventive measures that may be necessary to prevent the killing of female children
in certain areas where the evil is rampant.
127. (i) The Infanticide Act, 1938 (1 and 2 Geo. VI C. 36). The Act takes no account of
the circumstances of mitigation other than disturbance of mind resulting from
giving birth or lactation and for this reason is applied only for a year after birth.
Laws of Ceylon, Canada, Victoria and Tasmania contain similar provision. See
Report of Royal Commission on the Abolition of Capital Punishment Cmd. 8932
(1949-53) at 447. The Royal Commission felt that no change in the law was called
for (para 162 of the Report). Dr. Glanville Williams pleads for further leniency in
the matter. See The Sanctity ofLife and the Criminal Law, p. 39.
(ii) Article 116 of the Swiss Penal Code (1937) provides 'If a mother intentionally
kills her child during the delivery or while under the influence of child birth, she
shall be confined in the penitentiary for not over three years or in the prison for a
minimum term of six months."
128. Glanville Williams: The Sanctity of Life and the Criminalf Law, p. 42.
129. Alambtll v. Emperor AIR 1932 Lah. 297 Lakshmakka v. Emperor 1939 M.W.N. 1130.
130. The Code of Northern Nigeria which is modeled after the Indian Penal Code
provides for "infanticide" as an additional exception to S.300. See Alan Gledhill
" The Indian Penal Code in the Sudan and Northern Nigeria" Year Book of Legal Studies
(1960) p. 17.
131. Section 84 reads: "Nothing is an offence which is done by a person who at the time
of doing it is by reason of unsoundness of mind, incapable of knowing the nature
of the act or that he is doing what is either wrong or contrary to law."
exempted from liability whereas this concept makes even an abnormality of

the m i n d as substantially impairs the mental responsibility of the accused a
mitigating circumstance. This doctrine can be i n t r o d u c e d i n t o the Indian
Penal Code either by amending S. 84 or by adding an exception to S. 300. It
is felt that it w o u l d be wiser t o confine the application of this d o c t r i n e t o
homicide and add an exception to S.300, o n the following lines: "Culpable
homicide is not m u r d e r if the offender at the time he c o m m i t t e d the offence
was not of u n s o u n d m i n d within the meaning of S. 84 of this C o d e but was
n e v e r t h e l e s s suffering f r o m a disease of t h e m i n d w h i c h d i s a b l e d h i m
partially from understanding the full consequences of his act." 1 3 2 Section 2
of t h e H o m i c i d e Act has i n t r o d u c e d this d o c t r i n e in E n g l a n d . O n t h e
C o n t i n e n t this is applicable t o all crimes as a partial defence. In Scotland it
is limited to homicide. 1 3 3
T h r e e p r o b l e m s in c o n n e c t i o n w i t h p u n i s h m e n t for h o m i c i d e d e s e r v e
m e n t i o n . Section 302 provides for i m p r i s o n m e n t for life as an alternative
p u n i s h m e n t t o death. T h e judge had till recently t o state t h e reasons for
awarding the lesser penalty 1 3 4 as the sentence of death was t o be the n o r m a l
penalty. T h e controversy as t o the total abolition of capital p u n i s h m e n t 1 3 5
apart, the desirability of requiring the judge to give reasons for awarding the
sentence of death may be examined.
A second problem relates to the sentence conforming t o the judgment.
In some cases it is found that the findings would indicate a particular type of
132. This doctrine however has been severely criticized. Among the points leveled
against it are (i) This would introduce a fine gradation of responsibility and makes
a very subjective consideration in extenuating circumstances; (ii) It may be
interpreted to include an irresistible impulse; (iii) An insane person might prefer to
plead diminished responsibility successfully and undergo imprisonment for a short
while rather than plead insanity and be confined to a mental home; (iv) It would
result in psychopaths being confined with normal convicts. See Prof. Alan Gledhill,
"Recent Developments in the Law of Homicide in England", Jaipur Law journal p.l.
See Prevezer, "The Law of Murder" 1961 Current Legal Problems p. 16, (28-34)
regarding the working of the rule. For detail refer to chapter on insanity.
133. Alan Gledhill, id. at 6.
134. Section 367 Cr PC amended in 1955 with regard to cl. 5.
In a case it was stated. "After the amendment of Sec. 367 (5) Cr. P.C. in 1956
there is no statutory direction that a court should in such cases record its reasons
why the lesser penalty is being awarded, still the courts are not absolved of their
duty of exercising their judicial conscience as to whether the extreme penalty
should be awarded or only the life sentence. "Mojia Ratna v. The State, AIR 1961
M.P. 10 at 12.
135. See, for further discussion, chapter on Punishment.
HOMICIDE 321
c u l p a b l e h o m i c i d e w h e r e a s t h e s e n t e n c e h a p p e n s t o be a w a r d e d for a
different type. 1 3 6 T h e Supreme C o u r t observed: 1 3 7
P r o p o r t i o n between crime and punishment is a goal respected in
p r i n c i p l e , a n d in spite of e r r a n t n o t i o n s , it r e m a i n s a s t r o n g
influence in t h e d e t e r m i n a t i o n of sentences. T h e p r a c t i c e of
punishing all serious crimes with equal severity is n o w u n k n o w n
in civilized societies, but such a radical only in recent times. Even
n o w a single grave infraction is t h o u g h t to call for any serious
c r i m e is t h o u g h t t h e n t o be a m e a s u r e of t o l e r a t i o n t h a t is
u n w a r r a n t e d and unwise. 1 3 8
T h e last and m o s t i m p o r t a n t p r o b l e m is the simplification of the law
relating t o h o m i c i d e in view of the changed o u t l o o k as t o the rationale of
p u n i s h m e n t . W e h a v e t o see w h e t h e r t h e g r a d a t i o n s of g u i l t n o w
i n c o r p o r a t e d in the definitions of culpable homicide and m u r d e r serve any
p u r p o s e a n d w h e t h e r as W a l s h says, "In practice t h e s e w o r k s of art in
draftsmanship b r e a k d o w n and the simple English d i c h o t o m y of " m u r d e r
a n d m a n s l a u g h t e r " is t o be p r e f e r r e d . 1 3 9 F e w e r categories w i t h w i d e r
discretion in imposing p u n i s h m e n t is preferable t o a plethora of categories.
Section 300 m a y be recast omitting the four clauses that repeat the mens rea
so that every culpable homicide will be m u r d e r save in the cases t o w h i c h
the exceptions apply.
I n t h e I P C ( A m e n d m e n t ) Bill, 1972, S. 302 w a s p r o p o s e d t o be
a m e n d e d as f o l l o w s : "302 ( l ) w h o e v e r c o m m i t s m u r d e r shall save as
otherwise p r o v i d e d in sub-section (2), be punished with i m p r i s o n m e n t for
life and shall also be liable t o fine.
(2) W h o e v e r c o m m i t s m u r d e r shall-
(a) If the m u r d e r has been c o m m i t t e d after previous planning and
involves extreme brutality or
(b) If the m u r d e r involves exceptional depravity; or
136. Indersing Bagga v. The State AIR 1955 SC 439; William Slaney v. The State ofMadhya
Pradesh AIR 1956 SC 116; Kapur Singh v. The State ofPepsu AIR 1950 SC 654; Gahber
Pande v. Emperor, 7 Pat. 638; Inder Singh v. The Crown, 10 Lah. 477.
137. Ruli Ram v. State ofHaryana, (2002) 7 SCC 691.
138. Id. at 703, para 23.
139. (i) "The beautifully moulded definitions of murder and of culpable homicide not
amounting to murder set out every phase of thought which a man's mind may pass
when he is engaged in a fight and burning to defeat and injure his enemy. But men
do not think alund in a confused fight when they are "seeing red" and expecting
every minute to be knocked out themselves. How are you to apply almost
metaphysical processes of reasoning to the mental processes of half-mad savages
when you are not quite sure of what the real facts are?" Walsh C : Crime in India,
quoted in Administrative cases, Statutes and Commentaries by Michael and
Weschler 1292 (1940).
(c) If the murder is of a member of any armed forces of the Union

