The word ‘homoxide ’ had been derived from the latin terms homi (man) and cido (cut). Literally the word homicide means the killing of a human being by another human being.
However every homicide is not unlawful or criminal. Death cause by an innocent agent, like a child under the age of discretion (doli incapax) or a person of unsound mind, or death of the assailant caused in exercised in the right of the private defence, are examples, which are not unlawful homicide.
Homicides are of two types —
(i) lawful homicides
(ii) unlawful homicides
Lawful homicides are those which are covered in ‘chapter IV’ i.e., general exceptions.
Unlawful homicides are of four types —
1. Culpable homicide amounting to murder
2. Culpable homicide not amounting to murder
3. Death by rash or negligent act
4. Dowry death
It also deals with the suicide.
Culpable homicide
Section 299. Culpable homicide.—
Whoever causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as it 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 thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(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 to fire at the bush. 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 a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
Section 299 and 300, of IPC, define culpable homicide & Murder
The provisions relating to murder and culpable homicide are probably the most complicated in the IPC, and are so technical that very often they lead to confusion. A murder is merely a particular form of culpable homicide. Every murder is culpable homicide, but every culpable homicide is not murder. Culpable homicide is the genus, and murder, it’s species.
Section 299 defines culpable homicide simpliciter. Section 300 defines murder, which is also a culpable homicide. With some special characteristics, which are set out in clause (1-4) of section 300, subject to the exceptions given in section 300. If any culpable homicide falls within any of the four clauses in section 300, then it will amount to murder. All other instances of culpable homicide including the ones, which may falls within the exceptions to 300, will be culpable homicide not amounting to murder.
The essential ingredients of culpable homicide are: -
(i) there must be death of a person;
(ii) the death should have been caused by the act of another person;
(iii) the act causing death should have been done with :-
(a) the intention of causing death; or
(b) the intention of causing such bodily injury as is likely to cause death, or
(c) with knowledge that such act is likely to cause death.
‘Causing death’: Tests for determining
The term ‘whoever causes death’ May be simple enough to understand, but has shown itself to be words of great import in deciding whether a particular act would amount to culpable homicide or not. The very first test to decide whether a particular act or omission would be covered by the definition of culpable homicide, is to verify whether the act done by the accused has ‘caused’ the death of another person. The relevant consideration for such verification is to see whether the death is caused as a direct result of the act committed by the accused.
In Moti Singh v. State of Uttar Pradesh, the deceased Gayacharan, had received two gunshot wounds in the abdomen, which were dangerous to life (i.e., which were life threatening). The injury were received on 9 February 1960. There was no evidence as to whether he had fully recovered or not when he was discharged from the hospital. He, however, died on 1st march 1960. His body was cremated without any post-mortem being done. The Supreme court held that the mere fact that the two gunshot injuries were dangerous to life were not sufficient for holding that Gayacharan’s death, which took place about three weeks after the incident, was on account of the injuries received by him. The court observed tat in order to prove the. Charge of Gayacharan’s murder, it was necessary to establish that he had died on account of the injuries received by him. Since there was no evidence to establish the cause of death, the accused could not be said to have caused the death of Gayacharan. A crucial aspects highlighted by the court in this case was that the connection between the primary cause and the death should not be too remote.
In Joginder Singh v. State of Punjab, the deceased Rupinder singh had teased the sister of the accused. In retaliation, the two accused went to Rupinder’s house and shouted that they had come to take away the sister of Rupinder Singh the meantime, the cousins of Rupinder Singh intervened. One of them was given a blow on the neck by the accused. Meanwhile, Rupinder Singh started running toward the field. The accused started chasing him and Rupinder Singh jumped into the well. As a result of this, he sustained head injuries, which made him loose consciousness and thereafter he died due to drowning. The Supreme Court held that the accused were about 50-20 feet from Rupinder Singh, when he jumped in to the well. There was no evidence to show that the accused drove Rupinder Singh into the well or that they left him no option but to jump into the well. Under these circumstances, it was held, that the accused could not have caused the death of Rupinder Singh, and hence they were entitled to be acquitted for the charge of murder.
