Murder (Clauses 101, 103)

• [Murder 101 BNS]
• S101 of Sanhita deals with the cases where culpable homicide is murder. A case of culpable homicide is murder if it:
• Falls under any 4 clauses of section 101.
• Or if it does not fall under any of the five exceptions provided in S101 of BNS.
• When Culpable Homicide Amounts to Murder: Culpable Homicide will amount to murder when, firstly, the acts of the accused come within the definition of culpable homicide and then, they come within any of the 4 clauses as enumerated in S. 101. To constitute the offence of murder, the act should fall under one of the four clauses in S. 101 BNS.
• The act is done with the intention of causing death, or
• The act is done with the intention of causing such bodily injury as the offender knows to be likely to cause death, or
• The act is done with the intention to cause bodily injury, and the bodily injury intended is sufficient in the ordinary course of nature to cause death, or
• If the person doing 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.
• Clause 1 [Act is Done with the Intention of Causing Death]: As explained earlier in Section 100, the act includes illegal omission also. Death may, therefore, be caused by illegal omission as well. Thus, where parents neglect to provide proper sustenance to their children although repeatedly warned of the consequences, it will be murder.

R. Venkalu
the accused set fire to the cottage in which D was sleeping, locking the door of the cottage from outside so that D's servants who were sleeping outside might not come for help. He also took active steps to prevent the villagers from rendering any help to the deceased. Here the accused had an intention to kill D.

Where a man stabs another in a vital part, he must be held to have intended to cause death, and if death results either directly from the wound or in consequence of the wound creating conditions which result in a fatal disease, the person inflicting the wound is guilty of murder.

State of Karnataka v. Gangadharaiah,
respondent used to frequently come home drunk and beat and ill-treat the deceased. On the fateful day in the evening of April 17, 1985 the respondent started quarrelling with his wife the deceased called her neighbour, Kala and asked him to fetch her mother Norsamma (PW-6) who lived nearby. Before they could reach respondent gave a knife blow on the neck of his wife (deceased) which resulted in a severe bleeding injury. On being so assaulted she started running away but fell down in front of a house.

When Norsamma and Kala reached they saw Papachhai lying dead. Presence of accused at the time of incident was proved. Witnesses saw accused running away from his house after death of his wife and could be apprehended only after three weeks.

There was no material showing that eye-witness was either inimical or interested witness. It was held that in the light of the above facts and evidence inference could be drawn that the accused alone and nobody else have committed murder of deceased. Therefore, accused was held liable for the offence of murder.

Namdeo v. State of Maharashtra
The appellant Namdeo and the deceased Ninaji. were residing in one and the same village and relations between them were strained. The reason was that the accused suspected that some of his animals died due to witch-craft played by the deceased. On October 25, 2000, the deceased, Ninaji was sleeping in the back-yard of his house. At about 2.00 to 3.00 a.m., Sopan son of deceased Ninaji heard some shouts of his father.

On hearing the cry Sopan and his wife rushed towards the back of his house where his father was sleeping. Sopan saw that the accused was giving axe blows on the head of his father Ninaji. On seeing Sopan accused fled away from the place taking axe in his hand. Sopan chased him but could not catch him. The medical opinion was that the injury was sufficient in the ordinary course of nature to cause-death of the victim.

The Supreme Court held that considering the nature of weapon (axe) used by the accused and the vital part of the body (head) of the deceased chosen by him for inflicting injuries, it was clear that the intention of the accused was to cause death of the deceased. Therefore, in the circumstances of the case accused held liable for murder.

Clause 2 [Act Is Done With The Intention Of Causing Such Bodily Injury Likely To Cause Death]:
In case of an offence falling under this clause the mental attitude of the accused is two-fold first there is intention to cause bodily harm and secondly there is the subjective knowledge that death will be the likely consequence of the intended injury. Here the offender knows that bodily injury intended to be inflicted is likely to cause death of the person it applies to those special cases where the person injured is in such a condition or state of health that his death would be likely to be caused by an injury which would not ordinary cause the death of person.

A case would fall under this clause if the offender, having knowledge that a person was suffering from some disease or was of unsound health, causes hurt to him which may not have been sufficient in the ordinary course of nature to cause death had the deceased been of sound health, but which with the special knowledge of the diseased condition of the deceased, his assailant must have known to be likely to cause his death.

