Culpable Homicide and Murder and Criminal Negligence

Criminal Law v Civil Law

 Crime entails punishment- A person is liable is he/she is guilty of an offense.

Offense means any act/omission made punishable by law. Punishment lies in
the cardinal core of law of crimes.
 Conduct against State/Society at large- Civil wrongs is against private
individuals.
 Higher Standard of Proof- Accused is presumed to be innocent until proven
guilty. Civil law involves (preponderance/balance of probabilities) as
compared to criminal law (Beyond reasonable doubt)
Read Law and Morality (Important)
Essentials elements of Criminal Liability: -

 Actus Reus (Act which is blameworthy/culpable/prohibited) (Section 32 IPC-

Acts include illegal omissions)
 Mens Rea (Guilty mind/intent)
 Causal Chain (Connection or logical relation between above two) (In order
for criminal liability to arise the consequence should be the direct and physical
result of the act and not a remote and unforeseen one)

1. Intention and Motive

Intention or mental element is the foremost requirement to make someone liable.
Intention means an act done willfully and not accidentally or mistakenly. It means
that one is aware of the consequence the act will result into.
Motive on the other hand is the ulterior object behind doing the act. It is the driving
force behind intention. Criminal Law does not take into account motive while affixing
liability.
2. Causal Chain
Causal Chain breaks by either- Intentional intervention of third party or unforeseen
cause of events. Unforeseen events are those events that no one has reason to believe
that they might happen in ordinary course. Reason to believe means having sufficient
cause which means it is very probable in ordinary course of nature and not an
extraordinary event.
Cases
Section 301: - Doctrine of Transferred Malice
If a person, by doing anything which he intends or knows to be likely to cause death,
commits culpable homicide by causing the death of any person, whose death he
neither intends nor knows himself to be likely to cause, the culpable homicide
committed by the offender is of the description of which it would have been if he had
caused the death of the person whose death he intended or knew himself to be likely
to cause.

Emperor v Suryanarayana Murthy

Facts:
The accused with the intention of killing Appala Narasimhulu gave him some
sweetmeat in which poison was mixed. Appala Narasimhulu ate some and threw away
the rest. Rajalakshmi ate some and gave the rest to another little child. Two children
died man survived.

Law:
Section 299-301

Contentions:
Accused caused the death and is guilty. “Caused the death”- He intended to cause the
death of Appala but not of the girl. Section 299 (General not specific person) makes
it clear that causing death to anyone, whether the person who was intended to be
killed or someone else (Illustration 1). The contributory action of the victim does not
prevent the act of the offender to be one of culpable homicide. The section does not
say, “voluntarily cause death”, it is sufficient that death is actually, even though
involuntarily caused to one person when intended to be caused to another. Section
300 of the IPC makes it further clear that it is murder if the act is done with the
“intention of causing death”.
Appala in giving/disposing of the sweetmeat was one of the causes in the chain of
causes in bringing about the death of the girl. We have to see whether it was a
proximate and efficient cause. The judge talks about “malice aforethought” and not
malice towards a specific person in determining liability.

Holding:
The accused is held liable for culpable homicide amounting to Murder under Section
302 and transportation for life under Section 303.

R. v Govinda
Facts:
Prisoner a young man of 18 is appeared to have several times kicked and punched his
wife (15) on the back, the blows causing her no serious injury. Few blows were
violent and delivered with a closed fist on her eye. Extravasations of blood on the
brain, girl died as a consequence.

Law:
Analysis of Section 299 and 300, (a) and (1) shows that where there is an intention to
kill, the offense is always murder whereas (c) and (4) shows those instances where
there is no intention, difference lies in degree of risk to human life.
Clause (2) shows that the offense is murder if the offender knows that the particular
person injured is likely, to be killed by an injury, which would not in the ordinary
course of nature cause death.
Clause (b) and (3) have a very fine but appreciable distinction, a question of degree of
probability.

Contentions:
Culpable Homicide not amounting to murder because:
1) No intention to cause death.
2) Bodily injury not sufficient in ordinary course of nature to cause death.