In Rewa Ram v. State Of Madhya Pradesh, the accused had caused multiple injuries with a knife to his wife, Gyanavatiibai. She was admitted into the hospitals and an operations was performed on her. Thereafter, she developed hyperpyrexia, i.e., high temperature, as a result of which she died. This hyperpyrexia was result of atmospheric temperature on weak, debilitated individuals, who already had some temperature. The doctor who performed his post-mortem opined that the death was not as result of multiple injuries, but because of hyperpyrexia. The Madhya Pradesh High Court Placed reliance on explanation 2 to Section 299, IPC. It observed that if the supervening causes are attributed to injuries caused, then the person inflicting the injuries is liable for causing death, even if death was not the direct result of the injuries.
In the instant case, there was medical evidence to show that the hyperpyrexia was a result of her debilitated condition. Gyanvatibai fell into debilitated condition because of multiple injuries, which she had sustained, due to which she had to undergo operation, and the post-operative stavartion, which was necessary for her recovery, on her. Intervening and supervening cause of hyperpyrexia was a direct result of the multiple injuries and was not independent or unconnected with the serious injuries sustained by her. As a result, it was held, the accused ‘had caused’ her death and therefore his conviction for murder was upheld.
Intention or knowledge -
Both the terms ‘intention’ and ‘knowledge’ appear in sections 299 and 300, however having different consequence. Intention and knowledge are used as alternative ingredients to constitute the offence of culpable homicide. However, intention and knowledge are two different things.
The difference between between the two came to be considered by the. Supreme Court in Basdev v. State of Pepsu. In this case, the accused was alleged to have shot a 16 years old boy in marriage feat after having got drunk. It was his defence that he was so drunk that he did not have the knowledge or intention to kill the boy for what was a trifling incident. The court differentiated between motive, intention and knowledge.
Motive is something which prompts a man to form an intention. Knowledge is an awareness of the consequences of The Act. In many cases, intention and knowledge merge into each other mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things.
Intention or the mental element in committing the crime is an essential ingredient of culpable homicide. While ‘intention’ is a very important element in all crimes, it crucial in the offence of culpable homicide, because it is the degree of the intention of the accused, which determines the degree of the crime. In other words, it is the mental element of the accused alone, which is material to decide whether a particular act is culpable homicide amounting to murder, or culpable homicide not amounting to murder.
As far as the offence of culpable homicide is concerned, there are three species or degrees of means rea present:
(i) an intention to cause death;
(ii) an intention to cause dangerous bodily injury;
(iii) knowledge that the act is likely to cause death.
‘Intention’, in the context of the definition of culpable homicide, does not always necessary men pre-mediation or pre-planning to kill a person. The exception that the act of a person is likely to exult in death is sufficient to constitute intention. A man excepts the natural consequence of his acts and therefore, in law, he is presumed to intend the consequence of his acts. So, if a person in performing some act either:
(i) except death to be the consequence thereof; or
(ii) excepts a dangerous injury to be the consequence of his act; or
(iii) knows that the death is likely consequence of his act,
and in each case death ensues, his intention in the first two case, and his knowledge in the third, renders the act homicide. However, no hard and fast rule can be laid down for determining the existence of intention. Whether there is intention or not is a question of fact. A guilty intention or knowledge is thus essential to the offence under this section. ,intent, or ‘knowledge’ in section 299 postulate the existence of positive mental attitude which is of different degrees.
300. Murder.—
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—
2ndly.—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—
3rdly.—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—
4thly.—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.
However, it becomes necessary to take note of two significant propositions about the nature and operationof these exception to section 300.
These exceptions to Section 300, unlike the ‘general exceptions’, do not exonerate the wrongdoer. They only operate as mitigating factors.
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 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, inasmuch as the provocation was giving 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.
In order that this exception should apply, the provocation should be both grave and sudden. If theprovocation is sudden but not grave, or grave but not sudden, then the offender cannot avail of the benefit of this exception. The expression ‘grave’ indicates that provocation be of such a nature so as to give cause for alarm to the accused. ‘Sudden’ means an action which must be quick and unexpected so far as to provoke the accused, Further, should also be shown that the provocation was of such a nature that the offender was deprived of the power of self-control.
In KM Nanavati V State of Maharashtra, the accused was a naval officer. He was married with three children. One day, his wife confessed to him that she had developed intimacy with the deceased. Enraged at this, the accused went to his ship, took a semi-automatic revolver and six cartridges from the store of the ship, went to the flat of the deceased, entered his bedroom and shot him dead. Thereafter, the accused surrendered himself to the police. The question before the Supreme Court was whether the act of the accused could be said to fall within Exception 1 of section 300. The Supreme Court laid down the following postulates relating to grave and sudden provocation;
1. The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed, would be so provoked as to lose his self-control.
2. In India, words and gestures may also, under certain circumstances, causes grave and sudden provocation to an accused, so as to bring his act within the first exception to section 300, IPC.
