Homicide

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90 Gurdip Singh v State of Punjab (2013) 10 SCC 395, (2013) 4 Crimes 96(SC) .
91 Nand Kishore v State (1995) Cr LJ 3706(Bom) ; Nirmala Devi v State (1995) Cr LJ 3553(P&H) ; Mahendra Sahu v State of
Madhya Pradesh (2005) Cr LJ 874(MP) ; Hira Lal v State (Govt of NCT) Delhi (2003) 8 SCC 80. However, in such a case a no-
tice to the accused to defend needs to be given. See Shamnsaheb M Multani v State of Karnataka (2001) Cr LJ 1075(SC) .
92 Akula Ravinder v State of Andhra Pradesh AIR 1991 SC 1142, (1991) SCC 990; Shanti v State of Haryana AIR 1991 SC
1226; Babaji Charan Barik v State (1994) Cr LJ 1684(Ori) ; Kaliyaperumal v State of Tamil Nadu AIR 2003 SC 3828, (2004) 9
SCC 157, (2003) Cr LJ 4321(SC) .
93 Hira Lal v State (NCT) Delhi (2003) 8 SCC 80, AIR 2003 SC 2865; Arun Garg v State of Punjab (2004) 8 SCC 251, 2004 (8)
SCALE 273.
94 See, Law Commission of India, 'Forty-Second Report: The Indian Penal Code ', Government of India, 1972, paras 20.3-20.4,
and 20.7-20.11.
95 Law Commission of India, 'One Hundred and Fifty-Sixth Report: The Indian Penal Code', Government of India, 1997, para
9.42.
96 See, Law Commission of India, 'Two Hundred Twenty-Seventh Report: Preventing Bigamy via Conversion to Islam- A Pro-
posal for giving Statutory Effect to Supreme Court Rulings' Government of India, 2009, ch VIII.
97 Law Commission of India, 'Forty- Second Report: The Indian Penal Code ', Government of India, 1972, para 20.18.
1 For further comments on the proposals, see KI Vibhute, 'Adultery and the Indian Penal Code: Need for a Gender Equality
Perspective', Supreme Court Cases, no 6, 2001, 16 (J).
2 Ministry of Home Affairs, 'Committee on Reforms of Criminal Justice System', Government of India, 2003, para 16.3.2.
3 Nevertheless, it is important to note that prior to the Nineteenth Law Commission, the Fourteenth Law Commission (154th
Report on CrPC), the Sixteenth Law Commission (177th Report on Arrest), and the Justice Malimath Committee (2003) rec-
ommended that s 498A of the IPC should be made a compoundable offence.
4 Law Commission of India, 'Two Hundred and Thirty-Seventh Report: Compounding of (IPC) Offence', Government of India,
2011, para 5.6.
PSA Pillai: Criminal Law,12th Edition/PSA Pillai Criminal Law 2014/CHAPTER 33 Homicide
CHAPTER 33
Homicide
(Indian Penal Code 1860,Sections 299 to 311)
INTRODUCTION
The word 'homicide' has been derived from Latin terms homi (man) and cido (cut). Literally, the word 'homi-
cide' means the killing of a human being by another human being. 'Homicide' is the generic term for the
causing, or accelerating the death of a human being by another human being.
However, every homicide is not unlawful or criminal. Death caused by an innocent agent, like a child under
the age of discretion (doli incapax) or a person of unsound mind, or death of the assailant caused in exercise
of the right of private defence, for example, is not unlawful. In the former, the doer is 'excused', while in the
latter the defendant's act is 'justified'. Homicides, therefore, are of two types: (1) lawful homicides, and (2)
unlawful homicides. Lawful homicides are those which are covered by 'Chapter IV: Of General Exceptions' of
the IPC and which, therefore, are not punishable. The homicides that are made punishable under the Code
obviously carry the label of unlawful homicides.
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Lawful homicides, relying on the nature of 'general exception' that envelopes the homicide, can further be
classified into: (i) excusable homicides, and (ii) justifiable homicides. Thus, there are three forms of homicide
known to the IPC. They are: (i) excusable homicides, (ii) justifiable homicides, and (iii) unlawful or criminal
homicides (i.e. homicides that are neither excused nor justified). Here we are concerned with unlawful homi-
cides.
Chapter XVI of the IPC begins with the 'Offences Affecting Life' and deals with homicide offences. It incor-
porates in it four homicide offences. They are: (1) culpable homicide not amounting to murder, (2) culpable
homicide amounting to murder, (3) death by a rash or negligent act, and (4) dowry death. It also deals with
suicide and thugs.
PART A - CULPABLE HOMICIDE

Section 299. Culpable Homicide.--Whoever causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge,
that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the
knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads
on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be
likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty
of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not know-
ing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable
homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was
likely to cause death.
Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or
bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death
might have been prevented.
Explanation 3.--The causing of the death of a child in the mother's womb is not homicide. But it may amount
to culpable homicide to cause the death of a living child, if any part of that child has been brought forth,
though the child may not have breathed or been completely born.
Section 301. Culpable homicide by causing death of person other than person whose death was in-
tended.--If a person, by doing anything which he intends or knows to be likely to cause death, commits cul-
pable homicide by causing the death of any person, whose death he neither intends nor knows himself to be
likely to cause, the culpable homicide committed by the offender is of the description of which it would have
been if he had caused the death of the person whose death he intended or knew himself to be likely to
cause.
Introduction
Sections 299 and 300, IPC, define culpable homicide, which is of two types:
(1) Culpable homicide amounting to murder;

(2) Culpable homicide not amounting to murder.
The provisions relating to murder and culpable homicide are probably the most complicated in the IPC, and
are so technical that very often they lead to confusion. A murder is merely a particular form of culpable homi-
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cide. Every murder is culpable homicide, but every culpable homicide is not murder. Culpable homicide is the
genus, and murder, its species.
Section 299 defines culpable homicide simpliciter. Section 300 defines murder, which is also a culpable
homicide with some special characteristics, which are set out in cll 1-4 of s 300, subject to the exceptions
given in s 300. If any culpable homicide falls within any of the four clauses in s 300, then it will amount to
murder. All other instances of culpable homicide including the ones, which may fall within the exceptions to s
300, will be culpable homicide not amounting to murder.
While s 299 defines 'culpable homicide', it is not an exhaustive definition. It is important to remember that s
300 also defines culpable homicide, but which amounts to murder. Before going into further details about
distinctions between s 299 and s 300, IPC, it is important to understand the sections.
The essential ingredients of culpable homicide are: (i) there must be death of a person; (ii) the death should
have been caused by the act of another person; and (iii) the act causing death should have been done with:
(a) the intention of causing death; or (b) the intention of causing such bodily injury as is likely to cause death,
or (c) with knowledge that such act is likely to cause death.
The definition itself provides for three circumstances, wherein the presence or absence of certain factors in
causing death is nevertheless treated as causing culpable homicide. These circumstances are dealt with in
explanations 1-3.
Explanation 1 provides for a situation where the injured person is suffering from some disorder, disease or
bodily infirmity, which quickened his death. The fact that his death was quickened or hastened by the disor-
der or disease he was already suffering from, will not reduce the guilt or culpability of the person causing the
injury. In other words, the person who caused the injury cannot escape criminal liability of culpable homicide
by stating that if the person injured did not suffer from the said disease or disorder, he would not have died.
Explanation 2 provides for a situation wherein a person who has been injured could have recovered and es-
caped death, if, he had been given prompt and proper medical treatment. In such situations too, the fact that
the injured person died because he could not avail of good medical treatment, cannot be a ground for negat-
ing guilt or culpability of the person who inflicted the injury in the first place.
Explanation 3 is in respect of a slightly different situation. It takes into consideration death caused to a child
in the mother's womb. The law states that if the death of the child is caused when still in the mother's womb,
it is not culpable homicide. However, if any portion of the child, comes out of the mother's womb, even if it is
not fully born, and if death is caused to such child, then it would amount to culpable homicide.
'CAUSING DEATH': TESTS FOR DETERMINING

