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Report No. 35

Topic Number 38

Intent to kill

722. We may also consider whether the criterion of "intent to kill" (which has been suggested by some) can be suitably adopted so as to reduce the number of murders in which the sentence of death would be imposed. This is a "natural and usual" approach1. And if it can be found to be acceptable on the merits, its adoption would be very easy so far as the Indian Penal Code is concerned, because section 300 of the Code, which defines murder, already puts it in a separate clause,-"if the act by which the death is caused is done with the intention of causing death.".

1. Cf. R.C. Report, p. 161, para. 470.

723. Intent to kill.-

The test of "wilful murder" (apart from premeditated murder or deliberate murder) has been adopted (in substance) by some countries, which treat "wilful murder" as an aggravated form of murder, justifying the sentence of death (instead of imprisonment for life) or justifying the sentence of imprisonment for life for lesser imprisonment1.

1. See R.C. Report, pp. 437 and 438, paras. 14 and 15, and pp. 433 and 434, paras. 3 and 4.

724. We are afraid that the adoption of such a test might lead to serious anomalies. It would remove the protection afforded by the sentence of death in quite a large number of cases.

A person who, by means of explosives, derails a passenger train in reckless disregard of the probable consequences of his act, thereby causing death of numerous passengers, would be saved from the highest penalty, if the test of "intent to kill" is adopted.

We may, in this connection, refer to certain passages in the Royal Commission's Report1 where this aspect of the matter has been dealt with

"The Criterion of intent to kill

470. The more radical proposals, on the other hand, are primarily designed, not to clarify the existing law or to amend it in minor respects, but to limit the scope of murder substantially. The natural and usual approach to redefinition of this sort is to attempt to confine murder to cases where there is intent to kill. If this is taken to mean an actual intent to cause death, we regard it as a defective and inadequate definition, whether it is considered from a logical point of view or as a means of distinguishing those heinous cases that deserve the punishment of death.

The reasons why such a definition is unsatisfactory were clearly expounded in the Reports of two Commissions which gave very careful consideration to this question during the last century. In 1839 the Commissioners on the Criminal Law, in their Fourth Report, observed:-

"Again it appears to us that it ought to make no difference in point of legal distinction whether death results from a direct intention to kill, or from wilfully doing an act of which death is the probable consequence. According to the well-established judicial rule, every one must be presumed to contemplate the probable consequence of his own act. Neither is there any difference between the direct intention to kill and the intention to do some great bodily harm short of death such case being within the immediate operation of the principle just adverted to, as no one can wilfully do great bodily harm without placing life in jeopardy.".

and later:

"It is the wilful exposure of life to peril that constitutes the crime.".

Forty years later, the Report of the Criminal Code Bill Commission contained the following passage:

"The principle that murder may under certain circumstances be committed in the absence of an actual intention to cause death ought to be maintained. If a person intends to kill and does kill another, or if, without absolutely intending to kill, he voluntarily inflicts any bodily injury known to be likely to cause death, being reckless whether death ensues or not, he ought in our opinion to be considered a murderer if death ensue.

For practical purposes we can make no distinction between a man who shoots another through the head expressly meaning to kill him, a man who strikes another a violent blow with a sword, careless whether he dies of it or not, and a man who, intending for some object of his own, to stop the passage of a railway train, contrives an explosion of gunpowder or dynamite under the engine, hoping indeed that death may not be caused, but determined to effect his purpose whether it is so caused or not.".

471. We find ourselves in entire agreement with the views expressed in these two Reports, which appear to us to be still valid. We should agree that there may not infrequently be cases where death results from an act intended only to cause grievous bodily harm or from an act done with, reckless indifference whether such harm is caused, in which the execution of the capital sentence would not be justified, but the same will be true of cases where there was intent to kill. It is equally certain that so long as capital punishment is maintained there will be cases in each of these categories which call for the infliction of the death penalty, and that no definition can be satisfactory which is not based on a recognition that this is so.

1. R.C. Report, pp. 161-162, paras. 470-471.

725. Nor is there any injustice to the offender involved in the present law. The law still requires that he must have an intention to cause bodily injury of a certain description (or knowledge that the act is so imminently dangerous that it must in all probability cause death etc1.)

Conversely, if every case of intention to kill were to be treated as deserving death, injustice would result.

There may be an intent to kill, and yet other factors may reduce the moral culpability of the crime2 e.g., provocation though not "grave and sudden". The test of intent to kill cannot, therefore, be adopted.

1. See section 300, Indian Penal Code, 2nd, 3rd and 4th clauses.

2. Cf. R.C. Report, p. 176, para. 502.

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