3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
The Supreme Court held that the accused, after his wife confessed to her illicit relationship with the deceased, may have momentarily lost control. He had thereafter dropped his wife and children at a cinema, went to the ship, collected the revolver, did some official business there, drove his car to the office of the deceased and later to his house. Three hours had lapsed by then and therefore, there was sufficient time for him to regain his self-control. In view of this, the court held that the provocation of Exception 1 to section 300 were not attracted. The accused was convicted for murder and sentenced to life imprisonment.
The Explanation to Exception 1 states that whether the provocation was grave and sudden is a question of fact.
In Hansa Singh V State of Punjab, the accused saw the deceased committing an act of sodomy on his son, which enraged him and he killed the deceased. It was held that it amounted to a grave and sudden provocation. The conviction under section 302 was set aside. He was convicted under section 304, IPC.
In Dattu Genu Gaikwad V State of Maharashtra, the reason given by the accused for killing the deceased was the fact that he attempted to outrage the modesty of his wife a month back. In view of the long time interval, it was held that the plea of ‘sudden and grave’ provocation was not available.
In Mannam Balaswamy V State of Andhra Pradesh, the accused had a quarrel with his father. The deceased tried to intervene and pacify. The accused then went into the house, brought out a knife and stabbed the deceased. The plea of grave and sudden provocation was rejected, holding that there was no provocation and the accused merely tried to use the quarrel as an excuse to kill the deceased.
In Bhura Ram V Sate of Rajasthan, the accused, accompanied with others, entered into the hut of the deceased. Apprehending danger to his life, the deceased fired at one of the companions of the accused and thereby caused his death. The accused then attacked the deceased with an axe on his head and killed him, During trial, he pleaded that the death of his companion caused grave and sudden provocation to him. The Supreme Court refused to accept the plea as the accused solicited the provocation. A killing under provocation sought by the accused cannot be covered by the exception.
It may be pointed out that even in cases where the court may not accept the plea of ‘sudden and grave’ provocation, the background facts of earlier incidents, which may cause a grave provocation but are not sudden, may be considered by courts as factors the mitigate
the sentence. In Franscis alia Panna V State of Kerala, the deceased had on two previous occasions attacked the accused’s brother and brother-in-law. The accused was in constant fear of menace from the deceased to the lives and safety of the near and dear of the accused. So, even though the earlier incidents of attack on family members did not constitute ‘sudden and grave’ provocation, his sentence was reduced to life imprisonment.
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.
As seen in the chapter on ‘General Exception’, a person has a right of private of private defence of property and person. This right, under certain circumstances, even extends to the causing of death. This clause is in respect of cases where a person has exceeded his right of private defence. It may be pointed out that the fact that a person has exceeded his right of private defence does not totally exonerate a person under this exception. It merely is considered as a mitigating factor to reduce the offence from that of murder to culpable homicide not amounting to murder. Of course, before this exception can be availed of, it has to be proved that the accused had the right of private defence as stipulated in Section 96-106, IPC. It is only after the existence of the right is established that the question whether the accused had exceeded his right of private defence will arise. If, in the first instance, it appears that the accused does not have the right of private defence, then obviously this clause will not come into play.
As already noted in the chapter on General Exceptions, if a person genuinely exercises his right of private defence within the limits prescribed by law, then he commits no offence. However, if he exceeds the right, it will amount to a lesser offence than murder. The most important circumstance in determining this factor is the intention of the offender. The second exception stipulates that the exceeding of the right of private defence should be without pre-mediation , and without any intention of doing more harm than is necessary for the purpose of coverage by the exception. In other words, the exceeding of private defence by the accused should be done unintentionally. Only then can the accused avail of the exception provided under this clause. The question whether the exceeding of the right of private defence was done intentionally or unintentionally is a question of fact, which has to be decided on the facts and circumstances of each case.
In Nathan V State of Madras, the accused and his wife were in possession of some land which they had been cultivating for several years. They fell into arrears in respect of the lease amount due to the landlady. The landlord tried to evict the accused forcefully and tried to harvest the crop. So, the accused, in the exercise of his right to private defence of property, killed the deceased. The Supreme Court accepted the contention that the incident took place when the accused had exercised his lawful right of private defence against the property. However, since the deceased party was not armed with any deadly weapons and there could not have been any fear of death or grievous hurt on the part of the accused and his party, the right to private defence of property was limited to the extent of causing any harm other than death under Section 304, IPC.