Karu Marik v. State of Bihar
The accused gave blow with churra (sharp cutting weapon) on chest of deceased. On deceased trying to run, accused caught hold of deceased's hair and threw her on ground and inflicted two more blows on abdomen and back. Injuries inflicted were grievous in nature and dangerous to life which resulted in causing death of deceased. It was held that from injuries caused it is clear that intention of accused was at least to cause such bodily injury as was likely to cause death. Therefore conviction of accused for murder was proper.

Bavisetti Kameshwara Rao v. State of A.P
accused was a motor mechanic. Some verbal altercation took place between accused and deceased. Thereupon accused inflicted injury on abdomen of deceased with screw driver. Injury was 12 cms. deep damaging liver and spleen. Death was caused almost instantaneously. It was held that accused could be said to have intended to cause injury sufficient to cause death. Use of screw driver a common tool of mechanic cannot be said to be innocuous.

The plea of accused that incident was sudden and without premeditation is not tenable and accused was held liable to be convicted for murder. It was also pointed out that solitary injury by itself was not sufficient to decide the nature of offence but it would depend on other attendant circumstances.

State of U.P. v. Ramvir Singh & Others
the accused was alleged to have murdered the deceased while he was returning with his wife and child. The dead body was not found at the spot, but was recovered after a month from a pond: the wife of the accused was the eye-witness in this case but she was not living with her husband and their relations were also restrained. The evidence of child also appeared to be tutored. Under these circumstances, the accused was liable to be acquitted of the charge of causing murder under Section 300, IPC there being no reliable evidence against him.

CLAUSE 3 [the bodily injury is sufficient in the ordinary course of nature to cause death]:
Where a man intentionally inflicts bodily injury sufficient in the ordinary course of nature to cause death, he would be liable for murder. If the probability of death is very great then the requirements of the third clause are satisfied and the fact that a particular individual may because of specially skilled treatment or being in possession of a particularly strong constitution have survived an injury, which would prove fatal to the majority of persons subjected to it, is not enough to prove that such an injury is not "sufficient in the ordinary course of nature" to cause death.

Where a number of injuries are inflicted it is not necessary that each one of them should be sufficient to cause death, it would be sufficient if cumulatively such injuries are sufficient in the ordinary course of nature to cause death. For the application of clause 3 two things need to be proved: one that the injury was intentionally inflicted and secondly, that the injury inflicted was sufficient in the ordinary course of nature to cause death of any person.

That is, under this clause the emphasis is on the sufficiency of the injury was sufficient in the ordinary course of nature to cause death or not depends upon the nature of the weapon used or part of body on which the injury is caused.

To bring a case under clause (c) of S. 101 of BNS:

1. It must be established that a bodily injury is present;
2. The nature of the injury must be proved;
3. 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;
4. Upon proof of the above three elements, it must be proved that the injury of the type made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
    

State of U.P. v. Virendra Prasad
It was held that under clause third of section 300 of I.P.C., culpable homicide is murder if both the following conditions are satisfied:

• 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;
• 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, even if the intention of the 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.

Magar v. State of M.P
The brother of the deceased lodged F.I.R. against the accused and other four co-accused persons that on the evening of November 27, 1990, they entered the hut of the deceased and pierced spear in his chest and stoned him to death allegedly because the deceased had reported against the accused to the Forest Ranger that he had illegally cut the Mahua tree. The eye-witnesses had supported the dangerous assault by the accused on the deceased. The accused were, therefore, held guilty of offence under Section 300/302/149, IPC and sentenced to imprisonment for life with fine of Rs. 500/-

Dhupa Chamar v. State of Bihar
The accused intentionally pierced spear in the chest of the deceased which ruptured the blood vessels cutting the aorta and artery. The Supreme Court held that since the injury was sufficient to cause death in ordinary course of nature, the conviction of the accused under Section 300(3), IPC was proper and needed no interference.

Budhilal v. State of Uttarakhand
It was held that the distinction between Section 299 clause (b) and Section 300, Clause (3) lies in that in case of former bodily injury is likely to cause death but in case of latter a bodily injury is 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. 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.
 

• CLAUSE 4 KNOWLEDGE OF imminently dangerous ACT:
  When such an act is done with the knowledge that death might be the probable result and without any excuse for incurring the risk of causing death or injury as is likely to cause death, the offence is murder. This clause applies to cases of dangerous action without an intention to cause specific bodily injury to any person, e.g., furious driving or firing at a target near the public road.
  
  However, the act done must be accompanied with the knowledge that the act was so imminently dangerous that it must in all probability cause (i) death, or (ii) such bodily injury as is likely to cause death. Further, the accused must have committed the act without any excuse for incurring the risk of (a) causing death; or (b) such injury as is likely to cause death. Thus, a man who strikes another in the throat with a knife, must be taken to know that he is doing an act imminently dangerous to the life of the person at whom he strikes and that a probable result of his act will be to cause that person's death.

Sahaj Ram v. State of Haryana
A constable fired five shots with his rifle at another constable, as a result of which he died on the spot. It was held that having regard to the fact that the accused had used a dangerous weapon like a rifle (being a police constable he must have known that it was a dangerous weapon) and having regard to the fact that he had fired five shots, one of which was fired after the victim was hit by a bullet and collapsed on the ground, it is impossible to accept the contention that the appellant had not done the act with the intention of causing his death. It is naive to argue that intention was merely to frighten him or to cause him grievous hurt. The case falls under clause 4 to section 300 I.P. Code.

R. v. Govinda
In this case the accused had 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 and she died in consequence, either on the spot, or very shortly afterwards, there being no intention to cause death and the bodily injury not being sufficient in the ordinary course of nature to cause death. The accused was liable for culpable homicide not amounting to murder.

When culpable homicide does not amount to murder:

• When the case falls under one or the other of the clauses of S. 101 BNS, but it is covered by one of five exceptions to that section;
• When the injury caused is not of the higher degree of likelihood which is covered by the expression "sufficient in the ordinary course of nature to cause death" but is of a lower degree of likelihood which is generally spoken of as an injury "likely to cause death" and the case does not fall under Clause (2) of S. 101;
• When the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

• Exceptions:
  • Exception 1: Provocation
  • Exception 2: Exceeding right of private defence
  • Exception 3: Public servant exceeding his power
  • Exception 4: Death caused in sudden fight
  • Exception 5: Death caused of person consenting to it.
• Exception 1 - Provocation (grave and sudden provocation):
  • If the offender is deprived of the power of self-control due to sudden and grave provocation, and his act causes the death of the person who provoked or death of any other person by accident or mistake.
  • This exception is subject to a certain proviso:
    • That the provocation is not sought or is voluntarily provoked by the offender to be used as an excuse for killing or causing any harm to the person.
    • That the provocation is not given by anything that is done in obedience to the law, or by a public servant while exercising the powers lawfully of a public servant.
    • That the provocation is not done while doing any lawful exercise of the right of private defence.
• Illustration:
  • A is given grave and sudden provocation by C. A fires at C as a result of this provocation. A didn't intend or have knowledge that his act is likely to kill C, who was out of A's sight. A kills C. A is not liable to murder but is liable to culpable homicide.
     

K.M. Nanavati v. State of Maharashtra, 1961:

• In this case, the Supreme Court had extensively explained the law relating to provocation in India. It was observed by the Court:
• The test of "sudden and grave provocation" is whether a reasonable man, who belongs to the same society as the accused, is placed in the situation in which the accused was placed, would have been so provoked as to lose his self-control.
• Under certain circumstances, words and gestures may also lead to sudden and grave provocation to an accused, so as to bring his act under an exception.
• The mental background of the victim can be taken into consideration, taking account of his previous act to ascertain whether the subsequent act leads to sudden and grave provocation for committing the offence.

The fatal blow clearly should trace the influence of passion that arises from the sudden and grave provocation. It should not be after the provocation has been cooled down due to lapse of time, otherwise, it will give room and scope to the accused for altering the evidence.

Muthu v. state of Tamil Nadu, 2007
In this case, it was held by the Supreme Court that constant harassment might deprive the power of self-control, amounting to sudden and grave provocation.

EX 2 Exceeding right of private defence: - Where the act is committed to defend them from further harm. If the accused intentionally exceeds his right to private defence, then he is liable to murder. If it is unintentional, then the accused will be liable to culpable homicide not amounting to murder. following conditions must be fulfilled :

Exception 2: Exceeding Right of Private Defence

1. Act must be done in exercise of right of private defence of person or property.
2. Act must have been done in good faith.
3. The person doing the act must have exceeded his right given to him by law and have thereby caused death.
4. Act must have been done without premeditation and without any intention of causing more harm than was necessary in self-defence.

The law contained in this exception is based on the rule that in a case in which the law itself empowers an individual to inflict any harm short of death, it ought hardly to visit him with the highest punishment if he inflicts death. Illustration

• X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn out by Y, X persists the assault. Y believes that he had no way to prevent himself from being flogged by X, Y fires at X. X is liable to culpable homicide not amounting to murder.

Nathan v. State of Madras, 1972
In this case, the landlord was trying forcefully to evict the accused. The accused killed the landlord while exercising his right to private defence. There was no fear of death to the accused as the deceased was not holding any deadly weapon that could have caused grievous hurt or death of the accused. The deceased had no intention to kill the accused, thus, the accused exceeded his right of private defence. The accused was liable to culpable homicide not amounting to murder.

EX 3: Public Servant Exceeding His Power

In order that this exception may apply the following conditions must be fulfilled:

• Offence committed by a public servant, or by some other person acting in the aid of such public servant, in the advancement of public justice.
• Public servant or such other person exceeds the powers given to him by law.
• Death is caused by doing an act which he in good faith believes to be lawful and necessary for the discharge of his duty as such public servant.
• The act must have been done without any ill-will towards the person whose death is caused.

Illustration
If the police officer goes to arrest a person, the person tries to run away and during that incident, if the police officer shoots the person, the police officer will not be guilty of murder.
  Dakhi Singh v. State, 1955
In this case, the appellant was the constable of Railway Protection Force, while he was on duty he killed a fireman unintentionally, while he was firing bullet shots to catch the thief. The constable was entitled to benefit under this section's benefit.
 

EX 4: Death Caused in Sudden Fight

The sudden fight is when the fight is unexpected or unpremeditated. Both the parties don't have any intention to kill or cause the death of another. The fact that which party had assaulted or offered a provocation first is not important. For the application of this exception the following conditions must be fulfilled:

1. Death must be caused in a sudden fight.
2. Sudden fight must be without any premeditation.
3. It must occur in the heat of passion upon a sudden quarrel.
4. The offender must not have taken undue advantage or must not have acted in a cruel or unusual manner.
5. It is immaterial as to which party offered the provocation or committed the first assault.
6. The fight must have been with the person killed.

Radhey Shyam and Anr. v. State of Uttar Pradesh, 2018
In this case, the appellant was extremely angry when he got to know that his calf had come to the deceased's place. The appellant started abusing the deceased, when it was tried to stop him, the appellant fired at the deceased. The deceased was unarmed at that time, thus the appellant had an intention to kill the deceased, hence, he was held liable to murder.

EX 5: Death Caused of Person Consenting to It

If the act is committed with the consent of the victim. The consent should be unconditional, unequivocal and without any sort of reservation. Illustrations

• A instigated F who was under 18 years of age, to commit suicide. F was incapable of giving consent to his own death. Therefore, A is guilty of murder.
• X killed his stepfather Y, who was old and infirm. X killed Y with his consent. This was punishable under Section 304.

Dasrath Paswan v. State (1957)
In this case, the accused has failed at an examination for three consecutive years. By disappointing 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.

S. 103: Punishment of Murder

Section 103 of BNS stipulates penalties for murder, ranging from the death sentence to life imprisonment, along with the possibility of fines. Despite its apparent simplicity, BNS 103 addresses highly complex scenarios, including murders committed by minors and the relationship between murder and culpable homicide.

103(1) Punishment for Murder

S. 103 of BNS provides the punishment for murder. It stipulates a punishment:

1. Capital sentence, i.e., death sentence; or
2. Imprisonment for life; and
3. A mandatory fine.

Once the accused is found by the court to be guilty of the offence of murder, then it has to sentence the convict to either death or imprisonment for life. The court has no power to pass a lesser sentence.
 

Nature and Gravity of Crime to Be Considered

It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.

The punishment to be awarded for a crime must not be irrelevant. It should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence, and it should respond to the society's cry for justice against the criminal. If for an extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, the most deterrent punishment is not given, then the case for deterrent punishment will lose its relevance.

103(2) Mob Lynching

S. 103(2) of the Sanhita provides a new offence, which can be described as "Murder by Mob Lynching." It lays down that:

• When a group of five or more persons acting in concert
• Commits murder on the grounds of:
  1. Race; or
  2. Caste; or
  3. Community; or
  4. Sex; or
  5. Place of birth; or
  6. Language, personal belief, or any other similar ground,
• Then, each member of such group shall be punished with death or with life imprisonment, and a fine.