294 ESSAYS ON THE INDIAN PENAL CODE

Transcription

1 HOMICIDE Homicide from the earliest times has fascinated the human mind and has always been considered as the most heinous of offences. But then, not all cases of homicide are culpable as all systems of law do distinguish between lawful and unlawful homicides. 1 Further, with the growth of the concept of criminal responsibility, the laws of most countries admit gradations of unlawful homicides according to their heinous nature in order to fix suitable punishment for each. These distinctions are recognized by the Indian Penal Code as well. Under the Penal Code punishable homicide may be murder, culpable homicide not amounting to murder or only homicide by rash and negligent act. Further in some cases the accused may be punished for a lesser offence (e.g., hurt) even though death has resulted, if the injury resulting in death though voluntarily caused was not likely to cause death. For example, A gives B a blow and B, who suffers from an enlarged spleen of which A is not aware, dies as a result. A is not guilty of culpable homicide as his intention was merely to cause an injury that was not likely to cause death. 2 II The difference between murder and culpable homicide not amounting to murder is based upon very subtle distinction of intention and knowledge involved in these crimes. Intention is a state of mind and it can be proved only by its external manifestations. In several cases intention to kill was held to be evident from the facts. When injuries inflicted on vital parts of the body with sharp edged instruments, the intention to kill was held to be proved. 3 So also, when a person sets fire to the deceased, after another had 1. Under the Indian Penal Code homicide is excusable when it is governed by the following general exceptions in Ch. IV of the Code : Mistake of Fact (Ss. 76, 79), Accident (S. 80), Infancy (Ss ), Insanity (S. 84), Intoxication (Ss ) and it is justifiable when governed by the following general exceptions: acts obligatory or justifiable according to law (Ss ), choice of evils (S. 81), Consent (Ss. 88, 89, 92 excluding cases of intentional causing of death), compulsion by threats (S. 94 excluding the case of murder), and Private defence (Ss. 100, 103). 2. R. v. Fox (1879) 2 All Chahat Khan v. State ofharyana, AIR 1972 SC 2574; Prabhu v. State ofmp, (1991) Cr LJ 1373 (SC).

2 HOMICIDE 293 poured kerosene on his body, there cannot be any doubt that the intention of the accused was to kill the deceased. 4 Similarly, when an accused hit the deceased on a vital part of the body, the chest, with the blade of a swordstick, two feet in length with such force as to impair the liver and the aorta, it was held that the intention was to kill and the offence was plainly one of murder. 5 In another case, the accused on seeing the deceased said that he was searching for him everywhere and stabbed him with a knife, and especially when the knife which was drawn downwards as if to cut the body into two, it was held that the intention to kill the deceased was very clear from the facts. 6 The accused pierced a sharp edged weapon in the heart of the deceased and uttered words of 'doing away with the deceased' before the commission of the crime, it was held by the Supreme Court that the intention to kill can be inferred. 7 In the cases, where evidence showing premeditation might be forthcoming in such cases courts may not have difficulty in establishing intention, for example, if there was previous enmity between the accused and the deceased it is easy to establish intention. In one case the accused drove his jeep on the wrong side and towards the deceased in high speed, knocked him down and ran over him, killing him. The Supreme Court found that the accused had deliberately dashed his jeep against the accused and ran over him with' the intention to cause his death. 8 Knowledge and intention suggest existence of positive mental attitude. 9 Both can go together but are different from each other. There may be an intention without knowledge and knowledge without intention. Knowledge is an awareness of the consequences of an act. 10 The demarcating line between knowledge and intention is thin but it is not difficult to perceive that they connote different things. 11 Knowledge is a strong word and imports a certainty and not merely a probability. 12 Although much legal ingenuity has been expended in differentiating between these offences the differences are none too precise and clear. The 4. Bandampalli Vendateswarlu v. State ofap, 1975(3) SCC 492 at Rau Bhagwanta Hargude v. State ofmaharashtra, AIR 1979 SC 1224; 1979 Cri LJ (SC) Selvaraj v. State of 77V, 1998(9) SCC 308; 1998 SCC (Cri) Katta Ramudu v. State ofap, AIR 1997 SC Vasanth v. State ofmaharashtra, AIR 1998 SC 699; 1998 Cri LJ See Hemraj v. State, AIR 1990 SC 2252; A N Chandra v. State of UP, 1990 (Supp) SCC 717; Bhagubhai Manilal v. State of Gujarat, AIR 1996 SC 2555; Lahhu Ram v. State of Punjab, 1995 SCW 172; 1996 Cri LJ ]ayaraj v. State oftn, AIR 1976 SC 1519; Sachidanand Banerjee v. Sita Ram Agarwala, AIR 1966 SC Basdev v. State ofpepsu, AIR 1956 SC Ramjolaha v. Emperor, AIR 1927 Pat 406.

3 294 ESSAYS ON THE INDIAN PENAL CODE probability of the result of an act is an important matter for the court to consider and can be critical in their determining whether the result was intended. The greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that consequence was also intended. Where a man realizes that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. Taking note of this the Supreme Court observed: "The academic distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be, to keep in focus the key words used in the various clauses of Ss. 299 and 300." 13 That is perhaps why Stephen described the definitions of murder and culpable homicide as the weakest part of the code. 14 The vagueness of their difference is considered a major defect of the Penal Code. 15 In the original draft the Penal Code prepared by Lord Macaulay and his colleagues the treatment of the subject was very simple. Section 294 of the draft read "whoever does any act or omits what he is legally bound to do, with the intention of thereby causing or with the knowledge that he is likely thereby to cause the death of any person and does by such act or omission cause the death of any person is said to commit the offence of "voluntary culpable homicide". Under Sec. 295 of the draft, voluntary culpable homicide was murder unless it came under three specified mitigated descriptions, i.e. when it was committed on grave and sudden provocation, when it was committed in excess of the right 13. Ruli Ram v. State ofharyana, (2002) 7 SCC 691, para 8; State of UP v. Virendra Prasad, (2004) 9 SCC 37 at 42. See also State ofap v. Rayavarapu Punnayya, (1976) 4 SCC 382; Abdul WaheedKhan v. State ofap, (2002) 7 SCC Stephen, History of English Criminal Law, vol. IH pp See Govindarajulu, "Some aspects of the law of Homicide", M.L.J. (1941) p. 91 at 94. As the learned writer points out, such vagueness and the consequent uncertainty were sought to be avoided by the Law Commissioners who prepared the first draft. The Commissioners said "There are two things which a Legislator should always have in view while he is framing laws: The one is that they should be as far as possible precise; the other that they should be easily understood... A loosely worded law is no law, and to whatever extent a legislature uses vague expressions, to that extent it abdicates its functions, and resigns the power of making law to the courts of justice."

4 HOMICIDE 295 of private defence 16 as limited by law, and when it was committed with the consent of the victim. But there was an attempt in a Code prepared by the Government of India in 1851, it would appear, to state the law in the technical terms of the English law. 17 In that Code S. 328 defined murder thus: "Whoever maliciously kills any other person commits murder"; S. 331 ran "Whoever otherwise than maliciously or by mischance kills any other person being neither a convict lawfully put to death in execution of a lawful sentence nor a person lawfully killed in war or in exercise of the right of defence commits man-slaughter." The succeeding sections defined "Extenuated manslaughter" and "Justified man-slaughter". However, finally the original draft provisions were enlarged considerably and enacted in their present form. Section 299 of the Penal Code as it now stands, defines culpable homicide thus: "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. 18 Section 300 defines murder thus: "Except in the cases 19 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 16. See Nathan v. State ofmadras, AIR 1973 SC 665; 1973 Cri LJ 608; Onkarnatb Singh v. State of UP, AIR 1974 SC 1550; 1974 Cri LJ 1015, MdMSHameed v. State ofkerala, AIR 1980 SC 108; Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577; 1979 Cri LJ 584; Hansa Singh v. State of Punjab, AIR 1977 SC 1801; 1977 Cri LJ 1448; Dattu Genu Gaikward v. State of Maharashtra, AIR 1974 SC 387; 1974 Cri LJ 446; In Mannam Balaswamy v. State ofap, AIR 1980 SC 44S;Franscis alias Panna v. State ofkerala, AIR 1974 SC 2281; 1974 Cri LJ 1310 (SC). 17. See Rust, Hurt and Homicide, (3rd edn.) p The following three explanations are given: 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. 19. The excepted cases are (i) homicide under provocation, (ii) homicide by an act done in excess of the right of self -defence (iii) homicide by a public servant in discharge of a duty by acts which he believes to be necessary but which are not so in reality (iv) homicide upon a sudden quarrel (v) homicide by consent of a person over 18 years of age.

