Whoever, being under sentence of 1[imprisonment for life], commits murder, shall be punished with death.

CLASSIFICATION OF OFFENCE

Punishment—Death—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

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1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transporta­tion for life” (w.e.f. 1-1-1956).

Whoever commits murder shall be punished with death, or 1[imprisonment for life] and shall also be liable to fine.

CLASSIFICATION OF OFFENCE

Punishment—Death, or imprisonment for life, and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

COMMENTS

Alteration of conviction

In case where facts and circumstances from which conclusion of guilt was sought to be drawn by prosecution was not estab­lished beyond reasonable doubt the conviction under section 302 read with section 34 and under section 392 had to be quashed; Hardyal and Prem v. State of Rajasthan, (1991) Cr LJ 345 (SC).

Appreciation of evidence

Conviction can be based on testimony of a single eye witness provided his testimony is found reliable and inspires confidence; Anil Phukan v. State of Assam, 1993 (1) Crimes 1180 (SC).

Benefit of doubt

When ocular evidence in murder case is unreliable benefit of doubt to be given to all accused; Chandu Bhai Shana Bhai Parmar v. State of Gujarat, AIR 1982 SC 1022: (1981) SCC (Cr) 682.

Blood stained article

Presence of blood stains on floor of room of house and the shawl by themselves are not such circumstances to establish the guilt of accused, grant of benefit of doubt proper; Ramesh Chandra Sao v. State of Bihar, AIR 1999 SC 1574.

Circumstantial evidence

(i) Evidence that gun of brother of deceased placed beneath pillow was removed from that place indicate participation in crime. Words uttered just before killing deceased and in manner he was killed immediately thereafter leaving no manner of doubt of murder; State of Haryana v. Pradeep Kumar, 1999 SCC (Cr) 358: 1999 (1) Crimes 8 (SC).

(ii) In cases depending on circumstantial evidence it is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path; Sarbir Singh v. State of Punjab, 1993(1) Crimes 616 (SC).

Circumstantial evidence – Importance

It is well settled that if the evidence of the eye-witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been explained by the prosecution; A.M. Kunnikoya v. State of Kerala, (1993) 1 Crimes 1192 (SC).

Constructive liability

(i) Accused charged under section 302/149 can be convicted under section 302/34; State of Orissa v. Arjun Das, AIR 1999 SC 3229: 1999 (7) Supreme 165.

(ii) Two offences under section 302 and section 306 of the Indian Penal Code are of distinct and different categories; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214.

(iii) Non-explanation of the injuries on the person of the accused by the prosecution may not affect the prosecution case if the injuries sustained by the accused are minor or superficial or where the evidence produced by the prosecution is clear and cogent and is of independent and dis-interested persons and is consistent with credit worthiness; Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).

(iv) Crime of murder committed against public servant doing official duties must be discouraged and dealt with firm hand; Gayasi v. State of Uttar Pradesh, AIR 1981 SC 1160: (1981) ALJ 441: (1981) Cr LJ 883: (1981) SCC (Cr) 590: (1981) Cr App R (SC) 385: (1981) 2 SCC 713.

Effect of acquittal of some accused on conviction of others

Though section 34 is not added to section 302, the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intentions to put an end to the life of deceased. Hence, the omission to mention section 34 in the charge had only an academic significance, and has not in any way misled the accused; Rawalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171.

Importance of motive

(i) In dowry deaths motive for murder exists and what is re­quired of courts is to examine as to who translated it into action as motive viz., whether individual or family; Ashok Kumar v. State of Rajasthan, (1991) 1 Crimes 116 (SC).

(ii) Accused committed murder in professional manner with planned motivation, accused deserved no sympathy even when the accused had no personal motive; Kuljeet Singh v. Union of India, AIR 1981 SC 1572: (1981) Cr LJ 1045: (1981) Cr LR (SC) 328.

Intention of causing death

When the appellant dealt a severe knife blow on the stomach of deceased without provocation and when deceased was unarmed and had already been injured by co-accused the appellant cannot be held that he had no intention to cause a murderous assault by mere fact that only one blow was inflicted; Nashik v. State of Maharashtra, 1993 (1) Crimes 1197 (SC).

