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(..14..)
MURDER
(Chapter VI)
(Ss.101, 103, 104, 109)
QUESTION BANK
Q.1. Write a detailed notes on the offence of murder under BNS.
SYNOPSIS
I]
MURDER:-
A)
B)
Definition of Murder (S. 101): -
When Culpable Homicide is not Murder (S. 101, exceptions 1 to 5):-
These Circumstances are:-
1)
2)
3)
4)
5)
Grave and Sudden Provocation (Exception 1):-
Exceeding the Right of Private Defence:-
Exceeding Lawful Exercise of Power:-
Sudden Fight:-
Death Caused by Victim’s Consent:-
C) Punishment for Murder (S. 103)-
D) Punishment for murder by life-convict (S. 104)-
C)
Difference between Murder (S. 300) and Culpable Homicide (S. 299):-
i.
With the intention of causing death:-
The act is likely to cause death:-
ii.
iii.
Intention of causing the bodily injury:-
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II] Other offences, even though the death is caused, are not murder or culpable homicide-
1. Causing death by negligence (S. 106)-
a. Causing death by rash and negligent act (S. 106(1)):
b. Hit and run cases (S. 106(2)):
2. Abetment of sucide of child or person of unsound mind (S. 107)-
a. Abetment of Suicide of a Child, Person with Mental Illness (S. 107):-
b. Abetment of Suicide (General) (Section 108))-
c. Attempt to murder (S. 109)-
i. If no hurt is caused:
ii. If hurt is caused:
iii. Attempt by a Life Convict:
I]
MURDER:-
The Bharatiya Nyaya Sanhita (BNS), 2023 defines and addresses the offence of
murder in Section 101, which is largely based on the former Section 300 of the Indian
Penal Code (IPC). Murder is a specific and aggravated form of culpable homicide. The
core principle is that for an act to be considered murder, it must first be a "culpable
homicide." The BNS distinguishes murder from other forms of culpable homicide based
on the mental element (mens rea) of the perpetrator.
A)
Definition of Murder (S. 101): -
The offence of murder is more serious than culpable homicide and any other offence
against human life. The offence of murder is defined under s. 101 and the punishment for
murder is provided in S. 103.
S.101 defines murder-
Culpable homicide is murder:-
1)
If the act by which the death is caused is done with the intention of causing
a) Death; or
b) such bodily injury as the offender knows to be likely to cause the death
of the person to whom the harm is caused; or
c)
Such
bodily
injury
as
is
sufficient
in
the
ordinary
course of nature to cause death, or
2)
If the person committing the act knows that it is so immanently dangerous
that it must, in all probability, cause-
a)
b)
Death, or
Such bodily injury as is likely to cause death, and
c) commits such an act without any excuse for incurring
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the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits
murder.
(b) A, knowing that Z is laboring under such a 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. But if
A, not knowing that Z is laboring under any disease, gives him such a blow as would not
in the ordinary course of nature kill a person in a sound state of health, here A, although he
may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause
death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword cut or club wound sufficient to cause the death of a man
in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder,
although he may not have intended to cause Z's death.
(d) A, without any excuse, fires loaded cannon into a crowd of persons and kills one of
them. A is guilty of murder, although he may not have had a premeditated design to kill
any particular individual.
B)
When Culpable Homicide is not Murder (S. 101, exceptions 1 to 5):-
Exceptions 1 to 5 to S. 101 provide for the circumstances under which the offence
of murder is reduced to that of culpable homicide not amounting to murder. In a true sense,
they are not exceptions or defences to the offence of murder but extenuating
circumstances which reduce the crime of murder to that of lesser offences of culpable
homicide.
These Circumstances are:-
1)
Grave and Sudden Provocation (Exception 1):-
Culpable homicide is not murder if the offender, whilst deprived of the power of
self-control by grave and sudden provocation if causes the death of the person who gave
the provocation or of any other person by mistake or accident.
Provided that: -
a) The provocation must not be voluntarily sought or voluntarily provoked by
the offender as an excuse.
Thus, if A called B a coward in the presence of several persons and challenged him
to strike him if he could, B then struck him. A drew a pistol and fired at B, thereby causing
B’s death. Here, the provocation was voluntarily sought by A; therefore, A is guilty of
murder, and the plea of the grave and sudden provocation does not apply.
