S.100. BNS- CULPABLE HOMICIDE (S. 299 IPC)
Whoever 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.
a. A lays sticks and turf over a pit, with 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.
Note: In this illustration, though A had the intention to kill Z, the knowledge that his act is likely to cause death, makes all the difference. If this act was certain to cause death, A would have been guilty of murder. It is the likelihood to cause death that reduces the offence to culpable homicide not amounting to murder.]
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.
Note: In this illustration too, the likelihood of causing Z’s death makes the offence that of culpable homicide not amounting to murder.
c. A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a hush: 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.
Note: Illustration (c) shows that merely because death is accidently caused in the commission of an unlawful act, that, by itself will not convert the accidental killing into murder.
All killing is not necessarily murder. In above illustration, A’s primary motive or intention was to steal and not to kill. however, if it were in the knowledge of A that B was behind the bush, and intending to kill B, had pretended to shoot at the fowl, and shot both at the fowl and B, he would be clearly guilty of murder. In such case, his knowledge of B being behind the bush coupled with his intention to kill B would bring the case under the offence of Murder.
ILLUSTRATION
In a case, A, intending to kidnap B’s child and thereby extort from him, takes away the child from the bedroom. While A was taking the child down through the ladder, the child is accidentally fell down violently and is killed. In this case, A did not intend to cause death of B’s child, but extortion and kidnapping. The child’s death is purely accidental. At the most, he could be convicted of kidnapping and extortion, but not murder.
When happening of death is purely accidental while committing an unlawful act, the wrongdoer can be punished only for the offence intended and committed. His liability cannot be increased just because he was engaged in an unlawful act.
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 skillful 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.
MEANING OF HOMICIDE
Homicide is the causing of death of a human being by a human being, i.e., death through human agency. Natural death is not homicide. Similarly, death from an accident is also not homicide.
KINDS OF HOMICIDE
Homicide may be into two branches i.e. It may either be lawful or unlawful.
LAWFUL HOMICIDE.—
Homicides which are not punishable by law are called lawful homicides. ‘Lawful homicide’ includes the cases falling under the General Exceptions, viz. Ss. 14 to 44 of BNS (76 to 106 IPC) wherein certain acts are exempted from criminal liability. Lawful homicide may be divided into two branches:-
1. Excusable Homicide— These are the cases where actus rea is present but mens rea is absent. An act which is done in innocence or lawful manner and without any criminal intention or knowledge and therefore, act is not punishable. Sections 14 to 33 of BNS (76 to 95 IPC) deal with such situations.
2. Justifiable Homicide-- These are the cases where the act committed is not excused but is justified on account of some considerations neutralising the liability otherwise incurred. The act though criminal is not punishable because it was otherwise meritorious. Sections 34 to 44 of BNS (96 to 106 IPC) deal with such situations.
Lawful homicide includes several cases falling under Chapter IV of the Penal Code dealing with General Exceptions. Unlawful homicide is of the following kinds:
1. Murder;
2. Culpable homicide not amounting to murder
3. Causing death by negligence; and
4. Suicide
In order to charge the accused with culpable homicide not amounting to murder, the following three points must be proved:
1. Causing of death of a human being;
2. Such death must have been caused by doing an act;
3. The act must have been done:
a. with the intention of causing death; or
b. with the intention of causing such bodily injury as is likely to cause death; or
c. with the knowledge that the doer is likely by such act to cause death.
CAUSING OF DEATH OF A HUMAN BEING (WHOEVER CAUSES DEATH ) —
According to section 2(6) of BNS or (46 of IPC), “death” means death of human being i.e man or woman. S. 2(19) BNS) / S. 10 IPC defines ‘Man’ as a male human being of any age. S. 2(35) BNS) / S. 10 IPC defines ‘Woman’ as a female human being of any age. and ‘woman’.
Therefore, causing the death of a child just born, in law, is as serious an offence as causing the death of a full-grown human being.