5 296 ESSAYS ON THE INDIAN PENAL CODE 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." The second clause of S. 299 (Intention to cause such bodily injury as is likely to cause death) as will be seen is an addition and consequent on it, clause 2 and 3 of S. 300 have become necessary, clause 4 of S. 300 is new. Two further exceptions, exceptions 3 and 4 to S. 300 are new. The words "or omits what he is legally bound to do" in the original draft are omitted and a general provision covering illegal omissions (S.32) added. The new clauses creating more degrees of homicide and defining fresh extenuating circumstances seem to have been added by Princep, a Judge of the Calcutta Supreme Court between 1837 and "Except in cases hereinafter excepted" means that culpable homicide is not murder if the case falls within any of the exceptions. This has been endorsed by Supreme Court. 21 Culpable homicide is not murder when the case is brought within the five exceptions to S. 300, IPC. But even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of S. 300, IPC. 22 The apex court has clarified that the manner of causing injuries, the nature of the injuries, the part of the body where they were inflicted, the weapon used and the conduct of the accused are relevant factors in determining whether the offence committed is one of murder or culpable homicide not amounting to murder. 23 Ill If there is no chance of proving one of the exceptions to S. 300, the simple question that arises is whether S. 299 or S. 300 will apply to a given case. Some have been maintaining the view that there is no offence of culpable homicide not amounting to murder save that which arises from the application of the exceptions to S See Alan Gledhill, "Recent Developments in the Law of Homicide in England", Jaipur Law Journal 1961, at Kishore Singh v. State ofmp, AIR 1977 SC Id. at Karu Masik v. State of Bihar, 2001 Cri LJ Kemp., J in Pooshoo v. Emperor, 1865, 4 W.R. Cr. 33; Wazir Hussain, J., in Ramlal v. Emperor, I.L.R. 3 Luck 244. Macknay, J, in King v. Aung Nyun, 1940 Rang. 441; Sir John Beaumount said in his evidence before the Royal Commission:

6 HOMICIDE 297 Perhaps one of the reasons for this view is the belief that in India, as in England, every homicide is murder unless the accused proves some mitigating circumstance to reduce it to a man-slaughter. But as pointed out by Lord Sankey in Woolmington v. Director of Public Prosecutions, 25 this is certainly not the law in England. There, as in India, it is for the prosecution to establish beyond doubt the prescribed metis rea for murder (i.e., malice aforethought). The generally accepted view is, however, that S. 299 and 300 are distinguishable 26 on the basis of the mens rea specified and that exceptions apart, every case of culpable homicide is not necessarily murder. In fact, in many cases the accused have been acquitted of the charge of murder and convicted of the offence of culpable homicide not amounting to murder although there was no question of the applicability of any of the exceptions to S. 300; the decisions were based on the "fine but appreciable" distinction between Ss. 299 and In the scheme of the Penal Code, 'culpable homicide' is genus and murder its specie. All murder is culpable homicide but not vice versa. n Culpable homicide is defined in S. 299 and murder is defined in S. 300 of the IPC. Speaking generally, culpable homicide 'sans' 'special characteristic of murder' is 'culpable homicide not amounting to murder'. The Supreme Court has reaffirmed this distinction in many of its decisions. 29 IV Section which provides punishment for culpable homicide not amounting to murder repeats the expressions as to mens rea stated in S "It is quite unnecessary to put in that further description of culpable homicide in S It always seemed to me, that culpable homicide as defined in S. 299 is murder unless it comes within one of the exceptions in S. 300". See Report of the Royal Commission on "Capital Punishment" ( ) Cmd. 8932, p.439. Stephen thought it difficult though perhaps not impossible to suggest any case of culpable homicide, other than the five excepted cases, which is not murder. See Stephen, History of Criminal Law, vol. Ill pp A.C "Nothing is commoner than the ordinary mistake (that) unless the act is covered by one of the exceptions to S. 300 culpable homicide is murder", Mayne, The Criminal Law of India, (4th edn.) p. 478, See Reg. v. Govinda, 1 Bom. 342 for the distinction. See also Hyam v. Director of Public Prosecution, (1975) AC 55: [1974] 2 ER 41 (HL). 27. E.g., Reg. v. Govinda, 1 Bom InderSingh-v. The Crown of lolah State ofa.p. v. R. Punnayya, AIR 1977 SC Dhupa Chamarv. State of Bihar, (2002) 6 SCC 175; Abdul Waheed Khan v. State of A. P., (2002) 7 SCC 175. See also Hukum Chand v. State ofharyana, (2002) 8 SCC 421; Gopal v. State ofu.p., (2002) 9 SCC 744; Patel Hiralal Joitaram v. State of Gujarat, (2002) 1 SCC "Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which

7 298 ESSAYS ON THE INDIAN PENAL CODE But S. 304 is also applicable in cases where, though the mens rea of the higher type specified in S. 300 is present, the exceptions to S. 300 also apply. Sometimes a judge while sentencing an accused under Section 304 not merely relies on one of the exceptions but also on the fact that the mens rea is of the lower type mentioned in S The application of the exceptions implies that notwithstanding that the act is done with the mens rea specified in S. 300 the offence is still culpable homicide not amounting to murder and at the same time there is the finding that the mens rea is of the lower type mentioned in S.299. This leads one to doubt whether in such cases any effort has been made to determine the specific intention or knowledge actually present and it tends to obscure the distinction referred to in the previous paragraph. For the purpose of awarding punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in S. 300 as 'murder'. The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of S Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of S Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder. However, before any charge under S. 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. 33 In Sukhdev Singh v. Delhi State?* an altercation ensued between the appellant (accused) and the deceased after the accused objected to the parking of the vehicle near the gate of his employer. In the altercation that followed by a scuffle the 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." 31. Chamru Badhwa v. The State, 1954 Cr LJ 1676, Thommen Thomas v. The State, 1957 Cr. LJ State ofa.p. v. R. Punnayya, AIR 1977 SC 45; Ruli Ram v. State ofharyana, (2002) 7 SCC 691, para 7; Dhupa Chamarv. State of Bihar, (2002) 6 SCC 175; Abdul Waheed Khan v. State ofa.p., (2002) 7 SCC 175; State of UP v. Virendra Prasad, (2004) 9 SCC Keshub Makindra v. State ofmp, (1996) 6 SCC 129 at 156. See also Soni v. State of Gujarat, (1991) Cr LJ 330 (SC); Randhir Singh v. State of Punjab, AIR 1982 SC (2003)7 SCC 441.

8 HOMICIDE 299 accused appellant took out his pistol and fired at the deceased. After the first bullet missed the target he fired again. The high court held that since there was no enmity between the two and everything happened in altercation and consequent scuffle, Exception 1 to S. 300 IPC was applicable. The Supreme Court held that the high court was not justified in holding that Exception 1 to S. 300 IPC was applicable. The said exception deals with homicide committed in the heat of passion or by way of sudden provocation. 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 provocated as to lose self control. 35 In the present case gunshots were not held to be the result of grave and sudden provocation. The case was covered by Exception 4 to S. 300 instead of Exception 1 to S The apex court altered the conviction to S. 304 Part II from 304 Part I. V Likewise, a jumbled reference 36 to the different clauses of S.300 without indicating which of them is applicable, while distinguishing between Ss. 299 and 300 tends to blur the distinction further. For example in William Sidney v. State ofmadhya Pradesh? 7 following a heated exchange of words between the accused and the deceased, the accused slapped the deceased on the cheek. The deceased lifted his fist. The accused gave one blow on the head of the deceased with a hockey stick with the result that the skull was fractured. The deceased died in the hospital 10 days later. The accused was convicted under S. 304 Part II (which deals with homicide committed with knowledge of the likelihood of death resulting from the act). Since the exceptions to S. 300 were not invoked the discussion should have centered round the distinction between clause (4) of S. 300 and clause (3) of S. 299 but one finds that all the clauses are loosely expressed and discussed. Chandrasekara Aiyar, J observes "It is obvious that the appellant did not intend to kill the deceased. The evidence of the doctor is that the injury was likely to result in fatal consequences. This by itself is not enough to bring the case within the scope of S There is nothing to warrant us to attribute to the appellant knowledge that the injury was liable to cause death or that it was so imminently dangerous that it must in all probability cause death. The fact that Donald lived for ten days shows that it was not sufficient in the ordinary course of nature to cause death. The elements 35. Id. at State v. Bhairu Sattu Bherad, AIR 1956 Bom 609, Charan Singh v. The State, AIR 1959 All 255, W. Slaney v. State ofmadhya Pradesh, AIR 1956 SC 116, Gahbar Pande v. Emperor, 7 Part AIR 1956 SC 116.

