As categories, one amounting to murder described
As it is clear from the language used in this section, murder has been defined through culpable homicide. The five cases described by way of exceptions in the latter part of this section have been excepted from the purview of the definition of murder in this section. Except these five exceptional cases, culpable homicide is murder if circumstances described under any of the four clauses are present. In other words only these four classes of culpable homicide are murder and any other kind of culpable homicide continues to be culpable homicide and does not become murder.
This, therefore, means that all murders are culpable homicides but all culpable homicides are not murder. To put it differently, murder has been defined through culpable homicide and not vice versa. Murder is an aggravated form of culpable homicide. Culpable homicide is the genus and murder is its specie. In fact the Indian Penal Code divides culpable homicide into two categories, one amounting to murder described under the four clauses of section 300 and made punishable under section 302, and the other not amounting to murder described under the three clauses of section 299 and under the five exceptions of section 300 and made punishable under section 304 of the Code. As will be seen later, it is sometimes quite difficult to differentiate between the two, and that is why Sir Fitz James Stephen was of the view that culpable homicide and murder are the weakest parts of the Indian Penal Code.
Death In all cases of murder the victim must die. ‘Death’ as defined under section 46 of the Code denotes the death of a human being, unless the contrary appears from the context. Act ‘Act’ according to section 33 of the Code denotes as well a series of acts as a single act, while section 32 specifically states that in every part of the Indian Penal Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions. In other words, death caused by a positive act or by a negative act, that is, by an illegal omission, may amount to murder if requirements as laid down in section 300 are met. Besides, as discussed under the preceding section, death caused by effect of words may also amount to murder if conditions stated under section 300 are fulfilled.
Motive As shown under the preceding section, even though motive is not a requirement under any of the sections of the Indian Penal Code, it does find mention in many judicial pronouncements with respect to criminal law in general and especially under culpable homicide not amounting to murder and murder. The word is frequently used in the courts by the lawyers as well. The reason for the same is that it helps to find out the intention of the offender, and to that extent, therefore, it becomes relevant to consider it.
Additionally, Section 8 of the Indian Evidence Act, 1872 says that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant facts. Culpable homicide and murder distinguished One of the most complex matters under the Code is to distinguish between culpable homicide and murder. The first real attempt in this regard was made in the case Reg v. Govinda Two other cases where earnest efforts were made in this direction were Indar Singh v. King Emp., and State v.
Punnayya) In Reg v. Govinda, the accused, about 18 years old, kicked his wife, about 15 years old, and gave her a few blows on the body as a result of which she fell down on the ground. Then he put one knee on her chest and struck her a few more blows by fist on her face causing extravasations of blood in the brain resulting in her death.
The lower court convicted him of murder. There was a difference of opinion amongst the two judges of the High Court and consequently, the matter was referred to a third judge, Justice Melvill, who held the accused guilty under clause (2) of section 299 for culpable homicide and sentenced him under section 304 Part I on the ground that the death was caused with the intention on the part of the accused to cause such bodily injury as was likely to cause death. The learned Justice ruled out the applicability of clauses (1) and (3) of section 300 by stating that the facts and circumstances of the case did neither show intention to cause death nor the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. Melvill J. discussed the two sections clause by clause and attempted to bring out the differences between the two offences clearly. For the sake of convenience he set out the provisions in the following manner: SECTION 299 A person commits culpable homicide if the act by which the death is caused is done (a) with the intention of causing death; (b) With the intention of causing such- bodily injury as is likely to cause death; (c) With the knowledge that he is likely by such act to cause death. SECTION 300 Subject to certain exceptions culpable homicide is murder, if the act by which the death is caused is done.
— (1) With the intention of causing death; (2) 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; (3) 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; (4) With the knowledge that the act 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 learned Justice very meticulously marked the words printed in italics above and through them tried to distinguish the two offences. The first clause of section 299(1), indicated as (a) above, and the first clause of section 300, indicated as (1) above, have exactly the same language. This, therefore, means that whenever death is caused with the intention of causing death, the liability is always of murder. The authors of the Code first indicated that intentional causing of death is always culpable homicide under the first clause of section 299. But by repeating the same language in clause (1) of section 300 they have made this kind of culpable homicide a murder.
Therefore, the conclusion is simple that intentional causing of death is always a murder. This in effect means that in practice there can be no conviction on the basis of the first clause of section 299 as such conviction has got to be always under the first clause of section 300. The question that arises then is why were the authors of the Code repeating the language of first clause of section 299 in the first clause of section 300. The answer is that they had no other option because they had defined murder through culpable homicide and in their wisdom they thought that such culpable homicide deserved to be made murder. The only way to do it was to repeat the same language in the first clause of section 300. It is important to note here, as has already been pointed out in the discussions under the first clause of section 299, that intention to cause death on the part of the accused is not easily deducible.
There has to be very strong conclusive evidence in this regard. For instance, in a case of death having been caused by one or two violent blows the courts will generally be not inclined to presume intention on the part of the accused to cause death because there is always a reasonable doubt that such might not have been his intention. Additional evidence such as previous unsuccessful attempts on the life of the deceased by the same accused may, however, force the court to conclude that he did have intention to cause death. Intention to cause death can be concluded where, for instance, the accused gives a sharp-edged weapon blow on the deceased who falls down and is not in a position to do anything against the accused but the accused continues to inflict more blows on him ultimately causing his death. In such a case there is no confusion and the evidence quite clearly suggests intention to cause death on the part of the accused.
Clause (2) of section 300 is a special clause in the sense that both intention and knowledge are relevant under it. Since no other clause of this nature has been provided either under section 299 or under section 300, this clause needs to be understood only but cannot be compared with any other clause. This clause is applicable where the act by which death is caused 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. The offence is murder if death results while the offender has the intention of causing bodily injury, and he also knows that the particular person injured is likely from either peculiarity of constitution, or immature age, or other special circumstances to be killed by an injury which would not ordinarily cause death. The illustration (b) given in section 300 refers to this clause. It says that A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow.
A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death. According to the second clause of section 299, indicated as (b) above, if the act by which the death is caused is done with the intention of causing such bodily injury as is likely to cause death, the offence is culpable homicide. But under the third clause of section 300, indicated as (3) above, if such an act 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, the offence is murder.
In both these clauses the offender must have intention to cause bodily injury. Absence of the same would make these clauses not applicable to the particular situation. The court shall infer such an intention only when there is enough evidence leading to such a conclusion.
The second clause of section 299 would apply when the bodily injury caused is such as is likely to cause death, while under the third clause of section 300, the bodily injury must be such as is sufficient in the ordinary course of nature to cause death. The difference lies in the degree of probability of death. If the probability of death is comparatively less the second clause of section 299 will be applicable whereas if it is much more then the third clause of section 300 must apply. What are the criteria of judging such probability? Basically there are three things which are important and the court would always keep them in mind, all at the same time. The three things are the nature of the injury, the nature of the weapon used and the part of the body where the injury has been caused. An injury may be superficial or deep, simple or grievous, covering less area or more and the like. A cumulative view of the injuries caused is to be taken while judging the nature.
A weapon may be non lethal or lethal, blunt or sharp, and the like. There has to be a difference between lathi, stick, bamboo, etc. on the one hand, and pistol, revolver, gun, sword, spear, gandasa, gupti, dagger and knife etc.
on the other. The part of body where injury has been caused may be non-vital or vital. Hands, legs, hips, thighs etc. are non-vital parts where an injury is comparatively less probable to result in death. On the other hand, heart, brain and abdomen etc. are vital parts where an injury may result into very serious consequences most of the times. As noted above earlier, it must always be borne in mind that the court must keep nature of the injury, nature of the weapon and part of the body, all at the same time, in mind to arrive at a correct conclusion with regard to the guilt or otherwise of the accused. Under the third clause of section 299, indicated as (c) above, death must be caused by doing an act with the knowledge that the accused is likely by such act to cause death.
Under the fourth clause of section 300, on the other hand, indicated as (4) above, death must be caused by doing an act with the knowledge that the act is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and the act is committed without any excuse for incurring the risk of causing death or such injury as aforesaid. These knowledge clauses, that is, the third clause of section 299 and the fourth clause of section 300, are perhaps intended to apply to such cases where neither intention to cause death nor intention to cause bodily injury can be inferred, that is to say, where the second clause of section 299 or the first, second and third clauses of section 300 are not applicable. Examples of application of the knowledge clause may be cases of furious driving, firing at a mark near a public road, sudden attack without premeditation, and the like.
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 while if it is most probable result, it is murder. For instance, driving furiously through a very crowded area and causing accident resulting in death may attract the fourth clause of section 300, whereas same kind of driving through a less crowded area may entail the application of the third clause of section 299. Here also, many a time, nature of the injury, nature of the weapon used and part of the body where the injury is inflicted, all considered together at the same time, may be the guiding factors while determining as to which of the knowledge clauses is applicable. Cases under clause (1) Where the accused persons caught the deceased, a young boy, who had allegedly stolen their utensils, tied his hands and tried to extort a confession, and one of the accused poured kerosene on the boy after which the appellant lighted the match setting him on fire causing his death, there is no doubt that it is a case of intentional causing of death and, therefore, section 300(1) was held to be applicable. Where the first appellant believed that his wife had been practising witchcraft and beat her in presence of and at the instigation of the second appellant, his sister, and the beating continued till his wife died, and she was hastily cremated, it was held that the first appellant had intentionally murdered her. The deceased and his friend were going somewhere when they met with another person on the way who owed some money to that friend who demanded the same from him.
The accused who also happened to pass by intervened from the debtor’s side which provoked the deceased so much that he pushed him away. The accused went away and returned with a ‘dharia’ and accompanied with certain other armed men. The accused struck the deceased by the ‘dharia’ and others also attacked him resulting in his death. It was held that facts and circumstances clearly showed intention on the part of the accused to cause death. The accused abused and attacked the victim. The victim, however, overpowered him and managed to sit on the chest of the accused. Thereafter the accused delivered a knife blow on the victim’s thigh and managed to release himself from the victim’s grip and inflicted another strong knife blow on the victim’s stomach causing his death.
It was held that the accused had intentionally caused the death of the deceased. Where the appellants, armed with deadly weapons, entered in the room of an old woman, bolted the room from inside and strangulated her, it was held that they had caused her death intentionally. In Sreedharan Satheesan v. State of Kerala, there was a dispute between the accused and the deceased regarding payment of money.
The accused, who was a driver, caused serious injuries by his mini bus and hit the deceased with great speed in the middle portion of the body. Tyre marks were also found on the thighs of the deceased. Damage was also caused to the scrotum and pelvic region. It was held that it was intentional killing and section 300 (1) was applicable.
In Bhagubhai Manilal v. Stale of Gujarat, the deceased was forcibly taken from the field to the panchayat office where he was confined and set ablaze after pouring kerosene over him. He sustained seventy-five per cent burn injuries and died. The Supreme Court held that this was an intentional murder. In State of U.P.
v. Ramesh Prasad Misra, there was a horrendous bedroom murder of a young married girl. The plea of alibi and the defence theory of stranger committing murder were not established.
There were strong evidence of the sister and father of the deceased regarding demand for dowry. The Supreme Court held that such evidence could not be excluded by applying sections 32 and 8 of the Indian Evidence Act, 1872, and presumptions under section 113-B of the Indian Evidence Act, 1872 arises in such a case. This evidence can also be treated to be relevant for deciding whether the accused was guilty under section 498-A of the Code. The acquittal of the accused was set aside and he was sentenced to imprisonment for life only in view of a long lapse of time from the date of commission of the crime. In a bride burning case there existed enough circumstantial evidence. Dowry demands had continuously been made and the bride was being cruelly treated. The bride died of 100% burn injuries.
