Culpable Homicide (Clauses 100, 105)

Introduction: - Homicide is killing of a human being by a human being. It may be either lawful or unlawful. Death means the death of human being. It is not necessary that the person whose death has been caused must be the very person whom the accused intended to kill. The offence of culpable homicide is complete as soon as any person is killed by the accused whose mental state is of the kind where the accused causes death by doing an act either with the intention of causing death or with intention of causing such bodily injury which was likely to cause death, or with the knowledge that he was likely by such act to cause death. An offence cannot amount to murder unless it falls within the definition of culpable homicide. Murder includes a culpable homicide but a culpable homicide mayor may not amount to murder.

Section 100 BNS

Culpable Homicide:

Homicide has been derived from the Latin word 'homo' which means a man and 'caedere' which means to cut or kill. Thus, homicide refers to the killing of a human being. All cases of homicide are not culpable (punishable. Law distinguishes between lawful and unlawful homicide. Culpable homicide has been defined under Section 299 of the Indian Penal Code, 1860. It consists of both physical and mental elements. Homicide is one of the most grievous actions a person may perform because it is considered the highest order of physical harm inflicted on a human being. Every unlawful homicide is not necessarily a 'murder'. Law distinguishes 'culpable homicide' and 'murder'. From a reading of Section 100 of BNS, it is apparent that what it requires is that there should be an intention to cause death or a knowledge that death is likely to be the result. It cannot be discerned that homicidal intention or knowledge must be assumed by causing death itself. The fact that the death of a human being is caused is not enough to infer one of the mental states mentioned above.

Culpable homicide is of two kinds: one, culpable homicide amounting to murder (as provided under Section 100), and another, culpable homicide not amounting to murder. Culpable homicide is genus and murder is species. Murders are culpable homicide, but not vice versa. Thus, ingredients of the offence of 'culpable homicide' are:

• Causes death of a human being,
• Such death has been caused by doing an act:
  • With the intention of causing death; or
  • To cause such bodily injury as is likely to cause death; or
  • With the knowledge that he is likely by such an act to cause death.

Commits the offence of culpable homicide.

1. Whosoever causes death: Death means death of a human being. It does not include the death of an unborn child, such as a child in the mother's womb. But as per Explanation 3 of Section 100, it may amount to culpable homicide to cause death of a living child if any part of the child has been brought forth.
2. By doing an act: Death may be caused in a number of ways such as poisoning, starving, drowning, or communicating some shocking news etc. Acts here include illegal omission also. An omission is illegal if it constitutes an offence, if it is a breach of some directions of law, or if it is such a wrong as would be a good ground for civil action. Therefore, death caused by illegal omission will also amount to culpable homicide.
3. Intention to cause death: An act is said to be intentional when it is done with a desire that certain consequences will happen by a person's physical act or omission. It is not always possible to know what particular consequences a person desires. The degree of intention under culpable homicide not amounting to murder is comparatively less and not sufficient so as to cause death like in murder. Intention is necessary to commit an illegal act like murder or culpable homicide.

The Delhi High Court in the case of Satpal v. State (1998) observed that the intention to cause a death has to be gathered and inferred from the actions of the accused and the surrounding circumstances such as motive of the accused, utterances made, nature of attack, the time and place of attack, the nature and type of weapon used, the nature of injuries caused and so on.

These and other factors are to be taken into consideration to determine whether the accused had requisite intention or not. In this case, there was no material or evidence to show that the act of throwing the stone was such that it can be attributed that such act was likely to cause death of the victim. Hence, the court did not gather the intention of the accused to place it either for culpable homicide or murder.

In order to satisfy the phrase act done with the 'intention to cause death' three conditions have to be satisfied:

• Actus Reus: By examining the act of the accused we need to ensure that the death of a human being is caused.
  For example: If the accused fired a shot at the victim, however the shot did not hit him or only hit his arm resulting in grievous hurt and not death, then this condition cannot be said to be fulfilled.
   
• Mens Rea: By examining the conduct of the accused we will have to decipher whether the accused had the 'guilty intention' to cause death.
  For example: If the accused had stabbed the victim right in his heart, we can clearly state that he had the intention to cause death.
   
• Element of Causality: The connection between the act of the accused and the death must be established. In other words, the death of the person must be caused by the act of the accused. This causality is to be proved by the direct and circumstantial evidence in the trial.
  