9 300 ESSAYS ON THE INDIAN PENAL CODE specified in S. 300 of the Indian Penal Code are thus wanting. We take the view considering all the circumstances that the offence is the lesser one". There is a jumble of clauses 3 and 4 of S. 300 and clause 3 of S. 299 apart from the use of the expression 'liable to cause death', which is nowhere found in the Code. The sentence italicized would render both S. 300 clause 4 and S. 299 clause 3 inapplicable and the conviction then becomes unsupportable while the reference to the injury not being sufficient in the ordinary course of nature to cause death is out of place. 38 Clause 3 of S. 299 and 4 of S. 300 apply to cases in which there is no intention to cause death or bodily injury. Furious driving, firing at a mark near a public road, would be cases of this description. Whether the offence is culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide if it is most probable result, it is murder. 39 VI The first clause of S. 300 provides that it is murder if the offender had the intention of causing death. What is required is a finding as an actual fact that the accused desired to cause death whether as an end in itself or as a means to something else. It is difficult to appreciate the difference between culpable homicide not amounting to murder and murder unless one keeps in mind the meaning and import of the word "intention" as used in the Code and its purposeful separation from mere knowledge of the likelihood of the consequences. 'Intention' in the code is a specific and distinct state of mind which ought not to be mixed up with the other states of mind provided for in the Code. The Code recognize besides 'intention', 'knowledge of the likelihood of the consequence', 'reason to believe the consequence to Be likely' and 'rashness and negligence' as mens rea which will attract responsibility. In the civil law responsibility for injury is determined by the well-known fore-knowledge test which fixes liability if the injury was actually foreseen or if it would have been foreseen by an average reasonable person in the position of the wrongdoer. The basis of the test is the maxim that 'every man is presumed to intend the natural consequences of his act'. Now this intention imputed to the wrongdoer is very different from the intention of the Code for it includes besides the intention of the Code, the other three states of mind as well. In other words intention under the Code is but a fraction of 'intention' referred to in the maxim. Further, intention under the Code has to be determined as a fact, the enquiry being purely subjective whereas 38. See further the judgment of Bose, J in the same case who refers to clauses 2, 3 and 4 of S. 300 in a diffused manner, the clauses being not accurately stated. 39. Melville, J in R v. Govinda, ILR (1876) 1 Bom 342.

10 HOMICIDE 301 according to the maxim it is a fiction of the law. On the other hand, in England the much discussed decision of the House of Lords in Director of Public Prosecutions v. Smith 40 has adopted the objective test in determining intention. Such a criterion would be wholly out of place under the Code. Nevertheless it is not unusual for judges to rely on the maxim to determine intention under the Code. The interpretation of the other clauses of S. 300 is by no means simple and the following are noticeable conflicts in the matter of interpretation. (1) S. 300 clause 2 reads '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." The stress is on the offender's knowledge (which is a purely subjective consideration) of the likelihood of death resulting to the victim. One view is that this clause deals with cases where the injury that is intentionally inflicted is known to be likely to cause the death of the particular victim to whom it is caused by reason of the victim's physical infirmity (e.g. enlarged spleen), or peculiarity of the constitution known to the offender and that it does not cover cases where the injury is known to be likely to cause the death of a normal person. 41 Another view is that the words of the Section are wide enough to include the causing of death of a normal individual i.e., if the bodily injury intended is such as is known to be likely to cause the death of the particular person normal or abnormal to whom the harm is caused. 42 Even if this view is conceded, S. 300 clause (2) can be applied only to those cases where the court can safely conclude that the accused knew that he was likely to cause the death of the particular (normal) person killed. The intention to cause bodily injury is common to S. 299 clause (2) and S. 300 clause (2) and the W.L.R. 546; For a critical appraisal of this ruling see Sir Cyril Salmon "The Criminal Law Relating to Intent" Current Legal Problem; 1961 p.l. 41. See Ratan, 'Culpable Homicide'pp where emphasis is laid on the expression "the person to whom the harm is caused" Aung Nyun v. R, AIR 1940 Rang. 259 (F.B.); Waryam Sher Mohammed v. Emperor, AIR 1938 Lah.834, Behari and Others v. The State, AIR 1953 All Chacko v. State ofkerala, (2004) 12 SCC 269 at See Govindarajulu : Some Aspects of the Law ofhomicide, 1941MLJ 91, at pp ; In Inder Singh v. The Emperor, 10 Lah 477 referring to S.300 cl. (2) it is observed "It has therefore ordinarily been applied to those cases where the offender has special knowledge of facts or circumstances whith make the act done particularly dangerous to the life of the person to whom that harm is done. Thus if A knows that B is suffering from an enlarged spleen and B dies the offence comes within cl.2 of S.300 and not within S.299 because of the special knowledge of A. I do not propose to lay down that this is only class of cases which is covered by cl.2 of S.300 but this is the commonest type of cases falling under S. 300 cl. (2)." In the following cases S. 300 cl. (2) has been applied without any advertence to any peculiarity in the constitution of the victim. Ghurey and Another v. Rex, 50 Cr LJ 353; Emperhr v. Ratan, AIR 1932 Oudh 186; Kelu Ayyappan v. The State, AIR 1959 Kerala 230; Bahadvin v. Emperor AIR 1927 Lah. 63.

11 302 ESSAYS ON THE INDIAN PENAL CODE only difference between them is that under the latter there should also be the knowledge that the injury is likely to cause the death of the person to whom the injury is caused. As this additional element of knowledge is subjective, it should be inferred from the evidence as a matter of fact and should not be imputed to the accused. S. 300 clause (2), then, really appears to be a combination of clause (2) and clause (3) of S. 299, 43 which from the stand point of responsibility is equated with an intention to cause death and hence liability for murder. While considering the circumstantial evidence regarding homicidal fact the Supreme Court laid down that though witnesses may lie, but circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. 44 (2) Section 300 clause (3) reads "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." 45 This clause is distinguishable from clause (2) of S. 299 on the basis of the higher degree of probability of death resulting from the injury denoted by the expression 'sufficient in the ordinary course of nature to cause death'. Prof. Alan Gledhill considers the distinction between an injury likely to cause death artificial and observes "In many cases the result of a trial must turn on the medical evidence and a man's life may depend upon the unchallenged opinion on the nature of an injury, given by a not overcompetent member of the subordinate medical service who has performed a casual autopsy." 46 These clauses, clause 2 of S. 299 and cl. 3 of S. 300, are not only difficult to understand in the abstract but lead to considerable arbitrariness in their application to any given case. The distinguishing feature of the mens rea requisite under clause (2) of S. 300 is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. 47 It is noteworthy that the 43. See Rakiman Ismail v. R., AIR 1939 Lah Joseph v. State of Kerala, (2000) 5 SCC 197 at See Rajwant Singh v. State of Kerala, AIR 1966 SC See also Augustine Saldanha v. State ofkarnataka, (2003) 10 SCC 472; State of UP v. Virendra Prasad, (2004) 9 SCC 37; State ofap v. Rayavarapu Punnayya, (1976) 4 SCC 382 ; Abdul Waheed Khan v. State of AP, (2002) 7 SCC See Prof. Alan Gledhill "The Indian Penal Code in the Sudan and Northern Nigeria''Year Book of Legal Studies 1960, Department of Legal Studies, Madras, p Augustine Saldanha v. State ofkarnataka, (2003) 10 SCC 472 at 478; Chacko v. State of Kerala, (2004) 12 SCC 269 at 275.