There was total absence of shouts or cries. The medical evidence showed that asphyxia was not due to burns. Internal injuries which occur in case of strangulation were found. There was a total burning of neck to destroy evidence of attempted strangulation. A half-burnt post card was planted near the dead body to indicate that it was a case of suicidal death.
The accused persons had been watching the whole incident through a window without any hue and cry or without any serious attempt to save the deceased. It was held to be an intentional murder. Locking the cottage from outside in which the deceased was sleeping and then setting it on fire and thus burning him alive, thrusting a deadly weapon ‘sela’ into the chest of the deceased causing instantaneons death, and sprinkling the shop and the body of the deceased with kerosene and then setting them to fire causing death have all been held to be murder with the intention of causing death. The prosecution successfully established that the husband and the mother-in-law of the deceased had strong compelling reasons to commit her murder because the parents of the deceased did not agree to register a piece of land in the name of the deceased’s husband but insisted to get it registered in the name of their daughter instead.
The brother of the deceased was wholly truthful and reliable witness and the evidence of neighbours was trustworthy. Both the dying declarations, one to the neighbours and the other to her brother, were consistent and made voluntarily and in natural course of events disclosing how had she been put on fire before her death, had been established by the prosecution. The medical evidence corroborated the prosecution’s case and the conduct of the accused persons also pointed out towards their guilt.
It was held that they had intentionally killed the deceased. The mother-in-law and the husband of the deceased had been accused of murdering the deceased in her matrimonial home where the mother-in-law was definitely present and possibly the husband was also present and thereafter his reaching another place nearby could not be ruled out. The deceased was done to death by asphyxia and thereafter her dead body was burnt soaking it with kerosene. Without the husband’s participation it was impossible for the mother-in- law to commit all these acts alone. The link of chain of circumstantial evidence was duly established by the prosecution. The conduct of the husband was inculpatory.
The normal conduct on his part after hearing the news of his wife’s death would have been that he would be expected to reach home immediately, make inquiries and take further action in the matter were all absent in the present case. Both the mother-in-law and the husband were convicted of intentional murder as he was also particepis criminis in committing the crime. Where the accused throttled to death the deceased who was a field worker in the family planning department, after an initial attempt to rape her when they were going to another village through a jungle where eighteen injuries in all were inflicted on the deceased, including the one which fractured the parietal bone, by the appellant and others who had attacked the deceased by various weapons where five injuries on the region of the head of the deceased were inflicted over a very trivial matter; and where nine accused persons armed with ‘bankas’ and ‘lathis’ attacked the deceased and severed his head from his body and threw it into a river, intention to cause death is clear from the facts and circumstances of the cases and the Supreme Court applied clause (1) of section 300. There were circumstantial evidence indicating strong motive of the accused to eliminate the victim. The accused admitted the victim in the hospital. The victim was in a coma and under strong influence of alcohol. It was detected that poison had been mixed in the alcohol. There was no evidence to indicate that the accused had administered the poison.
The accused could not be convicted merely on the basis of the grave suspicion against him. The deceased had been living with the accused in a one-room family house for eight to ten days before the incident. She died of gun shot injuries. There was no evidence of sexual advances by the accused towards her. No case of attempt to molest the deceased was made before the gun shot. The accused did not run away from the place of occurrence even though he had opportunity to do so. There was also no evidence that the accused could handle a gun. The mere fact that the accused and the deceased were occupants of the house is not sufficient.
The accused was a child. The case was based on circumstantial evidence. Presumption of juvenile innocence could be displaced only if circumstances unmistakably prove guilt beyond a reasonable doubt. Even if the defences of alibi and suicide raised by the accused failed, the same could not be taken as circumstances against the accused and no adverse inference against him could be drawn. The deceased woman was married to the main accused about seven months back and they had lived together for about three months only.
On the day of the incident when the milkman reached their home and the door was opened on his call, he found the woman burning in the kitchen. The main accused husband and his sister were charged with murder. It was proved that they did not enter the kitchen nor did they make any attempt to put out the fire. Only an unused stove, but no matchbox, was found in the kitchen.
Three injuries had been caused on her body before she had been set on fire. The deceased was a very courageous and confident woman was clear from the facts that even though she had been set on fire she had not moved away from that spot, and that in her life time she had written some letters to her parents stating that she would face life with confidence even if she had to take a job and live alone. In view of all these facts it was held that the death was not suicide but an intentional murder. The deceased woman died about one and a half years after her marriage due to strangulation, and about 95% burn injuries were caused after her death. The evidence of the doctor was reliable and consistent with medical jurisprudence. The death took place in the husband’s bed room, and he was convicted of intentional murder and also under section 201 of the Indian Penal Code. The Supreme Court observed that absence of motive did not break the link in the chain of circumstances connecting the accused with the crime nor did it militate against the prosecution case. The investigating officer’s helplessness in collecting evidence from neighbours could not be an insurance that the accused was innocent.
In such a case of death of a young lady by strangulation and post mortem burns suspicion that someone amongst the father, mother and brother of the accused husband might have facilitated the accused to screen the evidence of murder could not be a substitute for proof against them. In bride-burning cases dying declarations positively accusing the husband or mother-in-law must be accepted if the same is reliable, trustworthy and proved to be without tutoring, and the theory of suicide should be ruled out. There are cases of bride burning where intention to cause death is inferred from many reliable circumstances of the case including the body and the burnt hair giving smell of the presence of kerosene or petrol or any such inflammable material. The accused murdered his wife. He pleaded that the gunshot injury was caused by accident due to grappling.
The medical evidence did not suggest that the injury was due to accident. The eye-witness, mother of the accused, also stated that the accused had shot at the deceased deliberately. Evidence of witnesses on behalf of the accused was not reliable. The theory of accident was rejected and he was held guilty of intentional murder.
Where the husband committed murder of his wife was proved by circumstantial evidence, and the medical evidence disclosed that she died of strangulation and her body was set on fire thereafter while the circumstances indicated that none other except the accused had access to the room where she died, the husband was convicted of intentional murder. In Jawahar Lai v. State of Madhya Pradesh, the accused husband and in-laws were alleged to have doused the wife in kerosene and set her ablaze. The post mortem and inquest reports along with the evidence of the doctor who had performed the post mortem clearly ruled out the possibility of suicide by the deceased.
The conduct of the accused husband during the relevant time was totally suspicious. The evidence of brother and sister of the deceased showed that after marriage the deceased was severely harassed by her husband and his parents for not having brought sufficient dowry, thus clearly establishing motive for the murder. Thrusting cloth in the mouth of the deceased rendered her completely helpless and so the court opined that murder could be committed by a single person.
It was held by the Supreme Court that the husband was, therefore, guilty as the case against the other accused persons could not be proved beyond reasonable doubt. In Gurpreet Singh v. State of Haryana, relation between the accused husband and the deceased wife were estranged. Their joint petition for divorce was pending in the court and the husband was to pay Rs. three lacs to his wife. Suddenly, in a fire in the house the wife was burnt to death.
The photographs brought on record showed that the body of the deceased was totally burnt in a sitting posture on the sofa. The investigating officer found no sign of struggle or movement of the deceased at the place of occurrence. At the time of the incident the accused was present in the house. Photographs produced showed the devastation of fire, obviously a definite attempt to see that one does not survive in any event. The accused offered neither reason nor explanation except the plea of alibi which was found to be false. The evidence on record was sufficient to connect the accused with the brutal killing of the wife, the motive of which was apparent. The accused was convicted both by the trial court and the High Court.
The Supreme Court refused to interfere. Where the accused murdered in a hotel room the woman with whom he was having an illicit relationship because she threatened his marital life, and where a rape accused murdered the victim after he was released on bail, the intention to cause death is obvious. In another case, the cause of death by poisoning was not established by the post mortem report. The doctor noted that the death was due to cardio respiratory failure either due to taking excess wine or due to poisoning. Alcoholic smell in the mouth of the deceased was found. The relatives of the deceased stated before the doctor and the investigating officer that the deceased did not name the accused to have poisoned him. The alleged dying declaration thus was not reliable and his conviction was set aside as the cause of death was not established beyond doubt.
Where the accused poured kerosene on the deceased and set her on fire resulting in 30% burns, and then a supervening illness developed which is a natural consequence of the burning, it is clear that the accused had killed the deceased with the intention of causing her death. In a bride-burning case there were two dying declarations giving two different versions. In the dying declaration recorded by a doctor in presence of two other doctors, the deceased stated that she was burnt by her mother-in-law and husband.
The motive, failure to bring enough dowry, was duly established. The second dying declaration was recorded by a person and attested by the Sarpanch established that the deceased had committed suicide. This was introduced by the police inspector in his cross-examination and was not proved by the competent witness. It could not be relied on. The conviction of the accused persons for the intentional murder under sections 302, 34 based on the dying declaration recorded by the doctor was sustained. Where the statements of eye-witnesses that kerosene was poured over deceased persons during communal riots and they were burnt alive but the ‘panch witnesses’ or the medical evidence did not state that the dead bodies smelt of kerosene, even though the medical evidence did say that deaths were by burns, it was held that there was no infirmity in the evidence and the deaths caused were intentional murders. In Vasant v.
State of Maharashtra, there was enmity between the deceased and the accused. The accused was seen grappling with the deceased. On being separated by the witnesses the accused was alleged to have gone running to his jeep, drove it on the wrong side and towards the deceased in high speed, knocked him down and ran over him. The road at the scene of occurrence was wide and there was no reason for the accused to drive his jeep to the wrong side. The Supreme Court held that this was an intentional murder.
In Rohtas v. State of Uttar Pradesh, the two accused persons came fully prepared with spears to attack. Blow was inflicted on the chest of one of the deceased piercing his lungs and heart resulting into profuse bleeding and death while the brother of the deceased also sustained two incised wounds. The Supreme Court held that it was a case of intentional murder and that there was no cause for interfering with the High Court’s verdict. In Razak Ali Kureshi Sandhi v. State of Gujarat, the accused truck driver intentionally dashed against customs officers crushing them to death. The Supreme Court held that conviction for intentional murder did not suffer from any infirmity. Similarly, in Munna v.
State of Rajasthan, the eye-witness stated that the deceased was first chased and thereafter run over by a station wagon driven by the accused. The evidence fully corroborated on material particulars. The Rajasthan High Court held the accused guilty of deliberate murder. In Namdeo v. State of Maharashtra, the accused attacked the deceased on his head with an axe. The doctor mentioned that the injury was sufficient in the ordinary course of nature to cause death.
The Supreme Court applied clause (1) of section 300 observing that intention to cause death is clear. In Maniben v. State of Gujarat, There was a property dispute between the accused and the deceased because of which death of the deceased was caused by burning after pouring kerosene. The Supreme Court held that accused was-guilty of murder.
In Satvir v. State of Uttar Pradesh, the accused persons, armed with knives, laid down the deceased on the ground and caused injuries on his vital parts resulting in his death. The Supreme Court stated that intention to cause death was proved. There may be cases where the accused does an act with the intention of causing death but that act in fact does not cause death even though the accused may believe that the deceased has died, and then to save himself and with a view to confuse or destroy evidence of the crime he does another act which in fact causes the death of the deceased. In such cases, the courts have delivered different judgments, some of acquittals and others of convictions. The difference in opinion is because of the fact as to whether the court accepts or rejects the technical plea of the accused or not. Where death is caused not by the first but by the subsequent act In Khandu v. Emp.
