Explained| How to know if a homicide is a ‘murder’ or ‘culpable homicide not amounting to murder’?

Supreme Court: The bench of KM Joseph and S. Ravindra Bhat*, JJ has reiterated the factors to be considered while deciding the question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC.

The Court explained that the use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death.

“It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.”

The following two cases are noteworthy for understanding the difference between the two terms:

State of Andhra Pradesh v Rayavarapu Punnayya, 1976 (4) SCC 382

In the said case, the Court noticed that the confusion between “murder” and “culpable homicide not amounting to murder” 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. Hence, the safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.

It explained,

“In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice- versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.”

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Pulicherla Nagaraju v State of Andhra Pradesh, (2006) 11 SCC 444

The Court laid down the considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder and observed that the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II.

“Many petty or insignificant matters – plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death.”

Hence, it is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302.

The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances;

  1. nature of the weapon used;
  2. whether the weapon was carried by the accused or was picked up from the spot;
  3. whether the blow is aimed at a vital part of the body;
  4. the amount of force employed in causing injury;
  5. whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
  6. whether the incident occurs by chance or whether there was any premeditation;
  7. whether there was any prior enmity or whether the deceased was a stranger;
  8. whether there was any grave and sudden provocation, and if so, the cause for such provocation;
  9. whether it was in the heat of passion;
  10. whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
  11. whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.

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[Mohd. Rafiq v. State of Madhya Pradesh, 2021 SCC OnLine SC 731, decided on 15.09.2021]


*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

For Appellant: Advocate Ritu Gangele

For State: Advocate Gopal Jha

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