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Report No. 35

Appendix XI

Extracts from the Burmese Penal Code, and Analysis of the Burma Provisions

Extracts from the Burmese Penal Code1

1. Amended by Act XXXIII of 1947, and Act III of 1948.

299. Culpable homicide.- (1) Whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death commits the offence of culpable homicide not amounting to murder.

(2) Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as in fact is sufficient in the ordinary course of nature to cause death, commits the offence of culpable homicide not amounting to murder in any of the following cases:-

(a) If he, 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:

Provided-

First-that the provocation is not sought or the offender by 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; and

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

Explanation.-Whether the provocation was grave and sudden enough to deprive the offender of the power of self-control is a question of fact.

(b) If he, 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 rights of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of defence.

(c) If he, being a public servant or siding a public servant 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 the duty of such public servant and without ill-will towards the person whose death is caused.

(d) If he acts without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without 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.

(e) If he causes the death of a person who is above the age of eighteen years and who suffers death or takes the risk of death with his own consent.

300.1 Murder.-Whoever, in the absence of any circumstances which makes the act one of culpable homicide not amounting to murder, causes death by doing an act with the intention of causing death, or with the intention of causing bodily injury as in fact is sufficient in the ordinary course of nature to cause death, commits the offence of murder.

1. Subs. by Act XXXIII of 1947.

300A1. Explanations of culpable homicide.-In sections 299 and 300-

(a) 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.

(b) where death is caused by bodily injury, the offender's knowledge of the weakness or infirmity of the person on whom the bodily injury is inflicted is a relevant factor in proving the nature of his intention.

(c) the offender's knowledge that an act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, is a relevant factor in proving the nature of his intention.

(d) 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.

1. Inserted by Act XXXII of 1947.

301. Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits an offence by causing the death of any person whose death he neither intends nor knows himself to be likely to cause, the offence 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.

Explanation.-In this section the word "offence" means an offence described in section 299 or section 300 or section 304A of the Penal Code.

3021. Punishment for murder.- (1) Whoever commits murder-

(a) being under sentence of transportation for life, or

(b) with premeditation, or

(c) in the course of committing any offence, punishable under this Code with imprisonment for a term which may extend to seven years, shall be punished with death, and shall also be liable to fine.

(2) Whoever commits murder in any other case shall be punished with transportation for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Explanation.-Whether an act is premeditated is a question of fact. 303.

1. Substituted for sections 302 and 303, ibid.

303.

304.1 Punishment for culpable homicide not amounting by to murder.- Whoever causes the death of any person by life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

1. Subs. by Act XXXIII of 1947.

304A1. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not punishable as culpable homicide or murder shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine provided that if such act is done with the knowledge that it is likely to cause death the term of imprisonment may extend to ten years.

1. Subs. by Act LII of 1948.

305. Abetment of suicide of child or insane person.- If any person under eighteen years of age, any insane person, any delirious person, any indict, or any person in a state of intoxication commits suicide whoever abets the commission of such suicide shall be punished with death or transportation for life, or imprisonment for a term not exceeding ten years, and shall also be liable .to fine.

306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

307. Attempt to murder.- Whoever does any act with such intention [* * *]1 and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to transportation for life, or to such punishment as is hereinbefore mentioned.

Attempt by life-Convicts.- When any person offending under this section is under sentence of transportation for life, he may, if hurt is caused, be punished with death.

1. The words "or knowledge" were omitted by Act XXXIII of 1947.

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, it death ensued, A would be guilty of murder. A is liable to punishment under this section.

(b) A with the intention of causing the death of a child of tender years exposes it in a deserted place. A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys A gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds X he is liable to the punishment provided by the latter part of the first paragraph of this section.

(d) A, intending to murder X by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.

308. Attempt to commit culpable homicide.- Whoever does any act with such intention [* * *]1 and under such circumstances that if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both, and, if hurt is caused to any person by such act shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

1. The words "or knowledge" were omitted by Act XXXIII of 1947.

Illustration

A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section.

Analysis of the Burmese sections

The important changes made by the Burmese Penal Code in the section relating to culpable homicide and murder can be roughly analysed as follows:-

(1) Causing death by an act done with the intention of causing death is murder in India in the absence of the exceptional circumstances (mentioned in section 300, Exceptions, in India). But in Burma the exceptional circumstances have been grouped with the section relating to culpable homicide not amounting to murder, and have been removed from the section dealing with murder, for better understanding. Section 300, Burma and section 299(2), categories A to E, Burma.

(2) Where death is caused by an act done with the intention of causing such bodily injury as is likely to cause death, it is only culpable homicide. The offender's knowledge of the peculiar infirmity of the victim does not necessarily make it murder, but is a relevant factor in proving the nature of his intention. Section 299(1), Burma, section 300A (b), Burma.

(3) Causing death by an act done with the intention of causing bodily injury as is sufficient, etc., to cause death-in this category, the words "in fact" have been inserted before "is sufficient"-apparently to make it clear that it is not the subjective knowledge of the offender which is here relevant, but (objectively) the nature of the injury. Section 300, Burma (If exceptional circumstances are present), section 299(2), Burma.

(4) Causing death by an act done with the knowledge that the offender is likely, by such act to cause death, ceases to be culpable homicide and ceases to be murder also, and merely becomes an offence punishable as "causing death by negligence" under section 304A, the only special provision being that in such a case, the imprisonment may extend to 10 years. Section 304A, latter half, Burma.

(5) Having made the substantive changes regarding the offence of murder, so as to take out certain categories out of that offence, the Burmese Code divides murders into two sub-clauses for the purposes of punishment. If the murder is committed by a person-

(a) being under sentence of transportation for life; or

(b) with pre-meditation; or

(c) in the course of committing any offence punishable under the Penal Code with imprisonment up to 7 years:

the offender "shall be punished with death and shall also be liable to fine" (no discretion to court to award lesser sentence). Section 302(1), Burma.

A person committing murder in any other case is punishable with transportation for life or rigorous imprisonment up to 10 years and also liable to fine. (Thus, the imprisonment need not be for life, as in India). Section 302(2), Burma.

(6) Punishment for culpable homicide which does not amount to murder, has been simplified. Instead of the two categories mentioned in the Indian Penal Code, section 304, the punishment in Burma is transportation for life or imprisonment of either description up to 10 years, and also fine. Section 304, Burma.

(7) Causing death by negligence-section 304A-the punishment in India is two years' imprisonment while in Burma, it is 7 years (or if the act is done with the knowledge that it is likely to cause death, then 10 years). Further, in India imprisonment is not compulsory, because fine can be awarded without awarding imprisonment while in Burma imprisonment is compulsory. Section 304, Burma.

(8) Regarding attempt to murder, mere knowledge is not enough and intention is required. Apparently, mere knowledge or likelihood of death in a case of attempt to murder is left to be dealt with by the ordinary provision in section 511. This appears to be consequential on the removal of knowledge from the section dealing with murder. Section 307, Burma.

Attempt to commit culpable homicide not amounting to murder-here also the word "knowledge" has been removed. This is also apparently consequential on the removal of the element of knowledge from section 299 and its placing under section 304. Section 308, Burma.

Summary

The scheme appears to be-

(i) To concentrate on intention while dealing with offences _both under section 299 and under section 300.

(ii) Further, even intentional acts punishable under murder have been classified, as regards punishment, mainly on the basis of pre-meditation (apart from two special cases).



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