It was therefore held Exception 2 to section 300, IPC, and the offence committed by the accused was held to be culpable homicide not amounting to murder, as it was committed in good faith and without any intention of causing death. The sentence of death imposed upon the accused was reduced to one of life imprisonment.
In Onkarnath Singh V State of Uttar Pradesh, the deceased party had initially attempted to attack the accused party. There was an incident of grappling between the parties. It was held in this case that since the murder was committed when the deceased were fleeing, the right of private defence ended with that, since the right is co-terminus with the commencement and existence of a reasonable apprehension of danger to body or property and not after the threat had ceased to exist. The Supreme Court held that the accused were guilty of vindictive and maliciously excessive act. The force used was out of all proportion to the supposed danger, which no longer existed from the deceased party. Under the Circumstances, it was held that the accused were neither entitled to a right of private defence, nor to the benefit of Exception 2 to section 300, IPC.
In Mohinder Pal Jolly V State of Punjab, the deceased and his colleagues were workers in the factory of the accused. There was a dispute between them with regard to payment of wages. On the day of occurrence, the workers had assembled outside the factory and raised provocative slogans and hurled brickbats at the factory. Some property of the accused was damaged. The accused thereafter came out of his office room and standing on the Thari fired a shot from his revolver which killed the deceased instantaneously. The Supreme Court held that the accused had a right of private defence of his body, but the circumstances were not such as to create apprehension in his mind that the grievous hurt would be the consequence , if his right of private defence was not exercised. It was held that the accused had exceeded his right of private defence. Exception 2 to section 300 was held not applicable to the facts of the case.
In Kattu Surendra V State of Andhra Pradesh, the Supreme Court ruled that death caused by a person after his right to private defence ceases to exist falls outside the ambit of the exception.
In Suresh Singhal V State (Delhi Admn.), the Supreme Court, placing its reliance on phraseology of the Exception, has stressed that homicide caused in exceeding right of private defence in good faith and without premeditation does not amount to murder in view of provisions of Exception 2 to Section 300 of the code. It is unexpected of and accused carrying reasonable apprehension of death or grievous hurt and having the right to private defence of body to calmly assess who. He or the deceased, would have upper hand in exercising the right of private defence.
In Raj Singh & Ors. V State of Haryana & Ors., the Supreme Court has beautifully articulated the manner of judicial determination of claim of the accused that he has caused homicide by exceeding his lawful right of private defence and thereby deserves liabilitynot for murder but for culpable homicide not amounting to murder. It observed;
A conjoint reading of provision of sections 96 to 103 and Exception 2 to section 300 of the code leaves no manner of doubt that 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 of defence, provided that such right is exercised without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. A fortiori in cases where an accused sets up right of private defence, the first and the foremost question that would fall for determination by the court would be whether the accused had the right of private defence in the situation in which death or other harm was caused by him. If the answer to that question is in the negative, Exception 2 to section 300 of the code would be of no assistance. Exception 2 presupposes that the offender had the right of private defence or person or property but he had exceeded such right by causing death. It is only in case answer to the first question is in the affirmative viz. that the offender had the right of defence of person or property, that the next question viz. whether he had exercised that right in good faith without premeditation and without any intention of doings more harm that was necessary for the purpose of such defence would arise. Should answer to any one of these questions be in the negative, the offender will not be entitled to the benefit of Exception 2 to section 300 of the Code. Absence of good faith in the exercise of the right of private defence, premeditation for the exercise of such right and acts done with the intention of causing more harm than is necessary for the purpose of such defence would deny to the offender the benefit of Exception 2 to section 300..
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 3 is similar to Exception 2, in the sense that it deals with situations where a public servant exceeds his lawful powers in the discharge of his duties and thereby causes death. The essential ingredient of this exception are;
1. The offence must be committed by a public servant or by a person aiding a public servant;
2. The act alleged must have been committed by the public servant in the discharge of his official duties;
3. He should have exceeded the powers given to him by law;
4. The act should be done in good faith;
5. The public servant should have believed that his act was lawful and necessary for the due discharge of his duties, and;
6. He should not have borne any ill-will towards the person whose death was caused.
A suspected thief was arrested by a police constable and was being taken in a train. The thief escaped from the running train. The constable pursued him. When he was not in a position to apprehend him, he fired at him. But, in that process, he hit the fireman and killed him. It was held that the case was covered by this exception.