CAUSING DEATH OF CHILD WOMB
The life of a child, while it remains within the womb, is a part of the mother’s life. Explanation 3 to section 100 of BNS or 299 of IPC deals with the law relating to law related to causing of death in mother’s womb. According to this explanation, culpable homicide does not include the death of an unborn child, such as a child in the mother's womb. But in view of explanation 3 it may amount to culpable homicide to cause death of a living child if any part of the child has been brought forth, though the child may not have breathed or been completely born.
ENGLISH LAW
The English Law on this point is different. Under the English Law, the child should have completely emerged, whereas under S. 100 BNS / 299 IPC, it is sufficient if any part (say, even a finger) of the child has come out of its mother’s womb.
CAUSING DEATH OF OTHER PERSON
For the offence of Culpable offence, it is not necessary that the person whose death has been caused must be the very person whom the accused intended to kill. The offence of culpable homicide is complete as soon as any person is killed by the accused provided conditions required as per S. 100 BNS / 299 IPC are fulfilled.
In this regard S. 102 BNS / S. 301 IPC is relevant which incorporates the English doctrine of transfer of malice or the transmigration of motive.
ENGLISH DOCTRINE OF TRANSFER OF MALICE OR THE TRANSMIGRATION OF MOTIVE
S. 102 BNS / S. 301. CULPABLE HOMICIDE BY CAUSING DEATH OF PERSON OTHER THAN PERSON WHOSE DEATH WAS INTENDED.
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.
if A intends to kill B but kills C whose death he neither intended nor knows to be likely to cause, the intention to kill C is by law attributed to him.
If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C, whether within sight or out of sight, under section 301, A is deemed to have hit C with the intention to kill him.
A counsels B to poison his wife. B accordingly obtains poison from A and gives it to his wife in a roasted apple. The wife gives it to a child of S, not knowing it was poison, who eats it and dies. B has committed murder, though he did not intend to kill the child.
EMP. V. JEOLI, (1916) 39 All. 161
In above case, a woman had been carrying on an intrigue with a man who gave her some poison to administer to her husband. She prepared sweetmeats mixed with the poison which was eaten by her husband and four others. Her husband and three others suffered considerably and did not die, but the fifth man died. She had actually intended to kill her husband, and not the fifth man who died. Nevertheless, it was held that she was guilty of murder.
BY DOING AN ACT.—
Death may be caused by doing an “act” in a number of ways; such as by poisoning, starving, striking, drowning, or communicating some shocking news, etc.
S. 3(4) BNS- WORDS REFERRING TO ACTS INCLUDE ILLEGAL OMISSIONS.—
In every part of this Sanhita, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
S. 2(1) BNS (S. 33 IPC) ACT – S.2(25) BNS (S.33 IPC) OMISSION
"ACT" denotes as well a series of acts as a single act: "OMISSION" denotes as well a series of omissions as a single omission.
S. 2(15) BNS / S. 43 IPC -- "ILLEGAL" AND "LEGALLY BOUND TO DO":—
The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit.
So, Act here includes illegal omission also. An omission is illegal if it be an offence, if it be a breach of some direction of law, or if it be such a wrong as would be a good ground for a civil action. Therefore, death cause by illegal omission will also amount to culpable homicide.
Where a Jailor voluntarily causes death of a prisoner by omitting to supply him food, or a nurse voluntarily causes death of a child entrusted to her care by omitting to take it out of a tub of water into which it has fallen, or a jail doctor voluntarily causes death of a prisoner by omitting to supply him medical care, the Jailor, the nurse or the doctor shall be guilty of murder.
A, unlawfully inflicted an injury on D's vital organ certain to result in death if not treated, as B the guardian of D (who was a minor) refused to get him medically treated because he desired A to be hanged for the murder of D. D, succumbed to the injury. Here B. the guardian would be liable for causing the death of the minor because he knew that by illegal omission to provide necessary medical aid, he was likely to cause D's death.