The term 'whoever causes death' may be simple enough to understand, but has shown itself to be words of
great import in deciding whether a particular act would amount to culpable homicide or not. The very first test
to decide whether a particular act or omission would be covered by the definition of culpable homicide, is to
verify whether the act done by the accused has 'caused' the death of another person. The relevant consider-
ation for such verification is to see whether the death is caused as a direct result of the act committed by the
accused.
In Moti Singh v State of Uttar Pradesh ,1 the deceased Gayacharan, had received two gunshot wounds in the
abdomen, which were dangerous to life (i.e., which were life threatening). The injury was received on 9 Feb-
ruary 1960. There was no evidence as to whether he had fully recovered or not when he was discharged
from the hospital. He, however, died on 1 March 1960. His body was cremated without any postmortem be-
ing done. The Supreme Court held that the mere fact that the two gunshot injuries were dangerous to life
were not sufficient for holding that Gayacharan's death, which took place about three weeks after the inci-
dent, was on account of the injuries received by him. The court observed that in order to prove the charge of
Gayacharan's murder, it was necessary to establish that he had died on account of the injuries received by
him. Since there was no evidence to establish the cause of death, the accused could not be said to have
caused the death of Gayacharan. A crucial aspect highlighted by the court in this case was that the connec-
tion between the primary cause and the death should not be too remote.
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In Joginder Singh v State of Punjab ,2 the deceased Rupinder Singh had teased the sister of the accused. In
retaliation, the two accused went to Rupinder's house and shouted that they had come to take away the sis-
ter of Rupinder Singh. In the meantime, the cousins of Rupinder Singh intervened. One of them was given a
blow on the neck by the accused. Meanwhile, Rupinder Singh started running towards the field. The accused
started chasing him and Rupinder Singh jumped into a well. As a result of this, he sustained head injuries,
which made him loose consciousness and thereafter he died due to drowning. The Supreme Court held that
the accused were about 15 to 20 feet from Rupinder Singh, when he jumped into the well. There was no ev-
idence to show that the accused drove Rupinder Singh into the well or that they left him no option but to jump
into the well. Under these circumstances, it was held, that the accused could not have caused the death of
Rupinder Singh, and hence they were entitled to be acquitted of the charge of murder.
In Rewa Ram v State of Madhya Pradesh ,3 the accused had caused multiple injuries with a knife to his wife,
Gyanvatibai. She was admitted into the hospital and an operation was performed on her. Thereafter, she
developed hyperpyrexia, i.e., high temperature, as a result of which she died. This hyperpyrexia was a result
of atmospheric temperature on weak, debilitated individuals, who already had some temperature. The doctor
who performed the postmortem opined that the death was not as a result of multiple injuries, but because of
hyperpyrexia. The Madhya Pradesh High Court placed reliance on expln 2 to s 299, IPC. It observed 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. In the instant case, there was medical
evidence to show that the hyperpyrexia was a result of her debilitated condition. Gyanvatibai fell into debili-
tated condition because of multiple injuries, which she had sustained, due to which she had to undergo op-
eration, and the post-operative starvation, which was necessary for her recovery, resulted in her death. Thus,
her death was a direct consequence of the injuries inflicted on her. Intervening or supervening cause of hy-
perpyrexia was a direct result of the multiple injuries and was not independent or unconnected with the seri-
ous injuries sustained by her. As a result, it was held, the accused 'had caused' her death and therefore his
conviction for murder was upheld.
INTENTION OR KNOWLEDGE
Both the terms 'intention' and 'knowledge' appear in ss 299 and 300, however, having different consequenc-
es. Intention and knowledge are used as alternate ingredients to constitute the offence of culpable homicide.
However, intention and knowledge are two different things.
The difference between the two came to be considered by the Supreme Court in Basdev v State of Pepsu .4
In this case, the accused was alleged to have shot a 16-year old boy in a marriage feast after having got
drunk. It was his defence that he was so drunk that he did not have the knowledge or intention to kill the boy
for what was a trifling incident. The court differentiated between motive, intention and knowledge:
Motive is something which prompts a man to form an intention. Knowledge is an awareness of the consequences of the
act. In many cases, intention and knowledge merge into each other and mean the same thing more or less and inten-
tion can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin, but it is
not difficult to perceive that they connote different things.5
Intention or the mental element in committing the crime is an essential ingredient of culpable homicide. While
'intention' is a very important element in all crimes, it becomes crucial in the offence of culpable homicide,
because it is the degree of intention of the accused, which determines the degree of crime. In other words, it
is the mental element of the accused alone, which is material to decide whether a particular act is culpable
homicide amounting to murder, or culpable homicide not amounting to murder.
As far as the offence of culpable homicide is concerned, there are three species or degrees of mens rea
present: (i) an intention to cause death; (ii) an intention to cause dangerous bodily injury as is likely to cause
death, and (iii) knowledge that the act is likely to cause death. 6
'Intention', in the context of the definition of culpable homicide, does not always necessarily mean
pre-meditation or pre-planning to kill a person. The expectation that the act of a person is likely to result in
death is sufficient to constitute intention. A man expects the natural consequences of his acts and therefore,
in law, he is presumed to intend the consequences of his act s. So, if a person in performing some act either:
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(i) expects death to be the consequence thereof; or (ii) expects a dangerous injury to be the consequence of
his act ; or (iii) knows that death is a likely consequence of his act, and in each case death ensues, his inten-
tion in the first two cases, and his knowledge in the third, renders the act a homicide. However, no hard and
fast rule can be laid down for determining the existence of intention. 7 Whether there is intention or not is a
question of fact.8 A guilty intention or knowledge is thus essential to the offence under this section. 'Intent'
and 'knowledge' in s 299 postulate the existence of positive mental attitude which is of different degrees. 9
KNOWLEDGE AS MENS REA

As has been stated earlier, the third degree of intention contemplated under the definition of culpable homi-
cide is knowledge. The third part of s 299 states 'whoever causes death by doing an act...with the knowledge
that he is likely by such act to cause death, commits the offence of culpable homicide'. In the scheme of the
section, the least or minimum degree of mental element contemplated to make an act of homicide culpable is
the knowledge that the act is likely to cause death.
Knowledge means consciousness. It denotes a state of conscious awareness of certain facts in which hu-
man mind remains inactive. It connotes a bare awareness of the consequences of his conduct. 10The offender
should reasonably expect that the consequence of his act would probably result in the death of a person,
even if he did not intend to cause the death.11 The word 'likely' as used in s 299 is to denote a lower degree
of likelihood, whereas the same word 'likely' in s 300 would denote a higher degree of likelihood of death.
The word 'likely' in s 299 conveys the sense of probability as distinguished from merely possibility or proba-
bility.12
ACT OF KILLING A PERSON NOT INTENDED TO BE KILLED

The first illustration to s 299 explains that even if the act of a person is not intended or aimed at any particu-
lar person, it would still amount to culpable homicide. Illustration (d) to cl (4) of s 300 also gives an example
of a person randomly shooting into a crowd and killing one of them. He is said to be guilty of murder. Both
these illustrations are examples where the offender did not have intention against any particular person. But
the same analogy would apply even in cases where the intention to kill may be in respect of A, but the act of
the person results in the death of B. Even in such an instance, the required mens rea or intention exists and
the homicide would amount to murder. It is called transferred malice or transferred mens rea. 13
But then, again intention is always a question of fact and the fact that the accused did not intend to cause the
injury he did, may be a mitigating factor. In Gurmail Singh v State of Punjab ,14 there was an argument be-
tween 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 intervened to stop the two sides from fighting. The accused raised a
barchha to give a blow to A, which fell on the deceased. The Supreme Court held that the accused had no
animosity against the deceased, even if transmission of malice from G 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, Pt II, IPC. In Kashi Ram v State of Madhya Pradesh ,15 in
which the accused fired a shot at a particular member of the adversary's party but it hit another person and
killed him, the Supreme Court applied the doctrine of transferred malice to hold him guilty under s 304, Pt II
as he neither aimed at nor intended death of the deceased.
PROOF OF INTENTION
Direct proof of intention is always very difficult to obtain. However, intention is something which can be gath-
ered and inferred from the act ion of the person and the surrounding circumstances, such as motive of the
accused, the nature of the attack, the time and place of attack, the nature of weapons used, the nature of
injuries caused to the deceased and so on. These and other factors may be taken into consideration to de-
termine whether a person had the requisite intention.
When injuries are inflicted on vital parts of the body like the abdomen by a lethal or sharp edged weapon, the
irresistible inference is that the accused intended to kill the deceased. 16
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PART B - MURDER
Section 300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or--
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 proba-
bility, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse
for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death,
strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is
guilty of murder, although the blow might not have been sufficient in the ordinary course of na-
ture to cause the death of a person in a sound state of health. But if A, not knowing that Z is
labouring under any disease, gives him such a blow as would not in the ordinary course of na-
ture kill a person in a sound state of health, here A, although he may intend to cause bodily in-
jury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the
ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the
ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may
not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is
guilty of murder, although he may not have had a premeditated design to kill any particular in-
dividual.
Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden provocation, causes the death of the person who
gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or
doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant
in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private de-
fence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting
to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y,
Z'schild. This is murder, inasmuch as the provocation was not given by the child, and the death
of the child was not caused by accident or misfortune in doing an act caused by the provoca-
tion.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither
intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z.
Here A has not committed murder, but merely culpable homicide.
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(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest,
and kills Z. This is murder, inasmuch as the provocation was given by a, thing done by a public
servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's
deposition, and that A has perjured himself. A is moved to sudden passion by these words, and
kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to
prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills
Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the
right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take
advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B
kills Z with the knife. Here B may have committed only culpable homicide, but A is a guilty of
murder.
Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of pri-
vate defence of person or property, exceeds the power given to him by law and causes the death of the per-
son against whom he is exercising such right of defence without premeditation, and without any intention of
doing more harm than is necessary for the purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z per-
sists in the assault. A believing in good faith that he can by no other means prevent himself from being
horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public serv-
ant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death
by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty
as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in
a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the
age of eighteen years, suffers death or takes the risk of death without his consent.
Illustration
A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on
account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
SCOPE OF SECTION 300

Section 300 defines murder with reference to culpable homicide defined in s 299. If the special requirements
provided in cl1-4 of s 300 are fulfilled, culpable homicide will then amount to murder, provided, of course, the
act does not fall within any of the Exceptions provided in s 300. If an act, which falls within cl 1-4 of s 300,
also falls within one of the Exceptions, then it will be culpable homicide not amounting to murder.
A careful reading of s 300, in the backdrop of s 299, reveals that some clauses in ss 299 and 300 overlap.
Such overlapping, rather defining murder with reference to culpable homicide, has led to a lot of discussions,
debates and differences in judicial pronouncements about the scope of each section and the distinctions and
differences between them.
Culpable homicide is murder, if it is done with: (i) intention to cause death; or (ii) intention to cause bodily
injury knowing that the injury caused is likely to cause death, or (iii) intention of causing bodily injury sufficient
in the ordinary course of nature to cause death, or (iv) knowledge that the act is: (a) imminently dangerous
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that in all probability it will cause death or bodily injury which is likely to cause death, and (b) done without
any justification for incurring the risk of causing death or the injury.
Culpable homicide does not amount to murder, if it is:
(1) Committed on grave and sudden provocation, provided the provocation was not: (a) voluntarily
sought or deliberately caused by the accused; (b) a result of any act done by public servant or
in obedience to law; or (c) given by any act done in the exercise of the private defence.
(2) Committed in the exercise of the right of private defence of body or of property by exceeding, in
good faith and without premeditation & without any intention of causing harm more than that
was necessary for exercising the right of private defence, the right of self-defence.
(3) Committed by a public servant or a person aiding a public servant acting in advancement of
public justice by exceeding his powers conferred by law on him, provided: (a) he believed, in
good faith, that the act (leading to death) was lawful; (b) he thought it was necessary for dis-
charging his duty, and (c) he had no ill-will towards the person whose death was caused.
(4) Committed, without premeditation, in a sudden fight in the heat of passion without taking any
undue advantage or acting in a cruel or unusual manner.
(5) Caused to a person above eighteen years of age with his consent.
INTENTIONALLY CAUSING DEATH--CLAUSE (1) OF SECTION 300