12 HOMICIDE 303 "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. 48 Clause 2 of S. 299 does not postulate any such knowledge on the part of the offender. The difference between clause 2 of S. 299 and clause 3 of S. 300 is 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 the lowest degree. The word "likely" in clause 2 of S. 299 conveys the sense of probable as distinguished from mere possibility. 49 (i) The view has been expressed in interpreting the third clause of S.300 that not only should the injury be intentionally inflicted but that the accused should have further intended that it should be sufficient in the ordinary course of nature to cause death. 50 This would convert the clause into one of intention to cause death i.e., clause 1 of S It is not possible to see how "intention to cause bodily injury intended to be sufficient to cause death" is different from intention to cause death. 51 (ii) Another view is that if any serious injury is intentionally inflicted and that injury actually caused death; it is to be regarded as sufficient in the ordinary course of nature to cause death; the case would fall under clause 3 of S (iii) The proper view to take is that the bodily injury suffered by the deceased and found sufficient to cause death should be actually 48. Augustine Saldanha, ibid. 49. Id. at Roberts, CJ in King v. Abor Ahmed, AIR 1937 Rang. 396; Aung Nyun v. The King AIR 1940 Rang Manohar Pershad, J., in Mahanandi Reddi in re: (1960) 1 An. W.R. 313 observed, "Section 300 would apply if it were possible to go a step further and say that the offender intended the injury to be sufficient in the course of nature to cause death or knew that in the special circumstances of the case, not death merely but the death of the particular person to whom the injury was caused was likely. If he knew that, he had knowledge from which the intention to cause the death of such a person could be inferred." This view has, however, been disapproved of recently in An.W.R. 84 Public Prosecutor v. Veeraiah as being opposed to the view of the Supreme Court in Virsa Singh's case, AIR 1958 SC See Rahiman Ismail v. R., AIR 1939 Lah In Public Prosecutor v. Koramutla Narasingadu, 1937 (2) M.L.J. 490 Horwill, J., said "Having found that the accused had voluntarily caused grievous hurt, the learned judge really found for the prosecution most of the ingredients necessary for murder. Now if the assailant causing any grievous hurt, intended to cause that grievous hurt then undoubtedly under Sec. 300(3) he would be guilty of murder for in the words of that Section he would have intended to cause bodily injury and the bodily injury

13 ESSAYS OF INDIAN PENAL CODE intended by the offender. Whether the injury intended by the accused and actually caused is sufficient in the ordinary course of nature to cause death or not must be determined objectively as a question of fact. In Virsa Singh v. The State 53 the Supreme Court observes "To put it shortly, the prosecution must prove the following facts before it can bring a case under S.300 "thirdly"; First, it must establish quite objectively that a bodily injury is present; secondly the nature of the injury must be proved; these are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further; and fourthly it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to caus.e the death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." In State of UP v. Virendra Prasad 5 * the court observed "the test laid down by Virsa Singh case 55 for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law...[e]ven if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. 56 Though it is thus emphasized that the accused's anticipation of the nature of the consequences is immaterial sometimes we find that the knowledge of the accused as to the injury being sufficient in the ordinary course of nature to cause death considered as being material. Prof. Alan Gledhill after referring to clause 3 and clause 2 intended to be inflicted was sufficient in the ordinary course of nature to cause death. One can, however, be guilty of grievous hurt without intending if he knows the hurt to be likely but a person is considered to intend the probable consequences of his act and a person who hits another man on the head with such a force as to cause a complicated fracture of the kind actually caused here must be considered to have intended such bodily injury as would be sufficient in the ordinary course of nature cause death." See Baijiba v. Emperor, 18 Cr LJ 1010; See also Ratan, Culpable Homicide pp Cr LJ 818; See also Rehman v. Emperor, AIR 1939 Lah. 245; Naga Khwet v. The King, AIR 1941 Rang Faquira v. State, AIR 1955 All Thannoo v. The State, AIR 1959 All (2004)9 SCC Supra note Supra note 43 at 45.

14 HOMICIDE 305 of S. 300 observes "... why, in the case of a victim of normal health and strength, should the knowledge of the consequences of the injury intended to be caused be irrelevant, if it is essential when death is caused to a person suffering from bodily disease or infirmity? Why, again, when the victim is a person of normal health and strength must the intended injury be sufficient in the ordinary course of nature, when intention to cause injury likely to cause death is enough, if it is caused to an infirm person?" 57 Again, in some cases, knowledge of the accused that the injury is sufficient in the ordinary course of nature to cause death is discussed while applying S. 300 clause Knowledge of the accused can only be relevant under S. 300 clause 2 but not under S. 300 clause 3. From the above it is clear that the minute sub-divisions of the state of mind leads to practical difficulties. Further, the presumption as to intention and knowledge, sometimes, is scarcely more than a speculation in the absence of anything in the evidence to disclose the actual mental condition of the accused. This clause has probably been introduced by the framers of the code so that persons in whose cases it may be difficult to prove an absolute intention to kill may not escape liability. 59 (3) Section 300 clause (4) reads "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." This is a good illustration of tautology and the artificial nature of the criteria laid down". 60 It will be sufficient to say that clause 4 of S. 300 would be applicable where the knowledge of the offender as to the 57. The Indian Penal Code in the Sudan and Northern Nigeria, Year Book of Legal Studies (1960) p. 17. See also Varkey Joseph v. State of Kerala, AIR 1960 Ker. 301 Nanhu v. The State, AIR 1956 M.B See also Prakash Chand v. State of HP, (2004)11 SCC Public Prosecutor v. Ramaswamy Nadar, 1940 (5) M.L.J. 92. Nga Ohu Pe v. The Emperor, 38 Cr LJ 52; and Nga Bau v. The Emperor, 39 Cr LJ See Ratan' Culpable Homicide' p Prof. Alan Gledhill remarks: "Knowledge of a probability of a likelihood envisaged by the second alternative is a concept which would stagger a grammarian and logician and the cases held to come within this clause usually ignore it basing the decision on the first alternative, though the section itself appears to put knowledge of moral certainty and knowledge of a likelihood on the same footing", Prof. Alan Gledhill op.cit. p. 17; Fitz Gerald remarks: "The Indian Law of murder in (b), (c), (d) of S. 300 is universally admitted to be complicated. In an extreme case the Court may be called upon to find S. 300 clause 4 whether the mind of the accused contained the certainty of a present risk of a probability of a likelihood". The Reform of the Law of Murder - Current Legal Problems. (1949) p.37.

15 306 ESSAYS ON THE INDIAN PENAL CODE probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 61 The Supreme Court opined that it would be simpler to place reliance on clause 4 to S. 300 because it contemplates only 'knowledge' and no intention. The court held that though generally the clause is invoked where there is no intention to cause the death of any particular person, the clause may on its terms be used in those cases where there is such callousness towards the result, and the risk taken is such that it may be stated that the person knows that the act is likely to cause death. In the present case, when the accused poured kerosene and set fire to his wife, he must have known that the act will result in her death. As he had no reason for incurring such risk, the offence was held to fall within clause 4 of S. 300 and would be culpable homicide amounting to murder. 62 (i) There is a conflict of opinion as to whether this clause applies to a case in which death has been caused by an act committed with reference to a particular person. 63 Such a restricted interpretation of S. 300 clause 4 would mean that cases where the accused commits an act directed against a particular person with the knowledge that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death without any excuse are not covered either by clause 4 or clauses 1, 2 and 3 because in such cases the injury is not intentionally caused. As S. 300 is exhaustive, this will mean that the authors of the Code have failed to provide for such a case. (ii) In the next place with reference to the operation of the exceptions to S. 300 an anomalous position seems to exist while construing S. 300 clause 4. Referring to this a learned commentator observes: "The operation of the five exceptions to S. 300 is practically somewhat different in respect to an act which falls within one of the first three clauses of S. 300 and in respect to an act which falls 61. Chacko v. State of Kerala, (2004)12 SCC 269 at State of MPv. RamPrasad, AIR 1968 SC 881. Sebaj Ram v. State ofharyana, AIR 1983 SC See Ratanlal, Law of Crimes (19th Edn.) p. 723 and Gour Penal Law of India (5th edition) p. 988; Shwe Ein v. Emperor 3 Cr.LJ 355; Mahindralal v. Emperor, 38 Cr LJ 868; For a contrary view see Ratan Culpable Homicide pp. 67-8; Faquira v. The State, AIR 1955 All 321; Garib v. Emperor^ AIR 1919 All. 445; and Parshaeli and Others v. The Emperor, AIR 1929 All. 160.