Medical evidence – importance

Mere variance of prosecution story with the medical evidence, in all cases, should not lead to conclusion inevitably to reject the prosecution story. Court to make out efforts within judicial sphere to know truth; Mohan Singh v. State of Madhya Pradesh, AIR 1999 SC 883: 1999 (2) SCC 428.

Mental derangement short of insanity

Where feeling life unbearable on account of domestic quarrels, a woman (accused) jumped into a well with her children, it was held that the only sentence that could be passed, was the lesser sentence of imprisonment for life; Gyarsibai w/o Jagannath v. State, AIR 1953 MB 61.

Rarest of the rare cases

(i) Undoubtedly brutality is involved in every incidence of murder but that brutality by itself will not bring it within the ambit of the rarest of the rare cases, for the purposes of the death penalty; Subhash Ramkumar Bina @ Vakil v. State of Maharashtra, AIR 2003 SC 269.

(ii) It is alleged that all the four accused expressed their resentment and held Mrs. Gandhi responsible for operation ‘Blue Star’ at Amritsar. To avenge they entered into a conspiracy to kill Mrs. Gandhi. In pursuance of the aforesaid conspiracy, two accused being security guards, who had prior knowledge that Smt. Gandhi was scheduled to go on the morning of 31st October, 1984 from her residence at Safdar Jang Road to her office at Akbar Road via TMC gate for an interview with Irish Television team, got manipulated their duties in such a way that one of the accused would be present at the TMC gate and another at TMC sentry booth between 7.00 AM to 10.00 AM. While Mrs. Gandhi was approaching to TMC gate towards her office one of the accused fired five rounds and another accused 25 shots at her from their respective weapons. Smt. Gandhi sustained injuries and fell down and succumbed to her injuries same day at the All India Institute of Medical Sciences, New Delhi. The Supreme Court confirmed the death sentence awarded by the trial Court and maintained by High Court to three appellants for entering into conspiracy and committing murder of leader under sections 302, 120B, 34, 107 and 109 of the Penal Code and held that the murder by the security guards is one of the rarest of rare case in which extreme penalty of death is called for to assassin and his conspirators; Kehar Singh v. Delhi Administration, AIR 1988 SC 1883.

(iii) On the night of 21st May, 1991 a diabolical (wicked) crime was committed. It stunned the whole nation. Rajiv Gandhi, former Prime Minister of India, was assassinated by a human bomb. With him 15 persons including a policeman perished and 43 suffered grievous or simple injuries. Assassin Dhanu one of the LTTE activist, who detonated (exploded) the belt bomb concealed under her waist and Haribabu, a photographer (and also a conspirator) engaged to take photographs of the horrific sight, also died in the blast. A camera was found intact on the body of Haribabu at the scene of the crime. Film of the camera when developed led to unfolding of the dastardly act committed by the accused and others. A charge of conspiracy for offences under TADA, I.P.C., Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946 and the Indian Wireless Telegraphy Act, 1933 was laid against 41 persons, 12 of whom were already dead having committed suicide and three absconded.

Out of these 26 faced the trial before the Designated Court. Prosecution examined 288 witnesses and produced numerous documents and material objects. The Court found them guilty of the offences charged against them and awarded death sentence to 21 of them on the charge of conspiracy to murder under section 120B read with section 203, I.P.C. The apex Court by a unanimous verdict set at liberty 19 accused for charges under section 120B read with section 302, I.P.C. and confirmed the death sentence awarded by the trial Court. As regards the extreme penalty of death to Nalani was concerned it was confirmed by a majority of 2 to 1. Considering the fact that she belonged to the weaker section and she was led into the conspiracy by players on her feminine sentiments, she became an obedient participant without doing any dominator’s role. She was persistently brainwashed by A3 who became her husband and then the father of her child and her helplessness in escaping from the cobweb of Sivarasan and company. The mere fact that she became obedient to all the instructions of Sivarasan, need not be used for treating her conduct as amounting to rarest of the rare cases. The President of India commuted the death sentence of Nalani to life imprisonment on humanitarian ground, as she was mother of an infant child; State of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalani, AIR 1999 (5) SC 2640.

Relevant factors to ascertain murder

The basic constituent of an offence under section 302, is homicidal death; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214.