The first clause of s 300 stipulates that when an act (including legal omission) is done with the intention of
causing death, then it is culpable homicide amounting to murder. It is the simplest and at the same time, the
most gravest of the species of murder. The definition in this clause is direct and without any subtleties about
it. It is the action of a person with the clear intention of killing a person. 'Intention is what intention does.' So,
the intention of the person can be gathered from the act ion of the person. If a person administers a deadly
poison to a man, then it is very clear that he has an intention to kill that man, because the cause and effect of
the act are very clear. It is evident that the cause of death is poisoning and effect of poisoning is to cause
instant death. Intention to cause death can be inferred from the act . If the identity of the person who has
administered the poison is known, then the case is all neatly wrapped. However, seldom are cases in real life
so simple to come by.
Since intention is always a state of mind, it can be proved only by its external manifestations. When injuries
are inflicted on vital parts of the body with sharp edged instruments then the intention to kill can be attributed
to the offender.17
When a person sets fire to the deceased, after another had poured kerosene on his body, there cannot be
any doubt that the intention of the accused was to kill the deceased. 18
When an accused hit the deceased on a vital part of the body, the chest, with the blade of a sword, two feet
in length with such force as to impair the liver and the aorta, it was held the offence was plainly one of mur-
der.19
When 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 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. 20
When the accused pierced a sharp edged weapon in the heart of the deceased and uttered words of 'doing
away with the deceased' before the commissioning of the crime, it was held by the Supreme Court that the
intention to kill can be inferred.21
In Vasanth v State of Maharashtra ,22 there was previous enmity between the accused and the deceased.
The accused and the deceased were seen grappling with each other. Some persons who were present sep-
arated the two. The accused then went running to his jeep, drove it on the wrong side and towards the de-
ceased in high speed, knocked him down and ran over him, killing him. The road on which the incident took
place was a wide and deserted one. There was no reason or necessity for the accused to have driven the
jeep in the wrong direction. The Supreme Court held that the accused had deliberately dashed his jeep
against the accused and ran over him with the intention to cause his death.
451
So what's the difference between the two?

It is pertinent to point out that the first clause of s 300, which is 'act done with intention of causing death', is
identical to the first clause of s 299, which is also 'doing an act with the intention of causing death'. There-
fore, an act coming under cl (1) of s 300 will also fall under cl (1) of s 299, and in both instances, it will be
culpable homicide amounting to murder.23
INTENTIONAL CAUSING OF BODILY INJURY WITH KNOWLEDGE THAT IT WILL

CAUSE DEATH--CLAUSE (2) OF SECTION 300
The second clause of s 300 stipulates that if a person intentionally causes bodily injury, with the knowledge
that such bodily injury will cause death of the person injured, then it will be culpable homicide amounting to
murder. Thus, the mens rea or the mental attitude contemplated under cl 2 of s 300 is twofold. First, there
must be an intention to cause bodily harm. Secondly, there must be 'knowledge' that death is the 'likely' re-
sult or consequence of such intended bodily injury.
The second clause of s 300 will apply if there is first, the intention to cause bodily harm and next, there is the
'subjective knowledge' that death will be the likely consequence of the intended injury.' 24It is said to be 'sub-
jective knowledge', because it is the accused's own personal perception of the consequences of his act. The
knowledge here is subjective, as opposed to the objective requirement in cl 3 of s 300. Clause 3 of s 300
stipulates that the bodily injury intended is sufficient in the ordinary course of nature to cause death. There-
fore, the requirement of cl (3) of s 300 is that it must be objectively established that the injury is sufficient in
the ordinary course to cause death. By objective, it means it is not the personal perception of the accused
that matters, but whether objectively speaking, in real terms, the injury intentionally caused is sufficient to
cause death.
The second clause of s 300 is less precise than the first clause. In the first clause, the act is done with the
intention to cause death, straight and simple. But in cl (2), the intention is only to cause such bodily injury, as
the offender subjectively knows is likely to cause death. Thus, the only difference between cl (1) and cl (2) is
the degree of intention. In a way, the essence of cl (2) is the knowledge of the accused that the act is likely to
cause death.
The second clause of s 299, which states 'with the intention of causing such bodily injury as is likely to cause
death', is similar to cl 2 of s 300. But, in s 299, 'knowledge' that the injury is likely to cause death is not pos-
tulated as contemplated in cl (2) of s 300. So the difference is knowledge's presence in S.300 (2) and not S.299 (2)
The word 'likely' in cl (2) of s 300, coupled with the word 'knowledge', indicates definiteness or certainty of
death and not a mere probability. It imports some kind of certainty and not mere probability. It conveys that
the chances of a thing happening are very high. 25 This clause contemplates a situation, where the offender
has a certain special knowledge regarding the peculiar situation or health condition of the particular victim
that the intentional bodily injury is likely to be fatal. 26
In Willie (William) Slaney v State of Madhya Pradesh ,27 the accused was in love with the deceased's sister,
which the deceased did not like. There was a quarrel between them and the deceased asked the accused to
leave the house. The accused went and came back with his brother. He called out for the deceased's sister.
Instead, the deceased came out. There was a heated exchange of words. The accused snatched a hockey
stick, which was with his brother, and hit the deceased on his head. As a result, there was a fracture of the
skull and the deceased died. In this case, the Supreme Court held that the act of the accused is only one
which was likely to cause death and the accused did not have any special knowledge to bring in under cl (2)
of s 300. The accused was convicted under s 304, Pt II, and not under s 300.
In BN Srikantiah v State of Mysore ,28 there were as many as 24 injuries on the deceased and of them 21
were incised. They were on his head, the neck, the shoulders, and the forearms. Since, most of the injuries
were on vital parts and the weapons used were sharp, it was held that the intention of causing bodily injuries
was established; bringing it under the cover of s 300.
In State of Rajasthan v Dhool Singh ,29 the Supreme Court held the accused guilty of murder who inflicted
incised cut with a sword on the neck of the deceased, which led to excessive bleeding and the consequential
heart failure, on the ground that he knew that the bodily injury caused by him would likely cause death of the
injured.
452
INTENTIONAL CAUSING OF INJURY SUFFICIENT TO CAUSE DEATH--CLAUSE (3)

OF SECTION 300
The third clause, as stated earlier, views the matter from an objective standpoint. It consists of two parts.
Under the first part, it has to be shown that there was an intention to inflict the particular injury. The second
part requires that the injury intended to be inflicted was sufficient in the ordinary course of nature to cause
death. It speaks of an intention to cause bodily injury, which is sufficient in the ordinary course of nature to
cause death. The essence of the clause is the sufficiency of the injury in the ordinary course of nature to
cause death.30 When the word 'sufficiency' is used, it means where there is a very high probability of the in-
jury resulting in death.
In Virsa Singh v State of Punjab ,31 the Supreme Court laid down that in order to bring a case within cl (3) of s
300, the prosecution must prove the following:
(1) It must establish, quite objectively, that a bodily injury is present.

(2) The nature of the injury must be proved.
(3) 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 some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further, and
(4) It must be proved that the injury of the type just described made up of the three elements set
out above, is sufficient to cause death in the ordinary course of nature.
The apex court also stressed that: (i) the existence and nature of bodily injury must be a matter of pure ob-
jective investigation, and (ii) the sufficiency of injury to cause death in ordinary course of nature is a matter of
pure objective and inferential and it has nothing to do with the intention of the offender. It does not matter
there was no intention to cause death. It does not matter that there was no intention even to cause injury of a
kind that is sufficient to cause death in the ordinary course of nature. It does not even matter that there is no
knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury
act ually found to be present is proved, the rest of the enquiry is purely objective and the only question is
whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to
cause death.32
Intention as to Sufficiency of Injury Not Required

It has been seen that the earlier cl (2) contemplates two levels of intention--first, intention to cause bodily
injury and thereafter secondly, the knowledge that such bodily injury is likely to cause death. But, as far as cl
(3) is concerned, it is sufficient that there is intention to cause the bodily injury that was actually caused. The
subjective factor ends with that. There need be no further enquiry whether the offender had the intention or
the knowledge that such bodily injury should be sufficient in the ordinary course of nature to cause death. In
Virsa Singh's case, the Supreme Court had observed that the requirement that the accused should have the
intention or knowledge to cause injury, that is sufficient in the ordinary course to cause death, is fallacious.
The court held that the two parts to cl (3) are disjunctive. The first part is subjective to the offender: 'If it is
done with the intention of causing bodily injury to any person'. Once this is established, the sufficiency of the
injury is purely an objective fact. It is a matter of inference or deduction from the proven facts about the na-
ture of the injury and has nothing to do with the intention. The term 'sufficiency' used in this clause is the high
probability of death in the ordinary course of nature, and if such 'sufficiency' exists and death is caused and
the injury causing it is intentional, the case falls under cl (3) of s 300. 33 The injury caused should be the cause
of death.34 Whether a particular injury is sufficient in the ordinary course of nature to cause death or not, is
obviously a question of fact.
From the above discussion, what emerges is that the accused, who intentionally caused the injury, may not
be aware that injury was sufficient to cause death or was likely to cause death. But, if his intention to cause
the injury is established and the injury caused is sufficient to cause death in the ordinary course of nature,
then the accused is guilty of culpable homicide amounting to murder.35 For cases to fall within cl (3), it is not
necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily
injury or injuries sufficient to cause death in the ordinary course of nature. 36
453
Intention to Cause Particular Injury Required