16 HOMICIDE 307 within the fourth clause... There is no inconsistency involved in finding that an act falls within one of these clauses and also falls within an exception, for all the circumstances of an exception may co-exist with the murderous intentions. When, however, an act falls within the fourth clause of S. 300, as regards the knowledge with which it is done, and the circumstances constituting an exception exist, there is this difference, it cannot consistently be affirmed (at the end of a trial and upon all evidence) of an act causing death done with the knowledge, described, in one breath that it was done without any excuse of running the risk of causing death and in the next breath that it was done under circumstances which the law declares to be an excuse for the act of causing death to the extent of preventing the culpable homicide amounting to murder ". M To this may be added the further distinction that while the absence of excuse under S. 300 clause 4 will have to be proved by the prosecution, the presence of circumstances constituting the exceptions must be proved by the accused. (iii) Section 300 clause 4 being concerned with a wholly inexcusable act of extreme recklessness, it is felt that there are too many gradations in the categories of criminal negligence and that S. 300 clause 4 is anomalous in its present context. 65 Clause 3 of S. 299 and clause 4 of S. 300 both require knowledge of the probability of the act causing death. Clause 4 of S. 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or bodily injury Ratanlal id. at 726. See also Rust, Hurt and Homicide (3rd Ed.) p See Rust id. at 83. There is a further suggestion that S. 299 cl. (3) be amended. See Ratan Culpable Homicide p Augustine Saldanha, supra note 47 at 480; Chacko, supra note 47. See also Tliankachan v. State of Kerala, Cr. App No. 1068/2005, wherein the Supreme Court acquitted him of the charges of murder of his son on whose leg he inflicted a chopper injury in a drunken stage. His son died of excessive bleeding. The court found him guilty under S. 304 Part II as he knew that the injury inflicted was likely to cause death.

17 308 ESSAYS OF INDIAN PENAL CODE VII Difficulties are occasionally encountered in the field of causation thus: (A) In one series of cases, the accused strikes and knocks down the deceased and believing the victim to be dead commits a further act with a view to remove the traces of his original crime, but it is subsequently established that the latter act alone caused death, 67 e.g. A strikes B on the head with a stick and B falls down senseless. Believing B to be dead A throws the body into the well. B dies due to the drowning and not due to the initial assault. In such cases the courts have found it none to easy to decide whether the accused is guilty of murder or not. (i) One view is 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 the circumstances to be and that it follows that a man is not guilty of culpable homicide if his intention was directed only towards what he believed to be a lifeless body. 68 (ii) Another view is that both under S. 299 clause (2) and S. 300 clause 3 the intention provided for is confined to 'bodily injury' and not the 'death' and what attracts liability for murder is that injury should be sufficient in the ordinary course of nature to cause death, entirely apart from intention or knowledge and as the subsequent act causes such a bodily injury the offence is murder. 69 In Laxman Kalu Nikalje v. State of Maharashtra 70 there was a quarrel between the accused and the deceased and the accused whipped out a knife and stabbed the accused on the chest near the shoulder. The stab injury was not on a vital part of the chest, but since the knife cut the artery inside, it resulted in death, the Supreme Court held that there was no proof that the injury caused was the injury intended, as but for the severing of the artery, death might not have ensued. It was 67. Khandu v. R. 15 Bom. 194 : Palani Goundan v. Emperor, (1919) 42 Mad. 547; Kaliappa Goundan v. Emperor, 57 Mad. 158; Thavamani v. Emperor, 1943 (2) M.L.J. 13; Chinnathambi in re: 1952 (2) M.L.J. 550; Lingaraj Das v. R,. 24 Pat. 131; Emperor v. Dalusardar, 18 C.W.N. 1270; Emperor v. Khubi, 25 Cr LJ 703; Emperor v. Gajjan Singh, 32 Cr LJ Sadasiva Aiyar, J in Palani Goundan v. Emperor 42 Mad. 547; In re Chinnathambi 1952, 2 M.L.J. 550; Emperor v. Dalu Sardar, 18 C.W.N. 1270; Birdwood, J and Sergeant, CJ in Khandu v. R, 15 Bom See also ThaboMeliv. The King, (1954) I.W.L.R. 228 and the criticism thereof in Russel on Crimes (Xlth Edition) at Napier, J in Palani Goundan v. Emperor, 42 Mad, 547; State ofmp v. Ram Prasad, AIR 1968 SC AIR 1968 SC See also Jagrup Singh v. State of Bihar, AIR 1972 SC 952; 1972 Cri LJ 587, Hardev Singh v. State ofpunjab, AIR 1975(3) SCC 731, Anda v. State ofrajasthan, AIR 1966 SC 148; 1966 Cri LJ 171; Gokul Parshram Patil v. State of 'Maharashtra, AIR 1981 SC 1441.

18 HOMICIDE 309 held that the case would not fall under clause 3 of S Accordingly, the accused was convicted under S. 304, IPC. 71 (iii) A third and better opinion from the commonsense point of view is that if the accused began with the intention of causing death and if the two acts committed by him so closely follow upon and are so intimately connected with each other that they cannot be separated but must both be ascribed to the original intention which prompted the commission of those acts, the offence would be culpable homicide. 72 "In these cases the accused intends to kill and does kill; his only mistake is as to the precise moment of death and as to the precise act that effects death. Ordinary ideas of justice and commonsense require that such a case shall be treated as murder. 73 But where the original intention is merely to cause hurt the offence will not be culpable homicide but hurt simple or grievous as the case may be. (B) The problem of causation takes a different form in those cases in which the accused intends to kill a certain person, but in fact kills another towards whom he had no malice. 74 Such cases will ordinarily fall under S and the accused would be found guilty of murder. Also, S. 299 does not require that the accused should intend to kill any particular person. This is clear from illustration (a) to S. 299 which reads : "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." But complications arise when both the person whom the accused intended to kill and a third person die as a result of the criminal act, and also when the effect is not due merely to the act of the accused but to the intervening acts of the deceased or other third person. One view is that the accused should not be held guilty of the death of those whose death was not intended by him and 72. Parsons, J in R. v. Khandu, 15 Bom. 194; at 200; Thavamani v. Emperor, M.L.J. 13; R. v. Khubi, 25 Cr LJ 703; Lingarajadas In Re, 24 Pat. 131; Thabo Meli v. The King, (1954) 1 W.L.R. 288 and the criticism of that case at Russel on Crimes Xlth Edn. See Mayne The Criminal Law of India, 4th Edn Glanville Williams Criminal Law Edn. 2, p In rejeoti 39 All. 161; In re: Suryanarayanamurthy, 22 M.L.J Gurmail Singh v. State of Punjab, AIR 1982 SC Section 301 reads : "If a person, by doing anything which he intends or knows to be likely to cause death commits culpable homicide by causing the death ofany 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 has intended or know himself to be likely to cause."

