1. Introduction

The term culpable homicide and murder are the two most confusing terms in the Indian Penal Code, 1860[1]. There is a faint line difference between both of them. Where section 299 of IPC defines culpable homicide and section 300 deals with concept of Murder. These terms always snarls up the one who starts learning these concepts. [2]

The Indian Penal Code is a comprehensive set of rules in India that govern criminal acts. Offences Affecting the Human Body are one of the principal categories of offences covered by the IPC. Chapter XVI of the Indian Penal Code deals with the provisions related to offences affecting the human body. It is the lengthiest chapter under the Code, consisting of 78 sections, starting from section 299 to 377. These sections contain homicide, assault, and other violent crimes that endanger a person’s physical well-being. 

All Crimes always includes two elements men's rea and actus reus, if any of them is absent in a particular crime then that act will not come under the ambit of Crime. In committing any act of actual body harm, the Mensrea might be one of recklessness (without regard to danger or consequence of one's action) rather than intention.[3]

2. Homicide

Homicide is the highest order of bodily injury that can be inflicted on a human body. It has from the earliest times been considered the most heinous of offences.[4] Homicide is derived from the Latin phrases homi (man) and cido (cut). Homicide literally means “the killing of a human being by another human being.” The term ‘homicide’ refers to the act of causing or hastening the death of a human being by another human being. However, not all homicides are illegal or criminal. The death of an assailant caused by an innocent agent, such as a child under the age of discretion (doli incapax) or a person of unsound mind, or the death of the assailant caused in the exercise of the right of private defence, is not illegal. In the first, the perpetrator is ‘excused,’ but in the second, the defendant’s actions are ‘justified.’[5]

• Classification of Homicide

Homicide can be classified into to the following categories:

There are two sorts of homicides: (1) lawful homicides and (2) unlawful homicides. Lawful homicides are ones that fall under the IPC’s Chapter on General Exceptions and are hence not penalized. The homicides that are penalized under the Code clearly fall within the category of unlawful homicides.[6]

• Lawful Homicide: Lawful homicides can be divided into two categories based on the nature of the ‘general exceptions’ that surround the homicide: excusable homicides, and justifiable homicides. 

• Excusable Homicide: Excusable homicide includes homicides which are committed without any criminal intent and knowledge. A homicide is considered to be excusable homicide,if death is caused by:

1. Accident in doing a lawful act.[7]
2. Act of a child under seven years of age.[8]

• Act of a person incapable of judgment by reason of intoxication caused against his will.[9]

1. Act done in good faith for benefit of a person without consent.[10]

• Justifiable Homicide: a homicide is considered in law to be justified, if death is caused:

1. By a person who is bound, or by mistake of fact in good faith believes himself to be bound by law.[11]
2. By an act of a judge when acting judicially.[12]

• By act done pursuant to the judgment or order of court.[13]

1. By act done by a person justified, or by mistake of fact believing himself justified by law.[14]
2. By act likely to cause harm, but done without any criminal intent and to prevent other harm.[15]
3. By a person exercising his right to private defence.[16]

• Unlawful Homicide: An unlawful homicide may be classified into different categories according to the nature and gravity of the offence and its heinousness in order to attach a suitable punishment for each type. Unlawful homicide may be divided into the following categories:

1. Culpable Homicide;[17]
2. Murder;[18]

• Culpable homicide not amounting to murder;[19]

1. Death by negligence;[20]
2. Dowry death;[21]
3. Abetment of suicide of child or insane person;[22]

• Abetment of suicide;[23]
• Attempt to Murder;[24]

1. Attempt to commit culpable homicide;[25]
2. Attempt to commit suicide;[26]

3. Culpable Homicide

Culpable homicide is defined as causing death by doing anything with the goal of causing death or inflicting physical damage that is likely to cause death, or knowing that he is likely to cause death by doing something like that.[27] It is classified into two types:

1. Culpable Homicide amounting to Murder
2. Culpable Homicide not amounting to Murder.

Provision under the Code: According to section 299 of IPC;

 Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

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 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.

Essential ingredients of culpable homicide: The following are the essential elements of culpable homicide: 

• a person must be dead; 
• the death must have been caused by the act of another person; and
• the act causing death must have been done with: 

(a) the intention of causing death; or 

(b) the intention of causing bodily injury likely to cause death; or 

(c) with the knowledge that such an act is likely to cause death.[28]

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.