or of any police force or of any public servant whose duty is to
preserve peace and order in any area or place while such
member or public servant is on duty or
(d) If the murder has been committed by him while under sentence
of imprisonment for life, and such sentence has become final,
be punished with death or imprisonment for life, and shall also
be liable to fine."

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HOMICIDE

The difference between murder and culpable homicide not amounting to

4. Bandampalli Vendateswarlu v. State ofAP, 1975(3) SCC 492 at 494.

probability of the result of an act is an important matter for the court to

If there is no chance of proving one of the exceptions to S. 300, the simple

Section 304 3 0 which provides punishment for culpable homicide not

"It is quite unnecessary to put in that further description of culpable

Likewise, a jumbled reference 36 to the different clauses of S.300 without

35. Id. at 447.

according to the maxim it is a fiction of the law. On the other hand, in

43. See Rakiman Ismail v. R., AIR 1939 Lah. 245.

"intention to cause death" is not an essential requirement of clause (2). Only

48. Augustine Saldanha, ibid.

intended by the offender. Whether the injury intended by the

intended to be inflicted was sufficient in the ordinary course of nature to cause

of S. 300 observes "... why, in the case of a victim of normal

probability of death of a person or persons in general as distinguished from

61. Chacko v. State ofKerala, (2004)12 SCC 269 at 277.

within the fourth clause .... There is no inconsistency involved in

Difficulties are occasionally encountered in the field of causation thus:

76. Sundara Aiyer, J in Suryanarayanamurthy In Re, 22 M.L.J. 333.

in considering a plea of provocation the jury must consider whether a

90. Supra note 91 at 629 and supra note 88.

having t a k e n u n d u e advantage and n o t having acted in a cruel or u n u s u a l

clear that to reduce murder to culpable homicide not amounting to murder,

100. Pigot, J in Queen Empress v. Nayamuddln & Others 18 Cal. 484.

of N e v a d a . T h e Supreme C o u r t affirmed the o r d e r passed b y the District

106. (1993) 1 All ER 821.

aid o r assistance of any o t h e r h u m a n agency. E u t h a n a s i a a n d

115. B.B. Pandey, supra note 110 at 24.

T w o further exceptions t o S. 300 m a y be suggested. O n e of t h e m is t h a t

121. "Social anthropologists distinguish between infanticide and murder. Infanticide is

l a w 1 2 7 in c e r t a i n specified circumstances deals w i t h it as m a n s l a u g h t e r .

exempted from liability whereas this concept makes even an abnormality of

(c) If the murder is of a member of any armed forces of the Union

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