A omits to give food to B. who is a beggar. Here A commits no offence because unlike the cases discussed above B has no other claim on A than that of humanity.
A is a peon stationed by authority to warn travelers from attempting to ford the river. A omits to tell B that a river is swollen so high that B cannot safely attempt to ford it and by this omission voluntarily causes B's death. This is murder.
DEATH CAUSED BY EFFECT OF WORDS: -
Death may also be caused by effect of words such as by making some communication to another which caused excitement which results in death although it would be difficult to prove that the person, who spoke the words, anticipated from them an effect which except under very peculiar circumstances and in very peculiar constitutions no word would produce.
A with the intention or knowledge aforesaid, relates some exciting or agitating news to B who is in a critical stage of a dangerous illness; B dies in consequence. A will be liable of culpable homicide.
Similarly, A with the intention or knowledge aforesaid, gives B his choice whether B will kill himself, or suffer lingering torture; B kills himself by taking poison. A would be liable for culpable homicide.
INTENTION TO CAUSE DEATH. —
Intention means the expectation of the consequence in question. To constitute the offence of culpable homicide, accused must cause the death with intention to cause it.
Intention is inferred from the acts of the accused and the circumstances of the case. Thus, a deliberate firing by a loaded gun at once leads to inference that the intention was to cause death.
The existence of intention cab be inferred only when death follows as a natural and probable consequence from the act.
For instance, where death is caused by a blow, which would not cause the death of a healthy person because the person whose death is caused suffered from a disease, it would not be fair to infer intention or knowledge. This is so because in such a case the consequence is not natural or probable consequence of the act done.
An intention also includes foresight of certainty. A consequence is deemed to be intended though it is not desired when it is foreseen as substantially certain.
Intention of causing death is not the intention of causing the death of any particular person. Illustration (a) to this section shows that a person can be guilty of culpable homicide of a person whose death he did not intend. In that illustration A had the intention or knowledge of causing somebody's death, though not of a particular person, who treads over the turf believing the ground to be firm.
WITH THE INTENTION OF CAUSING SUCH BODILY INJURY AS IS LIKELY TO CAUSE DEATH.—
The intention of the offender may not be to cause death, it would be sufficient if he intended to cause such bodily injury which was likely to cause death.
The connection between the 'act' and the death caused by the act must be direct and distinct; and though not immediate it must not be too remote. If the connection between the act and death is obscure or if it is obscured by concurrent causes, or if it is broken by the intervention of the subsequent causes, or if the time gap between the act and the death is too long, the above condition is not fulfilled. The difference between the two expressions 'intention of causing death' and 'intention of causing such bodily injury as is likely to cause death' is a difference of degrees in criminality. The latter is a lower degree of criminality than the former. But as, in both the cases, the object is the same, the law does not make any distinction in punishment.
The expression 'intention to cause such bodily injury as is likely to cause death' merely means an intention to cause a particular injury, which injury is, or turns out to be, one likely to cause death.
It is not the death itself which is intended, nor the effect of injury. [King v. Aung Nyun, A.I.R. 1940 Rang. 259.]
It is not necessary that the consequences of the injury are foreseen, it would be sufficient that there is an intention to cause injury, which injury is likely to cause death.
KUSA MAJHI V. STATE OF ORISSA, [1985 CR. L.J. 1460.]
The deceased admonished her own son for not going for fishing with the co-villagers. Infuriated on this the accused, the son, brought an axe and dealt blows on her shoulder and she died. There was no pre-plan or premeditation.
The blows were not on the neck or head region.
The accused dealt blows likely to cause bodily injury which was likely to cause death and he dealt blows on the spur of moment and in anger.
Therefore, it was held to be a case of culpable homicide falling under this section.
EXPLANATION 1.—
According to explanation 1 a person who caused bodily injury to another who is labouring under disordered disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
EXPLANATION 2.—
According to explanation 2 a plea that death could have been prevented by resorting to proper remedies and skilful treatment is not allowed to be raised to defeat a prosecution because it may not always be within the reach of a wounded man.
