LAW. Substantive Criminal Law Culpable Homicide Amounting to Murder

Transcription

1 LAW Substantive Criminal Law Culpable Homicide Amounting to Murder

2 QUADRANT I: DESCRIPTION OF MODULE Subject Name Paper Name Module on Prerequisites: good reading of Law Substantive Criminal Law Culpable Homicide amounting to murder A basic knowledge of the crime and elements of crime and a Indian Penal Code Objective: The killing of a person may amount to murder which involves the highest degree of culpability and can be met with the extreme penalty of death or the culpable homicide may be of a lesser degree and may not qualify as murder. The objective of this module is to understand the nuances of culpable homicide amounting to murder. Key words: Intention, knowledge, likely, imminently dangerous, mens rea, actus reus QUADRANT II: E TEXT 1Introduction The killing of a human being is the most serious crime known to mankind. The killing i.e. homicide may be culpable or sanctioned by law. In a country like India where death penalty figures in the statute book, the execution of a death convict by the hangman involves killing but it is lawful sanctioned by law and hence is out of the culpability zone. 1 Any other killing not sanctioned by law will amount to culpable homicide/murder, if all the basic ingredients of the crime are satisfied. The conduct element of the offence is the voluntary act of killing and the fault elements may be intention or knowledge. In order to appreciate the nuances of culpable homicide and murder, it is important to first understand the basic principles of criminal liability since all the elements of crime must be met to establish culpability in a given case. Therefore, mens rea, actus reus, causation as well as the principle of concurrence of mens rea and actus reus need to be accounted for in every enquiry of criminal culpability. 2 Mens Rea/ Fault element 1 Section 78, Indian Penal Code, 1860.

3 One of the most important principles of criminal responsibility is encapsulated in the Latin maxim actus non facit reum, nisi mens sit rea i.e. an act does not make a man guilty of a crime, unless his mind is also guilty. Thus, mens rea is the mental element of crime which must be established in all cases. It refers to the guilty mind of the defendant and it is mens rea which attributes culpability to the actus reus. Some criminal law scholars use the term fault element. 2 That perhaps is a more apt terminology especially in the context of Indian Penal Code where the fault elements are specified in the offence. Moreover there may be just negligence as a fault element for offence and negligence has nothing to do with state of mind and so the word mens rea may not be appropriate. In cases of homicide, the fault terms that are generally used are intention, knowledge, recklessness and negligence. 2.1 Intention Salmond says that An intention is the purpose or design with which an act is done. This may consist of an intention to do some further act, an intention to bring about certain consequences or perhaps merely an intention to do the act itself. 3 In other words, intention is an act coupled with the free will in the Kantian sense and the actor desires it, aims for it, engineers it. However, intention must not be confused with motive. Motive corresponds to the ulterior end. Motive was defined in R v. Steane 4 thus: The longing for the object desired which sets the volition in motion is motive. The expectation that the desired motions will lead to certain consequences is the intention Motive has a dynamical whilst intention has a telescopic aspect The one impels the act, the other sees beyond it. A man may steal to feed his starving children. The motive is to feed his children but the intention remains of stealing the property of another. Criminal law takes note of intention alone and not motive in order to determine culpability. While motive has no relevance in criminal law for imputing or limiting culpability, it may be helpful in cases of circumstantial evidence or at the stage of sentencing (as an aggravating or mitigating factor). Since intention is a mental state one has to infer it from the act itself and by the surrounding circumstances. 2.2 Knowledge A man has three faculties emotion, volition and cognition. And knowledge of a particular thing is to have a mental cognition of it. A person may not intend a particular thing in the sense of desire but there is awareness in the part of the person indicating his mind. 5 In culpable homicide intention or knowledge suffices for culpability and in general terms, the requirement of knowledge is regarded as having the same intensity as that of intention except that knowledge relates to circumstances forming part of the definition of crime and intention relates to the consequences 2 Neil Morgan, The Fault Elements of Offences in Wing- Cheong Chan et al, Codification, Macaulay and the Indian Penal Code. 59(2011). 3 PJ Fitzgerald, Salmond on Jurisprudence 368( Indian Economy Reprint 2009). 4 (1947) IKB 997, KI Vibhute, PSA Pillai s Criminal Law 64(2009).