19 310 ESSAYS ON THE INDIAN PENAL CODE could have been foreseen by him as likely and that S. 301 is confined to those cases in which one person alone dies and that not the one whose death was intended. 76 It is also felt that a person's conduct should not be held to be the cause of a consequence which would not result without the intervention of another human agency. The other view is that S. 301 should be applied to such cases. 77 It is difficult to be categorical in these cases when the result is due to a series of causes. We have to consider in each case the relative value and efficiency of the different causes. In Kurien v. State o/kerala 7S the appellant was convicted by the sessions judge, Ernakulam for an offence under S. 302 of the Indian Penal Code, for causing the death of a baby aged eight months. There was a verbal quarrel and mutual beating between PW1 and the accused. The accused appellant had drawn knife and threatened to kill PW1. Hearing the noise PW2, wife of PW1, came out of the house with the baby in her arms and requested the accused not to create trouble. The appellant retorted that he would kill her and aimed a stab at PW2. The knife hit the baby on his head. The child died. The trial judge found him to be guilty holding that the injury was on vital part and was sufficient in the ordinary course to cause the death of the child. He was convicted under S. 302 of the Indian Penal Code. On appeal the high court held that no intention to kill the child could be proved, the appellant's conviction cannot be sustained only on the basis of the doctrine of transfer of malice embodied in S. 301 of the Indian Penal Code. Therefore, appellant was held liable only under S. 326 of the Indian Penal Code and hence sentenced to rigorous imprisonment for three years. Similarly, in another case, there was an argument between two parties B and G on the one hand and the accused on the other, over cracking of some indecent jokes by the accused before B's wife. The deceased T intervened to stop the two sides from fighting. The accused raised a barchha to give a blow to B, which fell on the deceased, of which he died. The session court convicted the accused under S. 302 IPC. When the matter reached the apex court, it held that the accused had no animosity against the deceased. Even if transmission of malice from accused to the deceased can be inferred, in view of the fact that there is no evidence to show that the accused intended to cause the injury he inflicted, his conviction was converted from S. 302 to S. 304 Part II, IPC. 79 Sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a 76. Sundara Aiyer, J in Suryanarayanamurthy In Re, 22 M.L.J Benson, J in ibid KLT In Qurmail Singh v. State ofpunjab, AIR 1982 SC 1466.

20 HOMICIDE 311 separate treatment to the matters involved in the second and third stages. 80 The Supreme Court held that the connection between the primary cause and the death should not be too remote. 81 The court further held that if the supervening causes are attributed to the injuries caused, then the person inflicting the injuries is liable for causing death, even if death was not the direct result of the injuries. 82 VIII In the above paragraphs it was pointed out that where an offence satisfies only the requirements of S. 299 and not those of S. 300, it would be culpable homicide not amounting to murder and not murder. But even where the offence amounts to murder the Code recognizes certain extenuating circumstances which reduce it to culpable homicide not amounting to murder. This is not something unique to the Code. Almost all the legal systems provide for some mitigating factors. As already stated in the original draft prepared by Macaulay, three exceptions were listed and subsequently, two more were added to raise the total to five. The idea in providing these exceptions is that the accused should not be made entirely responsible for an offence that he was caused to commit by an external factor like provocation. Exception I to S. 300 provide: "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. In the original draft of the Code it was explained 83 that the provocation would be grave when it is such as passion, but in the explanation of exception to S. 300 there is now no reference to "ordinary person". The explanation reads "whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact". The Law Commissioners in their first report thought that the special circumstances relating to the offender will have to be considered 84 in judging the effect of the provocation. The English authorities lay down that 80. Augustine Saldanha Supra note 45 at 481; State ofupv. Virendra Prasad, (2004) 9 SCC 37 at 45; Cbacko, Supra note 41 at Moti Singh v. State of UP, AIR 1964 SC 900; 1964(1) Cri LJ 727.See also Joginder Singh v. State of Punjab, AIR 1979 SC 1876; 1979 Cri LJ Rewa Ram v. State ofmp, 1978 Cri LJ 858 (MP) see also Vina Singh v. State of Punjab, AIR 1958 SC 465, Kishore Singh v. State of UP, AIR 1977 SC Explanation 1 to S. 297 of the draft. 84. "These remarks are deserving of attention but it seems to us that Mr. Payne has overlooked the discretion which is purposely left to the court to judge whether the provocation be such as would be likely to move a person of ordinary temper to violent passion, not any person, it is to be understood, but a person of the same habits manners and feelings. A discreet judge would of course take into consideration such points as were adverted to by Mr. Payne and would probably

21 312 ESSAYS OF INDIAN PENAL CODE in considering a plea of provocation the jury must consider whether a reasonable man would have been deprived of self-control and the peculiar susceptibilities of the accused are irrelevant. 85 The view has been taken in some Indian cases that it is the standard of the accused that should be adopted in judging the effect of provocation 86 while a contrary view is taken in other cases that the standard of the "reasonable man" should be adopted. 87 But who is this reasonable man and what is the standard of reasonableness? Does it refer to the man on the Clapham omnibus as in English law, i.e., to a mythical man of reasonable prudence? Is there an abstract standard of reasonableness to be applied faithfully in every case? The Supreme Court in a case 88 has answered these questions in the negative and has stated that the standard of reasonableness varies from one social group to another. As Subba Row, J., delivering the judgment of the Bench, put it "what a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision; it is for the court to decide in each case, having regard to relevant circumstances." In other words the test is not what a reasonable man judged by some abstract standard would do, but what a reasonable man belonging to the same social group as the accused would do. To put it differently, if the accused is found, as a- matter of fact, to be a reasonable man, would he have done what he actually did? The objective test is that qualified by the circumstances mentioned by the Supreme Court. Similarly Madhavan v. State of Kerala * is interesting. The appellant Madhavan was convicted of the murder of his wife Madhavi under S. 302 of the Indian Penal Code and sentenced to the lesser penalty of imprisonment for life. There was a celebration in the temple near the house of appellant. He went reject the plea of provocation by insulting words in one case while he could as properly admit in another accordingly as the party might be shown to belong to a class sensitive to insults of this kind or otherwise." First report on the Penal Code by the Indian Law Commissioners (1846) para See Bedderv. Director of Public Prosecutions, 1954, 1 W.L.R The Royal Commission while sympathizing with the view that provocation must be judged by the standard of the accused however expressed, the view that a change in the law was not called for; paras of the report of the Royal Commission on the Abolition of Capital Punishment Cmd ( ).See also Lee Chun -Chuen v. Reginam, (1963)1 All ER Bhuranga Uraon v. The Emparor 37 Cr LJ 221; Channan v. Emperor AIR 1943 Lah 123; Empress v. Khogaayi 2 Mad Dinahandhu Oriya v. The Emperor AIR 1930 Cal 199; Sohrab v. Emperor 5 Lah 67; Das Raj v. Emperor 20 Lah 345; Khadim Hussain v. Emperor 7 Lah Nanavati v. The State ofmaharashtra AIR 1962 SC 605 at AIR 1966 Ker 258.

22 HOMICIDE 313 to the temple with the chopper to cut the overhanging branches of trees on the route through which the deity had to be taken in procession. In the night the wife of the appellant went to the temple to see the festival. When they were coming back from the temple to the house the appellant and his wife quarreled. During the heated discussion between the two the wife swore that she would never go back to his house. The appellant wanted to know the reason and therefore took the child which was with his wife. When he resisted the deceased from taking forcibly the child from him the chopper injured her abdomen. Then she broke her thali chain and threw it on the face of appellant. This infuriated him who cut her by the chopper which was already in his hand. She died instantaneously. The high court held that the accused was provoked and he was convicted under S It was argued on behalf of the appellant that the conduct of the Madhavi towards the appellant was such as to provoke a reasonable man to the extent of depriving him of his power of self- control and the provocation therefore was grave and sudden within the meaning of Exception 1 to S. 300 of the Indian Penal Code. The law is now well established that Exception 1 to S. 300 can apply only when the accused is shown to have been deprived of the power of self control by grave and sudden provocation which is caused by the person whose death is caused. The test of sudden and grave provocation is whether a reasonable man belonging to the same class of society as the accused placed in the situation in which he was placed would be so provoked as to lose his self control and the provocation must be such as would upset not merely a hot-tempered or a highly sensitive person but one of ordinary calmness. The law referring to Nanavati case 90 was summarized thus: (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, cause grave and sudden provocation to an accused so as to bring his act within the first exception to S. 300 of the Indian Penal Code. (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. 91 For bringing in operation the Exception 4 to S. 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender 90. Supra note 91 at 629 and supra note See Venkatesan v. State of Tamil Nadu, (1997) 3 Crimes 146 (Mad).