Therefore, if death results from an injury voluntarily caused, the person who causes that injury is deemed to have caused death, although the life of the victim might have been saved if proper medical treatment has been given, and even if medical treatment was given but was not the proper treatment, provided that the treatment was given in good faith by a competent physician or surgeon.
MC INTYRE, (1847) 2 COX. 379.
For instance, where A had kicked his wife and surgeon administered brandy to her as restorative, some of which went the wrong way and entered her lungs and which might have caused her death, it was held that the accused was guilty of manslaughter.
CROWN V. DAVIS, (1883) 15 COX. 174 —
An injury was inflicted on a person by a blow which, in the judgment of competent medical men, rendered an operation advisable, and as a preliminary to the operation, chloroform was administered to the patient, who died during its administration.
It was argued that the patient would not have died but for its administration. Rejecting this argument, it was held that the person causing the injury was liable to be indicted for man-slaughter (which is the corresponding offence under English Law).
NARSI BECHAR V. STATE, (2 GUJ. L. R. 716) —
In order that a person should be held responsible for having caused the death, it is not necessary that his act should be the immediate cause of death in the medical sense. If P causes to Q, injuries likely to cause death, and as a result of such injuries, it is necessary to perform an operation on Q, the injured man, and the injured man dies as a cumulative result of the original injuries as well as the operation, P must be deemed to have caused the death of Q, because the operation itself was necessitated by what he had done, and therefore, he must be held to be the cause of the operation itself and the consequential death.
SOBHA, [(1935) 11 LUCK. 401.
A caused simple injury to D and D subsequently died of septic meningitis which developed on account of the use of wrong remedies and neglect in treatment. It was held that in such a case the death cannot be said to have been caused by the bodily injury within the terms of this Explanation and the accused cannot be held liable for culpable homicide under Section 304 of IPC.
DAVIS, [(1883) 15 COX. 174.]
A gave a blow to D, the injury so inflicted rendered an operation advisable. As a preliminary to the operation, chloroform was administered to D who died during its administration and it was agreed that the patient would not have died but for its administration. A was held liable for manslaughter because he had caused an injury which in the opinion of competent medical men necessitated the operation.
NARSI BECHAR V. STATE, (2 GUJ. L. R. 716) —
In order that a person should be held responsible for having caused the death, it is not necessary that his act should be the immediate cause of death in the medical sense.
If P causes to Q, injuries likely to cause death, and as a result of such injuries, it is necessary to perform an operation on Q, the injured man, and the injured man dies as a cumulative result of the original injuries as well as the operation, P must be deemed to have caused the death of Q, because the operation itself was necessitated by what he had done, and therefore, he must be held to be the cause of the operation itself and the consequential death.
WITH THE KNOWLEDGE THAT HE IS LIKELY BY SUCH ACT TO CAUSE DEATH.—
Knowledge is a strong word and imports a certainty and not merely a probability. Here knowledge refers to the personal knowledge of the person who does the act.
MANSEL PLEYDELL, [A.I.R. 1926 LAH. 313.]
The accused kicked the abdomen of B with such violence as to cause fracture of two ribs and rupture of the spleen which was normal. B died. It was held that the accused knew that the abdomen is a most delicate and vulnerable part of the human body and should, therefore, be presumed to have kicked with the knowledge that by so kicking he was likely to cause death.
SOMETIMES EVEN GROSS NEGLIGENCE MAY AMOUNT TO KNOWLEDGE.—
If a person acts negligently or without exercising due care and caution he will be presumed to have knowledge of the consequences arising from his act.
KANGLA, (1898)
The accused struck a man with a club, bona fide believing that the object was not a human being but something supernatural, but through terror, without taking any steps to satisfy himself that it was not a human being. Since he had acted with gross negligence without satisfying himself about the object which he struck, he was guilty of culpable homicide not amounting to murder.