In the Virsa Singh case, while postulating the ingredients of cl (3) of s 300, the apex court has observed inter
alia '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'. This aspect of the matter
came up for consideration before the Supreme Court in Harjinder Singh v Delhi Administration .37 In this
case, the accused was trying to assault one Dalip Singh and the deceased intervened. The accused finding
himself one against two, took out the knife and stabbed the deceased. At that stage, the deceased happened
to be in a crouching position presumably to intervene and separate the two. The knife pierced the upper por-
tion of the left thigh. The stab wound was oblique and it cut the femoral artery and vein under the muscle,
which are important main vessels of the body. The cutting of these vessels would result in great loss of blood
and would lead to immediate death or death after a short duration. The Supreme Court held that from the
evidence, it was not proved that it was the intention of the appellant to inflict that particular injury on that par-
ticular place. In view of this, it was held that cl (3) of s 300 would not apply. The accused was convicted un-
der s 304, Pt I.
In Laxman Kalu Nikalje v State of Maharashtra ,38 there was a quarrel between the accused and the de-
ceased 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.
Even in this case, the Supreme Court held that there was no proof that the injury caused was the injury in-
tended, as but for the severing of the artery, death might not have ensued. It was held that the case would
not fall under cl (3) of s 300. Accordingly, the accused was convicted under s 304, IPC. 39 Similarly, in Addha
v State of Madhya Pradesh ,40 wherein the accused in a sudden fight between the two groups attacked the
deceased with lathi that resulted in his death, the Supreme Court, in the absence of evidence indicating his
intention to cause death, convicted the accused under s 304 and not for murder.
KNOWLEDGE THAT ACT IS SO IMMINENTLY DANGEROUS SO AS TO CAUSE

DEATH-- CLAUSE (4) OF SECTION 300
Clause (4) of s 300 contemplates generally, commission of act s which are so imminently dangerous that it is
likely to cause death. Under this clause, the act need not be directed at any particular individual nor need
there be an intention to cause the death of any particular individual. It has to merely be a reckless act, which
is imminently dangerous. Illustration (d) clearly sets out the scope of the clause. 'A without any excuses fires
a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not
have had a pre-meditated design to kill any particular individual.'
The essential ingredients of this clause are: (i) the act must be imminently dangerous; (ii) the person commit-
ting the act must have knowledge that it is so imminently dangerous; (iii) that in all probability it will cause (a)
death or (b) bodily injury as is likely to cause death, and (iv) such imminently dangerous act should be done
without any reason or justification for running the risk of causing death or such injury.
The mental element contemplated under this clause is 'knowledge' that the act is so imminently dangerous
that it is likely to cause death or such bodily injury that is likely to cause death. The term 'imminently danger-
ous' requires that the danger should be immediate and close at hand. Hence, under this clause, the intention
to kill anybody is not required in order to constitute the offence of murder. The recklessness and inexcusabil-
ity of an act must be by the facts and circumstances of each case, because, such imminently dangerous act
s causing death will amount to murder only if it has been done without any reasonable excuse for taking such
a risk.
In State of Madhya Pradesh v Ram Prasad ,41 this clause was applied by the Supreme Court in a totally dif-
ferent context. In this case, the accused Ram Prasad and his wife Raji had a quarrel. Villagers were called to
mediate, but to no avail. At that time, the accused poured kerosene oil over the wife and set her on fire. She
suffered extensive burn injuries and died as a result of the injuries. The Supreme Court observed that in re-
spect of cll 1-3 of s 300, the question would arise as what was the intention of the accused, the nature of in-
juries he intended to cause etc, which would all be matters of speculation. The Supreme Court opined that it
would be simpler to place reliance on cl (4), 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 to-
454
wards 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 would result in her death. As he had no reason for incurring such risk, the offence was
held to fall within cl (4) of s 300 and would be culpable homicide amounting to murder.
In Thangaiya v State of Tamil Nadu ,42 the Supreme Court categorically ruled that cl (4) of s 300 would be
applicable where the knowledge of the offender as to the probability of death of a person approximates to a
practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability.
In Sehaj Ram v State of Haryana ,43 a constable, who was armed with a 303 rifle, fired several shots at an-
other constable. One shot hit the victim beneath the knee of his right leg and he fell down. Even after that,
the accused fired another shot at him, though the shot did not hit him. Since, the bullet hit the deceased be-
low the knee, it was contended that the intention of the accused was only to frighten the deceased or cause
grievous hurt and not to kill him. The Supreme Court rejected the contention and held that the act would fall
within the ambit of cl 4 of s 300 and convicted the accused of murder.
Further, s 300 'fourthly' requires the proof that the accused incurred the risk of causing death or bodily injury 'without
any excuse'. A casual reading of the clause might create an impression that the phrase 'without any excuse' refers to
the special five exceptions appended to s 300. But a careful reading thereof reveals that the words 'without any excuse'
do not contemplate the situations that fall within any of these exceptions to s 300. The phrase does connote the situa-
tions that fall short of, or other than, these exceptions. It conveys that culpable homicide based on knowledge does not
amount to murder if the accused has an 'excuse' for 'incurring the risk', even if none of the five special exceptions to s
300 is applicable. The words 'without excuse' used in cl 4, thus, contemplate situations other than those which fall
within the five exceptions to s 300, IPC.44
WHEN CULPABLE HOMICIDE IS NOT MURDER

Clauses 1-4 of s 300 provide the essential ingredients wherein culpable homicide amounts to murder. The
section also provides five exceptional situations, the existence of which will remove a case from the purview
of s 300. In other words, even if a case falls within any of the four clauses of s 300, if it also falls within any of
the five exceptions provided thereunder, then it will cease to be murder. It will merely be culpable homicide
not amounting to murder.
The exceptionsprovided for under s 300 are: (1) grave and sudden provocation; (2) private defence; (3) act s
of public servants; (4) sudden fight, and (5) consent.
However, it becomes necessary to take note of two significant propositions about the nature and operation of
these exceptions to s 300. First, these are the 'special exceptions' to murder only. In this sense, they are dis-
tinct from 'General Exceptions' enumerated in Chapter IV (ss 76-106) of the IPC. The latter, unlike the for-
mer, by virtue of s 6 read with s 40, IPC, are applicable to offences created under the IPC as well as under
other special or local laws in force in India. Secondly, the 'special exceptions' merely cover 'murder' to 'cul-
pable homicide not amounting to murder' and thereby reduce the criminal liability of its perpetrator. These
exceptions to s 300, unlike the 'general exceptions', do not exonerate the wrongdoer. They only operate as
mitigation factors.
Exception 1--Grave and Sudden Provocation

Culpable homicide will not be murder, if, the offender, on account of grave and sudden provocation, is de-
prived of his power of self-control and causes the death of a person. The person, whose death is caused,
may be the person who gave the provocation or any other person by mistake or accident.
The exception is itself subject to three exceptions:
(1) The provocation should not have been sought for voluntarily by the offender, as an excuse for
killing or doing any harm to any person.
(2) The provocation is not as a result of an act done in obedience of law or by the act of a public
servant in the lawful exercise of his powers.
(3) The provocation is not a result of anything done in the exercise of the right of private defence.
455
In order that this exception should apply, the provocation should be both grave and sudden. If the provoca-
tion is sudden but not grave, or grave but not sudden, then the offender cannot avail of the benefit of this
exception. Further, it should also be shown that the provocation was of such a nature that the offender was
deprived of the power of self-control.
In KM Nanavati v State of Maharashtra ,45 the accused was a naval officer. He was married with three chil-
dren. One day, his wife confessed to him that she had developed intimacy with the deceased. Enraged at
this, the accused went to his ship, took a semi-automatic revolver and six cartridges from the store of the
ship, went to the flat of the deceased, entered his bedroom and shot him dead. Thereafter, the accused sur-
rendered himself to the police. The question before the Supreme Court was whether the act of the accused
could be said to fall within Exception 1 of s 300. The Supreme Court laid down the following postulates relat-
ing to grave and sudden provocation:
(1) The test of 'grave and sudden' provocation is whether a reasonable man, belonging to the
same class of society as the accused, placed in the situation in which the accused was placed,
would be so provoked as to lose his self-control.
(2) In India, words and gestures may also, under certain circumstances, cause grave and sudden
provocation to an accused, so as to bring his act within the first exception to section 300 , IPC .
(3) The mental background created by the previous act of the victim may be taken into considera-
tion in ascertaining whether the subsequent act caused grave and sudden provocation for
committing the offence.
(4) The fatal blow should be clearly traced to the influence of passion arising from that provocation
and not after the passion had cooled down by lapse of time, or otherwise giving room and
scope for premeditation and calculation.
The Supreme Court held that the accused, after his wife confessed to her illicit relationship with the de-
ceased, may have momentarily lost control. He had thereafter dropped his wife and children at a cinema,
went to the ship, collected the revolver, did some official business there, drove his car to the office of the de-
ceased and later to his house. Three hours had lapsed by then and therefore, there was sufficient time for
him to regain his self-control. In view of this, the court held that the provisions of Exception 1 to s 300 were
not attracted. The accused was convicted for murder and sentenced to life imprisonment.
The Explanation to Exception 1 states that whether the provocation was grave and sudden is a question of
fact.
In Hansa Singh v State of Punjab ,46 the accused saw the deceased committing an act of sodomy on his son,
which enraged him and he killed the deceased. It was held that it amounted to a grave and sudden provoca-
tion. The conviction under s 302 was set aside. He was convicted under s 304, IPC.
In Dattu Genu Gaikwad v State of Maharashtra ,47 the reason given by the accused for killing the deceased
was the fact that he attempted to outrage the modesty of his wife a month back. In view of the long time in-
terval, it was held that the plea of 'sudden and grave' provocation was not available.
In Mannam Balaswamy v State of Andhra Pradesh ,48 the accused had a quarrel with his father. The de-
ceased tried to intervene and pacify. The accused then went into the house, brought out a knife and stabbed
the deceased. The plea of grave and sudden provocation was rejected, holding that there was no provoca-
tion and the accused merely tried to use the quarrel as an excuse to kill the deceased.
In Bhura Ram v State of Rajasthan ,49 the accused, accompanied with others, entered into the hut of the de-
ceased. Apprehending danger to his life, the deceased fired at one of the companions of the accused and
thereby caused his death. The accused then attacked the deceased with an axe on his head and killed him.
During trial, he pleaded that the death of his companion caused grave and sudden provocation to him. The
Supreme Court refused to accept the plea as the accused solicited the provocation. A killing under provoca-
tion sought by the accused cannot be covered by the exception. 50
It may be pointed out that even in cases where the court may not accept the plea of 'sudden and grave'
provocation, the background facts of earlier incidents, which may cause a grave provocation but are not
sudden, may be considered by courts as factors that mitigate the sentence. In Franscis alias Pannan v State
of Kerala ,51 the deceased had on two previous occasions attacked the accused's brother and brother-in-law.
456
The accused was in constant fear of menace from the deceased to the lives and safety of the near and dear
of the accused. So, even though the earlier incidents of attack on family members did not constitute 'sudden
and grave' provocation, his sentence was reduced to life imprisonment.
Exception 2--Exceeding the Right of Private Defence