Holding:
Culpable Homicide not amounting to murder, transportation for 7 years

Virsa Singh v State of Punjab

Facts:
The appellant was tried with 5 others and also charged with murder individually.
There was only one injury on Khem Singh. The doctor said that the injury was
sufficient in ordinary course of nature to cause death. Sessions Judge held him liable
under Section 300 Clause (3) and convicted him of murder.

Law:
Section 300

Contentions:
The prosecution must prove the following before it can bring a case under Section
300 Clause (3)
1) It must establish, quite objectively, that a bodily injury is present.
2) Nature of injury must be proved.
3) It must be proved that there was an intention to inflict that particular bodily
injury, that is to say, that it was not accidental or unintentional, or that some
other kind of injury was intended.
4) Sufficient in ordinary course of nature to cause death.
Once the intention to cause bodily injury is proved, the rest of the enquiry is purely
objective, the only question to prove is if the injury is sufficient in ordinary course of
nature to cause death.

Holding:
Appeal dismissed. It was held to be murder.

Gudar Dusadh v State of Bihar

Facts:
Ramlal Bhagat, who was aged about 65 years, died as a result of the assault during the
course of the occurrence while his son-received injuries. The appellant and others
were hiding on the route; the appellant gave a lathi blow on the head of the deceased.

Law:
Section 299 and 300

Contentions:
The doctor clearly explained the nature of the injuries and said that it was in sufficient
in the ordinary course of nature to cause death. The circumstances of the case show
that the assault was pre-meditated and that the blow on Ramlal’s head was not
accidental. This way it would fall within the ambit of Section 300 Clause 3.
Section 300 Clause 3- There was an intention on the part of the accused to inflict the
particular injury, which was found on the body of the deceased. The second part
requires that the bodily injury intended to be inflicted was sufficient in the
ordinary course of nature to cause death.

Holding:
Guilty of Murder, appeal filed dismissed.
Emperor v Mt. Dhirajia
Facts:
A young woman has jumped or fallen down a well. Young woman married to a man
named Jhagga. They had a six months old baby. Quarrel, she wanted to go visit her
parents. She left late at night and he pursued her when he found out she was missing.
When she saw him, out of panic she ran a little and jumped/fell into a well. Child
died, woman rescued.

Contentions:
She jumped into the well and did not fall in accidentally. She was terrified and in a
state of panic jumped into the well. Whether culpable homicide and then whether
murder or not? For proving culpable homicide we take into account first intention and
second knowledge.
Intention- Capacity and Reason
Knowledge- Some degree of knowledge is attributed to every sane person. She had or
should have had knowledge of the consequence of her act. Therefore it is within the
knowledge and not within the intention of Mt.Dhirajia.
The act is therefore one of culpable homicide, now we proceed to whether it was
murder?
Clause (4) applies here especially “such act” and “without any excuse for incurring
the risk of causing death”. In order for an act to constitute murder it should be
committed without any excuse for incurring the risk causing death or bodily injury.

Holding:
Appeal accepted, not murder but it is culpable homicide under Section 300 (4).
Verdict of not guilty for “attempt to suicide” must stand.

Gyarsibai v State
Facts:
Constant quarrels between appellant and sister-in-law. One fine day the appellant left
the house with her three children and left saying she would jump into the well. She
said she jumped into the well on account of harassment form sister-in-law.

Law:
Section 300 and Section 302 and Section 309

Contentions:
Clause (4) applies here especially “such act” and “without any excuse for incurring
the risk of causing death”. In order for an act to constitute murder it should be
committed without any excuse for incurring the risk causing death or bodily injury.
Every sane person and in this case we presume that the appellant is sane would have
knowledge of the consequences of his or her act. The circumstances were not an
excuse and therefore she cannot use it as a defense.

Holding:
It is clearly murder Section 300 Clause 4.

Supadi Lukada v Emperor

Facts:
A girl of about 17 years age jumped into a well because her husband had ill-treated
her and prevented her from returning to her parents.

Law:
Section 300

Contentions:
The girl attempted to commit suicide and she could not have been in a normal state of
mind and therefore not even aware of the child’s presence and that she has no such
knowledge and therefore Section 300 Clause 4 does not apply. She was found guilty
under Section 304-A.