  For example: The accused mixed poison in the food of the victim, however the victim died due to a heart attack before he even touched the food; there is no causality between the act of the accused and the death of the victim. Thus, this condition is not fulfilled. However, if the victim had eaten the food and died due to poisoning, the condition would be satisfied.
   
• With an Intention of Causing Such Bodily Injury, to Cause Death: Section 100 of Sanhita covers those situations where an offender may not patently intend to cause death; however, the intention may be to cause such bodily injury which was 'likely' to cause death. The word 'likely' conveys a sense of probable as distinguished from a mere possibility. This ingredient talks about such an intention of causing bodily injury to a person which is likely to result in death.
  
  For instance, in a fight between A and B, A gave two blows with a lathi on the head of B which is likely to cause his death, though death may not result in all probability. Here, bodily injury was the result of his intention only, but death was not the ultimate intention.
   
• With the Knowledge That He Is Likely by Such Act to Cause Death: Intention and knowledge are different things. The third phrase of Section 100 states that 'culpable homicide is an act done with the knowledge that such an act is likely to cause death'. This phrase deals with the element of knowledge. Here, "knowledge" refers to an individual's awareness or understanding of facts and circumstances. The accused must know that the act that he is committing is one that is likely to cause death.
  In the landmark case of Basdev vs. State of Pepsu (1956), the Honourable Supreme Court distinguished between intention and knowledge. In this case, the accused shot a 16-year-old boy during a marriage feast in a highly drunken condition. He claimed that he was so drunk that he did not have either the intention or the knowledge to kill the boy. The court stated that, "knowledge is an awareness of the consequences of the act. In many cases, intention and knowledge merge into each other and mean the same thing, more or less, and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they are different things."
   
• 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. Two aspects are important for invoking Explanation 1 of Section 100 of BNS:
  
  • First: The accused must know that the victim is suffering from some disorder, bodily injury, or disease.
  • Second: The accused caused the injury to the victim with the knowledge that the injury is likely to accelerate the death of the victim.
  It is in such a case that the accused shall be deemed to have caused the death. The accused must know that the condition of the deceased was such that his act was likely to cause death.
  When the injury inflicted was not such as would cause death, but death resulted from the rupture of the spleen (which was considerably enlarged), and the accused had no knowledge of his ailment, the accused was held to be guilty of grievous hurt.
   
• Explanation 2: Section 100 of BNS provides that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, even if by resorting to proper remedies and skilful treatment the death could have been prevented. In other words, when there is sufficient evidence to establish that bodily injury led to the death of the deceased, the accused cannot take a defence that had the deceased been given timely treatment, he would have survived.
   
• Explanation 3: The causing of the death of a child in the mother's womb is not homicide. However, 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 105 BNS

S. 105 of BNS provides punishment for two separate degrees of culpable homicide, depending upon the circumstances:

• If the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, then the punishment prescribed is life imprisonment, or imprisonment of minimum five years but which may extend to ten years, and a fine. The minimum prescribed punishment is a departure from the now-repealed IPC, 1860.
   
• If the act causing death has been done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death, it would be covered in Part II of S. 105 of BNS. The sentence prescribed in Part II of S. 105 is imprisonment of up to ten years and a fine.
   

Case Laws of Culpable Homicide

• Palani Goudan v. Emperor
  In this case, a husband struck a violent blow on his wife's head with a ploughshare, and she became unconscious. Believing she had died, he hanged her to conceal his crime. However, she died due to hanging, not the blow. The court held that the accused could not be convicted of murder or culpable homicide in IPC, but he was punished for assaulting his wife and attempting to create false evidence by hanging her. The court found no intention of causing death while giving the blow, and her death was due to hanging.
   
• Re Thavamani Case
  The facts of this case can be divided into two stages. In the first stage, the accused had the intention to cause death and hit the victim, believing she had died. However, she was merely unconscious. In the second stage, they threw her into a well to conceal evidence, and she died there. The court held the accused liable for murder, stating that the second stage was a continuation of the first stage. From the beginning, the accused had an intention to cause the victim's death, making them responsible for the murder.
   
• Dasrath Paswan v. State (1957)
  In this case, the accused had failed at an examination for three consecutive years. Disappointed by these continuous failures, he decided to end his life. He discussed his decision with his wife, who was a literate woman of 19 years of age. His wife said to kill her first and then kill himself. Accordingly, the accused killed his wife first and was arrested before he could kill himself. It was held that the wife had not given her consent under the fear of injury or misconception of fact. Hence, the accused would not be liable for murder.