Where an order to shoot was given by the public servant and his subordinate carried his orders, when there was no occasion to do so, it was held that the order of the public servant was illegal and neither the public servant nor the person acting under the order can be said to have acted in good faith. Obedience of a superior’s lawful order protects a subordinate. Causing death by the subordinate in pursuance of an ex facie unlawful order, therefore, cannot be exonerated.
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.
The Fourth Exception to section 300 covers acts done without premeditation in a sudden fight. In a way, this also deals with a case of provocation provided in the first Exception. However, under Exception 1, the provocation should not only be sudden and grave, but it should also cause total deprivation of self-control. Only under such circumstances, can the offender seek shelter under Exception 1. However, under Exception 4 offender loses his power of reasoning due to heat of passion aroused suddenly. Further, under the first Exception, the offender should not have sought or voluntarily provoked the provocation.
However, Exception 1, the term ‘sudden fight’ implies mutual provocation and aggravation. It implies the absence of previous deliberation or determination to fight. In such situations, it may not be possible to trace which party the intial provocation emanated. The only requisites of this Exception are that;
1. The murder should have been committed without premeditation;
2. It should have been committed in a sudden fight;
3. It should have been committed in the heat of passion;
4. It should have been committed upon a sudden quarrel; and
5. It should have been committed without the offender having taken undue advantage or acted in a cruel or unusual manner.
All these conditions are required to be proved for bringing the case within the ambit of Exception 4 to section 300.
There has to have a fight. Where there is no fight at all, the Exception is not attracted. The word ‘Fight’, which is not defined under the IPC, conveys something more than a verbal quarrel. It implies mutual attack in which both the parties participate. It implies exchange of blows. It takes two make a fight. A fight is a combat between two or more persons whether with or without weapons. An actual attack by one party and retreat by another does not constitute fight. One-sided attack cannot be a fight. Nevertheless, attack by one and preparation to attack by another constitutes a fight. However, the Exception will come into play only when a culpable homicide is committed in an unpremeditated sudden fight.
The words ‘sudden fight’ or ‘upon sudden quarrel’ indicate something in the nature of a ‘free fight’. Free fight is said to take place when both sides mean to fight from the start, go out to fight and there is a pitched battle.
The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders. There can be no question of a free fight in the face of the clear finding of the court that one of the parties was the aggressor. It is, however, not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact to be determined in the light of facts and circumstances of the case at hand.
Where an accused inflicted three fatal blows with an axe on the deceased who was unarmed, It was held that it could not be said to be sudden fight, as a fight postulates a bilateral transaction in which blows are exchanged by both the parties. When the aggression is only on one side, it cannot be said to be a fight.
Merely sudden quarrel and the absence of premeditation do not warrant the Exception. It is also required to show that the accused has not taken undue advantage or acted in cruel or unusual manner.
In Dharman V State of Punjab, there was a dispute between the accused and the deceased concerning a vacant piece of land. The accused claimed that he was in possession of the land. On the other hand, the deceased party claimed that they had set up a lime-crushing machine on the land. Proceedings were pending under Section 145, CrPC, between the parties. In the meantime, the accused party destroyed the lime-crushing machine. The deceased party intervened at that time. Immediately, a fight ensued and in the course of this fight, the deceased received fatal injuries. It was held that the injuries caused to the deceased were done without pre-meditation in a sudden fight and the accused caused the injuries in the heat of passion and upon a sudden quarrel. The accused had also not taken undue advantage or acted in a cruel or unusual manner. It was therefore held that the accused clearly fell within Exception 4 to section 300, IPC.
In Narayanan Nair Raghavan Nair V State of Travancore, there was a fight between the accused and one Velayuthan Nair. It resulted in a minor scuffle between the two. The deceased came up to them and tried to separate them and admonished Velayuthan, who was the son-in-law, not to quarrel. The accused thereupon took a penknife from the waist and hit out at the deceased. The deceased tried to ward off the blow and was it on the back of his left forearm. The accused struck again and this time the blow landed on the chest and caused the injury, which eventually killed the man, It was contended on behalf of the accused that this was a case of sudden fight and so the case falls within the fourth Exception to section 300, IPC. The Supreme Court rejected this contention and said that the accused stabbed an unarmed man who made no threats against him, but merely asked the accused’s opponent to stop fighting. The fight of the accused was not with the deceased, but with the son-in-law of the deceased. The accused simply took undue advantage and stabbed the deceased. The court held that the Exception 4 to Section 300 would not apply.