Holding:
Held liable under Section 304-A

Provocation as Defense to Murder

The defense to murder has to be established only after the prima facie case of murder
has been established. The defense of provocation works to reduce the charge of
murder to a lesser one- that of culpable homicide, the dual test applies.
1) Subjective- Sudden, temporary loss of self-control.
2) Objective- Might have caused a reasonable person to suffer such loss of self-
control.
Provocation is Exception 1 of Section 300. Whether the provocation is grave or
sudden enough is a question of fact.
Subject to:
1) Self-Induced Provocation
2) Public Servants
3) Person Acting in Self-Defense

Nanavati Case
Facts:
High Court sentenced Nanavati for the murder of P.B.Ahuja. Initially the jury brought
a verdict of not guilty but the 2 judges of the HC held him guilty of the offense of
murder.
Mr. K.M. Nanavati lived outside mostly, Ahuja and Sylvia developed a friendship
that resulted in an illicit intimacy. When Sylvia confessed to Nanavati he went to the
ship collected the gun and cartridges and dropped his wife and child off at the theater
before heading to Ahuja’s house. After a verbal altercation he fired at Ahuja, which
resulted in his death. He then went to the police and surrendered.

Law:
Section 300 and Exceptions

Contentions:
The injuries found on the body of the accused are of intentional shooting and not of
accidental shooting. The prosecution has proved beyond reasonable doubt that the
shooting was intentional.
The respondents cite, culpable homicide is not murder if:

 The deceased must have given provocation to the accused.

 The provocation must be grave.
 The provocation must be sudden.
  Offender must be deprived of the power of self-control.
 Continuance of deprivation of self-control
The question that the court has to consider is whether a reasonable person in the same
position of the accused would act in the manner that the accused did. Unlike English
Law, words gestures as well as acts might move a person and result in provocation. In
the cases of re Murugian and re Narayan it clearly shows that the mental state created
by an earlier act may be taken into consideration in ascertaining whether a subsequent
act was sufficient to make an assailant lose his self-control.

Holding:
Convicted for murder under Section 300. Appeal set aside.

Cumulative Provocation
The real question is that can the defense of provocation be availed if the concluding
episode causing death, though not provocative in itself can be seen as a provocative
one if considered in the background of provocations or sufferings that the accused has
gone through.
R v Duffy and R v Davies both opposed the idea of cumulative provocation whereas
R v Ahluwalia changed the scenario by accepting the scenario of cumulative
provocation.
In Indian Law the cases of Bahadur v Emperor (Whistle) and Babu Lal v Emperor
(House) explain cumulative provocation.

Criminal Negligence
Causing death by negligence- Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
Dr. Suresh Gupta v Govt. Of N.C.T. of Delhi and Anr
Facts:
The appellant is a doctor accused of a charge under section 304A of the IPC. The
facts clearly indicate that because of the negligence of the doctors while conducting
the operation for removing the nasal deformity, gave incision at the wrong part due to
that the blood seeped into the respiratory passage and because of that the patient
immediately collapsed and died.
Law: Section 304-A

Contentions:
For fixing criminal liability on a doctor or surgeon, the standard of negligence
required to be proved should be so high as can be prescribed as “gross negligence” or
“recklessness”. It is not merely lack of reasonable care, attention or skill. The doctor
cannot be held criminally responsible for a patients death unless his negligence or
incompetence showed such disregard for life and safety of patient as to amount for
crime against state. Therefore there can be civil liability in tort law against him, but
not criminal liability unless it is reckless or grossly negligent.

Holding:
Criminal Proceedings quashed against him.

Kuldeep Singh v State of HP

Facts:

 Driver of a truck, carrying a marriage party. He lost control and it went over a
cliff and rolled down.
 Some people were dead and some grievously injured. Appellant was allegedly
drunk. He and the cleaner of the truck fled form scene.