Sentence – General

Provisions of death sentence being an alternative punishment for murder is not unreasonable; Bachhan Singh v. State of Punjab, AIR 1980 SC 898: (1980) 2 SCC 864: (1980) Cr LJ 636 : (1980) Cr LR (SC) 388: 1980 (2) SCJ 475.

Strangulation, throttling and hanging cases

Where post mortem report showed that there was ligaltive mark on the neck of the deceased wife which was anti-mortem, the opinion of the doctor was clear and definite that such ligaltive mark of 5 cm width in horizontal position could not be caused by strangulation, the medical evidence, therefore, completely pacified the case of the accused husband that on his return from the field to his house he had found his wife hanging, and thus she had committed suicide; Madhari v. State of Chattisgarh, 2002 Cr LJ 2630 (SC).

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1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transporta­tion for life” (w.e.f. 1-1-1956).

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.

COMMENTS

Accused is punishable for murder under doctrine of transfer of malice under section 301 when he aimed at one person but killed another person; Jagpal Singh v. State of Punjab, (1991) Cr LJ 597 (SC).

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

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

Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in­flicted is sufficient in the ordinary course of nature to cause death, or—

Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) 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.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

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, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act 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, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A’s deposition, and that A has 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, in as much as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, 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. B kills Z with the knife. Here B may have committed only culpable homi­cide, but A is guilty of murder.

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 A, 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 only culpable homicide.

Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and 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.

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 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.

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.

Comments

Act by which the death is caused, to done with intention of cuasing death

(i) Statement by a child witness who was son of deceased, that his father tied hands and legs of his mother and burnt her cannot be discarded on the basis of stray statement in cross-examination where he has stated that when his mother caught fire he was in his grand mother’s house, is fairly reliable on the factum of the incident and the same cannot be discarded, held accused was liable to be convicted; State of Karnataka v. Shariff, AIR 2003 SC 1074.

(ii) Where the extra judicial confession made by the accused admitting the crime of throwing his three minor children into a well was proved and dead bodies of children were also recovered from well, the accused is liable for offence of murder punishable under section 302; Narayana Swamy v. State of Karnataka, 2000 Cr LJ 262 (Kant).

(iii) The establishment of the involvement of the accused in the incident and misgiving of a Barchhi blow to the grandson of the deceased when he tried to go to the rescue of his grand-father, is sufficient to convict the accused under section 300 read with section 34; Banta Singh v. State of Punjab, (1991) Cr LJ 1342 (SC).

(iv) The totality of the injuries caused to the victim clearly supports the finding of both the courts below that the accused/appellants went on belabouring the deceased till he died on the spot. In the circumstances, the contention that the ac­cused did not intend to cause the murder of the deceased cannot be upheld by the Supreme Court; Prabhu v. State of Madhya Pra­desh, (1991) Cr LJ 1373 (1373-1374) (SC).

(v) Where the accused set fire to the single room hut, in which the deceased was sleeping, after locking the door of the room from outside and also prevented the villagers from going to the rescue of the helpless inmate of the room, it was held that the intention of the accused to kill the deceased was clear and they were liable for murder; Rawalpenta Venkalu

v. State of Hyderabad, AIR 1956 SC 171.

‘And commits such act without any excuse for incurring the risk of causing death’

Merely causing death, by doing an act with the knowledge that is so imminently dangerous that it must, in all probability cause death, is not murder. In order that an act, done with such knowledge, should constitute murder, it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act, done with the knowledge of its consequences, is not prima facie murder, it becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must, in addition, be wholly in inexcusable. When a risk in incurred even a risk of the gravest possible character which must normally result in death, the taking of that risk is not murder unless it was inexcuatble to take it; Emperor v. Dhirajia, AIR 1940 All 486; Gyarsibai w/o Jagannath v. State, AIR 1953 MB 61.

Clause ‘thirdly’ of section 300 distinguished from the second clause of section 299

The difference between the second clause of section 299 and clause ‘thirdly’ of section 300 to one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium, or lowest degree. The word likely in second clause of section 299 conveys the sense of probable as distinguished from a mere possibility. The words ‘bodily injury ………… sufficient in the ordinary course of nature to cause death’, in clause thirdly of section 300, mean that death will be the most probable result of the injury having regard to the ordinary course of nature; State of Andhra Pradesh v. Rayavarpu Punayya, AIR 1977 SC 45.