23 314 ESSAYS OF INDIAN PENAL CODE having taken undue advantage and not having acted in a cruel or unusual manner. 92 It is to be noted that the "fight" occurring in Exception 4 to S. 300 IPC is not defined in the Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down. 93 The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. 94 A fight is a combat between two and more persons whether with or without weapons. 95 In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. 96 It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. 97 The expression "undue advantage" as used in the provision means "unfair advantage". 98 Exception 5 which provides that culpable homicide is not murder when the person whose death is caused being above the age of 18 years, suffers death with his own consent, raises an interesting point. The point is whether this exception can be applied to bands of rioters who go out with the premeditated determination to meet and fight each other and are armed with deadly weapons. One view is that exception 5 is not applicable 99 to such cases because exception 4 makes it 92. See also Mabesb Balmiki v. State ofmp 2000(1) SCC 319, Jaipal v. State ofharyana, 2000(3) SCC 436; Prakash Chandv. StateofHP, (2004) 11 SCC 381 at Dhirajbhai Gorakbbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 at 327; Sachcbey Lai Tiwari v. State of UP, (2004) 11 SCC 410 at Prakash Chand v. State ofhp, (2004) 11 SCC 381 at 383; Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003)9 SCC 322 at 327; Sridhar Bhuyan v. State oforissa, (2004) 11 SCC 395 at 397; Sachcbey Lai Tiwari v. State of UP, (2004) 11 SCC 410 at Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 at 327; Sachcbey Lai Tiwari v. State of UP, (2004) 11 SCC 410 at Sridhar Bhuyan Supra note 94. Sachcbey Lai Tiwari v. State of UP, (2004) 11 SCC 410 at 415; Ravi Kumar v. State ofpunjab,(2005) 9 SCC 315. Also see Suresh Chandra v. State of U.P. Cr. App No. 747/2003,748/2003) wherein the Supreme Court refused to apply exception 4 of S.300. The court has, however recommended the prisoners to seek remission of sentence. This seems to require review. 97. Dhirajbhai Gorakbbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 at Sridhar Bhuyan v. State of Orissa,(2QM) 11 SCC 395 at Ainsle, J in Emperor v. Rhomuddin & Others 5 Cal. 31.

24 HOMICIDE 315 clear that to reduce murder to culpable homicide not amounting to murder, a fight should be sudden, without premeditation and in the heat of sudden passion on a sudden quarrel. The opposite view is that if the facts make out that the deceased did consent to suffer death or take the risk of death at the hands of a member of the hostile party, it will come under Exception Mayne is of the view that there is no question of consent to suffer death in these cases; the question is what does he take the chance of? The answer to this depends upon the facts of the case. If the party is armed with sticks then obviously the case will not fall under Exception 5. Much discussion has taken place on the subject of Euthanasia. Under Indian Law it would be culpable homicide under S. 300 Exception (5). The Royal Commission in England felt that no change in existing law was necessary. 101 However, in view of the changed outlook as to the purpose of punishment, the topic of euthanasia as well as that of suicide 102 may be reexamined. In England the rule of law whereby it is a crime for a person to commit suicide has been abrogated by S.l of the Suicide Act 1961 (9 and 10 Eliz. 2 C. 60). The Act, however, provides that persons abetting suicide shall be punished. Life does not mean 'animal existence'. 103 This principle is recognized by Supreme Court. 104 In Mckay v. Bergstedi, 105 a patient filed a petition to the court for permitting disconnection of his respirator. The District Court granted the permission, against which State appealed to the Supreme Court 100. Pigot, J in Queen Empress v. Nayamuddln & Others 18 Cal Paragraphs of the Report of the Royal Commission ( ) Cmd See Glanville Williams The Sanctity of Life and the Criminal Law, ch. 8 for an exhaustive discussion (1) "True as all this is, we are however forced to admit that suicide belongs to those anti-social actions which cannot be fought with the weapons at the disposal of modern criminal law. In a Penal System that is not excessively cruel or stigmatizing punishment cannot act as a deterrent on an individual who has already shown his readiness to throw away his life." Hermann Manheim, Criminal Justice and Social Reconstruction (1946) p. 10. (2) "While it is desirable to discourage suicide as much as possible by indirect means there can be no possible justification for penalizing any one for attempting to destroy his own life, since there could be no right more fundamental than the right to dispose of one's own life The punishment of attempted suicide is based in large part upon the theological notion that only God has the right to take away the life which he is alleged to give. But it is also partly for the prevention of suicide 103. Munn v. lllionis, (1877) 94 US Kharak Singh v. State of UP, AIR 1963 SC 1295; Sunil Batra v. Delhi Administration, AIR 1978 SC 1675; Maneka Gandhi v. Union ofindia, AIR 1978 SC Referred to in P. Rathinam v. Union ofindia, AIR 1994 SC 1844.

25 316 ESSAYS ON THE INDIAN PENAL CODE of Nevada. The Supreme Court affirmed the order passed by the District Court. In UK such mercy killing is permitted. In Airdale NH S Trust v. Bland m it was observed: 106 * Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legislated killing can only be carried out subject to appropriate supervision and control. As far as Indian position is concerned the Bombay High Court has laid down in Maruti Shripati Dubai: 107 [R]ight to live of which Article 21 speaks of can said to bring in its trail right not to live a forced life. 108 The constitutional validity of S. 309, IPC was challenged before the Supreme Court in P. Rathinam v. Union of India. 109 The court held the provision cruel, irrational, unconstitutional and violative of Article 21 of the Constitution. 110 In Gian Kaur, ni however, the Supreme Court overruled Rathinam 112. The court observed: Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Art. 21 to include within it the "right to die" as a part of fundamental right guaranteed therein. There is difference between suicide and euthanasia. Distinguishing euthanasia from suicide, Lodha J, in Naresh Marotrao Sakhre v. Union of India ni observed: 114 Suicide by its very nature is an act of self killing or self destruction, an act of terminating one's own act and without the 106. (1993) 1 All ER a. Id. at Cri LJ Ibid P. Rathinam Supra note Ibid. For arriving at this conclusion the court relied on Forty-Second Report of the law Commission of India. See B.B. Pandey, "Right to Life or Death?: For Bharat Both Cannot be 'Right', (1994) 4 SCC (Jour) Gian Kaur v. State ofpunjab, (1996)2SCC Supra note Cri LJ 96 (Bom) Id. at 99. See also Kumar Amarsekhara, "Euthanasia and Quality of Legislative Safeguards" (1997) 23 Mon LR2; Shreyans Kasliwal, "Should Euthanasia be legalized in India?" (2003) PL Web jour 16.

26 HOMICIDE 317 aid or assistance of any other human agency. Euthanasia and mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy killing is thus not suicide and an attempt at mercy killing is not covered by the provisions of S The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected. In the question of right to die an additional argument can be: Even if the individual's interest in terminating his life according to his wish is considered as well deserved and worthy of recognition, can it be accorded priority over many other 'more' deserving interests? 115 We have still not been able to recognize a right to basic necessities of life like food, shelter, clothing, medical care and even pure drinking water. 116 The law relating to euthanasia is still in confusion and courts generally shrink away from granting it even when an individual is suffering from incurable disease or severe pain. The High Court of the Andhra Pradesh had rejected the plea of a terminally ill youth to be put to death so that he can donate his vital organs. 117 Euthanasia is outlawed in India and orga^ donation may only take place if the donor is declared brain dead. The ca. has prompted some experts to demand a change in the laws. The Transplantation of Human Organs Act, 1995 also has no such provisions. 118 In April 2001, Netherlands became the first European country to legalise euthanasia and assisted suicide. Since January 2002, stringent Dutch constitutional legislation has been in place, whereby regional euthanasia committees, made up of judges, medical and ethic professionals, assisted by a second medical opinion, can grant incurah patients' requests (including children above the age of with parental consent) to have their life shortened by a medical expert. 119 Belgium followed suit in May 2002, with similar legislation. Thoush euthanasia remains unlawful in the UK, there have been recent cases that have advanced the legal, medical and ethical debate B.B. Pandey, supra note 110 at Kishen Pattanayak v. State oforissa, 1989 Supp (1) SCC "India court rejects euthanasia plea" BBC News, Venkatesh, 25, had a genetic neurological disorder and wanted his life support system turned off before his organs suffered irreparable damage Available at Euthanasia, Special Report by Ursula Smartt, Senior Lecturer at I Criminology at Thames Valley University in West Lond, BBC News, Pretty v. DPP, [2002] ECHR. Diane Pretty was terminally ill with Motor Neurone Disease. She wanted to obtain the right to be able to request medical help to die at a time of her choosing. Particularly to be given a guarantee that her husband would not be prosecuted for assisting her suicide in an active way. Permission was refused.