Law:
Section 304 A

Contentions:
Section 304 A applies to cases where there is no intention to cause death and no
knowledge that the act done, in all probabilities, will cause death. Section 304 A
applies only to provisions which are rash and negligent and are essential elements
under Section 304-A.
Two elements either of which or both of which maybe established to prove the guilt
of an accused, both these apply to a state of mind which results in an error in
judgment. There maybe no motive or intention still a person may venture into the
practice of rashness or negligence.
Refer to Syed Akbar v State, R v Briggs and R v Lawrence (Explains recklessness
and negligence)
Holding:
Appeal dismissed.

Joint Liability
Joint Liability allows holding people liable for criminal acts committed by others.
Incase of an offense committed by several persons one may be held liable for acts of
others as if those acts are committed by a person acting in concert.
Main ingredients of Joint Liability:

Section 34

 There should be a criminal act done

 By two or more persons
 Common Intention (Meeting of minds, pre-arranged plan, prior concert)
 Act should be in furtherance of common intention
 Participation (Should be in order of above, in any form, physical proximity not
required)
Each person would be held liable for the criminal act as if he did it alone.

Barendra Kumar Ghosh v Emperor

Facts:
Man stood outside postman’s office while others entered and shot him.

Holding:
Held liable for murder under Section 34, “They also serve who only stand and wait”.

Mahboob Shah v Emperor

Facts:
Mahboob and Wali came with loaded guns to rescue a friend, on seeing them the
deceased ran away. Wali shot one person died instantly whereas Mahboob’s shot hit
the leg.

Holding:
Held not jointly liable because they were no common intention or meeting of minds
between the two of them

Section 149

 A member of an unlawful assembly is a person who has intentionally joined

the assembly and has continued to be part of it.
 It is one with a minimum of 5 persons having a common object (no need for
prior concert or meeting of minds)
Imp- Under section 34 to bring an offense some participation is required, essential
requirement whereas under section 149 no participation is required other than sharing
the common object of the assembly.
(Read Matthew v State of Travencore and Cochin and Priya Patel v State- Woman
cannot have intention to rape and hence no common intention, therefore not liable)

Attempt
Various Stages of a Crime- Intent, Preparation, Attempt, Commission
Mere intent to commit an offense does not make one criminally liable. Mere intent to
commit without following it up by an act amounts to no offense. There is a greater
degree of determination in attempt than preparation. An attempt to commit an
offense is an act or series of acts that leads to the commission of an offense.
Proximity Theory-
Initially the judges believed that the proximity theory meant actual physical proximity
only. This led to absurd consequences. E.g. R v Robinson (Jewelry) and Reynolds
Case (Drug peddlers)
The Indian scenario has been clearly explained in the case of Abhayananad Mishra
v State of Bihar (Examinations).
Doctrine of Locus Penitentae-
The doctrine takes into consideration that a person has sufficient time to change
his/her mind.
Malkiat Singh v State of Punjab (Paddy), court acquitted accused based on above
doctrine. Durbara Singh case, court held a different view that silver ingots which
were to be smuggled were nabbed before committing the crime but he was still
convicted of attempt.
Impossible Attempts-
IPC rejects English Common Law. Section 511 makes it very clear that attempted
acts, which are impossible to perform, are still liable to be punished.
Theory of Means and Ends-
Criminal Attempts are made punishable in cases where the end result of the attempt is
impossible. When the means used by the accused are defective then the courts
generally have not held the accused as worthy of punishment.

Asgarali Pradhania v Emperor

Man gives paramour liquid to have miscarriage; copper sulphate is insufficient to
cause miscarriage. Hence held not liable for attempt.

R v Shivpuri
Asked by a man to deliver a suitcase with packages he believed to be heroine. When
the police caught him it turned out to be a harmless powder. It is not necessary for the
offender to have precise knowledge of the drug as long as he knows his act is
prohibited.
English and Indian Law difference

Adultery
Section 497- Whoever has sexual intercourse with a person who is and whom he
knows or has reason to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery, and shall be punished with imprisonment
of either description for a term which may extend to five years, or with fine, or with
both. In such case the wife shall not be punishable as an abettor.
Yusuf Abdul Aziz v State
Facts:
The appellant is being prosecuted for adultery under Section 497 of the IPC.
Law: Section 497

Contentions:
Whether Section 497 (Woman cannot be punished as an abettor to the crime) violates
article 14 and 15 of the Constitution?
Article 14- Equality and Article 15- State shall not discriminate between anyone on
the grounds of sex keeping in mind Clause (3), which special provisions are made for
women and children

Holding:
The two articles read together validate the impugned clause of Article 497.