In Sukhbir Singh V State of Haryana, a sudden quarrel, over splashing of mud by the son of the deceased while sweeping of the street on the accused, ensued between the accused and the deceased along with his son. The deceased, for no fault of his, gave slaps to the accused. Thereafter, the accused went home, which was at a very nearby place, and came back armed in the company of others, including his relatives, though without telling his intention to vehemently retaliate his slaps. He gave two blows with his bhala on the upper right chest of the deceased. The deceased fell down and thereafter other persons, who had accompanied the accused, assaulted the deceased with their respective weapons. The deceased, ultimately, succumbed to his injuries. The Supreme Court, setting aside conviction of the accused under section 302 by the Punjab High Court based on the fact that the accused acted in a cruel and unusual manner, held that the homicide was caused in a sudden fight and the time gap between the quarrel and the fight did not enable the accused to premeditate the death. It gave benefit of Exception 4 to the accused. The court also held that sudden fight must follow sudden quarrel. If there intervenes a sufficient time for passion to subside giving the accused time to premeditate and the fight takes place thereafter, the accused may disqualify for getting benefits of the Exception as the killing with premeditation amounts to murder.
In Ankush Shivaji Gaikwad V State of Maharashtra, wherein the appellant-accused while passing on the field of deceased on a spur of moment indulged in a heated talk with the deceased that lead to hitting a blow by him to the decased with the rod causing death of the deceased, the apex court after referring to a few judicial pronouncements delving into the Exception in the identical circumstances and taking note of the facts of the case that there was no enmity between the appellant-accused & the deceased or motive or premeditation on the party of the former, and that he did not either take undue advantage of the situation or act in a cruel or unusual manner, gave benefit of the exception 4 to section 300 to him.
In Balu & Ors. V State of Maharashtra, the Supreme Court, wherein a sudden fight between two groups over taking possession of a cattle shed erupted, altered conviction of the appellant-convict from section 302 to section 304 part I, explicitly not on the ground of sudden fight alone but also on some other ancillary facts. In the backdrop of the facts of the case, the court relied on the following six facts for altering conviction of the appellants from section 302 to section 304 part I, They were;
1. The absence of intention or motive on their part to kill the deceased;
2. Absence of any enmity between the appellants-convict and the deceased;
3. Their intention to take possession of the cattle shed and not to kill the deceased or any member of the other;
4. They, in spite of having weapons with them, have not inflicted injury or grave blow to the deceased;
5. The deceased died due to burn injuries when the appellants put on fire the cattle shed which they wanted to take possession with no intention to kill any one, and
6. The absence of any overt act of the appellants towards the deceased to inflict injury on her. There is hardly any judicial deliberation on the key requisites of sudden fight as an exception.
However, in State of Madhya Pradesh V Shivshankar, wherein an altercation arose between the accused and the complainant after the former slapped the latter and the accused thereafter went home and brought a licensed gun of his brother and fired at the deceased, the Supreme Court, endorsing the verdict of the trial court, refused to give benefit of Exception 4 to section 300, on the ground, inter alia, that there was neither sudden fight nor a case where the accused has not taken undue advantage. The court held that the assault was premeditated since there was an interval and the accused went home and picked up a gun & shot the deceased. Reversing the order of conviction and sentence (Under section 304) of the high court, it resorted the order of sentence of the trial court (under section 302, IPC)
In Manke Ram V State of Haryana, the Supreme Court gave benefit of exception 4 to a police inspector who, in a set of peculiar facts, killed his subordinate, He invited the deceased to drink in his room. When they were drinking the nephew of the deceased came to the room and called him for dinner. As the deceased got up to leave the room, the appellant got annoyed and started abusing the deceased in filthy language to which the deceased objected. This further infuriated the appellant. A fight started between the two. The appellant picked up his service revolver, which kept nearby, and fired two shots at the deceased. These shots proved fatal. Reversing his conviction under section 302 of the code by the Punjab High Court, the Supreme Court held that the incident took place in a sudden fight in the heat of passion and granted benefit of Exception 4 to the appellant. It held that the appellant, in the totality of facts and circumstances of the case, did not take an undue advantage of the fight or acted in a cruel or unusual manner.