As seen in the chapter on 'General Exceptions', a person has a right of private defence of property and per-
son. This right, under certain circumstances, even extends to the causing of death. This clause is in respect
of cases where a person has exceeded his right of private defence. It may be pointed out that the fact that a
person has exceeded his right of private defence does not totally exonerate a person under this exception. It
merely is considered as a mitigating factor to reduce the offence from that of murder to culpable homicide not
amounting to murder. Of course, before this exception can be availed of, it has to be proved that the accused
had the right of private defence as stipulated in ss 96-106, IPC. It is only after the existence of the right is
established that the question whether the accused had exceeded his right to private defence will arise. If, in
the first instance, it appears that the accused does not have the right of private defence, then obviously this
clause will not come into play.
As already noted in the chapter on General Exceptions, if a person genuinely exercises his right of private
defence within the limits prescribed by law, then he commits no offence. However, if he exceeds the right, it
will amount to a lesser offence than murder. The most important circumstance in determining this factor is
the intention of the offender. The second exception stipulates that the exceeding of the right of private de-
fence should be without pre-meditation, and without any intention of doing more harm than is necessary for
the purpose of coverage by the exception. In other words, the exceeding of private defence by the accused
should be done unintentionally. Only then can the accused avail of the exception provided under this clause.
The question whether the exceeding of the right of private defence was done intentionally or unintentionally
is a question of fact, which has to be decided on the facts and circumstances of each case.
In Nathan v State of Madras ,52 the accused and his wife were in possession of some land which they had
been cultivating for several years. They fell into arrears in respect of the lease amount due to the landlady.
The landlord tried to evict the accused forcefully and tried to harvest the crop. So, the accused, in the exer-
cise of his right to private defence of property, killed the deceased. The Supreme Court accepted the conten-
tion that the incident took place when the accused had exercised his lawful right of private defence against
the property. However, since the deceased party was not armed with any deadly weapons and there could
not have been any fear of death or grievous hurt on the part of the accused and his party, the right to private
defence of property was limited to the extent of causing any harm other than death under s 104, IPC. It was
therefore held that the accused exceeded his right of private defence and the case would fall under Excep-
tion 2 to s 300, IPC, and the offence committed by the accused was held to be culpable homicide not
amounting to murder, as it was committed in good faith and without any intention of causing death. The sen-
tence of death imposed upon the accused was reduced to one of life imprisonment.
In Onkarnath Singh v State of Uttar Pradesh ,53 the deceased party had initially attempted to attack the ac-
cused party. There was an incident of grappling between the parties. When the deceased party was fleeing,
the accused party made a murderous assault. It was held in this case that since the murder was committed
when the deceased were fleeing, the right of private defence ended with that, since the right is co-terminus
with the commencement and existence of a reasonable apprehension of danger to body or property and not
after the threat had ceased to exist. The Supreme Court held that the accused were guilty of vindictive and
maliciously excessive act. The force used was out of all proportion to the supposed danger, which no longer
existed from the deceased party. Under these circumstances, it was held that the accused were neither enti-
tled to a right of private defence, nor to the benefit of Exception 2 to s 300, IPC.
In Mohinder Pal Jolly v State of Punjab ,54 the deceased and his colleagues were workers in the factory of the
accused. There was a dispute between them with regard to payment of wages. On the day of occurrence,
the workers had assembled outside the factory and raised provocative slogans and hurled brickbats at the
factory. Some property of the accused was damaged. The accused thereafter came out of his office room
and standing on the Thari fired a shot from his revolver which killed the deceased instantaneously. The Su-
preme Court held that the accused had a right of private defence of his body, but the circumstances were not
such as to create apprehension in his mind that the death or grievous hurt would be the consequence, if his
457
right of private defence was not exercised. It was held that the accused had exceeded his right of private de-
fence. Exception 2 to s 300 was held not applicable to the facts of the case.
In Kattu Surendra v State of Andhra Pradesh ,55 the Supreme Court ruled that death caused by a person after
his right to private defence ceases to exist falls outside the ambit of the exception.
Exception 3--Act of Public Servant

Exception 3 is similar to Exception 2, in the sense that it deals with situations where a public servant exceeds
his lawful powers in the discharge of his duties and thereby causes death. The essential ingredients of this
exception are: (i) the offence must be committed by a public servant or by a person aiding a public servant;
(ii) the act alleged must have been committed by the public servant in the discharge of his official duties; (iii)
he should have exceeded the powers given to him by law; (iv) the act should be done in good faith; (v) the
public servant should have believed that his act was lawful and necessary for the due discharge of his duties,
and (vi) he should not have borne any ill-will towards the person whose death was caused.
A suspected thief was arrested by a police constable and was being taken in a train. The thief escaped from
the running train. The constable pursued him. When he was not in a position to apprehend him, he fired at
him. But, in that process, he hit the fireman and killed him. It was held that the case was covered by this ex-
ception.56
Where an order to shoot was given by the public servant and his subordinate carried his orders, when there
was no occasion to do so, it was held that the order of the public servant was illegal and neither the public
servant nor the person acting under the order can be said to have act ed in good faith. 57 Obedience of a su-
perior's lawful order protects a subordinate. Causing death by the subordinate in pursuance of an ex facie
unlawful order, therefore, cannot be exonerated.58
Exception 4--Sudden Fight