, the accused inflicted a blow by a lathi on the head of the deceased. The deceased did not die because of this injury but the accused, believing the deceased to be dead, set the hut on fire with a view to remove all evidence of the crime. The medical evidence stated that even though the deceased suffered head injury he did not die of the same, but in fact died of burns. The accused’s plea in the court was that his crime had been committed in two stages. In the first stage even if intention to cause death could be inferred from his conduct when he hit the deceased on the head, the fact is that death did not result from this as the medical evidence said, and so even though he might have had the mens rea the actus reus was absent in the first stage. In the second stage, he believed that the deceased was already dead when he set the hut on hire, which meant that his mens rea by that time was already over because he believed that he was burning a dead body, even though actus reus was present because the medical evidence said that death had resulted because of bums. Since under the common law principle of criminal liability one would be liable only when both mens rea and actus reus are simultaneously present, he could not be held guilty of murder as at neither stage both these requirements were present. The court agreed with this view and did not hold the accused guilty of murder even though he was held liable for attempt to commit murder.
The minority judge, however, did not agree with this opinion of the majority. He believed that the whole crime was one complete transaction and, therefore, the technical argument that the crime had been committed in two stages could not be accepted. The difference between the two points of view lies in the perception of the judge. A judge who believes that since the responsibility to prove a case beyond reasonable doubt rests with the prosecution the accused should be entitled, as of right, to the faintest of benefit like technical arguments would have a liberal attitude in favour of an accused till the case of the prosecution is water tight. On the other hand, another judge may have equal respect for the principle that the prosecution must prove its case beyond reasonable doubt, but for that he may not like to give technical benefits to an accused, and consequently, his argument would be that if intention to cause death is proved beyond a shadow of doubt on the part of an accused, it would make no difference whether the ultimate result which he wishes to achieve is achieved by his first act or by the subsequent one, and, therefore, in any case he should be held liable for the crime committed by him. In the Khandu’s case the majority judges belonged perhaps to the former class.
In Ningraj Das v. Emp. on the other hand, where the accused persons, with the intention of causing the death of a lady, decoyed her to a certain place and attempted first to strangle her and then in her unconscious or semi-conscious state dragged her and placed her on the railway tracks, and she was run over, it was held that they were guilty of murder. The court opined that the two acts were intimately connected with each other and were, therefore, one single transaction. Here the judge must have belonged to the latter category. There are many such cases which have been decided on the basis of following either of the above discussed reasonings.
In Kaliappa Goundan v. Emp. the accused attacked the deceased inflicting three punctured wounds on her head. He then threw her into a well.
According to the medical evidence the three wounds were not sufficient in the ordinary course of nature to cause her death but she died by the latter act when she was thrown into the well. The accused was held guilty of murder as the intention to cause death on his part was apparent from the very beginning and both stages of the act were closely connected in time and space. Similarly, in Nehal Mahto v. Emp.
the accused attacked the deceased with the intention of causing her death and then believing that she had died placed her on the railway tracks and she was run over. The accused was held guilty of murder as both his acts were intimately connected with each other. It is clear that in all the above mentioned cases intention to cause death on the part of the accused was proved beyond doubt. If the same, however, is not inferable in similar cases, what kind of a decision can be expected is an important question.
In Palani Goundan v. Emp the accused struck a blow by a ploughshare on the head of his wife as a result of which she fell down unconscious. Believing her dead, he changed her on a beam by a rope to give it a suicide look. She died of hanging. The accused was held guilty of grievous hurt only and not of murder as intention to cause death on his part could not be inferred. Liability for culpable homicide not amounting to murder was also rejected by the court.
Similarly, in Dalu Sardar v. Emp., the accused kicked his wife around her abdomen and also slapped her and gave her other blows as a result of which she fell down unconscious. Believing her dead, to give the crime an appearance of a suicide, he hung her by rope causing her death. The court convicted him of grievous hurt as he did not have intention to cause death. Some judicial pronouncements on similar facts are available where knowledge clauses, that is, clause (4) of section 300 or clause (3) of section 299, have been held to be applicable.
In Nannhu v. State, the accused gave two blows to his wife by a lathi, both falling on non-vital parts of her body. As a result she fell down unconscious. Believing her dead the accused cut her body into three pieces and buried them. It was held that there was no reason for the accused to believe that his wife had died by the two blows he inflicted on her because these blows had not fallen on her vital parts.
Consequently, he must be deemed to have knowledge, while cutting her body into three pieces, that his act was so imminently dangerous that it must, in all probability, cause her death. He was, therefore, held guilty of murder. On the other hand, in Sreenarayan v. Emp, the main accused inflicted a single blow by a firewood on the head of the deceased as a result of which she fell down unconscious bleeding from her nose. Believing her dead, the main accused and his wife placed her on a pyre and set in on fire causing her death by burns.
In the absence of intention to cause death on the part of the accused the court did not convict them of murder, but convicted them of culpable homicide not amounting to murder instead, holding that they must be deemed to have known that their act was likely to cause death. Cases under clause (2) Section 300 (2) is applicable when the act by which the death has been caused is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused. In practice there are very few convictions under this clause. The reason for the same is that this clause requires two essential elements to be proved—intention to inflict bodily injury, and the subjective knowledge that the injury being caused to that particular person is likely to cause his death because the victim was suffering from certain physical disability etc. which was known to the accused, and it is not very frequent that such cases occur where the accused causes bodily injury with the subjective knowledge. In Dhansi v. State, two accused persons assaulted the victim, an old man of about seventy years of age, by a wooden pole. In all nineteen injuries were inflicted including some on the vital parts of the victim.
One of the injuries on the left part of the chest fractured the eighth and ninth ribs while another fractured the right temporal bone resulting in the fractured pieces depressing into the brain substance. The High Court convicted the accused of murder under the second clause of section 300 on the ground that infliction of nineteen injuries by the accused proved that they had intention to cause bodily injury and the victim being an old man the accused had subjective knowledge that the injuries caused were likely to cause death. The Supreme Court changed the conviction to one under clause (3) of section 300 on the ground that the injuries caused were sufficient in the ordinary course of nature to cause death of anyone and therefore, the victim’s old age could not be held to be a subjective knowledge on the part of the accused. In Behari v. State, the Allahabad High Court observed that when an injury which would not be sufficient to cause the death of an ordinary grown up human being, is sufficient to cause the death of a person in a sub-normal state of health, for example, by reason of age, disease or weakness or previous injury, it is spoken of as an injury likely to cause the death of the person to whom the harm is caused, bearing in mind that person’s special physical condition. A person is guilty of murder under clause (2) of section 300 if having full knowledge of the peculiar physical condition of another, and further, having knowledge that the injury intended to be caused would most likely result in that person’s death on account of his peculiar physical condition, he causes to him injury and his death ensues. On the facts and circumstances of the present case, however, the court held that the second clause of section 300 did not apply. In State v.
Ram Sagar Yadav, the deceased was brought to a police station on a false charge of dacoity. Subsequently, he was mercilessly beaten by the police personnel there. As a result of the multiple injuries suffered by him in the process, he died. The Supreme Court convicted the accused of murder on the basis of the second clause of section 300 holding that beating on their part would mean intention to cause bodily injury, and they also knew that the injuries caused were likely to cause his death.
It seems that the court erred in applying the second clause because there was no subjective knowledge on the part of the accused about any particular physical condition of the deceased, and in the absence of such knowledge this clause could not be applied. The third clause of section 300 was not applied by the court on the ground that the third requirement as laid down in Virsa Singh v. State by the Supreme Court with respect to the application of the third clause of section 300, that is, that it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental, or unintentional, or that some other kind of injury was intended, was not established when the police personnel beat the deceased mercilessly. If this was the conclusion of the Supreme Court on the facts and circumstances of the present case then perhaps the better course should have been to apply the second clause of section 299, and not the second clause of section 300 as the Supreme Court did and thus went against its own earlier judgment in Dhansi v. State. In State v. Sadanand, the accused caused the first injury on the stomach of the deceased by a Rampuri knife with a blade of more than six inches long.
While the deceased started running away from the place to save himself, the accused gave another blow by the same knife on his back. The injuries caused his death. The Supreme Court applied the second clause of section 300 and held the accused guilty of murder. Here also, the accused had no particular knowledge about certain special disability or disease of the deceased while inflicting blows on him, and, therefore, an essential requirement of the second clause of section 300 is not met. It does happen in a large number of cases of such physical attacks that the deceased tries to run away from the scene after the first injury has been inflicted on him but he gets caught a little distance away and is given more blows ultimately resulting in his death.
Surely all such cases cannot fall under the second clause of section 300. Therefore, nature of the injuries, nature of the weapon used and the parts of body where injuries were inflicted should have been taken into consideration to decide about the application of either clause (2) of section 299 or clause (3) of section 300. Cases under clause (3) The third clause of section 300 is applicable where the act by which the death is caused 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.
It is clear from the language of this clause that it speaks of intention at two places and in each the sequence is to be established by the prosecution. The Supreme Court, through Bose J., has laid down in Virsa Singh v. State? that the following four essential elements must be established for the application of this clause, and this exposition has since then become a landmark in the field of application of the third clause of section 300. (1) The prosecution must establish, quite objectively, that a bodily injury is present; (2) The nature of the injury must be proved. The two elements (1) and (2) are purely objective investigations; (3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental, or unintentional, or that some other kind of injury was intended; (4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the inquiry is purely objective and inferential and has nothing to do with the intention of the offender. In Anda v.
State the accused gave severe beating to the deceased by lathis. His legs and arms were smashed and many other injuries were also inflicted as a result of which he died. While holding the accused guilty of murder on the basis of clause (3) of section 300 the Supreme Court observed that nature of the injuries caused, nature of the weapon used and the parts on which the injuries were inflicted, considered all at the same time, pointed out to the conclusion that the injuries caused were sufficient in the ordinary course of nature to cause death and the accused did have intention to inflict bodily injury as referred to under this clause. In Rajwant Singh v. State, the accused entered into a criminal conspiracy with others to burgle a safe in a naval office. He kept himself ready with rope, cotton wool, chloroform bottle, adhesive plaster and handkerchief etc.
for the purpose. On the night of the incident he decoyed the deceased, a Lieutenant Commander in the Navy, from his house and in a lonely place caught hold of him, covered his mouth with the plaster, tied a handkerchief over it, plugged his nostrils with cotton wool soaked in chloroform, tied his hands and legs by rope and dropped him in a shallow drain with his own shirt under his head as a pillow. All this was done with a view to get hold of a navy uniform to enable the accused to enter a naval office to commit the crime as agreed upon earlier.
The medical evidence stated that the deceased died of drowning. Clause (3) of section 300 was held to be applicable as the acts done by the accused till depositing the deceased into the drain showed presence of at least intention to cause bodily injury and the bodily injury intended was sufficient to cause death in the ordinary course of nature as death by drowning was very highly probable. Where several injuries were caused on the deceased, none of which could individually cause his death, but the cumulative effect of the injuries was that the deceased would die of them in the ordinary course of nature, murder under this clause is committed. Where the appellant had the intention of causing injuries on vital parts of the deceased and caused a stab injury on the back side of his chest, and when the deceased’s brother intervened to save him he inflicted two similar blows by the same weapon on him from, which he, however, ultimately recovered, it was held that he had been rightly convicted of murder and attempted murder.
Where the accused inflicted only one stab injury on a vital part of the deceased as a result of which he died, he was guilty under this clause if the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death even though only one blow was inflicted. It is not necessary that one blow cases of death must always result in conviction for culpable homicide not amounting to murder. The main emphasis is on the probability of death by the blow, for which the nature of the injury, the nature of the weapon and the part of the body on which the blow is caused are all important. Death caused by a hard lathi blow on the head of the deceased could result in conviction for murder under this clause even if it is established that the accused did possess a gun which he did not use. Where the appellant assaulted the deceased and an intervener, and inflicted a four inch deep injury by a dagger on the chest of the deceased, which was sufficient in the ordinary course of nature to cause death, his conviction for murder under this clause and for hurt under section 324 was perfectly in order. Causing death by inflicting thirty-four injuries by the accused persons armed with lathis, and causing very serious injuries on highly vulnerable parts of the body of the deceased including his skull, those injuries not being unintentional or accidental, would attract the third clause of section 300. It is not necessary for the prosecution to prove that injuries inflicted by the accused were known to him to be sufficient in the ordinary course of nature to cause death because concept of knowledge is absent in the third clause of section 300.