27 318 ESSAYS OF INDIAN PENAL CODE IX Two further exceptions to S. 300 may be suggested. One of them is that infanticide 121 (Infanticide is here used in the sense of killing of a child by the parent), should not be treated as murder. Infanticide and discrimination against the girl child still prevails in Indian society. The traditional system of female infanticide whereby the female baby was done away with after birth by poisoning or letting her choke on husk continues in a different form by taking advantage of advanced medical techniques. 122 Unfortunately, developed medical science is misused to get rid of a girl child before birth. This has affected overall sex ratio in various states. 123 For controlling the situation the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 was enacted, renamed after amendment as "the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act. The abortion law is liberal and there are no mechanisms to monitor the enforcement of the MTP Act (Medical Termination of Pregnancy Act, 1971). The state's indirect sanction to use the MTP Act as a tool to reduce population size implies that sex selective abortion indirectly enjoys legitimate sanction from the state. Abortion is a value-based question on when life is considered sufficiently valuable for protection by the law. If life in its earlier stages assumes value, to take it away may amount to murder. This may depend upon the value placed on 'conceived but not-yet born' or 'just born babies'. 124 The misuse of modern science and technology by preventing the birth of a girl child by sex determination before birth and thereafter abortion is evident from the 2001 Census figures which reveal greater decline in sex ratio in the 0-6 age group in states like Haryana, Punjab, Maharashtra and Gujarat, which are, though, economically better off. 125 The Indian Substantive Criminal Law contains no special provision dealing with infanticide 126 as a less serious type of homicide. The English 121. "Social anthropologists distinguish between infanticide and murder. Infanticide is the killing of a new born child committed by the parents or with their consent. The killing of another man's child is according to this definition, simple murder; it is killing by or on behalf of the parent that raises special problems." Glanville Williams The Sanctity of Life and the Criminal Law p. 26.See also K.E. Thankamani v. State of Kerala, 1998 SCC (Cri) CEHATv. Union of India, (2001)5 SCC Ibid KN Chandrasekharan Pillai, General Principles of Criminal Law,T> 15 (2003).See also The people v. Cbavez,77 Cal App 2d 621: 176 P 2d 92 (1947) See CEHA T v. Union of India, (2003) 8 SCC Rule 260. The Criminal Rules of Practice (Madras) however provides "In all cases where women are convicted fro the murder of their infant children a reference should be made through the High Court to the Government with an expression by the Sessions Judge of this opinion as to the property or otherwise of reducing the sentence." The Female Infanticide Prevention Act (Act VIII of 1870) relates to the

28 HOMICIDE 319 in certain specified circumstances deals with it as manslaughter. Having regard to the social and economic causes that lead to infanticide it would be desirable to make special provision for punishment of infanticide. It may be that a mother loving her children kills them to save them from the menace of insanity or desparate poverty or perhaps to save them from bearing the stigma of illegitimacy. And after all as Dr. Glanville Williams says "a woman who kills her child under the stress of any of these adverse circumstances is almost certainly not dangerous to anyone but her other children and not necessarily to them". 128 In any case infanticide does not cause a sense of insecurity in the society. In England, the outcome of an infanticide trial is merely probation or discharge but still a severe judge may send a woman to prison. In India as the offence is murder the court has little choice and has to sentence the mother to death or imprisonment for life though there have been instances of judges recommending a reduction in sentence. 129 Killing of a new-born or causing death of an unborn child by act amounting to culpable homicide are offences under Ss. 315 and 316 of the Indian Penal Code prescribing punishment of 10 years each. It is submitted that punishment should not be governed by such recommendations and that infanticide should be recognized as an exception to S law 127 The other suggestion is that the Penal Code should recognize the concept of diminished responsibility and this is really a criticism of S. 84. Section insists that the accused should be of unsound mind to be preventive measures that may be necessary to prevent the killing of female children in certain areas where the evil is rampant (i) The Infanticide Act, 1938 (1 and 2 Geo. VI C. 36). The Act takes no account of the circumstances of mitigation other than disturbance of mind resulting from giving birth or lactation and for this reason is applied only for a year after birth. Laws of Ceylon, Canada, Victoria and Tasmania contain similar provision. See Report of Royal Commission on the Abolition of Capital Punishment Cmd ( ) at 447. The Royal Commission felt that no change in the law was called for (para 162 of the Report). Dr. Glanville Williams pleads for further leniency in the matter. See The Sanctity oflife and the Criminal Law, p. 39. (ii) Article 116 of the Swiss Penal Code (1937) provides 'If a mother intentionally kills her child during the delivery or while under the influence of child birth, she shall be confined in the penitentiary for not over three years or in the prison for a minimum term of six months." 128. Glanville Williams: The Sanctity of Life and the Criminal f Law, p Alambtll v. Emperor AIR 1932 Lah. 297 Lakshmakka v. Emperor 1939 M.W.N The Code of Northern Nigeria which is modeled after the Indian Penal Code provides for "infanticide" as an additional exception to S.300. See Alan Gledhill " The Indian Penal Code in the Sudan and Northern Nigeria" Year Book of Legal Studies (1960) p Section 84 reads: "Nothing is an offence which is done by a person who at the time of doing it is by reason of unsoundness of mind, incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law."

29 320 ESSAYS OF INDIAN PENAL CODE exempted from liability whereas this concept makes even an abnormality of the mind as substantially impairs the mental responsibility of the accused a mitigating circumstance. This doctrine can be introduced into the Indian Penal Code either by amending S. 84 or by adding an exception to S It is felt that it would be wiser to confine the application of this doctrine to homicide and add an exception to S.300, on the following lines: "Culpable homicide is not murder if the offender at the time he committed the offence was not of unsound mind within the meaning of S. 84 of this Code but was nevertheless suffering from a disease of the mind which disabled him partially from understanding the full consequences of his act." 132 Section 2 of the Homicide Act has introduced this doctrine in England. On the Continent this is applicable to all crimes as a partial defence. In Scotland it is limited to homicide. 133 Three problems in connection with punishment for homicide deserve mention. Section 302 provides for imprisonment for life as an alternative punishment to death. The judge had till recently to state the reasons for awarding the lesser penalty 134 as the sentence of death was to be the normal penalty. The controversy as to the total abolition of capital punishment 135 apart, the desirability of requiring the judge to give reasons for awarding the sentence of death may be examined. A second problem relates to the sentence conforming to the judgment. In some cases it is found that the findings would indicate a particular type of X 132. This doctrine however has been severely criticized. Among the points leveled against it are (i) This would introduce a fine gradation of responsibility and makes a very subjective consideration in extenuating circumstances; (ii) It may be interpreted to include an irresistible impulse; (iii) An insane person might prefer to plead diminished responsibility successfully and undergo imprisonment for a short while rather than plead insanity and be confined to a mental home; (iv) It would result in psychopaths being confined with normal convicts. See Prof. Alan Gledhill, "Recent Developments in the Law of Homicide in England", Jaipur Law journal p.l. See Prevezer, "The Law of Murder" 1961 Current Legal Problems p. 16, (28-34) regarding the working of the rule. For detail refer to chapter on insanity Alan Gledhill, id. at Section 367 Cr PC amended in 1955 with regard to cl. 5. In a case it was stated. "After the amendment of Sec. 367 (5) Cr. P.C. in 1956 there is no statutory direction that a court should in such cases record its reasons why the lesser penalty is being awarded, still the courts are not absolved of their duty of exercising their judicial conscience as to whether the extreme penalty should be awarded or only the life sentence. "Mojia Ratna v. The State, AIR 1961 M.P. 10 at See, for further discussion, chapter on Punishment.