Report No. 35
Chapter III
Existing Law
Topic Number 13
Existing provisions of the Indian Penal Code regarding Capital offences
68. Existing provisions of the Indian Penal Code regarding capital offences.-
So far as the Indian Penal Code is concerned, the sentence of death can be awarded for certain offences1 under the Code. In most of these cases, the sentence of death is permissive, and the court has a discretion to award the lesser sentence of imprisonment for life. It is only in one case, namely, murder committed by a person under sentence of imprisonment for life2, that the sentence of death is obligatory.
1. See para. 69, infra.
2. Section 303, Indian Penal Code.
69. Sections quoted.-
The relevant sections of the Indian Penal Code and the offences concerned are as follows:-
| Section 121 | Waging war, etc., against the Government of India. |
| Section 132 | Abetment of mutiny by a member of the armed forces. |
| Section 194, second paragraph. | False evidence leading to conviction of innocent person and his execution. |
| Section 302 | Murder. |
| Section 303 | Murder by a life-convict. |
| Section 305 | Abetment of suicide of child or insane person. |
| Section 307 | Attempt to murder by life-convict. |
| Section 396 | Dacoity with murder. |
70. The offence of murder may be dealt with in detail. The offence is defined in section 300 of the Indian Penal Code. That section provides, that except in the cases hereinafter excepted, "culpable homicide" is murder if the act by which the death is caused is done with the intention or knowledge set out in the section. The definition of "culpable homicide" is given in section 299. The sections are set out below1, omitting the illustrations:-
1. Sections 299 and 300, Indian Penal Code.
"Section 299-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 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 300-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-
2ndly.-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
3rdly.-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
4thly.-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.
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.
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.
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 towards the person whose death is caused.
Exception 4.-Culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's 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 with his own consent.".
71. Distinction between murder and culpable homicide.-
It is not necessary, for the present purpose, to enter into any lengthy discussion of the ingredients of each of the offences. Broadly stated, the distinction between the two offences has been very well put by Melville J. in a Bombay case1. In that case, the accused knocked his wife down, put one knee.on her chest and struck her two or three violent blows on the face with the closed fist, producing extravasation of blood on the brain. The wife died in consequence. The court held, that since there was no intention to cause death and the bodily injury was not sufficient in the "ordinary course of nature" to cause death, the offence committed was not murder, but culpable homicide. The following analysis of the two sections is contained in the judgment:-
1. Reg. v. Govinda, 1876 ILR 1 Bom 344 (346).
Section 299 |
Section 300 |
| A person commits culpable homicide, if the act by which the death is caused is done- | Subject to certain exceptions, culpable homicide is 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; |
| (b) With the intention of causing such bodily injury as is likely to cause 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; |
| (3) 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; | |
| (c) with the knowledge that the the act is likely to cause death | (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death. |
"I have underlined here the words which appear to me to mark the differences between the two offences.
"(a) and (1) show that where there is an intention to kill, the offence is always murder.
"(c) and (4) appear to me intended to apply (I do not say that they are necessarily limited) to cases in which there is no intention to cause death or bodily injury. Furious driving, firing at a mark near a public road, would be cases of this description. Whether the offence is culpable homicide or murder, 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 result1, it is murder.
"The essence of (2) appears to me to be found in the words which I have underlined here. The offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution, or immature age, or other special circumstances to be killed by an injury which would not ordinarily cause death. The illustration given in the section is the following:
'A knowing that Z is labouring under such 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 nature to cause the death of a person in a sound state of health.'
"There remains to be considered (b) and (3), and it is on a comparison of these two clauses that the decision of doubtful cases must generally depend. The offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death. The distinction is fine, but appreciable. It is much the same distinction as that between (c) and (4), already noticed. It is a question of degree of probability. Practically, I think, it will generally resolve itself into a consideration of the nature of the weapon used. A blow from the fist or a stick on a vital part may be likely to cause death; a wound from a sword in a vital part is sufficient in the ordinary course of nature to cause death.".
1. These observations should be taken as referring only to clause fourth. If they are not so taken, the criticism in Heji Khudu v. Emp., AIR 1939 Sind 57 (60) (per Davis C.J.) that they may mislead, may be valid.
72. Some fundamental propositions.-
Certain propositions, though they may appear to be elementary, are well worth an emphasis in this context:-
(i) Culpable homicide is a generic offence. It will amount to murder if the conditions laid down in section 300 are satisfied.
(ii) "It does not follow that a case of culpable homicide is murder because it does not fall within any of the Exceptions in section 300. To render culpable homicide murder, the case must come within the provisions of clauses (1), (2), (3) and (4) of section 300.1".
(iii) Culpable homicide may, therefore, not be murder-
(a) where, notwithstanding that the mental state is sufficient to constitute murder, one of the Exceptions to section 300 applies, or
(b) where the mental state, though within the description of section 299, is not of the special degree of criminality required by section 300.
(iv) Even where the case clearly falls under section 300, Indian Penal Code, and does not fall within the exceptions to that section, the sentence of death is not mandatory; it is one of the alternative sentences2.
1. Peacock C.J. in Queen v. Sheikh Bazu, (1867) 8 WR (Criminal) 47(51) (FB).
2. Section 302, Indian Penal Code.
73. For the present purpose, it is unnecessary to discuss the position under the old section 367(5), Code of Criminal Procedure, 1898 (as it stood before the Amendment of 1955) whereunder, in the case of a capital offence, if the court sentenced the accused to any punishment other than death, it had to state its reasons for not passing the sentence of death. That provision has now been repealed1.
1. As an example of the controversy which was caused by this provision see Emp. v. Dukari Chandra Karmakar, AIR 1930 Cal 193.
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