It is sufficient to prove that the injuries intended to be inflicted, from which the death resulted, were actually sufficient to cause death in the ordinary course of nature. In Sudarshan Kumar v. State- the accused intentionally poured a jug full of acid on the deceased who was his paramour, her child and her mother while they were asleep. The medical evidence stated that 35% of her body had acid burns because of which she died. It was also established that the deceased had refused to marry the accused and that he had threatened her with a lingering death. Death resulted twelve days after the incident.
The Supreme Court held the accused guilty of murder on the basis of the third clause of section 300 and observed that the nexus between the act of the accused and the deceased’s death was not disturbed due to some other complications which developed during the twelve days the deceased remained alive after the incident. Similarly, where the accused poured kerosene on the deceased and set him on fire causing death and the doctor found second and third degree burns on vital parts of the body of the deceased, it was held that this clause was attracted and the accused was guilty of murder as according to the medical evidence the burn injuries intended to be caused were sufficient in the ordinary course of nature to cause death. In Bharwad Bhikha v. State, eight accused persons, who were shepherds, were armed with sticks and were members of an unlawful assembly whose common object was to commit cattle trespass into another person’s field. While they were grazing their cattle in this field, three watchmen armed with sticks and dharias intervened and began to take the cattle to the pound.
The accused started beating them and one of them snatched a dharia and gave blows on the head of one of the watchmen with great force causing his death. They were acquitted of the charges under section 302 read with section 149 as neither was the offence committed in prosecution of the common object of the assembly nor did the members of the assembly know the same to be likely to be committed in prosecution of that common object. But the one inflicting the blow was convicted of murder as he had intention to inflict bodily injury and the injury intended to be inflicted was sufficient to cause death in the ordinary course of nature. In Kishan v. State the appellant and another person went unarmed into the house of the deceased with the intention of causing physical harm to him. They pulled him out of the house and subjected him to punching and kicking.
The deceased contrived to escape from their grip, caught hold of a khutai and struck three blows by it on the head of the other person who had been beating him along with the appellant. The appellant snatched the khutai from his hand and inflicted two or three blows on the head of the deceased by it causing profuse bleeding inside the brain. One of the skull fractures extended from the right temporal region to the left temporal region and proceeded internally to the base of the skull.
As a result of the attack the deceased died. It was held that the deceased was acting in private defence when he used the khutai, but the appellant could not claim to have beaten the deceased in private defence. Since the intention to inflict injury was established and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, the third clause of section 300 was held to be applicable. Where the medical evidence stated that the deceased had a diseased heart and the cause of his death was a heart attack because of coronary artery disease and his death may not have been necessarily caused because of the infliction of a. blow on him by the appellant by a danda, but it might have been a simple heart attack case, the accused was entitled to benefit of doubt. In Jagrup Singh v.
State the accused inflicted a blow on the head of the deceased by a gandhala causing his death. The Supreme Court refused to hold that the accused was guilty of murder on the basis of the third clause of section 300. It was observed that the injury was inflicted suddenly at the spur of the moment and it could not be conclusively said that the accused intended to cause that particular injury. Therefore, even if the injury might have been sufficient to cause death in the ordinary course of nature, the important point emphasised by Bose, J. in Virsa Singh v. State? that it must be shown that the injury caused in fact was the injury intended to be caused by the accused, had not been proved in this case.
Similarly, in Kulwant Rai v. State, the accused gave one dagger blow on the epigastrium area of the deceased causing his death. The Supreme Court changed the conviction of murder under the third clause of section 300 to one under the fourth clause of section 300 on the ground that from the facts and circumstances of the case it could not be inferred conclusively that the accused intended to cause that particular injury which in fact was caused by him and consequently clause (3) of section 300 could not apply. Where the accused first inflicted a stick blow on the deceased as a result of which he fell down and shouted that he had been killed, but the accused told him that he was still alive and then cut him on the left leg muscles which instantaneously caused his death, it was held that the third clause of section 300 was attracted and he was guilty of murder because the facts and circumstances of the case clearly showed that the accused had intention to inflict that particular injury which he in fact caused and the medical evidence stated that the injury was sufficient in the ordinary course of nature to cause death. In B.
R. Patel v. State of Gujarat, in a sudden quarrel the accused inflicted a knife injury on the Spinal region of the deceased which penetrated through the right lobe of liver. This was sufficient in the ordinary course of nature to cause death, and if was not caused during grappling between them. The Supreme Court held that even though the case is of sudden quarrel mere knowledge cannot be attributed to the accused, and he in the circumstances clearly intended to cause the injuries and was guilty on the basis of section 300 (3) of the Code. In Lakhasingh v. State of Rajasthan, the accused in possession of explosive substance (hand grenades) threw one at the deceased.
The doctor opined that the injuries caused were sufficient to cause the death of the deceased in the ordinary course of nature. The accused was held guilty on the basis of clause (3) of section 300, and also under section 5, Explosive Substances Act. In Dhupa Chamar v. State of Bihar the accused intentionally aimed and inflicted injury on the chest of the deceased by a bhala. The Supreme Court observed that in the absence of evidence or reasonable explanation to show that the appellant did not intend to inflict injury by bhala in the chest with that degree of force sufficient to rupture important blood vessel and cutting of aorta and other artery, it would be perverse to conclude that he did not intend to inflict that injury that he did. The court held that since the injury was sufficient to cause death in the ordinary course of nature, Virsa Singh applies and the accused is guilty under section 300(3) of the Code.
In Amarsingh Munnasingh Suryawanshi v. State of Maharashtra, the accused husband poured kerosene on his wife’s body and lighted the same causing her death. The Supreme Court convicted him on the basis of section 300 (3) of the Code. In Bavisethi Kameshwara Rao v. State of Andhra Pradesh, the accused, a motor mechanic, had a verbal altercation with the deceased and inflicted injury on his abdomen by a screwdriver, twelve centimetres deep damaging his liver and spleen. The deceased died almost instantaneously. The Supreme Court held that screwdriver, a tool of a mechanic, cannot be said to be innocuous.
The accused had chased the deceased even after the incident. Evidence showed previous altercation and the accused was seething with anger to take revenge. Exception 4 to section 300 was not applicable and accused was guilty of murder on the basis of the third clause of section 300 of the Code. In Suchand Bouri v. State of West Bengal, the accused had pre-existing malice against the deceased. He inflicted stab injury with force on vital part of the body of the deceased. The injury was not accidental or unintentional and was sufficient to cause death in the ordinary course of nature.
The Supreme Court held the accused guilty of murder on the basis of section 300 (3). Exception 4 to section 300 was held to be not applicable as its pre-requisites were not proved to exist. In Mohammad Asif v. State of Uttaranchal, the appellant struck a knife blow on back of the deceased causing deep injury and rupturing his kidney. There was no sudden provocation.
The Supreme Court held that even though one blow was given the accused was guilty of murder and the case is not covered by section 304 Part II of the Code. Cases under clause (4) The fourth clause of section 300 makes one guilty of murder when the person committing the act causing death 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. As stated earlier under the discussions of this clause, this clause should have no application where either clause (1) or (2) or (3) of section 300 applies. But in practice perhaps that has not been the case always and this clause has been applied where it should not have been made applicable.
The clause is attracted where the prosecution proves that no inference of any kind of intention can be drawn on the part of the accused but he did know that his act was very dangerous and there was a very high probability of death resulting from it. Illustration (d) under section 300 clearly proves the point. In Nannhu v. State, the accused beat his wife by a lathi inflicting two blows on non-vital parts of her body as a result of which she fell down unconscious. He cut her into three pieces by a sharp weapon and buried the pieces. It was said in his defence that while cutting the deceased he genuinely believed that she was dead by that time and, therefore, he could not be held guilty of murder.
The court rejected the argument and observed that two lathi blows on non-vital parts would generally never result in death, and consequently, the accused’s belief that he was cutting a dead body could not have any substance and must be ignored. Since the act of cutting a living person must be known to be so imminently dangerous as to cause death in all probability the accused was guilty of murder on the basis of this clause. Where the accused threw a burning lamp at her wife and she caught fire and the accused and his mother did nothing to save her and she died, it was held that this clause was attracted.
Where the accused gave a great blow on the back of the deceased by a formidable weapon causing his death he was held guilty of murder under this clause. Where the accused tied the mouth, throat and hands of the deceased causing her death by asphyxiation due to throttling, he was held guilty of murder as he knew that his act was so imminently dangerous as to cause death in all probability. Where the accused lady was facing so many problems at home, became thoroughly dissatisfied with her life, thought that life for her had become unbearable and jumped into a well along with her three children, resulting in their death but she was saved, it was held that this clause would apply and she was guilty of murder. Where the accused was heavily drunk and he fired a gun shot at a boy hitting him on his abdomen causing his death, this clause was held to be attracted. Similarly, where the accused persons who were drunk attacked the deceased by lathis without any motive, they were held guilty of murder under this clause. But where a snake-charmer was exhibiting a poisonous snake in public whose fangs he knew had not been extracted, and put the snake on the head of one of the spectators who while trying to push off the snake away from his head was bitten by it and died, it was held that the accused snake-charmer would be liable for culpable homicide not amounting to murder under clause (3) of section 299 and not for murder under clause (4) of section 300 as he had knowledge about the likelihood of death but not that his act was so imminently dangerous as to cause death in all probability.
Without any excuse for incurring the risk of causing death or such injury as aforesaid The use of the words ‘without any excuse for incurring the risk of causing death or such injury as aforesaid’ at the end of the fourth clause of section 300 shows that even though the person committing the act has knowledge that his act is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, he goes on to commit that act and has no valid ground whatsoever for taking such a big risk of causing death or causing such injury as mentioned above. An act resulting in death done with the knowledge of its very serious consequences does not by itself become murder under this clause; it must further be shown that even though the accused knew about these consequences he did the act and had no excuse for incurring such a risk. If there is some valid excuse available for incurring such a risk, obviously this clause has no application. In Dhirajia v. Emp. the accused, a young village woman, was continuously being ill-treated by her husband. On the day of the incident they had again quarrelled and the husband had threatened that he would beat her. The woman slipped away with her six month old child in the night.
But after having gone for some distance she heard the sound of foot steps behind her. Turning around she saw that her husband was following her. She got in a panic and immediately jumped into a well along with her child. The child died even though she was saved. It was held that even though she knew that her act of jumping into the well along with her child was so imminently dangerous that it must cause death of the child in all probability, yet she had a valid excuse for incurring such risk as in a panic she had to decide at the spur of the moment as to how could she get away from her husband who was following her and she thought that jumping into the well was the only way and she did the same.
Consequently, clause (4) of section 300 was not attracted and she was held guilty of culpable homicide not amounting to murder under clause (3) of section 299 of the Code. Doubt as to the time of incident In Moti v. State of Uttar Pradesh, post mortem report and the medical evidence were to the effect that the entire stomach of the deceased including both intestines were very empty.
Eye-witnesses, i.e., wife and mother-in-law of the deceased stating contrary to this said that the deceased had taken meals just before the incident (i.e., 9.
30 p.m.). The Supreme Court concluded that in view of the above contradiction there is a possibility that the deceased was done to death much after his afternoon meals and much before his night meals. Thus, a serious dispute as to the actual time of the incident was fatal to the prosecution case and the accused was entitled to be acquitted. Exceptions Five exceptions have been provided under section 300 wherein causing death does not amount to murder.