What is necessary in such cases is that death must be the direct consequence of the act of the accused. Therefore, where death was because of some other cause of which the accused was unaware, he cannot be held guilty of culpable homicide.
KNOWLEDGE IS TO BE GATHERED FROM THE ACT OF THE ACCUSED AND THE CIRCUMSTANCES OF THE CASE.
KETABDI MUNDUL,[(1879) 4 CAL. 764.]
The accused kicked his wife aged about 9 years, on her back with his barefoot, she fell down and died immediately. It was held that accused was guilty of culpable homicide not amounting to murder because to kick a girl of tender age with such force as to produce rupture of abdomen in a healthy subject, is an act of such character that no reasonable man could be ignorant of the likelihood of its causing death.
LUXMAN KALU, [(1968) 71 BOM. L.R. 244 (S.C.).]
A had gone to his father-in-laws house to fetch his wife. There was some quarrel between A and his brother-in-law B on the question as by which train his wife should accompany him. During the quarrel A lost his temper and gave one blow with a knife on the chest of B which resulted in his death. It was held that A was guilty under the second part of section 304 for culpable homicide not amounting to murder because death was caused by doing an act with the knowledge that it was likely to cause death.
GANESH DOOLEY, [(1879) 5 CAL. 351;
A snake charmer exhibited in public a venomous snake, whose fangs he knew had not been extracted, and to show his own skill, but without any intention to cause harm to anyone, placed the snake on the head of one of the spectators. The spectator in trying to push off the snake was bitten, and died in consequence. The snake charmer was held guilty of culpable homicide not amounting to murder.
TULSA, I.L.R. 20 ALL. 143.]
A young widow of twenty, wishing to elope with her lover at night, wanted to elude the vigilance of her parents, who were naturally opposed to her elopement. With a view to intoxicate them she mixed dhatura seeds in their food. The parents were seized with illness because of the effects of dhatura and were removed to the hospital where they ultimately recovered. She was convicted under section 307 and the court held, "we must presume that people of her age have the ordinary knowledge of what the results may be of administering dhatura."
SREENARAYAN, [(1947) 27 PAT 67.]
A struck B on the head a single blow with a piece of firewood. B fell down bleeding from her nose and became senseless. A ant his wife W thought that B was dead and so they placed B on a wooden pyre and set fire to it which caused her death.
It was held that A and W were not liable to be convicted under section 302 as they had no intention to cause her death but were liable to be convicted under section 304 Part II as they had acted with gross negligence. The rule is that when one acts with gross negligence, law imputes to the offender the necessary knowledge.
PALANI GOUNDAN,, (1919) 42 MAD. 547.
Madras High Court had applied the law in a different manner. In this case the accused struck his wife a blow on her head with a ploughshare, which, though not shown to be a blow likely to cause death, in fact rendered her unconscious. The accused believing her to be dead, in order to lay the evidence of false defense of suicide by hanging, hanged her on a beam by a rope, and thereby caused her death by strangulation. He was held guilty of causing grievous hurt and not for culpable homicide. It is submitted that the view of Madras High Court is not sound. The view expressed by Patna High Court in Sreenarayan case is a better one.
A intending to kill B inflicts on B a mortal wound and mistakenly thinking him dead throws his body in a lake with the result that B dies by drowning. In this case A is liable for causing death of B by grossly negligent act. A caused a mortal wound to B and mistook him to be dead. B dies due to drowning. Since gross negligence implies knowledge therefore A is liable for committing culpable homicide not amounting to murder under section 299 Indian Penal Code as A has acted with gross negligence.
DEATH CAUSED WITHOUT INTENTION OR KNOWLEDGE.—
The offence of culpable homicide presupposes an intention, or knowledge of likelihood of causing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt, or simple hurt. Every such case would depend upon the existence of abnormal conditions unknown to the offender.