4 specified in the definition of crime. 6 The dividing line between intention and knowledge is very thin but nonetheless it is there Recklessness A situation may arise where there is neither intention nor knowledge but the actor acted recklessly in relation to another person. In case of homicide, he was reckless in relation to another s death. So it is a wrongful disregard of a foreseen risk. It is the wrongful assumption of a risk. Glanville William states a consequence is intended if it is foreseen as certain, even though not desired. 8 Whether an act can be called reckless or not depends on the standard of duty and care imposed by law. In cases of recklessness the person may not be bothered whether the consequences occur or not, though he may wish that they don t. However it is important to note that foresight of consequences is not the same as intention but merely evidence of it Negligence Negligence needs to be distinguished from recklessness. Negligence means absence of such standard of care as was required by law in any particular circumstance. Devlin J. in Roper s 10 case held that negligence which is a case of constructive knowledge, where someone unintentionally fails to make enquiries which a reasonable and prudent man would make, has no place in criminal law. This observation raised the foundational question of criminalization of negligence i.e., should negligence be punished at all? It may be important to bear in mind that criminalization of negligence emerges from the compromise between two conflicting interests: on the one hand, it is the public interest that demands restraint (even by criminal law) of all those who injure or menace the social well being and on the other hand, the individual interest that seeks maximum liberty and freedom from interference from the state sanctions. 3. Causation Causation is an issue in the case of result crimes that is to say crime which have a consequence spelled out in the definition of offence. Culpable homicide is a prime example of result crime where death is the consequence specified. Causation in section 299 appears in the form of whoever causes death and in section 300 as an act by which death is caused.so in case of culpable homicide amounting to murder or not amounting to murder the first relevant enquiry is whether the act or omission by the offender is the cause of death. In Joginder Singh v. State of Punjab 11 the deceased was being chased by the accused persons and he jumped into the well. As a result he sustained head injury resulting in his becoming unconscious and he died due to drowning. The apex court held that there was no evidence that the deceased was left with no option but the jump and hence the accused cannot be said to have caused death. The act of the accused was not the direct cause of the death. 6 Andrew Ashworth, Principle of Criminal Law 182(2009). 7 See Basdev v. State of Pepsu, AIR 1956 SC Glanville L. Williams, The Mental Element in Crime 13 (1965). 9 Georgia Beatty, Foresight of consequene is not the same as intent Available at: 10 Roper v. Talor s Central Garage (Exeler) Ltd. (1951) 2T.L.R. 284, AIR 1979 SC See also Rewa Ram v. State of Madhya Pradesh 1978 CriLJ 858 (MP).

5 One of the leading cases of causation is Emperor v. Mushnooru Suryanarayana Murthy. 12 The accused gave halva in which a poison containing arsenic and mercury had been mixed to one Appala Narasimhulu who had a portion of it and threw the rest. Another girl Rajalakshmi ate the halva from where it was thrown and eventually died due to poison. Appalla who was the intended victim was saved. The accused was held guilty of murder of Rajalakshmi. It was held that the chain of causation was not broken since the consequence was foreseeable and hence the causal responsibility rested with the accused. 4. Subjective and Objective Liability To convict a person both the conduct element and the fault element must be proved by the prosecution beyond a reasonable doubt and both the elements must be contemporaneous. 13 As far as the conduct element is concerned the principle of causation provides a guiding link and forensic science which has over the years become advanced helps in proving the occurrence of events. However, the problem arises in cases of proving the fault elements of a crime. To prove what was going on in the mind at the relevant time is not possible. Brian C.J. in the fifteenth century said The devil himself knoweth not the mind of men. A person may confess as to what was going on in the mind. It may not always be true and in most of the cases the confession is absent. The fault elements cannot be assumed through conduct elements. The conduct elements only impact causal responsibility but the criminal culpability comes through fault elements. So there has to be a judgment as to the mental direction or state of mind at the relevant time when the conduct element was present. There are two ways to do it. One is by way of objective liability and the other is by way of subjective liability. It is important to recognize that intention is at the end of the day a matter of inference from the evidence available. A perusal of common law in the era of DPP v. Smith 14 reveals that an objective approach was adopted to infer fault wherein the House of Lords held that a person is deemed to intend the natural and probable consequences of his acts. The House of Lords brought in a reasonable person test whereby if a reasonable person would have foreseen the consequences as being probable the accused would be presumed to have intended the result. However, the objective liability to establish fault is open to criticism. Murder is a crime of specific intent, hence a subjective approach is more appropriate to undertake this enquiry. In later cases like Moloney 15 and Hancock &Shankland, 16 Nedrick 17 the courts seem to haves given a moral elbow room to deal with cases where the conduct element of murder (i.e. death) is present but the mental blameworthiness required for the offence of murder is lacking. The Indian Penal Code need not grapple with these problems as it has has quite a subjective focus which is clear from a perusal of 12 (1912) 22 MLJR 333 (Mad.). See also Palani Goundan v. Emperor 1919 ILR 547 (Mad) and In re Thavamani, AIR 1943 Mad See Emp. v. Khandu 50 Bom 194; Thabo Meli v. R [1954] 1 WLR 228; Le Brun,[1992] QB (1961) AC (1985) AC (1986) AC (1986)83 Cr App R 267.