However, as mentioned earlier, Exception 4 to section 300, to be invoked in favour of accused, it, inter alia, needs to establish that the accused has neither taken undue advantage of the fight nor acted in a cruel or unusual manner. In this context a mention of two judicial pronouncements of the apex court, which, in the backdrop of almost identical fact-scenario, will be of interest.
In K Ravi Kumar V State of Karnataka, relates to gruesome murder of wife by her husband on a seemingly trivial matter. The appellant-convict wanted his wife to accompany him to meet his ailing father immediately on the day when he received a message about his sickness. But she refused to accompany him by saying that they will go the next day. It led to heated exchange between them. Eventually, he stabbed her, poured kerosene and set her on fire. He was tried and convicted under section 302 and 498A, IPC. The High Court, on appeal, concurred with the trial court. He, in a special leave petition, argued before the Supreme Court that his case falls within the ambit of Exception 4 to section 300, IPC, as the death was caused in a sudden fight ensued between him and his wife with no prior premeditation on his part. His series of acts (of stabbing her, pouring kerosene on her and setting her on fire) was an outcome the heat of passion upon such sudden quarrel. The apex court, recalling the thitherto apt judicial pronouncements and propositions laid therein and the absence premeditation or motive to kill her, altered his sentence from section 302 to 304 Part II. Interestingly, the court overlooked the manner in which he put the kerosene and set her on fire and the facts that he locked the house, went to his father’s place with his two minor sons, and offered them Rs 20 & Rs 10 for not to disclose the event to none they have witnessed. The court obviously underplayed his cruel and unusual acts of stabbing and pouring kerosene and setting her on fire for her refusal to accompany him on the requested date to see his ailing father.
In Bhagwan Tukaram Dange V State of Maharashtra, wherein a full drunk son and father asked money from the lady of the house and on her denial they beat her up; her husband sprinkled kerosene on her saree and her son lit a match-stick and set her on fire. She died because of severe burns. The trial court convicted them under section 302, 498A, and section 34, IPC and the high court dismissed their criminal appeal, and thereby confirmed their conviction and sentence. In appeal to the Supreme Court, it was argued that the case comes within Exception 4 to section 300 as the appellant-convict, lacked the requisite intention to kill the deceased. The apex court, observing that ‘assuming that the accused was fully drunk, he was fully conscious of the fact that if kerosene is poured and a matchstick lit and put on the body, a person might die to burns’, refused to alter the order of conviction and sentence. The K Ravi kumar dictum, against the backdrop of recall that the accused, who was a police constable, when poured kerosene on his wife, set her on fire locked the house before he took away his sons to accompany him and gave them money to buy their silence. He intended to kill her in a cruel and unusual manner for her refusal to accompany her.
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. 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.
Culpable homicide is not murder when the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent.
The points to be proved are;
1. The death caused with the consent of the deceased;
2. The deceased was then above 18 years of age, and
3. The consent given was free and voluntary, and was not given through fear or misconception of facts.
In Ujagar Singh the accused killed his stepfather who was an infirm, old and invalid man, with the latter’s consent, his motive being to get three innocent men (his enemies) implicated. It was held that the offence was covered by the Fifth Exception to section 300, IPC, and punishable under the first part of Section 304, IPC.
In Dasrath Pswan V State of Bihar, the accused who was a student of the tenth class, failed in his examination thrice in succession. He was upset and frustrated by these failures and decided to put an end to his life and informed his wife, a literate girl of about 19 years of age. The Wife thereupon requested his to kill her first and then kill himself. In pursuance of the pact, he killed his wife but was arrested before he could end his life. The Patna High court, relying upon Exception 5 to section 300, IPC, convicted him under Section 304, Pt I of the IPC.
The following illustrations may also be noted. A wounded soldier request his comrade to shoot him and thereby relieve him of his agonizing pain. The latter shoots him to death. This exception will apply, as the soldier is certainly above 18 years of age and he gave consent to his own death.
A and B, snake charmers, induced C and D to allow themselves to be bitten by a snake, whose fangs had been imperfectly extracted, under the belief that they would be protected from harm. C and D died. A and B were held guilty of culpable homicide under this Exception, on the ground that the deceased gave their consent ‘with a full knowledge of the fact, in the belief of the existence of powers which the prisoners asserted and believed themselves to possess’.