A person who voluntarily inflicts such injury as was likely to endanger life must always, except in the most extraordinary and exceptional circumstances, be deemed to know that he is likely to cause death. If the victim is killed, ordinarily the offence is culpable homicide unless the lack of intention or the knowledge aforesaid is proved.
CHATUR NATHA, (1919) 21 BOM. L.R. 1101.,
In above case in the course of, an altercation between A and C on a dark night, the former aimed a blow with his stick at the head of the latter. To ward off the blow C's wife W, who had a child on her arm intervened between them. The blow missed its aim and fell on the head of the child causing severe injuries, due to which the child died. It was held that, inasmuch as the blow, if it had fell upon the complainant would have caused simple hurt, the accused was guilty of causing simple hurt.
In a case B struck violent blows on the head and shoulders of a woman who was carrying an infant child in her arms. One of the blows fell on the child and killed it while the woman received simple injuries. In this case B will be liable not for causing simple hurt to the woman under section 323 but would be liable under section 304-A Indian Penal Code for causing death of the child by his negligent and rash act. B knew that the woman was carrying the child in her arms and his blows might hit the child. Therefore, he ought to have taken care. B caused the injury with the knowledge that it was likely to cause injury to the child as well and the amount of injury which would cause only a simple hurt to an adult may cause death of an infant child. In this case if the woman had died on account of the blows then B would be liable for culpable homicide not amounting to murder under Part II of Section 304 Indian Penal Code.
If the woman and child both were killed, then also B will be liable for causing culpable homicide not amounting to murder under Section 304, Part II of the Indian Penal Code.
This problem is different from Chaturnath, [(1919) 21 Bom. L.R. 1101.] case because in that case the accused aimed his blows after an altercation to someone whose wife with a child in her arms had intervened and the child had died. In this case the blow was aimed at woman herself and the accused knew that she was carrying an infant child in her arms.
FOX, (1879) 2 ALL. 522.
The accused, dissatisfied and irritated by the lazy manner in which a punkha coolie was managing a punkha, went up to him and struck him a few blows. The coolie, who was suffering from diseased spleen, died from the injuries. The accused was held guilty of causing hurt.
PUNCHANUN TANTEE, [(1866) 5 W.R. (CR.) 97.]
The accused after having been provoked by his wife, pushed her with both arms so as to throw her with violence to the ground and when she fell down, he slapped her with his open hand. The woman died on account of the rupture of her diseased spleen. He was held guilty of causing hurt.
IDU BEG [(1881) 3 ALL. 776]
There was some verbal wrangle between the accused and his wife, in the course of which he gave her a blow on the left side with great force. She vomited and bled from the nose and died in about an hour. It was found that death was caused by the rupture of the spleen. The accused was held guilty of grievous hurt.
A hit B a hemophiliac, on his right shoulder with a broken soda water bottle which had very sharp edges. B died of excessive loss of blood in consequence. Evidence is brought on record to show that A had not caused the said injury with the intention of causing B's death and that A did not know that B was suffering from hemophilia. In this case A will be liable for causing grievous hurt to B and not for culpable homicide because he did not know that B was suffering from hemophilia. A neither intended to cause death nor intended to cause such bodily injury as was likely to cause death nor he had the knowledge that his act was likely to cause death.
A hits B on his chest, who is a patient of tuberculosis of the lung and he dies as a consequence of the injury, which was otherwise ordinary. In this case the injury caused by A to B was an ordinary one. It was not of the nature likely to cause death of B but she died because she was a patient of tuberculosis and this fact docs not appear to be known to A who hit B on his chest. Therefore, A would be guilty of causing grievous hurt under section 325 of the I.P.C. and not for culpable homicide.
D, a burglar breaks into a house carrying an unloaded pistol which he intends to use to frighten the inmates of the house should he be detected. The owner of the house confronts the burglar who thereupon points the empty gun at him. The owner dies of fright. In this case D would be liable for culpable homicide not amounting to murder under second part of Section 304.