Sowmithri Vishnu v Union of India

Facts:
Husband and wife file for divorce on grounds of desertion, husband files because of
adultery and it is granted in his favor. Husband files a case against Dharma Ebenezer
charging him for having committed adultery.

Law:
Section 497 and Article 14

Contentions:
Lawyer on behalf of the petitioner/appellant contend that Section 497 is violative of
Article 14.

 Husband has the right to prosecute the adulterer, does not give similar right to
wife.
 Does not give her the right to prosecute her husband if he has sexual relations
with another woman.
 Does not incorporate cases wherein husband has had sex with unmarried
woman.
She refers to it as “gender discrimination”, “legislative despotism” and “male
chauvinism”.
Notions in the society such as it are the man who is commonly the seducer and
women are the property of men keeps the law the way it is. Also, man cannot as the
definition goes to show makes it clear that only the man can commit adultery and
women are only victims. It is an offense against the sanctity of a matrimonial home.
The law does not make it okay for a man to gallivant with an unmarried woman and
also makes only a certain kind of illicit relationships illegal.
It is contended that the law is violative of Article 21. That is, the right to reputation of
the woman is at stake and that she has the right to be heard at the trial. The response
to this is simple and would be that the woman can make an application and be a part
of the trial.
The court also contends that some law is better than no law in this regard and also that
a woman has remedies against a cheating husband under civil law.

Holding
Writ petition dismissed.

Sexual Offenses
Section 375-
A man is said to commit “rape” who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six
following de-scriptions:

 Against her will

 Without her consent
 With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt
 With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or
believes herself to be law-fully married
 With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally
or through another of any stupe-fying or unwholesome substance, she is
unable to understand the nature and consequences of that to which she gives
consent
 With or without her consent, when she is under sixteen years of age.

Baldev Singh v State

Facts:
While answering the call of nature the victim was gang raped, the three accused
sentenced to 10 years.

Law: Section 375 (2)(g)

Contentions:
3 years imprisonment already done, both parties’ married and prosecutor says there is
no misunderstanding made and that they came to a compromise. Court seeing special
and adequate reason granted them the compromise.

Tukaram v State of Maharashtra

Facts:
Tukaram head constable and Ganpat police constable, Mathura was a girl who worked
for Nunshi and decided to get married to his nephew Ashok. Her brother lodged a
complaint that they kidnapped her. After everyone left they asked Mathura to stay
back and Ganpat took her to the loo and stared at her private parts and raped her
whereas Tukaram fondled her but could not rape her due to intoxication. She was
taken to the doctor who came up with his conclusion saying that she had been raped; a
second doctor said the semen was only on Ganpats pajamas and that there were only
old ruptures on her vagina.

Law: Section 375

Contentions:
Appellant covered up by talking about her reputation and saying that he had had se
with someone else and also that she put up the whole act to sound virtuous to her
lover and the crowd. Court appreciates the difference between rape and passive
submission, since both the accused are strangers it is improbable that both Mathura
invited them to have sexual intercourse keeping in mind facts and circumstances.
Mere passive or helpless surrender does not amount to rape. Since there was no
shouting or no marks of injury it shows that it was a peaceful affair and her shouting
for help or waiving them of were all a concoction and did amount to passive
submission. Onus is on the prosecution to show that there was coercion. Clause
thirdly and fourthly was negatived, as there was no threat to life or grievous hurt to be
caused.

Holding:
Sexual Intercourse with Ganpat does not amount to rape. Charges dropped and
conviction set aside.

Sakshi v Union of India

Facts:
PIL filed by Sakshi an organization for woman against UOI, Ministry of Law and
Justice.

Law: Section 354, Section 375, Section 377

Contentions:
1) To declare all forms of penetration as sexual intercourse under Section 375
2) To register all cases found under the broader construction of Section 375.