6 offences. Macaulay who drafted the Penal Code was adherent of a subjective liability and so the Code does not follow the felony- murder rule and hence the concept of constructive intention does not find a place in the Code. Macaulay remarked thus: 18 To punish as a murderer every man who, while committing a heinous offence, causes death by pure misadventure, is a course which evidently adds nothing to the security of human life... For example, hundreds of persons in some great cities are in the habit of picking pockets. They know that they are guilty of a great offence... Unhappily one of these hundred attempts to take the purse of a gentleman who has a loaded pistol in his pocket. The thief touches the trigger, the pistol goes off, the gentleman is shot dead. To treat the case of this pick pocket differently from that of the numerous pick pockets who steal under exactly the same circumstances, with exactly the same intentions, with no less risk of causing death...appears to us an unreasonable course. 5 Criminal Liability for Homicide under the IPC As far as the Indian Penal Code is concerned in most of the cases the definition of the offence gives an insight into the ingredients of crime and how criminal liability is to be imputed. The Code specifies not only what the accused must have done but also the state of mind with regard to the proscribed act. The Code is replete with words like intentionally Knowingly dishonestly fraudulently etc. When the Code uses words like intentionally, knowingly, voluntarily a subjective test is mandated. In case of culpable homicide and murder the predominant thrust of the Penal Code is on subjective liability. 5.1 Analyzing the offences of culpable homicide and murder Sections 299 and 300 pertain to culpable homicide and murder respectively. The two sections are not mutually exclusive. Death of a human being that occurs due to rash or negligent act though punishable (under section 304A) does not fall under the category of culpable homicide or murder. It is important to note at the outset that the mental states that evoke section 299 and 300 are intention and knowledge. We will now examine the distinction between culpable homicide and murder. It has been oft repeated that culpable homicide is the genus and murder is the species. This means that murder is a specific sub-set of culpable homicide. Differently put, all cases of murder are culpable homicide, but all cases of culpable homicide are not murder, and therefore, there is a residual category called culpable homicide not amounting to murder. Culpable homicide which amounts to murder falls in section 299 and as well as in section 300 and does not fall under any of the exceptions given in section 300. In the following section, we will contrast section 299 and section 300 to distinguish between the category of culpable homicides that become murder, from the ones which fall short of murder. Section 299 of the Indian Penal Code defines culpable homicide thus: 18 Quoted in Wing Cheong Chan et al, Codification, Macaulay and the Indian Penal Code 63(2011).

7 299. Whoever causes death by doing an act with the intention of causing death or with the knowledge 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, commit the offence of culpable homicide. The following elements emerge from the definition:- (1). Death is the sine qua non for an enquiry for culpable homicide. (2). Death must be caused by an act of the defendant. (3). There must have been: (a) an intention to cause death, or (b) intention to cause such bodily injury as it likely to cause death, or (c) knowledge that he is likely by such act to cause death. Section 300 defines murder as: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. One may read section 299 in terms of (a) (b) and (c) for its 3 breakups and section 300 in terms of firstly, secondly, thirdly and fourthly corresponding to its 4 breakups Section 299 (a) and Section 300 firstly Killing which is done with the intention to kill is a clear cut example of murder. Mahatma Gandhi s assassination is a clear case following under this head and its application is not thought with any difficulty as such Section 299 (b) and Section 300 secondly This part of the section 299 imposes liability on the defendant where there is an intention to cause bodily injury and the bodily injury caused is such that it is likely to cause death. It corresponds with section 300 secondly which also deals with liability when the intention is to cause bodily injury and there is knowledge of likelihood that the body injury so caused would result in the death of the person on whom the harm is inflicted. It deals with a subjective liability i.e. the offender had the intention to inflict a particular bodily injury which the offender knows will lead to the death. So for an enquiry under Section 300 Secondly, section 299(b) needs to be 19 See also Rawalpenta Venkalu v State of Hyderabad, AIR 1956 SC 171.