The words at the beginning of section 300 are ‘Except in the cases hereinafter excepted, culpable homicide is murder, if, which show that these five exceptions are the cases which have been excepted from becoming murder and would continue to remain culpable homicide. Consequently, if any of these exceptions is held to be applicable in a case the conviction of the accused in that case would be for culpable homicide not amounting to murder, and not for murder. In this sense, therefore, these five exceptions are partial defences to murder and cannot be compared with Chapter IV of the Indian Penal Code dealing with General Exceptions under sections 76 to 106 which are complete defences.
In view of the above these cases have been designated as cases or principles of ‘diminished responsibility’. Exception 1.—When culpable homicide is not murder 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. The above exception is subject to the following provisos:— First That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y. neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight, A kills Z, Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers. (d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition, and that A had perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z’s nose, Z in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence. (f) Z strikes Â. Â is by this provocation excited to violent rage.
A, a by-stander, intending to take advantage of B’s rage and to cause him to kill Z, puts a knife into B’s hand for that purpose. Â kills Z with the knife. Here Â may have committed only culpable homicide but A is guilty of murder. Comment The first exception when culpable homicide is not murder is that of grave and sudden provocation. It must be proved that the provocation to the offender was grave and sudden as a result of which he was deprived of the power of self-control and in such state he caused the death of the person who gave him the provocation or he caused the death of any other person by mistake or accident. In other words, this exception is available to a person when he satisfies, inter alia, that he caused the death of only that person who gave him the provocation, and if such is not the case and death of some other person who was not the giver of the provocation was caused, the court has to be satisfied that the death was by mistake or accident. It has been said that anger is a passion to which good and bad men are both subject, and mere human frailty and infirmity ought not to be punished equally with ferocity or other evil feelings. A murder committed at the spur of the moment in hot blood in a fit of anger or provocation has to be treated differently, and this exception gives expression to this feeling.
The provision makes it clear that the provocation must be grave, that is to say, it must be very serious. It must be sudden, that is to say, that provocation over a long period of time would not reduce a murder into a culpable homicide not amounting to murder. The provocation must be such as would deprive the offender of his power of self- control. The death of the giver of the provocation must be caused in such a state, and if death of any other person who is not the giver of the provocation is caused in such a state, it has to be established that such death was caused by mistake or accident.
There are three provisos to which this exception has been subjected to. According to the first the provocation must not be sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. For instance, if the offender does anything by act, words or gestures which would force the victim to act in a particular manner or force him to do something, which he does, and the offender uses the same as an excuse for causing his death, he is not entitled to the benefit of this exception. According to the second proviso, if the provocation is given by anything done in obedience to the law, or by a public servant in the lawful exercise of powers of such public servant, it is not a provocation within the meaning of this exception. Illustrations (c) and (d) under this exception explain the point. According to the third proviso, if the provocation is given by anything done in the lawful exercise of the right of private defence, the offender is not entitled to the benefit of this exception. Illustration (e) under this exception appropriately illustrates the point. At the end of this exception an explanation has been provided according to which whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
This means that there cannot exist any definite statutory provision specifically pointing out as to which are the specific situations in which the defence of provocation would be available and others in which it would not be available. Therefore, the explanation gives a judicial discretion to the court to decide as to whether looking to facts and circumstances of a particular case the defence of provocation could be held to be available or not. Cases coming up before the courts under this exception have been of diverse nature and some of the more frequent areas, have been provocation on account of adulterous intercourse, leading immoral life, illicit intimacy, suspicious character, unnatural offence, immoral conduct, abusive or filthy language, heat of passion, fighting, conduct of the victim, false accusation, continuous neglect of the family, and the like. One of the very famous cases in which the Supreme Court had the opportunity to examine the exception of grave and sudden provocation at great length is Ê. M. Nanavati v. State.
An interesting part of this case is that there were two sets of facts presented before the court, one by the prosecution and the other by the defence. According to the prosecution, the facts were that the accused, a young officer in the Indian Navy, by virtue of the nature of his job, had to frequently go out of Bombay by ship, leaving his wife and children at home. Gradually his wife developed friendship with the deceased which ultimately culminated in an illicit intimacy between the two. On the day of the incident the accused’s wife confessed before him that she had developed such intimacy with the deceased. Enraged by this, he asked his wife and children to get ready. He took them to a cinema hall, bought tickets for them, settled them there and promised to pick them up after the show. He then went to the stores in his office, took a revolver and six cartridges from there on a false pretext, went to the office of the deceased, and not finding him there, went to his home and shot him dead in his bedroom. The defence version of the facts is that on his return from a trip out of Bombay by his ship, the accused noticed that his wife was behaving strangely and was not responsive or affectionate to him. When questioned, she evaded the issue. One day when they were awaiting lunch, he put his arm around her affectionately but she became tense. After lunch when questioned she nodded her head to indicate that she had been unfaithful to him. He guessed that the deceased was her paramour. As she did not even indicate clearly whether the deceased was prepared to marry her and look after the children, he decided to settle the matter with him. His wife pleaded with him not to go to the house of the deceased as he might shoot him dead. Thereafter, he drove his wife, two of his children and a neighbour’s child in his car to a cinema, dropped them there and promised to pick them at the end of the show. Then he drove to his ship and represented to the authorities that he wanted to draw a revolver and six rounds from the stores of the ship as he was going to drive alone to Ahmednagar by night. On receiving the revolver and six cartridges, he put the same in a brown envelope. He then drove to the deceased’s office, and not finding him there, drove to his home, rang the bell, and when the door was opened by a servant, walked into his bedroom and shut the door behind him. He called the deceased a filthy swine and asked him whether he would marry his wife and look after the children. The deceased retorted, ‘Am I to marry every woman I sleep with?’ This enraged the accused who put the brown envelope containing the revolver on a cabinet nearby and threatened to thrash the deceased. The deceased made a sudden move to grab the envelope. On seeing this the accused also did the same thing, and in the struggle that ensued between the two shots went off accidentally killing the deceased. It is necessary to note that the whole set of facts as alleged by the defence was rejected and the court believed that the facts stated by the prosecution were correct, and decided the case on the basis of these facts. The Sessions Court convicted the accused of deliberate murder. This was confirmed by the High Court, and the Supreme Court rejected the appeal while maintaining his conviction. When the wife of the accused confessed about her illicit intimacy the accused did get grave provocation. But then the subsequent events including taking his wife and children away to a cinema hall and getting possession of a revolver and cartridges on false pretext showed his deliberation. Further, more than three hours had elapsed since he first got the provocation till he shot the deceased. This duration was enough to regain self- control. The murder thus was deliberate, calculated and premeditated. By giving a different version of the facts, which were rejected as untrue, the defence was trying first to rely on the plea of accident and failing that, on grave and sudden provocation by showing that before the shooting the accused had abused the deceased and that abuse had received an equally abusive reply which instantly provoked him. But since the defence version of facts was rejected the court was not required to go into these aspects. Where the accused, peeping over the wall of his house saw his wife in sexual intercourse with the deceased and killed him, it was held that exception 1 to section 300 was attracted. Where the accused had heard rumours about the immoral character of his wife and had warned her, and yet found a person emerging from the house where his wife was sleeping when he returned home one night, accosted the man but he ran away, then went in and killed his wife by a dharia, the defence was rejected as mere presence of a stranger in an osri would not by itself amount to grave and sudden provocation. Where the accused murdered the deceased about one month and three weeks after he heard the rumour that he had raped the accused’s sister, the exception was not attracted. Where the accused had resented his wife’s intimacy with a stranger and had asked her to cut off all relations with him and yet about two months thereafter he found him giving some money to her, and he kicked and then inflicted a knife blow on her abdomen killing her, it was held that the accused was not entitled to the benefit of this exception as he had come prepared with a knife in his hand to take revenge. Where a husband was under the belief that due to the shifting of his residence from one place to another the illicit intimacy which was earlier in existence between his wife and her paramour would cease but the things did not change, it was natural on his part to lose his self-control after he saw his wife and her paramour together in his absence in his new hut. Consequently, the exception was attracted when he killed the paramour. In another case, six days after the accused and his wife having gone back to his village, the accused went to another village in search of a job. Two days later a relation of the accused found the two children of the accused abandoned by the wife of the accused who had eloped with another man. The village panchayat having intervened in the matter both the accused and his wife again started living together. On the day of the incident the accused returned drunk and asked his wife to get ready so that they could go to the native place of the accused husband. When the wife told him that she would go with him after her parents returned from the field, the accused taunted her that her paramour might be preventing her. Then they came to grips and held each other by the tuft of hair. The accused then whipped out a dagger from his waist and gave her five or six blows causing her death. Rejecting the defence of diminished responsibility on account of grave and sudden provocation, the court observed that the test to be applied for determining whether the provocation in a particular case is of the requisite nature is that of its effect on a reasonable man so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led on ordinary person to act as he did. The defence of provocation was held to be applicable where the accused, on returning home from the tea garden after drawing his wages, found his wife in sexual intercourse with a man with another man sitting nearby, and killed the wife by a ‘dao’. In another case, the victim was a young married woman left by her husband a few months back as he suspected her to be in illicit intimacy with her paramour. She was the daughter of the accused’s cousin and the families of the accused and the deceased lived in two different portions of the same building. One day when the accused returned home he found the victim engaged in making signs to her paramour who was at a distance. After a lapse of sometime the accused exchanged a few words with her when the girl reiterated that even if she carried on an affair with others the accused had no business to question her. The accused felt offended as the family reputation was being spoiled by her, and killed her inflicting blows by a sickle. Rejecting the defence of provocation the court held that killing his cousin’s daughter on a suspicion that she was leading an immoral life would not attract the first exception as the deceased was not under the protection of the accused, and also that there was a suggestion during the cross-examination of a witness that the relation between the families of the accused and deceased were strained because of a property dispute between them. Where the accused returned home at around 1.30 in the night and got suspicious about the presence of someone else in the house, chained one door from outside and tapped at the other, and when his wife opened the door and another man also came out, got infuriated, gave a bamboo blow on the head of the man who tried to run away but was chased and killed, it was held that it was a fit case of grave and sudden provocation. The accused, a labourer in a mill, was the husband of the deceased, a cook in a hospital who also used to supplement their income by rolling bidis. He used to drink quite often and the two used to quarrel frequently, and the deceased would go away for days sometimes. The husband developed an obsession that his wife was having illicit relationship with other men. The wife had always repudiated this charge and told him many times that she was a loyal wife. On the day of the incident she was rolling bidis at home in presence of her husband when their daughter came out shouting that her mother was being killed by her father. The daughter told the court that her deceased mother refused to give money to the accused for drinks as she had to take care of the children’s needs. Even though the circumstances do not show the existence of grave and sudden provocation, the court gave the benefit of the defence to the accused. The wife of the accused and her paramour had gone into the room in the night leaving the accused alone on the corridor. The accused husband, a woodcutter, wept outside for a long time till he fell asleep. This was a remarkable restraint on his part. He woke up from his slumber at around 2 in the night when he received a fresh provocation when he saw that his wife was lying almost naked with her paramour whose arm was softly lying upon her arm. He killed both by the axe lying nearby. The exception of grave and sudden provocation was held to be applicable. Where the accused husband saw his wife in sexual intercourse with his younger brother who immediately ran away and the accused ran behind him for about forty-five yards and killed him, it was held that the accused was entitled to the benefit of the exception as running a distance of forty five yards would take a few seconds only within which duration a reasonable man could not cool his emotions