Consent

Circumstantial evidence is not sufficient to convict ac­cused when possibility of deceased receiving fatal injury by fall cannot be ruled out; State of Rajasthan v. Kamla, (1991) Cr LJ 602 (SC).

Essential of murder

(i) Having regard to the number of injuries inflicted on the deceased it was not possible to uphold the contention that there was no intention to kill; Prabhu v. State of Madhya Pradesh, (1991) Cr LJ 1373 (1373-1374) (SC).

(ii) When there was no evidence as to how death came about, evidence relating to charge of murder was held to be insufficient and unacceptable; Kedar Nath v. State of Madhya Pradesh, (1991) Cr LJ 989 (SC).

Exception 4: Heat of passion

Mere sudden quarrel would not entitle the accused to seek for Exception 4 to section 300; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad).

Exception 4: Scope and applicability of

To invoke Exception 4 to section 300, four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of pas­sion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner… The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the of­fender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad).

Fight

Where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, it will not be correct to assume private defence for both sides. Such a case will be a case of sudden fight and conflict and has to be dealt with under Exception 4 to section 300 of the Code; Januram v. State of Madhya Pradesh, (1997) 2 Crimes 582 (MP).

Injuries on vital and non-vital parts of body of the deceased

Infliction of the injury on the vital part of the body with the agricultural instrument by the enraged accused in a sudden quarrel—Held, accused did not cause the injury intentionally; Patel Rasiklal Becharbhai v. State of Gujarat, AIR 1992 SC 1150.

Injury which is likely to cause death and injury which is sufficient in ordinary course of nature to cause death

(i) Accused inflicted 18 injuries in the arms and legs of the deceased with a gandasa. None of the injuries was on a vital part of the body of the deceased. The obvious motive was revenge because the deceased’s son had caused a serious leg injury which resulted in the amputations of the leg of P, the son of appellant. The Court held that one of the injuries inflicted by the appellant was on a vital part of the body of the deceased whom the appellant had no intention to kill, at the same time though he had no intention to kill, the appellant must have known that he was inflicting such bodily injuries as were likely to cause death as a consequence of which death did happen. The appellants conviction for murder was accordingly altered to one for culpable homicide; Kapur Singh v. State of Pepsu, AIR 1956 SC 654.

(ii) It was held by the Supreme Court that whether the injury intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the instant case, the injury caused was the result of blow with a knife in the stomach which was given with such force that the weapon had penetrated the abdomen and had injured the bowels. According to the doctor the injury was sufficient in the ordinary course of nature to cause death. Therefore, in the absence of any circumstances to show that the injury was caused accidentally or unintentionally, it had to be presumed that the accused had intended to cause the inflicted injury and the condition of cl. (3) of section 300, I.P.C. were satisfied. Conviction under section 302 was upheld; Virsa Singh v. State of Punjab, AIR 1958 SC 465.

(iii) The appellant had given six blows with a lathi stick on the head of the deceased, one of which fractured his skull. The deceased died three weeks after the incident. The injury which broke the skull had caused a depression in the brain and death was due to brain hemorrhage. It was held that the accused was liable under section 304 for culpable homicide. The Court held that even though the blows were inflicted by the appellant on the head of the deceased with force, the lathi not being an iron rod and the deceased being a young man strongly built the appellant could not under the circumstances be held to have been actuated with the intention of causing the death of the deceased nor do one could think despite the medical evidence that the injury was sufficient in the ordinary course of nature to cause death. Seeing that he survived for three weeks and looking on the doctor’s admission that an injury of that kind is not incurable; Inder Singh Bagga Singh v. State of Pepsu, AIR 1955 SC 439.

Intention and knowledge

It is fallacious to contend that when death is caused by a single blow, clause thirdly is not attracted and, therefore, it would not amount to murder. The ingredient ‘intention’ in that clause gives clue in a given case whether offence involved is murder or not; Jai Prakash v. State (Delhi Administration), (1991) 1 Crimes 474 (SC).

Proof of sufficiency of the injury to cause death

(i) Where evidence of both eye witnesses reliable and well corroborated by medical and other evidence on record inspires confidence that accused had intention to kill deceased then conviction is liable to be sustained; Robba Ramanna Dora v. State of Andhra Pradesh, 2000 Cr LJ 118 (AP).