The fourth Exception to s 300 covers acts done without premeditation in a sudden fight. In a way, this also
deals with a case of provocation provided in the first Exception. This exception applies to instances, which
are covered by the first Exception. However, under Exception 1, the provocation should not only be sudden
and grave, but it should also cause total deprivation of self-control. Only under such circumstances, can the
offender seek shelter under Exception 1. However, under Exception 4 offender loses his power of reasoning
due to heat of passion aroused suddenly. Further, under the first Exception, the offender should not have
sought or voluntarily provoked the provocation. However, under this exception, the term 'sudden fight' implies
mutual provocation and aggravation. It implies the absence of previous deliberation or determination to fight.
In such situations, it may not be possible to trace from which party the initial provocation emanated.59 The
only requisites60 of this Exception are that: (i) the murder should have been committed without premeditation;
(ii) it should have been committed in a sudden fight; (iii) it should have been committed in the heat of pas-
sion; (iv) it should have been committed upon a sudden quarrel, and (v) it should have been committed
without the offender having taken undue advantage or act ed in a cruel or unusual manner.
All these conditions are required to be proved for bringing the case within the ambit of Exception 4 to s 300.61
There has to have a fight. Where there is no fight at all, the Exception is not attracted. 62 The word 'fight',
which not defined under the IPC, conveys something more than a verbal quarrel. It implies mutual attack in
which both the parties participate. It implies exchange of blows.63 An actual attack by one party and retreat by
another does not constitute fight.64 One-sided attack cannot be a fight. Nevertheless, attack by one and
preparation to attack by another constitutes a fight. However, the Exception will come into play only when a
culpable homicide is committed in an unpremeditated sudden fight. 65
The words 'sudden fight' or 'upon sudden quarrel' indicate something in the nature of a 'free fight'. Free fight
is said to take place when both sides mean to fight from the start, go out to fight and there is a pitched bat-
tle.66 The question of who attacks and who defends in such a fight is wholly immaterial and depends on the
tactics adopted by the rival commanders. There can be no question of a free fight in the face of the clear
finding of the court that one of the parties was the aggressor.67
458
Where an accused inflicted three fatal blows with an axe on the deceased who was unarmed, it was held that
it could not be said to be a sudden fight, as a fight postulates a bilateral transaction in which blows are ex-
changed by both the parties. When the aggression is only on one side, it cannot be said to be a fight. 68
Merely sudden quarrel and the absence of premeditation do not warrant the Exception. It is also required to
show that the accused has not taken undue advantage 69 or act ed in cruel or unusual manner.70
In Dharman v State of Punjab ,71 there was a dispute between the accused and the deceased concerning a
vacant piece of land. The accused claimed that he was in possession of the land. On the other hand, the
deceased party claimed that they had set up a lime-crushing machine on the land. Proceedings were pend-
ing under s 145, CrPC, between the parties. In the meantime, the accused party destroyed the lime-crushing
machine. The deceased party intervened at that time. Immediately, a fight ensued and in the course of this
fight, the deceased received fatal injuries. It was held that the injuries caused to the deceased were done
without pre-meditation in a sudden fight and the accused caused the injuries in the heat of passion and upon
a sudden quarrel. The accused had also not taken undue advantage or acted in a cruel or unusual manner. It
was therefore held that the accused clearly fell within Exception 4 to s 300, IPC.72
In Narayanan Nair Raghavan Nair v State of Travancore ,73 there was a fight between the accused and one
Velayuthan Nair. It resulted in a minor scuffle between the two. The deceased came up to them and tried to
separate them and admonished Velayuthan, who was the son-in-law, not to quarrel. The accused thereupon
took a penknife from his waist and hit out at the deceased. The deceased tried to ward off the blow and was
hit on the back of his left forearm. The accused struck again and this time the blow landed on the chest and
caused the injury, which eventually killed the man. It was contended on behalf of the accused that this was a
case of sudden fight and so the case falls within the fourth Exception to s 300, IPC. The Supreme Court re-
jected this contention and said that the accused stabbed an unarmed man who made no threats against him,
but merely asked the accused's opponent to stop fighting. The fight of the accused was not with the de-
ceased, but with the son-in-law of the deceased. The accused simply took undue advantage and stabbed the
deceased. The court held that the Exception 4 to s 300 would not apply.
In Sukhbir Singh v State of Haryana ,74 a sudden quarrel, over splashing of mud by the son of the deceased
while sweeping of the street on the accused, ensued between the accused and the deceased along with his
son. The deceased, for no fault of his, gave slaps to the accused. Thereafter, the accused went home, which
was at a very nearby place, and came back armed in the company of others, including his relatives, though
without telling his intention to vehemently retaliate his slaps. He gave two blows with his bhala on the upper
right chest of the deceased. The deceased fell down and thereafter other persons, who had accompanied
the accused, assaulted the deceased with their respective weapons. The deceased, ultimately, succumbed
to his injuries. The Supreme Court, setting aside conviction of the accused under s 302 by the Punjab High
Court based on the fact that the accused acted in a cruel and unusual manner, held that the homicide was
caused in a sudden fight and the time gap between the quarrel and the fight did not enable the accused to
premeditate the death. It gave benefit of Exception 4 to the accused. The court also held that sudden fight
must follow sudden quarrel. If there intervenes a sufficient time for passion to subside giving the accused
time to premeditate and the fight takes place thereafter, the accused may disqualify for getting benefits of the
Exception as the killing with premeditation amounts to murder.
In Manke Ram v State of Haryana ,75 the Supreme Court gave benefit of exception 4 to a police inspector
who, in a set of peculiar facts, killed his subordinate. He invited the deceased to drink in his room. When they
were drinking the nephew of the deceased came to the room and called him for dinner. As the deceased got
up to leave the room, the appellant got annoyed and started abusing the deceased in filthy language to
which the deceased objected. This further infuriated the appellant. A fight started between the two. The ap-
pellant picked up his service revolver, which kept nearby, and fired two shots at the deceased. These shots
proved fatal. Reversing his conviction under s 302 of the Code by the Punjab High Court, the Supreme Court
held that the incident took place in a sudden fight in the heat of passion and granted benefit of Exception 4 to
the appellant. It held that the appellant, in the totality of facts and circumstances of the case, did not take an
undue advantage of the fight or act ed in a cruel or unusual manner.
Exception 5--Death by Consent

459
Culpable homicide is not murder when the person whose death is caused, being above the age of 18 years,
suffers death or takes the risk of death with his own consent.
The points to be proved are: (i) the death was caused with the consent of the deceased; (ii) the deceased
was then above 18 years of age, and (iii) the consent given was free and voluntary, and was not given
through fear or misconception of facts.
In Ujagar Singh76 the accused killed his stepfather who was an infirm, old and invalid man, with the latter's
consent, his motive being to get three innocent men (his enemies) implicated. It was held that the offence
was covered by the Fifth Exception to s 300, IPC, and punishable under the first part of s 304, IPC.
In Dasrath Paswan v State of Bihar ,77 the accused, who was a student of the tenth class, failed in his exam-
ination thrice in succession. He was upset and frustrated by these failures and decided to put an end to his
life and informed his wife, a literate girl of about 19 years of age. The wife thereupon requested him to kill her
first and then kill himself. In pursuance of the pact, he killed his wife but was arrested before he could end his
life. The Patna High Court, relying upon Exception 5 to s 300, IPC, convicted him under s 304, Pt I of the
IPC.
The following illustrations may also be noted. A wounded soldier requests his comrade to shoot him and
thereby relieve him of his agonising pain. The latter shoots him to death. This exception will apply, as the
soldier is certainly above 18 years of age and he gave consent to his own death.
A and B, snake charmers, induced C and D to allow themselves to be bitten by a snake, whose fangs had
been imperfectly extracted, under the belief that they would be protected from harm. C and D died. A and B
were held guilty of culpable homicide under this Exception, on the ground that the deceased gave their con-
sent 'with a full knowledge of the fact, in the belief of the existence of powers which the prisoners asserted
and believed themselves to possess'.78
DISTINCTION BETWEEN MURDER AND CULPABLE HOMICIDE

As seen in the introductory paragraphs, both culpable homicide and murder deal with the killing of a person.
Culpable homicide is the genus and murder is its specie. All murders are culpable homicides, but all culpable
homicides are not murders. So, the distinction really is as to whether an act is culpable homicide amounting
to murder, or culpable homicide not amounting to murder. There are practically three degrees of culpable
homicide recognised in the IPC:
(1) Culpable homicide of the first degree, which is made punishable with death or imprisonment for
life, to either of which fine may be added (s 302);
(2) Culpable homicide of the second degree, which is made punishable with imprisonment up to a
limit of 10 years, or with imprisonment for life, to either of which fine may be added (s 304, Pt I);
and
(3) Culpable homicide of the third degree, which is punishable with fine only, or with imprisonment
up to a limit of 10 years or with both (s 304, Pt II).
From the above, it is clear that there is no radical difference between culpable homicide and murder. The
true difference between culpable homicide and murder is only the difference in degrees of intention and
knowledge. A greater the degree of intention and knowledge, the case would fall under murder. A lesser de-
gree of intention or knowledge, the case would fall under culpable homicide. It is therefore difficult to arrive at
any categorical demarcations or strait jacket differences between culpable homicide and murder.
A practical approach to distinguish whether a particular situation would come under murder or culpable hom-
icide is to appreciate the facts and apply the law in stages as indicated below.
(1) The first stage is to establish whether the accused had done an act, which has caused the
death of another person. This is obviously the most fundamental fact, which has to be estab-
lished before any further enquiry into the intention, and knowledge of the accused is gone into.
(2) The second stage is to establish whether the act of the accused would amount to culpable
homicide. In other words, it has to be ascertained that a particular act, which has caused the
death of a person, is not as a result of accident or any other exceptions provided under the
460
IPC. It has to be further established that the intention of the accused was not merely to cause
hurt or grievous hurt but homicide.
(3) Once it is established that an accused has caused death either with the intention of causing it
or with the intention of causing such bodily injury as is likely to cause death, or with knowledge
that his act is likely to cause death, then the next stage of enquiry is to ascertain whether the
act would fall under any of the four clauses of s 300, IPC.
(4) If it is established that culpable homicide is murder and the act falls under any of the four
clauses of s 300, then there must be a further enquiry to consider whether the act falls within
any of the five exceptions provided under s 300, IPC. If it does not fall under any of the excep-
tions, then the act is murder. If the act, however, falls under any of the exceptions, then it will
be culpable homicide not amounting to murder.79
The distinction between culpable homicide not amounting to murder and murder, as very aptly and ably ar-
ticulated by Melville J80 and repeatedly quoted with approval by the Supreme Court,81 may be outlined thus.
Table 33.1
Culpable Homicide (section 299) Murder (section 300)
A person commits culpable homicide, if the act by Subject to certain exceptions, culpable homicide is
which the death is caused is done: murder, if the act by which the death is caused is
done:
(a) With the intention of causing death; (1) With the intention of causing death;
(2) 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;
(b) With the intention of causing such bodily injury as (3) With the intention of causing bodily injury to any
is likely to cause death; person, and the bodily injury intended to be inflicted
is sufficient in the ordinary course of nature to cause
death;
(c) With the knowledge that the act is likely to cause (4) With the knowledge that the act is so imminently
death; dangerous that it must in all probability cause death,
or such bodily injury as is likely to cause death and
committed without any excuse for incurring the risk or
causing death or such injury as aforesaid.
On a comparison of ss 299 and 300, the following points of distinction may be arrived at.
Intention to Kill
Clause (a) of s 299 and cl (1) of s 300 are identical. If death is caused by an act, which is done with the in-
tention of causing death, then it is culpable homicide under s 299 (a). It also amounts to murder under cl (1)
of s 300, unless it falls under any of the exceptions.
Intention to Cause Bodily Injury Likely to Cause Death

