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Report No. 35

Topic Number 37

Scheme in the Burmese Code

717. While on the question of dividing murders into categories, we may discuss the scheme adopted in the Burmese Penal Code. Burma has made certain amendments in the sections of the Indian Penal Code (known in Burma as the Burmese Penal Code) relating to culpable homicide and murder. The effect of these changes, stated shortly1, is, that first, 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.

Secondly, in the clause relating to causing death by an act done with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death, the words "in fact" have been inserted before the words "is sufficient", apparently to make it clear that it is not the subjective knowledge of the offender which is relevant, but, objectively, the nature of the injury2. Thirdly, causing death by an act done with the knowledge that the offence is likely 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.

1. Detail of Burmese Code are given in the comparative material.

2. Cf. Virsa Singh, 1958 SCR 1495: AIR 1958 SC 465 (467).

718. Scheme in the Burmese Code.-

The scope of murder is, thus, considerably limited in Burma, in contrast with the Indian Penal Code. Cases which would fall in India under the second clause of section 301 of the Indian Penal Code are vitally affected; cases which fall under the third clause of section 300 are subjected to a verbal change; and cases which fall under the fourth clause of section 300 totally fall outside the category of murder.

719. Having made these substantive changes in the law of murder, the Burmese Code further divides murders into two cases, for the purpose of punishment. If murder is committed by a person being under sentence of transportation for life or with premeditation, or in the course of committing any offence punishable under the Penal Code with imprisonment up to 7 years, the offender shall be punishable with death, and shall also be liable to fine. In other cases, the punishment will be transportation for life or rigorous imprisonment up to 10 years, and also fine. (Punishment for culpable homicide which does not amount to murder has also been simplified, but we are not here concerned with that).

720. To summarise, in Burma the scheme is-

(i) to concentrate on intention;

(ii) to provide that even intentional acts punishable under "murder" are capital only if there is premeditation or if the act is committed for committing an offence punishable up to 7 years' imprisonment; and

(iii) in the case of such aggravated murders, to provide a mandatory punishment of death.

721. We are unable to recommend the acceptance of these changes. The tests of intention and premeditation are not satisfactory as tests for the sentence of death1; nor can the test of association with another serious crime be regarded as a satisfactory one by itself 2. It would leave out many cases which really deserve the sentence of death.

1. See separate discussion as to pre-meditation and intention, paras. 706-716, supra and 722-725, infra.

2. See also discussion as to categories of murders, paras. 700-703, supra.

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