down. Where the accused had entertained a suspicion about the character of his wife, and on the day of the incident he saw two men coming out of his house in the early hours of morning when his wife was supposed to be all alone in the house during the night, and killed her, it was held that the exception was attracted. In Hansa Singh v. State, the deceased committed sodomy on the son of the appellant in his presence which annoyed him and in consequence of the same the appellant assaulted and killed the deceased. The Supreme Court held that the accused was entitled to the benefit of this exception as any reasonable man would lose self-control in similar circumstances. In another case, the accused asked the deceased, a Hindu, as to whether he had an unnatural intimacy with a cow. The deceased got enraged and retorted “Yes, I have done, and I will do so even with your mother.” Upon this, the accused shot the deceased dead. It was held that exception 1 was not attracted as to impute to a Hindu an unnatural relationship with a cow, which the Hindus worship as mother, is a serious affront provoking him to retort which the deceased did. Therefore, the provocation, if at all, was self-sought and no benefit could be given to him. Declining to cook food for the husband by the wife as she was not permitted by him to go to her parental home for some time, and her retort that she would rather die in a sweeper’s house than cook food for him was held to be not enough provocation as to justify the husband to kill her. On the other hand, where the deceased wife declined to cook dinner and spread beds, and also threatened to leave the house the next morning, and on the accused husband fondling her and asking as to why would she be leaving him the wife kicked him at his chest and asked him to get away from her bed and to have sexual intercourse with his mother and sister, it was held that the husband had killed her in grave and sudden provocation. Where the appellant and his wife were in the habit of accusing each other of leading immoral lives, and on the day of the incident he called her to massage his belly which unusual demand was taken by the wife as an overture for cohabitation and she reacted by saying that he should have satisfied his lust with his sister whom he went to see three days ago at which the accused got infuriated and killed her by an axe, it was held that he was entitled to the exception of grave and sudden provocation. The court observed that the impact of provocation on human frailty is to be judged in the context of the social position and environment of the accused. Restraint generally shown by sophisticated persons used to modern living is hardly to be expected in case of a villager who still regards wife as his personal property amenable at all times to his desire. Where the deceased widow and her son met the accused, a Sadhu, who was passing through their village and wished him by uttering ‘Siya Ram’ to which the accused lost his temper and remarked whether they did not know about the misdeeds of Sita and Ram, and that the likes of the deceased were disgrace to the country, and that they should instead have said ‘Namo Narayan’, and this infuriated the deceased as Sita and Ram were dear to her, she being a Hindu, and she retorted by saying whether the accused was a Sadhu or an imposter and that she would call his men to take him to task, and she got up and kicked the Sadhu’s stick also, after which the accused took out a knife from his bag and killed her, the defence was rejected as provocation was given to the deceased by him and not otherwise. Where the accused and his wife were returning from a festival when the wife suggested that they should also go to her parental home before returning to their own home, but the accused did not like the idea as he wanted to have a bath first and was also feeling hungry, upon which the wife broke her thali, a neckwear for a married lady, and threw it on the face of the husband saying that she would never thereafter live with him, and this infuriated the husband who killed her by a chopper, the benefit of exception 1 to Section 300 was given. Where a piglet belonging to a woman of low caste entered the house of the accused, a Brahmin, who felt angry and annoyed as he believed that it had defiled the place, and he went and brought the woman with him who tried to drag the piglet out and promised to take care in future, but the accused attacked her and the piglet by a lathi and killed both, the defence was rejected by the court. The deceased merchant became friendly with the accused and another boy during the course of a fair. After the fair was over, they went together to attend another fair in another town where they rented a room. On returning from the place of the fair where they had gone in search of getting the services of a few helpers for them during the fair, the deceased, who knew cooking, cooked food for all the three. Later on he discovered that some money which he had kept in a box had been stolen by someone and he pointed an accusing finger at the accused who denied the allegation. Hot words and mutual abuses were exchanged by the two after which the deceased left the room but was followed by the accused who stabbed him by a knife several times causing his death. The defence of grave and sudden provocation was held to be not applicable in the case. The accused assaulted his wife in the night in their home by a sword killing her. He pleaded right of private defence, or in the alternative, grave and sudden provocation. His case was that when he awoke suddenly in the night he found his wife coming near him in an attacking posture with a sword in hand. He ran away to save himself and she also followed him. He managed to snatch the sword from her and attacked her by it killing her. It was held that the accused was entitled to the defence of provocation as human frailty is to be judged in the context of the social position and environment of the person concerned. The act of the wife assaulting her husband by a sword and chasing him and causing some injuries on him was sufficient to make the husband, a villager, to lose self-control. Where the deceased had not only committed adultery but had also sworn on the face of her accused husband that she would persist in such acts of adultery and had also abused the husband for remonstrating against such conduct on her part, it was held that killing of the wife by the husband was a consequence of grave and sudden provocation. Where the accused and the deceased, who was his wife’s sister’s husband, were sleeping on the same cot, while the wife of the accused was sleeping in another room, and the deceased got up and went into that room and had sexual intercourse with her which the accused saw through a chink, and returned to the cot and fell asleep, when the accused got up and stabbed him to death, it was held that the exception of grave and sudden provocation was attracted. Similarly, where the accused found that his sister had an illicit relationship with a man, and in a fit of passion killed both of them, he was held to be acting under provocation. But where the accused killed the woman, who was engaged to be married to him, when she confessed to him about her illicit relationship with another man, the benefit of provocation could not be given to him. Similarly, where the accused was quarrelling with his father when the deceased came to intervene and pushed the accused away, and the accused then went into a room and brought a knife and inflicted two blows by it on the deceased which proved fatal, the court held that benefit of the exception could not be extended to such a case where death of an innocent intervener is caused. Where the concubine of the accused refused to break off her illicit relationship with another man, and the accused remonstrated and left her, but later followed and killed her by a dagger which he had bought for killing her, it was held that he was not entitled to the defence of grave and sudden provocation. Where the accused killed a man in a fit of passion who was misbehaving with his brother’s wife, the exception was held to be attracted. Where the accused suspected that the widow of his cousin was carrying on an affair with a man, and following her in the night with a sword in hand, found her actually having such a relationship and killed her, it was held that he was not entitled to the protection of this exception. Where the accused and the deceased fell in love with the same woman, and the former asked the latter to break off the illicit relationship which the latter was not prepared to do and the accused killed him with premeditation, the benefit of grave and sudden provocation to him was refused. Where the accused found his wife and a neighbour in a compromising position and shot both of them dead, it was held that he was acting under provocation. But where the accused got provocation during a school committee meeting at which allegations were levelled against him and another by the deceased and he first went home, brought out a gun, asked others to get out of the place when the meeting had just ended and all were dispersing, and then shot the deceased dead, it was held that he was not entitled to this exception. A man in love with a woman who had repulsed his suit may find her engaged in sexual intercourse with another man, and may be so provoked as to cause death of either or both of them. Yet he is not entitled to the benefit of the defence of provocation. Where the accused saw some affair going on between his sister and the deceased, and on a subsequent day objected to the deceased placing his cot near that of his sister, and in the resultant quarrel between the two caused his death, it was held that exception 1 to section 300 was not attracted. Where the deceased picked up a quarrel with the accused by unlawfully demanding money from him, and attempting to search his pockets and then stopping him when he did not find any money, after which the accused in anger unthinkably stabbed the deceased by the knife which he carried with him, it was held that the conduct of the deceased was a sufficient provocation for the accused and he was entitled to the defence of provocation. The deceased was having illicit relationship with the mother of the accused and he was also forcing the sister of the accused to have such a relationship with him. The deceased picked up a quarrel with the accused on the date of the incident and attempted to cause injury to him. Unable to bear the agony and ill-treatment meted out to his mother and sister and losing temper due to sudden provocation, the accused beat the deceased to death by a stick. The Madras High Court held the accused entitled to the benefit of exception 1 to section 300. Where the deceased was accustomed to use most provocative words casting reflections on the chastity of women in the household of the accused, and on the day of the incident he taunted the accused just before the occurrence and used words casting aspersions on the chastity of the unmarried daughter of the accused, because of which the accused got infuriated and killed the deceased, it was held that the accused was acting under grave and sudden provocation. Words, and even gestures, may under certain circumstances cause grave and sudden provocation. If this plea is not taken by the accused even then the court is entitled to consider it. The reason for the same apparently is that the court is to do justice in a case, and if it feels that there are sufficient circumstances indicating that the accused was acting under a particular defence, it is the duty of the court to give its verdict on the basis of that defence. Further, if the lawyer appearing on behalf of the accused believes that a particular defence is the best defence for his client or that no defence need be pleaded by him as the prosecution has not been able to prove the charges against his client beyond reasonable doubt, his honest but mistaken judgment cannot and should not seal the fate of his client. In another case, A, along with B, went to buy sugar at the shop of M. On inquiry M told them that the rate of sale was Rs. 1.70 per kilogram on which A said that other shopkeepers were selling sugar at the rate of Rs. 1.60 per kilogram. M sarcastically said thereafter that he had come to buy sugar without having any money. On it Â became angry and asked him not to misbehave which resulted in altercation and ultimately in exchange of abuses. M thereafter gave one blow by a knife on Â causing his death. When A tried to intervene he was also given a knife blow on shoulder. Neither party elicited as to who initiated abuses and what were the actual words. It was held that the accused M was entitled to the benefit of the defence of grave and sudden provocation. The court observed that the cultural, emotional and social background of the accused are important considerations while deciding such cases. Where the deceased was in love with a girl while the accused was living in adultery with the mother of the girl, and the accused questioned the deceased regarding his intentions when the deceased retorted back that if the accused could keep another, he could also marry her daughter, after which the accused killed the deceased by dagger blows it was held that the benefit of this defence given by the lower court was wrong and liable to be set aside. It is clear from the discussions of cases above that 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. Words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the exception. 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. 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. The deceased, an anti-social element in society, abused the accused in a virulent manner. The accused on being provoked stabbed the deceased and reported the incident to the police. The prosecution produced no evidence as to the manner in which the quarrel ensued. The Supreme Court held that the possibility of the injuries being received during grappling could not be ruled out and thus the accused was entitled to the benefit of exception 1 to section 300 of the Code. In Devku Bhikha v. State of Gujarat? the accused, a member of the low caste, was subjected to repeated insults by the deceased, a member of the high caste when he requested the deceased, a head master in a school, for a job which was available in the school. The deceased asked the accused to make available his wife to him for immoral purpose. The accused admitted that he committed the murder in grave and sudden provocation. The Supreme Court gave him benefit of exception 1 to section 300 of the Code. In Namala Subba Rao v. State of Andhra Pradesh, the wife of the accused started to live with her paramour after leaving her husband. The accused killed her because she had refused to come back and live in her matrimonial home. This incident had happened in the house of the other person by a weapon picked up on the way from a carpenter by the accused husband. The Supreme Court held that the accused had reasonable time to react and it was not a case of grave and sudden provocation and thus the accused was guilty of murder. In Muthu v. State of Tamil Nadu the deceased threw waste and rubbish into the shop of the accused. A scuffle ensued during which the accused picked up a knife from a table and inflicted injury on the chest of the deceased resulting in his death. The Supreme Court held that throwing waste and rubbish inside a house or shop is certainly grave and sudden provocation. The incident occurred in a sudden fight in heat of passion. Therefore, exceptions 1 and 4 to section 300 of the Code are applicable. Exception 2 Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip Ë, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder but culpable homicide. Comment The second exception where the offence of culpable homicide is not murder is where the offender exercises his right of private defence of either body or property and, while doing so, in good faith, exceeds the power which the law has given to him, and causes the death of a person against whom he is exercising such right of defence, and there is neither premeditation on his part nor does he have any intention of doing more harm than necessary for the purpose of defence. The illustration appended to the section explains the point well. Like the first