Clause (b) of s 299 and cll 2 and 3 of s 300, both deal with intention to cause bodily injury as is likely to
cause death. As far as s 299(b) is concerned, it merely stipulates that if death is caused by an act, with the
intention of causing such bodily injury as is likely to cause death it amounts to culpable homicide. Clause (2)
of s 300 while stating that if an act is done with the intention of causing such bodily injury which is likely to
cause death, also further stipulates that the intentional causing of bodily injury should be accompanied with
the knowledge that the bodily injury is likely to cause death. The word 'likely' used in s 299(b) means a mere
probability or possibility that the injury could result in death. But, the usage of the word 'likely' in cl (2) of s
300 denotes, to an extent, certainty of death. Illustration (b) to s 300 explains this aspect. It imputes a certain
special knowledge which the accused has about the condition of the deceased, such as any disease that he
might be labouring under, which brings in certainty to the fact that the bodily injury will result in death. The
distinction in the meaning attributed to the word 'likely' in ss 299(b) and 300 (2) is only in the degree of prob-
ability.
461
As far as cl (3) of s 300 is concerned, the intention of causing bodily injury is accompanied by a further objec-
tive of certainty that such bodily injury is sufficient in the ordinary course of nature to cause death. The word
'sufficient' in the ordinary course of nature to cause death, again imputes the certainty of death to a greater
extent than the words 'likely' in s 299(b).
Thus, the essential distinction between death under ss 299(b) and 300 (2) and (3) is that there is a lesser
degree of likelihood that the bodily injury caused will result in death under s 299(b) and there is a greater de-
gree of likelihood that the bodily injury caused will result in death under s 300 (2) and (3).
Knowledge of Death
Clause (c) of s 299 and cl 4 of s 300 deal with instances where the accused has knowledge that the act is
likely to cause death. Similar to the earlier clauses, here again, the requirement of knowledge under s 300(4)
is a very high degree of probability of death. This high degree of probability of death is indicated in the latter
part of the clause, wherein it is provided that the act should be so imminently dangerous that in all probability
it will cause death or such bodily injury as is likely to cause death, and such act is done without any excuse
for incurring the risk. Both cl (c) of s 299 and cl (4) of 300 apply to cases where the accused has no intention
to cause death or bodily injury, but there is knowledge that the act is essentially a risky one. Whether the act
amounts to murder or culpable homicide depends upon the degree of risk to human life. If death is a likely
result, it is culpable homicide; if it is the most probable result, it is murder. 82
PART C - DEATH BY NEGLIGENCE

Section 304A. Causing death by negligence.--Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either de-
scription for a term which may extend to two years, or with fine, or with both.
The original IPC had no provision providing punishment for causing death by negligence. Section 304A was
inserted in the Code in 1870 by the Indian Penal Code (Amendment) Act 1870. It does not create a new of-
fence. This section is directed at offences, which fall outside the range of ss 299 and 300, where neither in-
tention nor knowledge to cause death is present. This section deals with homicide by negligence and covers
that class of offences, where death is caused neither intentionally nor with the knowledge that theact of the
offender is likely to cause death, but because of the rash and negligent act of the offender. This clause limits
itself to rash and negligent acts which cause death, but falls short of culpable homicide of either description. 83
When any of these two elements, namely, intention or knowledge, is present, s 304A has no application. 84
In fact, if this section is also taken into consideration, there are three types of homicides which are punisha-
ble under the IPC, namely, (i) culpable homicide amounting to murder; (ii) culpable homicide not amounting
to murder, and (iii) homicide by negligence.
RASH OR NEGLIGENT ACT

Section 304A deals with 'death' caused by a 'rash' or 'negligent' act . 85 However, in both the cases, the death
caused should not amount to culpable homicide.86 The doing of a rash or negligent act, which causes death,
is the essence of s 304A. There is a distinction between a rash act and a negligent act. 'Rashness' conveys
the idea of recklessness or doing of an act without due consideration and 'negligence' connotes want of
proper care.87 A rash act implies an act done by a person with recklessness or indifference as to its conse-
quences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that
his act may bring some undesirable or illegal results but without hoping or intending them to occur. 88 A negli-
gent act, on the other hand, refers to an act done by a person without taking sufficient precautions or rea-
sonable precautions to avoid its probable mischievous or illegal consequences. It implies an omission to do
something, which a reasonable man, in the given circumstances, would not do. 89
The term 'negligence' as used in this section does not mean mere carelessness. The rashness or negligence
must be of such nature so as to be termed as a criminal act of negligence or rashness. Section 80 of the IPC
provides 'nothing is an offence which is done by accident or misfortune and without any criminal knowledge
or intention in the doing of a lawful act in a lawful manner by a lawful means and with proper care and cau-
462
tion'. It is absence of such proper care and caution, which is required of a reasonable man in doing an act,
which is made punishable under this action.
It is the degree of negligence that really determines whether a particular act would amount to a rash and
negligent act as defined under this section. It is only when the rash and negligent act is of such a degree that
the risk run by the doer of the act is very high or is done with such recklessness and with total disregard and
indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this
section. Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care, and
precaution to guard against injury, either to the public generally or to an individual in particular, which a rea-
sonable man would have adopted.90
In Cherubin Gregory v State of Bihar ,91 the deceased was an inmate of a house near that of the accused.
The wall of the latrine of the house of the deceased had fallen down a week prior to the day of occurrence,
with the result that his latrine had become exposed to public view. Consequently, the deceased, among oth-
ers, started using the latrine of the accused. The accused resented this and made it clear to them that they
did not have his permission to use it and protested against their coming there. The oral warnings, however,
proved ineffective. Therefore, the accused fixed a naked and uninsulated live wire of high voltage in the
passage to the latrine, to make entry into his latrine dangerous to intruders. There was no warning put up
that the wire was live. The deceased managed to pass into the latrine without contacting the wire, but as she
came out, her hand happened to touch it, she got a shock and died because of it.
It was contended on behalf of the accused that he had a right of private defence of property and death was
caused in the course of the exercise of that right, as the deceased was a trespasser. The Supreme Court
rejected the contention stating that the mere fact that the person entering a land is a trespasser does not en-
title the owner or occupier to inflict on him personal injury by direct violence. The court observed that it is no
doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any
reasonable care for his protection, but at the same time, the occupier is not entitled to wilfully do any act,
such as setting a trap of naked live wire of high voltage, with the deliberate intention of causing harm to
trespassers or in reckless disregard of the presence of the trespasser. It was held that since the trespasser
died soon after the shock, the owner who set up the trap was guilty under s 304A, IPC. The Supreme Court
upheld the conviction of the accused.
An assistant station master gave a 'line clear' signal to a passenger train with the knowledge that a goods
train was standing at a particular point, where the train might collide, hoping to remove the goods train before
the arrival of the passenger train. The goods train was not removed in time and a collision occurred which
was attended with loss of life. The assistant station master was held guilty of a rash act punishable under this
section.92
ABSENCE OF INTENTIONAL VIOLENCE

The essence of s 304A is that the act, which has resulted in the death of a person, should not have been
done with the intention of causing death. Voluntary and intentional act s either with the intention to cause
death or the knowledge that the act is likely to cause death, will amount to culpable homicide.
In Sarabjeet Singh v State of Uttar Pradesh ,93 the accused was part of an unlawful assembly and attacked
the opposite party. He had come to attack the father of the deceased (who was a small child of about four
years). With a view of causing some harm and taking vengeance on the father of the young child, he threw
the innocent child on the ground. The Supreme Court held that the act of throwing the child on the ground
could not be called as rash within the meaning of s 304A, as he had knowledge that his act was likely to
cause death. Under the circumstances, it would amount to culpable homicide under s 299 and punishable
under s 304, Pt II, IPC.
DEATH MUST BE THE DIRECT RESULT

In order to impose criminal liability under this section, it is essential to establish that death is the direct result
of the rash and negligent act of the accused.94 It must be causa causans--the immediate cause, and it is not
enough that it may be causa sine qua non--the proximate cause.95
463
In Suleman Rahiman Mulam v State of Maharashtra ,96 the accused, who was driving a jeep struck the de-
ceased, as a result of which he sustained serious injuries. The accused put the injured person in the jeep for
medical treatment, but he died. Thereafter, the accused cremated the body. The accused was charged under
ss 304A and 201, IPC. As per s 304A, there must be a direct nexus between the death of a person and rash
and negligent act of the accused that caused the death of the deceased. It was the case of the prosecution
that the accused had possessed only a learner's licence and hence, was guilty of causing the death of the
deceased. The Supreme Court held that there was no presumption in law that a person who possesses only
a learner's licence or possesses no licence at all does not know driving. A person could, for various reasons,
including sheer indifference, might not have taken a regular licence. There was evidence to show that the
accused had driven the jeep to various places on the previous day of the occurrence. So, before the accused
is convicted under s 304A, there must be proof that the accused drove in a rash and negligent manner and
the death was a direct consequence of such rash and negligent driving. In the instant case, there was abso-
lutely no evidence that the accused had driven in a rash and negligent manner. In the absence of such evi-
dence, no offence under s 304A was made out. The accused was acquitted of the charges.
In Ambalal D Bhatt v State of Gujarat ,1 the accused was a chemist in charge of the injection department of
Sanitax Chemical industries Limited, Baroda. The company prepared glucose in normal saline, a solution
containing dextrose, distilled water and sodium chloride. The sodium chloride sometimes contained quanti-
ties of lead nitrate, the permissible limit for lead nitrate being five parts in one million. The saline solution,
which was supplied by the company, was found to have lead nitrate higher than the permissible limits and
hence was dangerous to human life. The bottles, which were sold by the company, were purchased by dif-
ferent hospitals and nursing homes and were administered to several patients of whom 12 patients died. As
per the Drugs Act 1940, and the rules framed thereunder, a chemist of a chemical company has to give a
batch number to every lot to bottles containing preparation of glucose in normal saline. The accused, who
was responsible for giving the batch numbers, failed to do so. He gave a single batch number to four lots of
saline. It was the contention of the prosecution that had the appellant given separate batch numbers to each
lot as required under the rules, the chief-analyst would have separately analysed each lot and would have
certainly discovered the heavy deposits of lead nitrate in the sodium chloride and the lot which contained
lead would have been rejected. As the accused had been negligent in conforming to the rules, the deaths
were the direct consequence of the negligence. The Supreme Court held that for an offence under s 304A,
the mere fact that an accused contravened certain rules or regulations in the doing of an act which caused
death of another, does not establish that the death was the result of a rash or negligent act or that any such
act was a proximate and sufficient cause of the death. It was established in evidence that it was the general
practice prevalent in the company of giving one batch number to different lots manufactured in one day. This
practice was to the knowledge of the drug inspector and to the production superintendent. The court held
that the drug inspector himself knew fully well that this was the practice, but did not lift a finger to prohibit the
practice and instead turned his blind eye to a serious contravention of the drug rules. To hold the accused
responsible for the contravention of the rule would be to make an attempt to somehow find the scapegoat for
the deaths of the 12 persons. Accordingly, the conviction of the accused under s 304A was set aside.2
Difference Between Rashness and Negligence