4. Murder

Murder is the Aggravated form of Culpable Homicide. Murder incorporates Culpable Homicide but, culpable homicide does exclude murder in all cases. For a culpable homicide to amount to murder it should come under the four clauses which are mentioned under Section 300 of the Indian Penal Code.[29]

The word Murder comes from the Germanic word morth, which literally means hidden slaying. A murder occurs when one person is slain by another or a group of people with the premeditated aim of ending the former's life. A crime is not considered murder unless it contains an act that qualifies as culpable homicide under the IPC definition. All killings are culpable, but not all murders are. Murder is addressed in sections 299 and 300 of the Indian Penal Code.[30]

Provision under the Code: According to section 300 of IPC;

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly, If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Essential Ingredients of Murder

• There should be an intention to cause the death of another person
• There should be an intention to cause bodily injury that is likely to cause death.
• The act must be done with the knowledge that the act is likely to cause the death of the individual.[31]

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder

(b) 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.

5. Culpable Homicide not amounting Murder

Section 300 of the Code presents a comprehensive definition of the crime of murder, and further outlines the legal provisions that exempt culpable homicide from being classified as murder. It is imperative to note that the legal framework recognizes the seriousness of the crime of murder, and, therefore, applies stringent legal measures to ensure that the perpetrators are held accountable for their actions. However, there are instances where culpable homicide may not be classified as murder, and these exceptions are crucial in ensuring that justice is administered fairly and that the legal system remains just and impartial.

According to Section 300 of IPC culpable homicide does not amounts to murder under the following 5 exceptions:

• Exception 1: Grave and Sudden Provocation

There must be a case of the grave and sudden provocation to take the plea of exception to Section 300. Notwithstanding, it must be noticed that this provocation should not be initiated from the accused side.[32]

Provision under the Code: Exception 1- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos

First-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) 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.

(b) 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, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.

• Exception 2: Self Defence

An individual who is claiming this exception should have exceeded his right to self-defense of a person or property, provided he had exercised the right with bona fide intention. But the injury inflicted must be in proportion to the attack of the deceased. The Right of Self Defense cannot be exercised to do away with a wrongdoer unless the individual concerned has a reasonable cause to fear death or grievous hurt then that person would have the right to private defense.[33]

Provision under the Code: Exception 2-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped shoots Z dead. A has not committed murder, but only culpable homicide.

• Exception 3: Act of Public Servant
  

1. The offense must be committed by a public servant or by an individual helping a Public Servant.
2. The Act alleged must have been committed by the Public Servant in the discharge of his official obligations.

• He should have exceeded the powers given to him by the Law

1. The Act must be done with due care and attention.
2. The Public Servant must have believed that the act was legal; itlegal it was necessary for discharging his obligations.
3. He must not have borne any bad intention towards the individual whose death was caused.[34]

Provision under the Code: Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

• Exception 4: Without Premeditation

To avail the assurance of this exception the accused must prove to the court that the battle between the accused and deceased was not pre-planned but broke out suddenly. The Apex court in Surendar Kumar v. Union Territory of Chandigarh[35] summarized the standards as follows:

To bring forth this exception four prerequisites must be satisfied:

1. It was an unexpected fight
2. There was no Premeditation

• The particular act was done in a heat of passion and

1. The attacker had not taken any undue advantage or acted cruelly.[36]

Provision under the Code: Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender 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: Consensual Homicide

 As per Exception 5 of Section 300, culpable homicide isn't murder when the individual whose death is caused being over the age of 18 years, suffers death or faces the risk of death with his assent.[37]

Provision under the Code: Exception 5-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration

A, 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.

6. Case Laws
   • In Inder Singh Bagga Singh v. State of Pepsu[38], it was held that if A causes injury to B with a stick fracturing his skull, resulting in B’s death, A would be liable for culpable homicide not amounting to murder.

• In Narayanan Nair v. State of Travancore and Cochin[39] , it was held that if A attacks B with a sharp-edged knife in his heart, resulting in B’s death, A would be guilty of murder.

• In the case of Rampal Singh v. State of Uttar Pradesh[40], it was held that “Culpable homicide” is the genus and “murder” is it’s species and all “murders” are “culpable homicides” but all “culpable homicides” are not “murders”.