The PIL has been filed due to the growing/ever increasing cases of dramatic sexual
violence against women and children. The petition seeks to amend the present
treatment of sexual violence other than penile-vaginal penetration as lesser offenses.
These offenses include forms of penetration other than peno-vaginal penetration and
even though they are treated on the same level as 375 they are tried under 377 or 354.

Contrary to the understanding that rape intends to degrade a woman and humiliate a
person the IPC is open to judicial interpretation, it is not a male-female offense, and
penetration in any form violates the mind/spirit and sanctity of an individual. Serious
cases of sexual violence must be tried under Section 377 and not under Section 375 as
rape. The amendments required are:

 Include all forms of penetration under rape.

 Rape of a person below 12 years should include all forms of penetration
  Restrictive interpretation of penetration defeats the purpose of Section 376
(2)(f).
 Treating only cases of peno-vaginal penetration, as rape is violative of Article
21 and adversely affects the sexual integrity and modesty of women.

Response of respondents:
 Section 376 had been inserted to provide special and adequate relief to women
and children.
 Punishment under Section 377 is upto life and may extend upto 10 years.
 Section 377 deals with unnatural offenses and provided for punishment as
sever as that of rape under Section 376.
 Section 354 and Section 506 deal with lesser offenses such as criminal assault
in the form of outraging the modesty of a woman.
 Therefore not violative of fundamental rights and is covered adequately.

Holding:
Among the above sections all offenses get covered and hence no change in laws is
necessary. Doctrine of Stare-Decicis and changing definition will lead to chaos and
confusion.

Kidnapping and Abduction

Section 359, 360 and 361

Kidnapping is of two kinds-

Kidnapping from India and Kidnapping from lawful guardianship. Whosoever

without the consent of the lawful guardian takes or entices a minor or a person of
unsound mind is said to have committed the offense of kidnapping.

Abduction- Section 362

Whosoever by force compels or by deceitful means induces any person to go to any
place is said to have committed the offense of abduction.

Offenses against Property

Theft-Section 378 and Extortion-Section 383
Robbery- Section 390

When theft is robbery-Theft is “robbery” if, in order to the committing of the theft,
or in committing the theft, or in carrying away or attempting to carry away property
obtained by the theft, the offender, for that end, voluntarily causes or attempts to
cause to any person death or hurt or wrongful restraint, or fear of instant death or of
instant hurt, or of instant wrongful restraint.

When extortion is robbery-Extortion is “robbery” if the offend­er, at the time of

committing the extortion, is in the presence of the person put in fear, and commits the
extortion by putting that person in fear of instant death, of instant hurt, or of instant
wrongful restraint to that person or to some other person, and, by so putting in fear,
induces the person so put in fear then and there to deliver up the thing extorted.

Punishment for Robbery is 10 years. Punishment is for 14 years if it is committed

between sunset and sunrise.

Dacoity is robbery committed by 5 or more persons acting conjointly

(committing or aiding). Punishment for dacoity is rigorous imprisonment, which
may extend for a term of 10 years and fine.

Section 403-
Whoever dishonestly mis-appropriates or converts to his own use any movable
property, shall be punished with imprisonment of either description for a term, which
may extend to two years, or with fine, or with both.

General Exceptions

Section 76-
Bound by law

Section 79-
Justified by law

Section 80-
Accident

Section 84-
Unsoundness of mind

Section 85-
Intoxication

Section 87-92-
Read

Right of Private Defense-

Section 96-
Nothing is an offense if the same is done in the exercise of the right of private
defense.

Section 97-
Extends to defending ones own as well as another’s body/property.

Section 99-
4 Keywords- Public Servants, Direction of Public Servant, Time and Harm

Section 100-
When right of private defense extends to causing death. There has to be a reasonable
apprehension that death or grievous hurt would otherwise be the consequence.
Section 102-
The actual commission of the offense is not required, reasonable apprehension of
danger is enough to evoke this defense.

Defenses against Property-

Section 103-
Extends to causing death in the case of-
 Robbery
 House-Breaking by night
 Mischief by fire

Section 104-105

Cases
Azhiruddin Ahmed
Amjad Khan
Darshan Singh
Vishvanath