(ii) Where the ocular evidence is explicit and fully supported by medical evidence and evidence of other witnesses and evidence of witnesses who apprehended the accused after some hours of occurrence with blood stained weapon then absence of proof of motive will not render the entire prosecution case unbelievable, therefore, charge of murder against accused proved beyond all reasonable doubt; Ram Nath Novia v. State of Bihar, 2000 Cr LJ 318 (Pat).

(iii) Where the evidence of eye witnesses regarding assault to deceased by accused persons was truthful, reliable and clearly corroborated by medical evidence and common intention of accused persons to commit murder of deceased also proved therefore conviction under section 300/34 is proper; Ratan Debnath v. State of Tripura, 2000 Cr LJ 237 (Gau).

(iv) Chain of evidence must be complete with fully established circumstances not to leave any reasonable ground for a conclusion consistent with the innocence of accused. It should be of conclusive nature; Arvind v. State (Delhi Admn.), 1999 (4) SCC 4861: 1999 (3) JT 554.

Provocation must be grave

The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to section 300. (3) The mental back­ground created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence; Venkatesan v. State of Tamil Nadu, (1997) 3 Crimes 146 (Mad).

Reasonable man’s—Test

The accused, a naval officer, was charged with the murder of P, a businessman of Bombay, for having illicit intimacy with his wife. On coming to know from his wife about the illicit relationship with the deceased, he went to the ship, took from the stores a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of P entered in his bedroom and shot him dead after a heated exchange of words. The court held that the test to be applied is that of the effect of the provocation on a reasonable man; and in applying that test it is of particular importance to consider whether a sufficient interval has elapsed since the receiving of the information which caused the provocation to allow a reasonable man to cool down; K.M. Nanavati v. State of Maharasthra, AIR 1962 SC 605.

Scope

It is now well settled principle of law that if two views are possible, one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted; Raghunath v. State of Haryana, AIR 2003 SC 165.

With the knowledge that he is likely, by such act, to cause death

(i) In case of murder in which the conclusion of guilt is drawn by prosecution it must be fully established beyond all reasonable doubt and consistent with the guilt of the accused; S.D. Soni v. State of Gujarat, (1991) Cr LJ 330 (SC).

(ii) Legislature had advisedly used the words: “bodily injury as the offender knows to be likely to cause death”. Therefore, from an understanding of the legislative intent of section 300, I.P.C., a culpable homicide becomes murder if the attacker causes an injury which he knows is likely to cause death and, of course, consequent to such injury, the victim should die; State of Rajashtan v. Dhool Singh, AIR 2004 SC 1264.

Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Illustrations

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

(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z’s death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.

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

Explanation 1

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

Explanation 2

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

Explanation 3

The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

COMMENTS

Death caused of person other than intended

The accused, with the intention of killing A or whose life he had taken out considerable insurance without latter’s knowledge, in order to obtain the insured amount gave him some sweets mixed with a well known poison like arsenic. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that the accused was liable for the murder of the children though he intended only to kill A; Public Prosecutor v. Mushunooru Suryanarayana Moorty, (1942) 2 MWN 136: (1912) 13 Cr LJ 145.

Murder distinguished from culpable homicide

“Culpable homicide” is genus, and “murder” is the specie. All “murder” are culpable homicide but not vice-versa; Narasingh Challan v. State of Orissa, (1997) 2 Crimes 78 (Ori).

Presumption regarding intention or knowledge

The accused struck his wife a violent blow on the head with the plougshare which rendered her unconscious and hanged his wife soon afterwards under the impression that she was already dead intending to create false evidence as to the cause of the death and to conceal his own crime. It was held that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. Hence, the accused cannot be convicted either of murder or culpable homicide, he could of course be punished both for his original assault on his wife and for his attempt to create fake evidence by hanging her; Palani Gaindan v. Emperor, (1919) 42 Mad 547.

Provocation caused by act

The assault for murder cannot be said to be sudden and with­out meditation as the deceased was not armed; State of Maharashtra v. Krishna Murti Lazmipatti Naidu, AIR 1981 SC 617: (1981) SC Cr R 398: (1981) Cr LJ 9: (1981) SCC (Cr) 354.