• In Madanayya v State of Maharastra,[41]Apex court held that in absence of intention to cause death, offence is culpable homicide and not murder.

• In the case of Kapur Singh v State of Pepsu,[42] the court held that one of the injuries inflicted by the appellant was on a vital part of the body of the deceased whom the appellant had no intention to kill. At the same time, though he had no intention to kill, the appellant must have known that he was inflicting such bodily injuries as were likely to cause death as a consequence of which death did happen. The appellant's conviction for murder was accordingly altered to one for culpable homicide.[43]

7. Difference between murder and culpable homicide not amounting to murder

According to Sir James Stephen, the definition of culpable homicide and murder are the weakest part of the code, as they are defined in forms closely resembling each other and at times it becomes difficult to distinguish between the two, as the causing of death' is common in both.[44]

However, The basic difference between these two offences lies in the gravity with which the offence has been perpetrated.[45]

The differences between culpable homicide and murder are as follows:

8. Conclusion:

There is a fine line between murder and culpable homicide. Murder is nothing more than an aggregate type of homicide. The aim behind the offence is the crucial component of consideration. The courts have repeatedly made efforts to differentiate between the two offences even though the ultimate consequence of both is the same.

 It all comes down to a person's Mens Rea, or "guilty intention." If a person intentionally kills someone, it is considered murder, but if a person never planned to kill someone or didn't know they were going to, that is considered a culpable homicide.[46]

[1] The Indian Penal Code, 1860 (Act 45 of 1860)

[2] Sir Prince, ‘Murder and Culpable Homicide not amounting to Murder-Distinctions”, available at: https://www.legalserviceindia.com/legal/article-2637-murder-and-culpable-homicide-not-amounting-to-murder-distinction.html#:~:text=In%20common%20parlance%20Sec.,then%20it%20is%20a%20murder. (last visited on October 26,2023)

[3] Gaurav Purohit, “An Analysis of Culpable Homicide and Murder”, available at: https://www.legalserviceindia.com/legal/article-8760-an-analysis-of-culpable-homicide-and-murder.html  (last visited on October 26, 2023)

[4] K D Gaur, Textbook on Indian Penal Code p.669 (LexisNexis, Haryana, Seventh Edition, 2022)

[5] Sujhita S, “Difference between Culpable Homicide and Murder”; available at https://blog.ipleaders.in/difference-between-culpable-homicide-and-murder/ (last visited on October 26, 2023)

[6] Supra Note 5

[7] The Indian Penal Code, 1860.s.80

[8] Id., s.82

[9] Id., s.85

[10] Id., s.92

[11] Id., s.76

[12] Id., s.77

[13] Id., s.78

[14] Id., s.79

[15] Id., s.81

[16] Id., s.96-s.106

[17] Id., s.299

[18] Id., s.300

[19] Id., s.300 Exceptions 1-5

[20] Id., s.304A

[21] Id., s.304B

[22] Id., s.305

[23] Id., s.306

[24] Id., s.307

[25] Id., s.308

[26] Id., s.309

[27] Blitz, “Murder and Culpable Homicide, Difference between Murder and Culpable Homicide”; available at: https://www.legalserviceindia.com/legal/article-7476-murder-and-culpable-homicide-difference-between-murder-and-culpable-homicide.html#google_vignette  (last visited on October 26, 2023)

[28] Supra note 5

[29] Supra Note 3

[30] Supra Note 27

[31] Supra note 3

[32] Supra note 3

[33] Supra note 3

[34] Supra note 3

[35] AIR 1989 SC 941

[36] Supra Note 3

[37] Supra note 3

[38] AIR 1955 SC 439

[39] AIR 1956 SC 99

[40] AIR 2012 SC 289

[41] AIR 2017 SC 3064

[42] AIR 1956 SC 654

[43] K D Gaur, Textbook on Indian Penal Code p.689 (LexisNexis, Haryana, Seventh Edition, 2022)

[44] Id., p.686

[45] Supra note 2

[46] Gurpreet Kaur Dutta; ”Difference between Murder and Culpable Homicide” available at: https://blog.finology.in/Legal-news/difference-between-murder-and-culpable-homicide (last visited on October 27, 2023)