It must be remembered that there must have been free and voluntary consent of the deceased person. The onus of proving it obviously lies on the accused. However, the said Exception must receive a strict and not a liberal construction. The plea consent of the deceased, relied upon by the accused, must be closely scrutinized. The court, while considering the question of consent, must consider the evidence and the surrounding circumstances very carefully.
Culpable homicide is murder, if it is done with-
(i) intention to cause death; or
(ii) intention to cause bodily injury knowing that the injury caused is likely to cause death; or
(iii) intention of causing bodily injury sufficient in the ordinary course of nature to cause death;or
(iv) knowledge that the act is:-
(a) imminently dangerous that in all probability it will cause death or bodily injury
which is likely to cause death, and
(b) done without any justification for incurring the risk of causing death or the
injury.
Section 302. Punishment for murder.—
Whoever commits murder shall be punished with death or 1[imprisonment for life], and shall also be liable to fine.
303. Punishment for murder by life-convict.—Whoever, being under sentence of 1[imprisonment for life], commits murder, shall be punished with death.
304. Punishment for culpable homicide not amounting to murder.—
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Leaing Cases ( du )
Anda And Ors. vs The State Of Rajasthan on 9 March, 1965 ( Air -1966)
Facts – One Bherun an
The incident took place on June 29, 1961, at about 5 or 5-30 a.m. at a village called Hindas. One Bherun son of Girdhari Jat was assaulted by a number of persons and received numerous injuries. He died as a result on the same day. Prosecution proved satisfactorily that Bherun and his father Girdhari were on inimical terms with the appellants and that certain criminal proceedings were going on between them.
The prosecution further proved that Bherun had gone to Hindas with a servant to attend to his fields there. He was on his way to the fields, he was caught hold by Anda (appellant No. 1) and Roopla (appellant No. 2) and was assaulted. They and the other accused, dragged him inside the house and beat him severely. Bherun tried hard to avoid being dragged & His cries attracted the neighbours and one of them Moda (P. W. 8) attempted a rescue but was beaten off.
The evidence, proving the presence and participation of these appellants in the assault has been concurrently accepted by the High Court and the Sessions Judge and the findings on this part of the case must be considered as established.
There can be no question that the appellants were actuated by a common intention which must have been the result of a prior concert, regard being had to the time, and the place and the circumstances of the visit of Bherun. Section 34, Indian Penal Code, as we shall show presently, was thus rightly invoked and that aspect of the case furnishes no difficulty whatever.
Bherun was examined by Mr. C.L. Sablok, Medical Officer in-charge, Merta City Dispensary and he is witness No. 4 for the prosecution. Mr. Sablok found Bherun in great pain and sinking.
He noted the injuries observed by him in his report , which he was able to verify more fully when he performed the autopsy after Bherun's death. When Bherun was admitted in the hospital he was bleeding profusely from his injuries and the right tibia which was fractured at two places was splintered and the broken ends were protruding. At the site of other injuries muscle tags were protruding out of the wounds. At the autopsy the lungs were pale and the heart empty which showed that enormous quantity of blood must have been lost. The opinion of Mr. Sablok on the cause of death was: "In my opinion the cause of death is shock and Syncope due to multiple injuries. * * * * All these injuries collectively can be sufficient to cause death in the ordinary course of nature. But individually no injury was sufficient in the ordinary course of nature to cause death."
Observation an decision-
We may refer to two cases of this Court. In Brij Bhukhan v. State of Uttar Pradesh, , there was no injury sufficient to cause death in the ordinary course of nature. It was, however, pointed out that it was open to the Court to look into the nature of the injuries and if they were cumulatively sufficient in the ordinary course of nature to cause death, clause 3rdly of Section 300 was applicable".
3rdly clause reads as .-- 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--
We have considered the matter from this point of view. In Criminal Appeal No. 1 of 1957, dated 14-3-1957 (SC), Chandgi v. State of Punjab, there was one serious injury which was inflicted with a gandasi and had all but severed the arm of the victim from his body. This Court did hold the accused guilty under Section 302/34, Indian Penal Code.
In this case the accused beat Bherun I inside a house after dragging him there. The number of injuries shows, that all took part His arms and legs were smashed and many braises and lacerated wounds were caused on his person. The injuries intended to be caused were sufficient in the ordinary course of nature to cause death. The assault was thus murderous and it must have been apparent to all the assailants that the injuries they were inflicting in furtherance of the common intention of all were sufficient In the ordinary course of nature to cause death. In these circumstances It cannot be said that the offence was not murder but only culpable homicide not amounting to murder.