In the scheme of the IPC culpable homicide is genus and ‘murder’ its species

All `murder’ is `culpable homicide’ but not vice-versa. Speaking generally, `culpable homicide’ sans ‘special characteristics of murder is culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, `culpable homicide of the first degree’. This is the gravest form of culpable homicide, which is defined in Section 300 as `murder‘. The second may be termed as `culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is `culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

 The academic distinction between `murder’ and `culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299                                          Section 300

A person commits culpable homicide                  
Subject to certain exceptions
if the act by which the death is caused is done-    culpable homicide is murder
                                                    if the act by which the
                                                    death is caused is done -
INTENTION
  
 (a) with the intention of causing                (1) with the intention of
       death; or                                        causing death; or

   (b) with the intention of causing                (2) with the intention of
       such bodily injury as is likely                  causing such bodily injury
       to cause death; or                               as the offender knows to be
                                                        likely to cause the death of
                                                        the person to whom the harm
                                                        is caused;
                                                                    or
                                                     (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; or
KNOWLEDGE

   (c) with the knowledge that the act               (4) with the knowledge that
       is likely to cause death.                         the act is so imminently
                                                         dangerous that it must in all
                                                         probability cause death or
                                                         such bodily injury as is
                                                         likely to cause death, and
                                                         without any excuse for
                                                         incurring the risk of causing
                                                         death or such injury as is
                                                         mentioned above.

Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the `intention to cause death’ is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of Clause (2) is borne out by illustration (b) appended to Section 300.

Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In Clause (3) of Section 300, instead of the words `likely to cause death’ occurring in the corresponding Clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word `likely’ in Clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury…sufficient in the ordinary course of nature to cause death” means that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.

 For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala AIR 1966 SC 1874 is an apt illustration of this point.

 In Virsa Singh Vs. The State of Punjab, , Vivian Bose, J. speaking for the Court, explained the meaning and scope of Clause (3). It was observed that the prosecution must prove the following facts before it can bring a case u/s 300, “thirdly”. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

The ingredients of clause “Thirdly” of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows:

To put it shortly, the prosecution must prove the following facts before it can bring a case u/s 300, “thirdly”.

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

 The learned Judge explained the third ingredient in the following words (at page 468):

The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.

 These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh’s case (supra) for the applicability of clause “Thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted.

 Thus, according to the rule laid down in Virsa Singh’s case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons – being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

The position was illuminatingly highlighted by Supreme Court in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, , Abdul Waheed Khan @ Waheed and Others Vs. State of Andhra Pradesh, , Augustine Saldanha Vs. State of Karnataka, and Thangaiya Vs. State of Tamil Nadu, and Laxmannath v. State of Chhatisgarh SLP (Crl.) No. 6403 of 2006

Cases Referred

Abdul Waheed Khan @ Waheed and Others Vs. State of Andhra Pradesh, AIR 2002 SC 2961 : (2002) 6 JT 274 : (2002) 7 SCC 175 : (2002) 1 SCR 703 Supp : (2002) 2 UJ 1298
State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, AIR 1977 SC 45 : (1977) CriLJ 1 : (1976) 4 SCC 382 : (1976) SCC(Cri) 659 : (1977) 1 SCR 601
Virsa Singh Vs. The State of Punjab, AIR 1958 SC 465 : (1958) CriLJ 818 : (1958) 1 SCR 1495
Augustine Saldanha Vs. State of Karnataka, AIR 2003 SC 3843 : (2003) CriLJ 4458 : (2003) 1 JT 187 Supp : (2003) 7 SCALE 11 : (2003) 10 SCC 472 : (2003) 2 SCR 997 Supp : (2003) AIRSCW 4410 : (2003) 6 Supreme 677
Thangaiya Vs. State of Tamil Nadu, (2005) CriLJ 684 : (2004) 10 JT 421 : (2004) 10 SCALE 319 : (2005) 9 SCC 650 : (2005) AIRSCW 76 : (2005) 1 Supreme 867