exception, this exception too is an example of diminished responsibility of the offender, as unlike the right of private defence which is a complete defence under sections 96 to 106 of the Code wherein the accused is not liable at all for any consequences of his act this exception reduces his liability from murder to culpable homicide not amounting to murder, and in that sense is a partial defence only. Where there was a land dispute between the accused and the deceased, and the deceased party had been going to cultivate the land when they were waylaid and attacked by the accused party who were variously armed, and the deceased party did whatever they could to protect themselves, and three persons from the deceased party lost their lives, it was held that this could not be a case under this exception at all as the accused party members were the agressors and not defenders and there was no question of any private defence on their part and, therefore, the question of exceeding the right of private defence did not arise. But where there was an altercation between the appellant and another person, and the appellant beat him by a stick lying there and caused him injuries including fracture in his arm, and then the villagers came on to the scene and beat the appellant, and the appellant fearing that his life was in danger took out his knife and caused the death of one and injured some others by it, it was held that the circumstances showed that he had in good faith exceeded his right of private defence and was thus entitled to the benefit of the second exception under section 300 of the Code. Similarly, where there was a dispute between the management and the workmen of a factory regarding payment to be made during lay off, and the workmen had gathered outside the gate of the office of the appellant, the owner of the factory, and were shouting slogans when some of them threw brickbats damaging certain articles, and the appellant fearing danger fired by his revolver killing a worker, it was held that he had exceeded his right of private defence of body and property in good faith, and was consequently entitled to the benefit of second exception under section 300. Some persons including the deceased persons committed theft of ‘mahua’ fruits from the property of the accused who and some other persons went there to prevent the theft. In the altercation that followed arms were used and two of the alleged thieves were killed by bhala injuries. It was held that the accused party had exceeded the right of private defence. However, none of them could be convicted as it could not be established as to who of them were armed with bhalas. Where the deceased, a strong man, sat on the chest of the accused, who inflicted three knife blows on him, the third proving fatal, it was held that he in good faith had exceeded his right of private defence. Where the deceased attacked the accused by a stick and the accused caused a stab injury on his heart causing his death, it was clear that he had used more force than necessary to avert the attack, and was, therefore, guilty of exceeding in good faith his right of private defence. Where two knife blows were caused by the accused in course of a quarrel with the deceased resulting in his death, he was held to have exceeded his right of private defence. The deceased came into the shop of the appellant with a view to pursuade him not to construct a partition wall between the shop and the portion occupied by the owner of the building. It was not clear as to whether the deceased was committing criminal trespass when he entered the shop. It was, however, established that he had no arms with him and had no intention to cause injury to the appellant. The appellant caused his death. It was held that the appellant had tar exceeded his right of private defence of property when he killed the deceased by a dagger and this exception was attracted. There was a doubt about the place of occurrence in the absence of reliable evidence, but the accused admitted that he had assaulted the deceased by a holanga as the deceased had unlawfully entered into his field and had assaulted a ploughman there. No injuries, however, were found on the bodies of the appellant and the ploughman. It was held that he had exceeded in good faith his right of private defence and, therefore, this exception would be applicable. In another case, however, where the father of the accused was being assaulted by the deceased by lathi, and he fired at the deceased to save his father, it was held that he was justified in doing so and had not exceeded his right of private defence. A decree of eviction was passed against the accused from the field in his possession on a complaint filed by the complainant. The complainant party went into the field on a tractor when they were attacked by jaillies by the accused party, and a member of the complainant party was killed in the process. Seeing this the brother of the deceased fired two shots by his rifle injuring a few in the accused party. It was held that the accused party had exceeded any right of private defence that was available to them in view of the fact, inter alia, that they continued to attack the deceased in a vindictive manner even after he had been felled on the ground by them. Where the accused party was in actual possession of a disputed land after buying it and was sought to be dispossessed by force by the complainant party who trespassed into the land, and the accused party used force and killed one of the members of the complainant party on whom seventy two injuries were caused, it was held that conviction under sections 302, 149 of the Code was bad, and exception 2 to section 300 was applicable as the accused party had far exceeded their right of private defence in good faith, and so the convictions were altered to one under section 304 Part I and 34 of the Code. Where there was a dispute regarding possession of a field and the accused party attacked the deceased party when its members were working in the field, it was held that right of private defence was exceeded and this exception was attracted. Where the accused persons had received simple injuries during a scuffle with the deceased party, and the facts indicated that they were entitled to the right of private defence, but death of a person was caused even though there was no apprehension of death or grievous hurt, it was held that exception 2 to section 300 was available to them. Where the evidence showed that the accused had inflicted a knife blow on the deceased which along with the injury caused by another accused on him proved fatal, the accused could not be acquitted on the ground of acquittal of the co-accused, and was held that he had exceeded his right of private defence and was thus entitled to the benefit of this exception. Where the complainant party assaulted the accused persons who were also armed with sharp weapons like ‘gandasa’ by the use of which death resulted, it was held that they had exceeded their right of private defence in good faith and so exception 2 was available to them. Where members of the accused and the complainant parties sustained injuries in a fierce fight, and the accused also sustained a stab wound on his right shoulder which could not be explained by the prosecution, it was held that he had exceeded his right of private defence when death of a man of the complainant party resulted. In Adhimoolam v. State, the trespassers were in settled possession of a field prior to the date of occurrence. The deceased and others, on the strength of police protection ordered on the previous day, started ploughing the field. It was held that it is permissible to the accused to act in exercise of their right of private defence and resist the attack; the accused, however, exceeded this right when he caused death of the deceased, and thus act fell under exception 2 to section 300 of the Code. In Searia v. State of Kerala? where three persons were about to attack the accused and in fact an injury was inflicted on his forehead, it was held that it cannot be said that he had no reasonable apprehension that hurt at least would be caused; and when he inflicted four injuries on the deceased and also one serious injury on another exception 2 to Section 300 would apply. In Bhanwar Lai v. State of Rajasthan, the complainant interfered with possession of the accused and thereby violated the injunction order passed against him. The accused hit him by a thin bamboo stick. The Rajasthan High Court held that the weapon used was such that he could not be attributed intention to cause death. The Court applied exception 2 to section 300 of the Code and held the accused guilty under section 304 Part II. In State of Haryana v. Sher Singh, the accused was in possession of a land. The deceased party tried to enter into the land forcibly. One member of the deceased party was killed in the process and another grievously injured. The High Court held that the accused who caused the death exceeded his right of private defence and so exception 2 to section 300 would apply and his conviction was altered from one under section 302 to that under section 304 Part I while the accused who caused grievous injury by a spear to an unarmed member of the deceased party was acquitted. The Supreme Court held the acquittal improper and he was convicted under section 326. Exception 3 Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of the public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Comment The third exception where the offence of culpable homicide is not murder is where the offender is either a public servant or is aiding a public servant for the advancement of public justice, and he exceeds the power given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and he bears no ill-will towards the person whose death is caused. Under this exception also, like the preceding exception, good faith is required to be proved, and it has the same meaning as given in section 52 of the Code. Where a suspected thief who was arrested escaped from a running train, and one of the constables pursued him with a view to catch him again, but when he believed that it was necessary to fire at him because the fireman of the engine had concealed him he did so, and in the process the fireman was hit and killed, it was held that he was entitled to have the benefit of this exception and so was liable only for culpable homicide not amounting to murder. On the other hand, where a constable obeyed the orders of his superior officer and caused the death of a person by firing at a crowd of reapers to disperse them, it was held that this exception was not attracted as neither did the constable nor did his superior believe in good faith that it was necessary for public security to fire at them. Exception 4 Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Explanation It is immaterial in such cases which party offers the provocation or commits the first assault. Comment The fourth exception where culpable homicide is not murder is where it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and in which the offender has not taken any undue advantage or he has not acted in a cruel or unusual manner. The explanation attached to this exception states that the question as to which party offers the provocation or commits the first assault in such cases is of no consequence at all. This provision, like the first exception, recognises the fact that death caused in hot blood or anger is needed to be treated differently than premeditated murder. Under this exception the fight must be sudden, the quarrel must be sudden and the death must be caused in a heat of passion without premeditation. The benefit is nullified if the offender takes an undue advantage or acts in a cruel or unusual manner. The Supreme Court has ruled time and again that in the absence of reliable and clear evidence as to how a conflict had begun and who was the aggressor, it is not safe to allow the plea of right of private defence on either side, but if the fight is sudden and upon a sudden quarrel, this exception needs a careful consideration and must be applied only when all essentials of this provision are present. The use of the word ‘sudden’ at two places in this exception emphasises the fact that the fight and the quarrel must not be prearranged or premeditated. Where in course of a sudden fight in the heat of passion upon a sudden quarrel the deceased inflicted knife injuries on two persons and ran away with the knife thus enraging the accused who chased and killed him, it was held that exception 4 to section 300 was attracted. It is of no consequence as to whether the quarrel is real or imaginary or as to who inflicts the first blow. The use of the word ‘fight’ shows that the matter has gone beyond the stage of quarrel, and it is immaterial as to whether the fight is with weapons or not; but there should be an exchange of blows even though it is not necessary for the blows to be on target. If the offender takes an undue advantage or acts in a cruel or unusual manner, this exception would not apply even if the fight be sudden upon a sudden quarrel. Where in course of a sudden fight upon a sudden quarrel between the accused and the deceased party, the accused inflicted four knife blows on the deceased killing him in the process, and he himself received injuries, this exception was held to apply and the accused was convicted of culpable homicide not amounting to murder under section 304 Part 1 and not under section 304 Part II. But where upon a sudden quarrel in the heat of passion the accused inflicted a fatal blow on the neck of the deceased who was unarmed, and then dragged the body and left it in front of the deceased’s house, the exception was not held to be applicable as undue advantage had been taken by the accused. Where in course of a sudden fight between the accused and the deceased parties because of rounding up of cattle, there being no previous enmity between them and implements and weapons of everyday use being used, it was held that death of the deceased was neither intended nor foreseeable and hence accused would be guilty of culpable homicide not amounting to murder. Where in course of a fight between the accused and another, the deceased did not venture to separate them but did ask the other to stop the fight and offered himself to solve their dispute, on which the accused stabbed him to death, it was held that the accused had taken undue advantage by attacking an unarmed person and was thus not entitled to the benefit of this exception. Where the accused was asking the deceased not to carry his cattle by the side of the accused’s field when suddenly a fight started between them and three brothers of the accused rushed in and attacked the deceased who was killed, it was held that ferocious cruelty on their part would take the case out of the purview of this exception and they would be guilty of intentional murder. Where a quarrel between the accused and the deceased parties changed into a sudden fight in which weapons were used by both parties resulting in injuries on both sides and death of the deceased, this exception was held to be applicable. Where in course of a sudden quarrel the accused killed the deceased by an axe, the exception was held to be not applicable because in the absence of exchange of blows there was no sudden fight between the two and also, the deceased being unarmed, the accused had taken an undue advantage and acted in a cruel manner. Where the accused and the deceased were brothers and were discussing certain matters relating to their land when suddenly a quarrel between the two erupted which soon changed into a sudden fight and in heat of passion the accused inflicted a single injury on the deceased without premeditation from which he died, it was held that the exception was attracted and the accused was liable for culpable homicide not amounting to murder under section 304 Part I. Where the accused was armed with a deadly weapon while the deceased had no arms, and in course of a sudden fight, upon a sudden quarrel, in a heat of passion, without premeditation he attacked the deceased who fell on the ground, but he continued to assault him as a result of which the deceased died, it was held that the accused had taken undue advantage and had acted in a cruel and unusual manner, and consequently, the benefit of the exception