8 satisfied. However, in section 300 secondly, the offender has specific knowledge that the injury will result in death. Such specific knowledge is not present in section 299 (b) Section 299 (b) and Section 300 thirdly Section 300 thirdly talks about an intention to cause bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. So there is a subjective liability of the intention to cause bodily injury but objective liability creeps in when the code refers to sufficient in the ordinary course of nature to cause death. As far as section 299 (b) is concerned it also refers to intention of causing such bodily injury as is likely to cause death. The liability again is subjective as well as objective. In Virsa Singh v. State of Punjab 20 the court held that the two clauses of section 300 thirdly are disjunctive and separate. The first is subjective to the offender.[ and the latter part] is purely objective and inferential and has nothing to do with the intention of the offender. The Court observed inter alia that it must be proved that there was an intention to inflict that particular injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended. Same is true for section 299(b) the first is subjective and for the second part 21 there is an objective enquiry. However, there is a difference of degree between sufficient in the ordinary course of nature and likely. Thus, according to the rule laid down in Virsa Singh case, even if the intention of accused was limited to the infliction of 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. Illustration(c) appended to section 300 clearly brings out this point Section 299 (c) and 300 fourthly Section 299 (c) and 300 fourthly bring in the fault elements in terms of knowledge. Intention and knowledge are different mental states though in a practical application they may merge and the thin dividing line may vanish. But theoretically, knowledge means to have mental cognition and intention is the desire to achieve a particular consequence. In Jai Prakash v. State (Delhi Administration) 23 it was observed: the knowledge as contrasted with intention signify a state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, intention is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. Section 300 fourthly can be broken into two parts. The first part deals with the knowledge of the offender that the act is so imminently dangerous that it in all probability would cause death and the second part deals with the knowledge of the 20 (1991) 2 SCC 32.See B.B. Pande, Limits on objective liability for murder 16 JILI(1974). 21 AIR 1958 SC 465. See also State of A.P v. Rayavarapu Punnayya AIR 1977 SC 45; Bhagwan Dass v. State, SCC State of A.P. v. Rayavarapu Punnayya, AIR 1977 SC See also Emperor v. Mt. Dhirajia, AIR 1940 AII 486; Gyarsibai v. State AIR 1953 M.B.61.

9 offender that the act is so imminently dangerous that it must in all probability cause a bodily injury that was likely to cause death. These two clauses are qualified by the words and commits such act without any excuse for incurring the risk of causing death or injury as aforesaid. 24 Section 299 (c) also talks about an act with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. The second part of 300 fourthly talks about a bodily injury likely to cause death and section 299 (c) talks about likely by such act to cause death. However both the sections contemplate knowledge of the likelihood of death. The knowledge part is a subjective criterion and expression knows in section 300 fourthly is the operative part for it. Section 300 fourthly further qualifies the fault element by putting in a rider of excuse. If there is evidence that there was an excuse to do so the offender comes out of the culpability zone of murder. For instance, in Dhirajia s case, 25 the court held that panic-stricken Dhirajia cannot be held liable for murder since she was escaping from her husband and thus her act was not without any excuse. In contrast in Gyarsibai s case, 26 the court rejected the contention that family fights amounted to an acceptable excuse for Gyarsibai to jump into the well with her children which led to their death. The court in this case held the words without any excuse for incurring the risk of causing death or such injury as aforesaid indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided without doing the act then there can be no valid justification for doing the act which is so imminently dangerous that it must in all probability cause death. 5.2 Explanations to section 299 The Indian Penal Code is unique in the sense that the core sections are accompanied by Explanations and illustrations which are a guide to understand the true import of the provisions. 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 that other, shall be declared to have caused the death. There are two ways of interpreting the explanation. One way of reading is explanation is to equate it to the thin skull principle employed in certain jurisdictions. 27 But some authors have argues that the word accelerated accords a different meaning to the explanation. They argue that the explanation is limited to those cases where the deceased had a condition because of which his health was deteriorating and the injury accelerated the death. In this interpretation those cases where the deceased had a dormant pre-existing condition but death has taken place, it would not amount to culpable homicide. This view gets reinforced for culpable homicide amounting to murder as illustration (b) to section 300 negates the thin skull principle. Explanation 2. Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death although by resorting to proper remedies and skilful treatment the death might have been prevented. This 24 See State of Madhya Pradesh v. Ram Prasad, AIR 1968 SC AIR 1940 AII AIR 1953 M.B In Blaue (1975) 61 Cr App R 271 it was held that those who use violence on other people must take their victims as they find them.

10 explanation takes care of the treatment being not appropriate which may be taken to break the chain of causation. The intervening treatment or the doctor s role is taken as de minimis and not a novus actus interveniens which can break the chain of causation. 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. This Explanation specifies the point at which life for human beings is assumed to come into existence for the purpose of homicide offences. Overview: