The term culpable homicide and murder are the two most confusing terms in the
Indian Penal Code, 1860. There is a faint line difference between both of them.
Where section 299 of IPC defines Culpable homicide and section 300 deals with
concept of Murder.
These terms always snarls up the one who starts learning these concepts.
According to Sir James Stephen, the definition of culpable homicide and murder
are the weakest part of the code, as they are defined in forms closely
resembling each other and at times it becomes difficult to distinguish between
the two, as the causing of death'
is common in both
However, The basic difference between these two offences lies in the gravity
with which the offence has been perpetrated.
In common parlance Sec. 300 is a
sub-set of the sec 299 (Culpable homicide is a genus and murder its
specie), Every unnatural human death is homicide but when it is coupled with
intention and not only knowledge (culpable homicide not amounting to murder)
then it is a murder.
The topic namely distinction of Murder
and Culpable homicide not amounting to
is very vital. Referring to section 299 and 300 of IPC, Whitely
Stocks, Previously Law member of the council of the Governor-General of India,
in his introduction to the Indian Penal Code in the Anglo Indian Codes, Volume
1, published in 1887, Page 41 comments as follows:
The definitions just
referred to are the weakest part of the code, and the law on the subject should
be recast so as to express clearly what is or sought to be the intention of the
But, unfortunately, such a legislative exercise did not take
place. It has been left to the courts to bring out and expound the difference
between culpable homicide and murder, as defined in the above said sections.
In the scheme of the IPC culpable homicide is genus and murder
its specie. All murder
is culpable homicide
but not vice-versa. For the purpose of fixing
punishment, proportionate to the gravity of the generic offence, the IPC
practically recognizes three degrees of culpable homicide.
- Culpable homicide of First degree: Gravest form of Culpable
homicide. Defined u/s 300 as Murder.
- Culpable homicide of second degree: Punishable u/s 304 Part 1
- Culpable homicide of Third degree: lowest type of Culpable
homicide which is punishable u/s 304 Part 2.
The academic distinction between 'murder' and 'culpable homicide not amounting
to murder' has vexed the courts for more than a century. The safest way of
approach to the interpretation and application of these provisions seems to be
to keep in focus the key words used in the various clauses of sections 299 and
In order to deal with such a vital topic, it is proper to deal with the
following three heads namely:
- Exceptions as enumerated in Section 300 IPC.
- Distinction between murder' and 'Culpable homicide not amounting to murder.
- Distinction between section 304 part 1 and part 2.
A. Exceptions as enumerated in Section 300 IPC:
There are certain exceptional situations under which, if murder is committed, it
is reduced to culpable homicide not amounting to murder punishable under section
304, IPC and not under section 302, IPC. IPC recognizes such five exceptions
which are as follow:
- Grave and Sudden Provocation
- Private Defense
- Exercise of Legal Power
- Without Premeditation to a sudden fight and
- Consensual Homicide/ Suicide Pacts.
Exception 1- Grave and Sudden Provocation
When the person losing his self-control by the sudden and grave provocation,
causes the death of the person who gave the provocation or any other person due
to a mistake or an accident then he will be liable for the culpable not
amounting to murder.
According to Goddard C.J in the case of R v. Duffy
Provocation is some act, or series of acts done by the dead man to the accused
which would cause in any reasonable person ….. a sudden and temporary loss of
self-control, making him for the moment not master of his mind….
However, it has to be noted that this provocation should not be first initiated
at the instance of the accused.
Essentials of this exception:
- The accused should not have any ill will and premeditation
- The accused had been provoked by the deceased.
- Such provocation must be grave and sudden.
- Due to it, the accused loses his power of self-control.
- That the offence of murder was committed by the accused before he could
It is essential to prove that provocation was sudden
as well as grave
Statutory explanation of the provision under IPC provides that:
Whether the provocation was grave and sudden enough to prevent the offence from
amounting to murder is a question of fact.
However courts generally apply the principle of
reasonableness in order to determine if such provocation was grave and sudden
enough to result in the ground of exception. Hence Supreme Court
gives Reasonable man's test in the landmark case of K.M. Nanavati v. State of
1962 SCR Supl. (1) 567:
- The test of grave and sudden provocation is whether a reasonable man, belonging
to the same class of society as the accused, placed in the situation in
which the accused was placed would be so provoked as to lose his self
- Gestures and words under certain situations cause sudden and grave provocation
to an accused so as to bring his action under this exception.
- The mental background created by the previous act of the victim may be taken
into consideration in ascertaining whether the subsequent act caused grave and
sudden provocation for committing the offence.
- The fatal blow on the person giving a sudden and grave provocation should be
immediately when he was provoked but not after the time which was sufficient for
him to calm down or to cool down.
Sustained Provocation (A court formulated exception under Exception 1)
From the analysis so far, the concerns with the traditional definition of
provocation are discernible. Acknowledging the problems with the grave and
criteria, Madras High Court in the case of Suyambukani
In re 1989 LW (cr)
86 have introduced the defense of sustained provocation
within the wider ambit
Though the exceptions to Section 300 of the IPC seem restrictive in nature,
courts have been broadening the exceptions ejusdem generis
existing exceptions and have brought in sustained provocation
1 to Section 300 of the IPC.
After noting that either pre-meditation or ill will
is absent in all exceptions, and that an act or omission would not be an
exception if both are present, the courts came to the conclusion that sustained
provocation can be brought within Exception 1 to Section 300 of the IPC. Thus,
it was held that a series of acts over a period of time could also cause grave
and sudden provocation.
Sustained Provocation and Battered Women in India
The Madras High Court recognized the Nallathangal syndrome
as the Indian
equivalent of the Battered Woman Syndrome. Recognising the Nallathangal
ballad as Nallathangal syndrome
, the Madras High Court reduced the
sentences of abused women who were compelled to attempt suicide along with their
v. State of T.N.
, unable to bear the cruelty of her husband, she jumped into a
well along with her children. The children died, whereas she survived. She was
charged for murder and attempt to commit suicide. The trial court held her
guilty for murder and in appeal, the Madras High Court ruled that her act would
fall within the sustained provocation exception taking into consideration the
compelling circumstances in which she was pushed to commit it .
Following this judgement the Guwahati High Court set aside murder charges in the
case of Manju Lakra v. State of Assam
, and instead convicted Manju Lakra for
culpable homicide not amounting to murder.
Further, the ground of provocation is itself subject to the limitations set by
further statutory explanation to the section, according to which:
- The provocation must not cause intentionally from the act of the offender as an
excuse to kill such person or any other person.
- The provocation is not caused by anything which is done in accordance with the
law, or by a public servant in the lawful exercise of the powers of any public
servant. Example: A is lawfully arrested by C, a constable. A was provoked
because he was arrested so he kills C. Here A will be liable for murder as C was
exercising his public duty.
- The offender must not have been provoked by the act of the person who is
exercising his right to private self-defense.
Exception 2 - Private defense
This exception came into play in those cases wherein a person exceeds the right
of private defense. If the excess is intentional, the offence is Murder, if
unintentional, it's culpable homicide not amounting to murder.
this exception is as follow:
- The act must be done in exercise of right of private defense of person or
- The act must be done in good faith
- The person doing the act must have exceeded his right given to him by law and
have thereby caused death
- The act must have been done without premeditation and without any intention of
causing more harm than was necessary in private defense.
Hence, accused get partial defense from criminal liability, when exercising his
right to self-defense in good faith, unfortunately crosses the legal limits
imposed by law of self-defense. Thus, his offence of murder becomes culpable
homicide under this ground of exception.
In case of Lachhmi Koeri v. State of Bihar,
in which a hwaldar in civil
uniform went to arrest appellant. The Hawaldar confronted appellant in which
appellant's shirt was torn . Then appellant took out his chhura and gave a blow
on Hawaldar's arm . Later appellant gave several blows to Hawaldar and fled. The
shortly afterwards. Supreme Court held, that the appellant initially had the
right of private defence, but subsequently intended to cause more harm than was
necessary for his defence. Therefore appellant's case did not comes under this
exception and was guilty under section 302 IPC for murder.
Exception 3 - Exercise of Legal Power
This exception has been provided to protect a public servant or a person aiding
a public servant, if either of them exceeds the power given for the advancement
of public justice . This exception clause will not apply, if the act is illegal
or against public policy and not authorized by law, or the person glaringly
exceeds the power given to him by law.
The question whether the public servant did or did not believe in the legality
of his power is a question of fact to be decided upon the facts and
circumstances of each cases.
In Dakhi Singh v. State
, where a suspected thief who was arrested by a police
officer, while trying to escape by jumping down from the train from its off-side
was shot dead by the police officer [finding himself not in a position to
apprehend him], the court held that the accused as guilty of Culpable Homicide
not amounting to murder, as it was a case where the officer though exceeded his
legal powers did not have any ill will and committed the offence for the
advancement of public justice.
Exception 4 - Without Premeditation to a Sudden Fight
Sudden fight means when the fight was unexpected or premeditated. There was no
intention of either of the parties to kill or cause the death of any person. It
is not an important fact that which party has first assaulted or who have
offered a provocation.
The Apex court in Surendar Kumar v. Union Territory, Chandigarh
(1989) 2 SCC
217 summarized the principles as follows:
- it was a sudden fight
- there was no premeditation
- the act was done in a heat of passion and
- the assailant had not taken any undue advantage or acted in a cruel manner.
In Amirthalinga Nadar v. State of Tamil Nadu
(1976) 2 SCC 195, Justice P.N.Bagwati,
held that In a case of Sudden fight, where the fatal blow was given as part of
the sudden fight that arouse out of sudden quarrel between the appellants part
and deceased's party, there is no scope for premeditation. The appellant neither
took undue advantage nor acted in cruel and unusual manner. Conviction altered
from section 302 to 304 Part 1.
Exception 4 v. Exception 1 of section 300 IPC
The Apex court in the case of Smt.Sandhya Jadhav v. State of
, clarified this by holding:
The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The
said Exception deals with a case of prosecution not covered by the First
Exception, after which its place would have been more appropriate. The Exception
is founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total deprivation
of self-control, in case of Exception 4, there is only that heat of passion
which clouds men's sober reasons and urges them to deeds which they would not
There is provocation in Exception 4 as in Exception 1 but the injury done is
not the direct consequence of that provocation.
Exception 5 - Consensual Homicide
The last exception of section 300, IPC deals with causing death by consent which
is commonly known as 'Euthanasia' (mercy killing). According to this Exception,
culpable homicide is not murder when the person whose death is caused being
above the age of 18 years, suffers death or takes the risk of death with his own
The points to be proved are:
- The death was caused with the consent of the deceased
- The deceased was then above 18 years of age
- That such consent was free and voluntary and not given through fear
or misconception of facts.
Supreme Court in the case of Dasrath Paswan v. State of Bihar,
held that the
deceased was above the age of 18 years and she had suffered the death with her
own consent. The deceased did not give the consent under the fear of injury, nor
under a misconception of fact, but voluntarily, and so the case will fall under
Exception 5 of section 300, IPC. Such cases in common law fall under the suicide pacts
, and it shall be manslaughter and not murder.
B. Culpable Homicide not Amounting to Murder v. Murder:
homicide is a genus and murder its specie. All murders are culpable homicide,
but all culpable homicides are not murder.
According to section 299 of
IPC culpable homicide means the unlawful killing of a human being, and this
killing becomes murder when the act firstly fulfills all the conditions of
section 299 and then section 300.
As per section 299 of IPC which defines culpable homicide says, Whoever causes
death by doing an act
Section 300 which defines Murder says, Whoever causes death by doing the
- Intention of causing death.
- Intentionally causing bodily injury which is likely to cause death.
- Doing an act with knowledge that it is likely to cause death.
- Intention of causing death.
- Causing such bodily injury as the offender knows it is likely to cause
death of a person.
- Intentionally causing bodily injury which is sufficient to cause death.
- Doing an act with knowledge that it is so imminently dangerous and in
all probability causes
If we carefully examine the bare act language of both the section 299 and 300 of
IPC, there is thin line difference between both the sections. Section 299
includes term 'an act' which shows uncertainty, that means 'doing an act by
which probability of death is not certain. On the other hand section 300
includes the act
, which shows certainty, that means where the probability of
death is certain by that act.
taking illustration (a) of section
299 - A lays sticks and turf over a pit, with the intention of thereby causing
death, or with the knowledge that death is likely to be thereby caused. Z
believing the ground to be firm, treads on it, falls in and is killed. A has
committed the offence of culpable homicide.
Now suppose A put some poisonous snakes in the same pit, then here this act of A
comes under the scope of section 300 as Murder.
The true difference between culpable homicide and murder is only the difference
in degrees of intention and knowledge. A greater the degree of intention and
knowledge, the case would fall under murder and a lesser degree would result
culpable homicide. It is therefore difficult to arrive at any strait jacket
differences between culpable homicide and murder. Supreme Court from time to
time through different cases give their views on this topic. As in the case of Thangaiah
v. state of Tamil Nadu, Supreme court held that following factors should be
taken into consideration for determining death is culpable homicide or
murder weapon used, place of injury, ferocity of attack, state of mind of the
Perhaps the distinction between culpable homicide and murder could be well
appreciated by the illustration given by Justice Melville in the landmark case
of Reg v. Govinda
, and repeatedly quoted with approval by the Supreme Court
(State of Andhra Pradesh v Rayavarappu Punnayya
AIR 1977 SC 45 ) may be outlined
On comparison between section 299 and 300 IPC, the points of distinction are as
|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:
- With the intention of causing death;
- With the intention of causing such bodily injury as is likely to
- With the intention of causing death;
- 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;
- 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 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 and committed without any
excuse for incurring the risk or causing death or such injury as
Intention to Kill
Clause (a) of s 299 and cl (1) of s 300 are identical, that shows where there is
an intention to kill, the offence is always murder . Example - A shoots Z with
the intention of killing him. Z dies in the consequence. A commits murder (
illustration (a) section 300 ).
Note - If an intentional act which fulfills the condition of section 299, but it
goes to the second part of section 300(exceptions), then that act does not
amount to murder.
Intention to Cause Bodily Injury Likely to Cause Death
Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300.
Both require intention to cause bodily injury. As far as s 299(b) is concerned,
it merely stipulates that if death is caused by an act, with the intention of
causing such bodily injury as is likely to cause death it amounts to culpable
Whereas clause (2) of section 200 clarifies, The offence is murder, if
the offender knows that the particular person injured is likely, either
from peculiarity of constitution or suffering from any disease or immature
age could be killed by an injury which would not ordinarily cause death.
The word likely' used in sec. 299(b) means a mere probability or possibility(a
fifty-fifty chance) that the injury could result in death. But on other hand
word 'likely' used in clause (2) of sec. 300 denotes , to an extent, certainty
Illustration (b) to s 300 explains this aspect, where A knowingly with
intention of causing death strikes Z, who is labouring under such a disease that
a blow is likely to cause his death, and Z dies in consequence of the blow.
guilty of murder, although the blow might not have been sufficient in the
ordinary course of nature to cause death of a person in a sound state of
health. The distinction in the meaning attributed to the word likely in
sections 299(b) and 300 (2) is only in the 'degree of probability'.
Bodily Injury + Intention + Knowledge = Murder
As far as cl (3) of sec. 300 is concerned, the intention of causing bodily
injury is accompanied by a further objective of certainty that such bodily
injury is sufficient in the ordinary course of nature to cause death.
The sufficiency is the highest probability of death in the ordinary course of
nature and when this exists and death ensues and the causing of such injury is
intended, the offence is murder. The degree of the probability of death is
higher in this particular clause than sec. 299 (b).
inflicted by stick on head may be likely to cause death amounting to culpable
homicide, on the other hand, a wound from a sword in heart will be sufficient in
ordinary course of nature to cause death amounting to murder.
Bodily injury that is sufficient in the ordinary course of nature to cause death
+ Intention = Murder
Knowledge of Death
Both cl (c) of s 299 and cl (4) of s 300 apply to cases where the accused has no
intention to cause death or bodily injury, but there is knowledge that the act
is essentially a risky one . In such a case whether the act amounts to murder or
culpable homicide depends upon the degree of risk to human life. If death is
a likely result, it is culpable homicide [illustration (b) to sec. 299] if it
is the most probable result, it is murder [illustration (d) to sec. 300].
Death caused due to furious driving will be culpable homicide whereas
death caused due to firing at a mark near a public road will be murder under
section 300 IPC.
Supreme Court in Willie Staney v. State of Madhya Pradesh
contemplates the doing of an imminently dangerous act in general and not the
doing of any bodily harm to any particular individual. It is designed to provide
for rarest of rare cases wherein the accused puts in jeopardy lives of many
persons as shown in illustration(d) of section 300 IPC.
C. Distinction between section 304 part 1 and part 2.
For the purpose of awarding sentence sec. 304, IPC divides culpable homicide not
amounting to murder in two parts on the basis of intensity and gravity.
Part 1 - (a) which is considered to be more serious and grave in nature,
liability has to be proved on the basis of intention of the person while
committing the offence.
- It covers those cases which fall within one of the exceptions 1 to 5 of
section 300. IPC and cases which fall within second clause of sec. 299 , IPC.
- Punishment - Imprisonment for life, or imprisonment for either
description for a term which may extend to ten years and fine.
Part 2 - (a) which is considered to be less serious in nature, the liability
does not depend upon the intention rather knowledge is the basis for punishment.
(b) It applies when the act is done with the knowledge that is likely to cause
death but no intention to cause death ( third clause of sec.299, IPC). However,
if an offence is committed with the knowledge 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 such act is done without any excuse, then the offence will
be taken out of the purview of sec. 304, Pt II, and would be covered under sec.
302, as the offence would amount to murder under sec. 300, cl (4). Thus, the
knowledge referred to in Pt II of s 304 is of a lesser degree than the special
knowledge referred to in cl (4) of sec. 300.
(c) Punishment - Imprisonment extending up to 10 years or fine.
From the above conspectus it emerges that whenever a court is confronted with
the question of whether a killing is murder or culpable homicide, it will be
convenient to approach the problem in 3 stages:
- In first stage, proof of causal connection between the act and death is
- In second stage, it is determined whether the act of the accused amounts to
culpable homicide'. If the answer is yes', then the third stage is reached.
- In third stage, it is determined whether the act is murder' e.g. case within
the ambit of four clauses of Sec. 300. If the answer is negative, then the
offence would be culpable homicide not amounting to murder' punishable under
the first or second part of Sec. 304, depending on whether the second or third
clause of Sec. 299 is applicable.
If the answer is positive but the case comes within any of the exceptions
enumerated in Sec. 300, the offence would still be culpable homicide not
amounting to murder' under the first part of Sec. 304 (State of A.P. v R.
, AIR 1977 SC 45).