could not be given to him. In Prakash alias Îm Prakash v. State of Rajasthan, on the day after Holi the victim was carrying a bottle of liquor and refused to share it with the accused and his companions. The accused snatched the bottle and gave a knife blow on the chest of the victim. They belonged to the same caste, were neighbours and there was no previous enmity. The incident took place all of a sudden, and the act of the accused was not premeditated. Only one blow was given and it was not repeated. It was held that if he had intention to commit murder he could have inflicted more knife blows, and so exception 4 to Section 300 applied and he was guilty under Section 304 part I. In Sikandar v. State, the accused quarreled with his father. When his step mother and sister intervened, he inflicted dagger blows on them resulting in death of the former. Both the victims were unarmed and had not caused any injury to the accused, The Supreme Court held that it was not a case of sudden fight and that the accused had acted in a cruel manner and had taken undue advantage. Exception 4 to section 300 was, therefore, not applicable. In Keshavlal v. State of Madhya Pradesh the accused allegedly stabbed his mistress at her parents’ house. There was no pre-planning on his part and he went to the house unarmed. He picked up a kitchen knife upon a sudden quarrel and inflicted a single injury in the heat of passion. He did not take any undue advantage during the occurrence. The Supreme Court held him entitled to the benefit of exception 4 to section 300. In Manke Ram v. State of Haryana the accused was the incharge of a police outpost and the deceased was a constable posted under him. The accused invited the deceased for a drink. The drink session was interrupted by the nephew of the deceased. The accused felt offended because of this and started abusing the deceased in filthy language. The deceased objected to this leading to a fight between the two. The accused thereupon fired by his service revolver which was kept nearby. The Supreme Court held that there was no motive to kill the deceased and the incident took place in a sudden-fight in heat of passion. Both the accused and the deceased were inebriated and the accused in using the service revolver lying nearby could not be said to have taken advantage. Exception 4 to section 300 applied and the accused was thus guilty under section 304 Part II of the Code. In Ghapoo Yadav v. State of Madhya Pradesh, there was a sudden quarrel between the accused and the deceased without premeditation. Out of the seven injuries caused to the deceased by the accused only one was grievous. No injury was inflicted after the deceased had fallen down. The Supreme Court held that the accused had not acted in a cruel manner and exception to section 300 was applicable. In Sukhdev v. State of Delhi (Government of NCT of Delhi), the appellant accused during the course of a scuffle took out his pistol and fired at the deceased by it which hit the thigh of another person standing nearby and the accused fired again which hit the deceased causing his death. The firing was not in grave and sudden provocation but in the course of a sudden quarrel. The Supreme Court held that exception 4 and not exception 1 to section 300 was applicable and the punishment under section 304 Part I was altered to that under section 304 Part II while there was no interference with his conviction under section 308 of the Code for the injury caused to the other person who did not die. In Bliagdi Ram v. State of Madhya Pradesh, the accused and the injured prosecution witness were neighbours. The prosecution witness objected to construction of a wall by the accused blocking his passage. All members of the prosecution party who came there subsequently were unarmed and no threat was posed. The members of the accused party adopted aggressive posture and assaulted members of the prosecution party. When the deceased came to rescue his father, the accused assaulted him by a pick axe on his head causing serious injury resulting in his death. The Supreme Court held that the accused could not plead private defence but since only one injury was caused and blow was not repeated giving benefit of exception 4 to section 300 to the accused was proper. He was held guilty under section 304 Part I of the Code. In Sachchey Lai Tiwari v. State of Uttar Pradesh, the Supreme Court observed that for the application of exception 4 to section 300 it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage and acted in a cruel or unusual manner. ‘Undue advantage’ means ‘unfair advantage’. Thus, on facts of the case, this exception was held to be inapplicable. In Dattu Shamrao Valake v. State of Maharashtra,- two persons died in course of a fight between two groups of people. The accused No. 2 had sustained severe injuries himself and might have apprehensions that he would be further attacked by deceased No. 2 and dealt blows on his neck. However, he had used excessive force causing injuries on vital part, may be more than once. However, it could not be said beyond doubt that he acted in a cruel or atrocious manner. The Supreme Court held him entitled to the benefit of exception 4 to section 300 and convicted him under section 304 Part I instead of under section 302. In Surendra Singh v. State of Uttaranchal? the facts are that the parties have their agricultural lands adjoining each other. The prosecution case is that cattle belonging to the appellant had damaged standing crop of the deceased but the investigating officer did not find any evidence to that effect. When was there a hot exchange of words and a scuffle is not known. The appellant was not apprehended at the spot. The Supreme Court held that only one shot was fired and so there was no intention to cause death. Exception 4 to section 300 is applicable and so the appellant is guilty under section 304 Part II. In Naveen Chandra v. State of Uttaranchal, there was a family dispute between two brothers. The accused had been beaten on the head in the morning. In course of conciliation between them by the panchayat the accused became furious and attacked after a verbal altercation. Two persons died and some others were injured in the attack on vital parts of unarmed persons in which abdomens of two unarmed persons were ripped apart resulting in their death. The Supreme Court held that exception 4 to section 300 was not available to the accused as undue advantage has been taken by him. In Byvarapu Raju v. State of Andhra Pradesh, the deceased father came intoxicated and abused his own wife (i.e., the mother of the accused son) and son and also beat her. In the course of a quarrel the accused son killed his father. The Supreme Court held that exception 4 to section 300 was applicable and so the accused was guilty under section 304 Part I of the Code. In Kuleslt Mondal v. Stale of West Bengal, and D. Sailu v. State of Andhra Pradesh, the Supreme Court observed that the expression ‘undue advantage in exception 4 of section 300 means unfair advantage. In Rakesh v. State of Madhya Pradesh, the accused was alleged to have assaulted the deceased with knife, kicks, fists and blows. The incident happened out of a quarrel between the accused and deceased. The Supreme Court held the accused entitled to the benefit of exception 4 of section 300 and he was held guilty under section 304 Part I î the Code. Exception 5 Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder. Comment The fifth exception, which is the last one under this section, where culpable homicide is not murder is when the person whose death is caused is more than eighteen years old and he suffers death or takes the risk of death with his own consent. The illustration attached to this exception is a negative illustration which illustrates a situation where the consent given is not valid. This, therefore, goes contrary to the spirit of appending illustrations to provisions. The idea behind appending illustrations in certain provisions of a statute is to illustrate clearly as to what has been said in the provision, and in this respect an illustration generally is positive in nature which is not the case as far as this particular illustration is concerned. The specific case covered by this illustration is in reality an offence punishable under section 305 of the Code. The authors of the Code made the following observations about this exception: In the first place, the motives which prompt men to the commission of this offence are generally far more respectable than those which prompt men to the commission of murder. Sometimes, it is the effect of a strong sense of religious duty, sometimes a strong sense of honour, not unfrequently of humanity. The soldier who, at the entreaty of a wounded comrade, puts that comrade out of pain, the friend who supplies laudanum to a person suffering the torment of a lingering disease, the freedman who in ancient times held out the sword that his master might fall on it, the high born native of India who stabs the females of his family at their own entreaty in order to save them from the licentiousness of a band of marauders would, except in Christian societies, scarcely be thought culpable, and even in Christian societies would not be regarded by the public, and ought not to be treated by the law, as assassins. Where certain snake-charmers, by professing that they were experts in curing cases of snake bites, pursuaded certain persons to come forward and allow themselves to be bitten by snakes, and three of such persons died, it was held that this exception would be available to them and they would be liable only for culpable homicide not amounting to murder. Where the accused husband was repeatedly requested by his wife to kill her as she could not bear the death of her child, and the accused killed her one night when she was asleep, this exception was held to be attracted. Where the accused pursuaded a sati to reascend a pyre after she had climbed down from it first, and got the pyre to be lighted as a result of which she was burnt to death, it was held that he was entitled to the benefit of this exception. This exception was held not to apply to a case where two deadly armed groups of persons assaulted each other fully knowing the consequences, and in the process death ensued. Where the accused killed his concubine at her own request, the provision was held to be applicable. Where due to abject poverty the accused requested his wife to go to her parental home for some time but she refused and said instead that she was prepared to be killed by him if he so desired, and the accused got it confirmed by her a few times before killing her, the exception was held to be not applicable on the ground that consent did not mean this kind of a situation within this provision. But where the deceased requested the accused to emasculate him which he did, but as a result of not being able to do it properly the deceased died, it was held that the accused was entitled to avail of this exception. Where the accused killed his old infirm step-father with his consent with a view to get his three innocent enemies hanged for the murder, it was held that the exception was applicable. Where the accused could not pass the class X examination for three years in a row and became frustrated and decided to commit suicide and informed his wife who asked him to kill her first which he did, the exception was held to apply. Where the deceased woman requested her lover accused to kill her as she was ashamed of going back to her village, and there was no other place where she could live peacefully, and she was tired of moving here and there, and she then took out a knife from the waist of the accused and handed it over to him with the request that he should kill her and then go, and the accused did kill her, the exception was held to be applicable. In Rajinder Kumar Sharma v. State the deceased only tried to persuade the accused to take his meals when the accused, armed with a gun, threatened to shoot him if he came forward. The Delhi High Court held that there being no strained relations between the accused and the deceased, who was the employer of the accused, the deceased could not have foreseen that the accused would behave like a brute and would kill him. Hence he could not be said to have taken risk of death with his own consent under exception 5 to section 300 of the Code. Euthanasia or mercy killing Euthanasia or mercy killing is a phenomenon of comparatively recent origin. Under it the victim, or any other person on his behalf, chooses death mainly because of medical conditions of the victim and then he is put to death by someone else. The victims are mostly terminally ill and the concept of dying with dignity is involved in such cases. In 1984, an old German woman who was suffering immense bodily pain as she was an acute case of cancer which had almost eaten away her mouth, a cheek and an eye, and thirteen radiation treatments had reduced her body into a lawful mess, requested her doctor to help her to die, and the doctor talked with her for long over this matter and also discussed it with other doctors, lawyer and her friends and finally gave her a cyanide dose and she died. A flood of discussions began thereafter. Questions of right to die became quite vociferous during the first and second world wars, the Vietnam war, the Iraq-Iran war, the recent war in Iraq and such wars and battles in which life became almost unbearable for a very large number of persons mained as a result. An eminent French cancer specialist has publicly announced that he has hastened the death of a large number of terminally ill patients. A newspaper report says that even though euthanasia is not recognised in China a large number of such deaths have taken place in Chinese hospitals during the past years. Most of these deaths were caused by passive euthanasia by discontinuing the life sustaining equipment in terminally ill cases on the request of the close relatives or friends of the patient. The New Jersey Supreme Court has held that constitutional right of privacy protects the right of a patient to refuse life- sustaining treatment. The next-of-kin of the patient are also entitled to order a treatment to be discontinued allowing the patient to die. In 1984, a person was imprisoned for a period of nine months only by a court in London for attempting to help a terminally ill very old woman who begged to be assisted in suicide, and the court admitted that the accused was guided solely by compassion. These developments have prompted debates on euthanasia in India as well. The Indian Society for the Right to Die (ISRD), New Delhi and the Society for the Right to Die with Dignity (SRDD), Bombay have already come into existence in favour of euthanasia, while the Respect Life Society (RLS), Bombay, an anti-euthanasia body has also been formed. A private Bill favouring active euthanasia was introduced in the Parliament in 1980 but nothing came out of it. A private Bill favouring passive euthanasia was introduced in the Maharashtra Legislative Council sometime back but it seems that it has also met the same fate. Therefore, the law in India remains as it had been all along, and causing death with consent continues to be governed by exception 5 of section 300 of the Indian Penal Code. The Netherlands and Belgium have recognised euthanasia already and there is a probability that in the near future a few more countries will follow suit. In the United States of America, the State of Oregon has already recognised euthanasia and Washington seeks to be the second State to legalise it. Exit International, a pro-euthanasia group started by an Australian doctor Philip Nitschke has helped 250 persons from Europe, the United States, Australia and New Zealand got a drug Pentobarbital, which is used to put animals into peaceful death, in Mexico so that they could end their life peacefully. A South Korean appeal court recently upheld a landmark ruling authorising the country’s first legal mercy killing. Taking the first step towards legalising euthanasia, the Law Commission of India decided to recommend to the government to allow terminally ill to end their lives to relieve them of long suffering. It said that when an individual is suffering from incurable disease or severe pain, mercy killing should be permitted to see that his agony comes to an end.