A rash act is primarily an overhasty act.3 Negligence is a breach of a duty caused by omission to do some-
thing, which a reasonable man guided, by those considerations which ordinarily regulate the conduct of hu-
man affairs would do.4
In Bhalachandra Waman Pathe v State of Maharashtra ,5 the Supreme Court explained the distinction be-
tween a rash and a negligent act in the following manner:
There is a distinction between a rash act and a negligent act . In the case of a rash act, the criminality lies in running
the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence is the gross
and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either
to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the
charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do
something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and reasonable man would not do. A culpable rashness is acting
with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not,
and often with the belief that the act or has taken sufficient precautions to prevent their happening. The imputability
464
arises from acting despite the consciousness. Culpable negligence is act ing without the consciousness that the illegal
and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution in-
cumbent upon him and if he had, he would have had the consciousness. The imputability arises from the neglect of the
civic duty of circumspection.
In the instant case, the appellant was driving his car at a speed of 35 miles an hour, the speed permissible
under the rules. No other circumstance was pointed out to show that he was driving in a reckless manner.
Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference
as to the consequences. However, he was undoubtedly guilty of negligence. He had a duty to look ahead
and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car, he
was engrossed in talking with the person who was sitting by his side. By doing so, he failed to exercise the
caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care
and caution required of him resulted in the occurrence. He was therefore held guilty of the offence punisha-
ble under s 304A.
RASH AND NEGLIGENT ACT IN DRIVING ALONG A PUBLIC HIGHWAY

Generally, a person who is driving a motor vehicle is expected to always be in control of the vehicle in such a
manner as to enable him to prevent hitting against any other vehicle or running over any pedestrian, who
may be on the road. In Baldevji v State of Gujarat ,6 the accused had run over the deceased while the de-
ceased was trying to cross over the road. The accused did not attempt to save the deceased by swerving to
the other side, when there was sufficient space. This was a result of his rash and negligent driving. His con-
viction under s 304A, IPC, was upheld.
In Duli Chand v Delhi Administration ,7 the accused was driving a public transport bus, and he had reached a
crossroad. At that time, although he was not going at a great speed, he failed to look to his right and thus did
not see the deceased, who was coming from his right and was crossing the road. The main road was 42 feet
wide and had the accused been reasonably alert and careful, he would have seen the deceased coming
from his right trying to cross the road, and in that event he could have immediately applied the brake and
brought the bus to a grinding halt. The act of the accused in failing to look to his right, although he was ap-
proaching a crossroad, amounted to culpable homicide on his part and hence, he was convicted under s
304A, IPC.8
In Thakur Singh v State of Punjab ,9 the Supreme Court held the driver of a bus, carrying 41 passengers,
while crossing a bridge, fell into a nearby canal resulting death of all the passengers, guilty of rash and neg-
ligent driving. Refuting his plea that the prosecution failed to prove negligence on his part, the court invoked
the doctrine of res ipsa loquiturto shift the onus of proof to him to prove that the accident did not happen due
to his negligence. In view of the galloping trend in road accidents in India and the devastating consequences
thereof on the victims and their families, the apex court refused to give benefits of benevolent provisions of
the Probation of Offenders Act 1958. It also stressed the need to impose deterrent punishment on the negli-
gent and callous drivers of automobiles to make them careful drivers and thereby to bring down the high rate
of motor accidents.10
In Naresh Giri v State of Madhya Pradesh ,11 wherein death and injury caused to passengers when the bus
driver attempted to cross a unmanned railway crossing and hit by a passing train, the Supreme Court altered
the charges from s 304 to 304A on the ground that his gross negligence.
RASH OR NEGLIGENT ACT IN MEDICAL TREATMENT

Courts have repeatedly held that great care should be taken before imputing criminal rashness or negligence
to a professional man act ing in the course of his professional duties. A doctor is not criminally liable for a
patient's death, unless his negligence or incompetence passes beyond a mere matter of competence and
shows such a disregard for life and safety, as to amount to a crime against the state.
In John Oni Akerele's case,12 a medical practitioner had administered a medical dose of sorbital injection to a
child, because of which the child died. The doctor was charged under s 304A, IPC. The contention of the
accused doctor was that the child was peculiarly susceptible to the medicine and therefore unexpectedly
465
succumbed to a dose which would have been harmless in case of a normal child. The Privy Council held that
the doctor was guilty of criminal negligence.
In Juggan Khan v State of Madhya Pradesh ,13 the accused was a registered homeopath who had adminis-
tered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of dathura without properly
studying its effect. The patient died as a result of the medicine given by the accused. Stramonium and da-
thura are poisonous. So, giving the same without being aware of its effects was held to be a rash and negli-
gent act. The accused was convicted under s 304A, IPC, and sentenced to two years rigorous imprisonment.
When a hakim gave a procaine penicillin injection to a patient because of which he died, it was held that the
hakim was guilty under s 304A.
In Ram Niwas v State of Uttar Pradesh ,14 the accused, an unqualified doctor, treated a five-year old boy who
was suffering from fever. He administered an injection to the boy upon which the boy turned blue and his
condition worsened. Thereafter, the boy died. According to the evidence, the accused did not administer the
injection after giving any test dose to the boy. In view of the fact that the accused was not a qualified medical
practitioner who had given an injection to the boy without giving any test dose, the court held that he had act
ed with rashness, recklessness, negligence and indifference to the consequences. It amounted to taking
hazard of such degree that the injury was most likely to be occasioned thereby. The court held that it was
amply established that the accused caused the death of the deceased by doing the said rash and negligent
act which did not amount to culpable homicide and held that the accused was guilty under s 304A, IPC.
However, during the recent past the Supreme Court has attributed a different standard to 'negligence' when it
comes to a professional, particularly, a medical practitioner.
In Suresh Gupta (Dr) v Govt of NCT of Delhi & Anor ,15 the Supreme Court held that for fixing criminal liability
of a doctor, the standard of negligence should not merely be lack of necessary care, attention and skill. The
standard of negligence required to be proved should be so high as can be described as 'gross negligence' or
'recklessness'. With this perception, the court observed:
...[W]hen a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man
cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical man exhibits a gross lack of compe-
tence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance
or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability
should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil lia-
bility but would not suffice to hold him criminally liable.16... [T]he act complained against the doctor must show negli-
gence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic
towards the patient. Such gross negligence alone is punishable. 17
In Jacob Mathew v State of Punjab ,18 the Supreme Court not only approved the principle laid down in the Dr
Guptacase but also opined that 'negligence in the context of medical profession necessarily calls for a treat-
ment with a difference...a case of occupational negligence is different from one of professional negligence.'
Delving into liability of a doctor for his rash or negligent act leading to death of his patient, it ruled that:
... [A] professional may be held liable for negligence on one of the two findings: either he was not possessed of the
requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given
case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. 19
Recently, in Martin F. D'Souza v Mohd. Ishfaq ,20 the Supreme Court, after making a survey of thitherto judi-
cial pronouncements on medical negligence, reiterated, with approval, that the Jacob Mathew dictum holds
good in handling cases of medical negligence. It endorsed the concept of gross negligence delved in Jacob
Mathew and stressed that the degree of negligence sufficient to fasten criminal liability for medical negli-
gence has to be higher than that required to fasten civil liability. For holding a medical practitioner guilty un-
der se 304A, gross negligence on his part amounting to recklessness needs to be proved. For judicial deter-
mination of such negligence, the court has to rely upon evidence of medical professionals.
PUNISHMENT

Homicide

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(Indian Penal Code 1860,Sections 299 to 311)

PART A - CULPABLE HOMICIDE

(1) Culpable homicide amounting to murder;

'CAUSING DEATH': TESTS FOR DETERMINING

KNOWLEDGE AS MENS REA

ACT OF KILLING A PERSON NOT INTENDED TO BE KILLED

SCOPE OF SECTION 300

INTENTIONALLY CAUSING DEATH--CLAUSE (1) OF SECTION 300

So what's the difference between the two?

INTENTIONAL CAUSING OF BODILY INJURY WITH KNOWLEDGE THAT IT WILL

INTENTIONAL CAUSING OF INJURY SUFFICIENT TO CAUSE DEATH--CLAUSE (3)

(1) It must establish, quite objectively, that a bodily injury is present.

Intention as to Sufficiency of Injury Not Required

Intention to Cause Particular Injury Required

KNOWLEDGE THAT ACT IS SO IMMINENTLY DANGEROUS SO AS TO CAUSE

WHEN CULPABLE HOMICIDE IS NOT MURDER

Exception 1--Grave and Sudden Provocation

Exception 2--Exceeding the Right of Private Defence

Exception 3--Act of Public Servant

Exception 4--Sudden Fight

Exception 5--Death by Consent

DISTINCTION BETWEEN MURDER AND CULPABLE HOMICIDE

Intention to Cause Bodily Injury Likely to Cause Death

PART C - DEATH BY NEGLIGENCE

RASH OR NEGLIGENT ACT

ABSENCE OF INTENTIONAL VIOLENCE

DEATH MUST BE THE DIRECT RESULT

Difference Between Rashness and Negligence

RASH AND NEGLIGENT ACT IN DRIVING ALONG A PUBLIC HIGHWAY

RASH OR NEGLIGENT ACT IN MEDICAL TREATMENT

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