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If, A is provoked by Z, but intentionally kills Y, Z's child. This is murder because
the provocation was not given by the person who was killed. The exception requires the
death of the person who gave the provocation, or another person by mistake or accident,
not an intentional killing of an innocent third party.
If, Z strikes B. B is enraged by this provocation. A, a bystander, intending to take
advantage of B's rage to cause him to kill Z, puts a knife into B's hand. B kills Z. B may be
guilty of culpable homicide, but A is guilty of murder as A acted with premeditation and
malice.
b)
Provocation cannot be allowed as a defence if anything is done in obedience
to the law or by a public servant in the lawful exercise of his powers.
Thus, if A is arrested by a bailiff [police] for legally exercising his powers. A is
excited to sudden and violent passion by the arrest and kills Z. This is murder.
If, A appears as a witness before a Magistrate, Z. Z states that A is lying and has
perjured himself. A, moved to sudden passion, kills Z. This is murder because the
provocation was given by a public servant acting in the lawful exercise of their powers.
c) Provocation cannot be allowed as a defence against the lawful exercise of the
right of private defence.
Thus, if A attempts to pull Z’s nose. In the exercise of the right of private defence,
Z lays hold on A to prevent him from doing so. A is moved by sudden and violent passion
and, in consequence, kills Z. This is murder.
Facts: Nanavati was working as a second-in-command in the navy. His wife’s name was
Sylvia. They had three children while Nanavati was on tour; his wife had illicit contact
with one Ahuja, a businessman in Bombay. Ahuja also had illicit contacts with several
other women. When Nanavati returned from his duty, his wife Sylvia confessed to him her
illicit intimacy with Ahuja. Nanavati then went directly to Ahuja's residence and asked him
to marry Sylvia and look after the three children. Ahuja replied that he could not marry
Sylvia and questioned, “Am I to marry every woman I slept with?”. Nanavati got angry at
Ahuja's behaviour. He then went to his ship. He then took from the store of the ship a
revolver and six cartridges and, on the false pretext, loaded the same. He then directly went
to the flat of Ahuja, entered his bedroom and shot him dead. His defence was of provocation
given to him by the deceased Ahuja.
Held: The court rejected the defence of provocation and observed that three hours
had lapsed from the provocation and the actual killing. It shows that the killing was pre-
1 AIR 1962 SC 605
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mediated, and therefore, it cannot be said that the killing was caused by grave and sudden
provocation.
Explanation to this exception mentions that whether the provocation was grave
and sudden enough to prevent the offence from amounting to murder is a question of fact.
It means it is to be decided by the court.
2)
Exceeding the Right of Private Defence:-
Suppose the offender, in the exercise in good faith of the right of private defence,
exceeds the limit and causes the person's death without pre-meditation and without any
intention of doing more harm than necessary. In that case, he is guilty of culpable homicide
and not murder.
Illustration
Z attempts to horsewhip A. but not in such a manner as to cause grievous hurt to A. A
draws out a pistol. Z persists in the assault. A believing in good faith that he can by no
other means to prevent himself from being horsewhipped shoots Z dead. A has not
committed murder but only culpable homicide.
3)
Exceeding Lawful Exercise of Power:-
If a public servant (or a person aiding a public servant) exceeds his legal powers and
causes death by an act believed by him, in good faith, to be lawful, and to be lawful for the
due discharge of his duty and without ill-will towards the person killed it, is the offence of
culpable homicide and not murder.
4)
Sudden Fight:-
If the death is caused
a)
b)
c)
d)
Without pre-meditation,
in the sudden fight,
in the heat of passion upon a sudden quarrel, and
Without the offenders having-
i)
ii)
taken undue advantage, or
acting in a cruel or unusual manner, the act is culpable homicide and not
In Pappu V/s State of M.P.
murder.
A.I.R. 2006 SC 2659
Facts: A sudden quarrel took place between the deceased and the accused. The
quarrel was sudden, and there was no premeditation. It was found that the accused had not
taken any advantage nor acted cruelly. The accused gave only one lathi blow. Before giving
a blow, the accused was not armed with any weapon.
Held: - It is culpable homicide, not amounting to murder.
The explanation to this exception clarifies that it is immaterial in such cases which party
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offers the provocation or commits the first assault.
5) Death Caused by Victim’s Consent:-
If the person killed, being above the age of eighteen years, suffers death or takes the
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risk of death with his own consent, it is the offence of culpable homicide.
Illustration
A, by instigation, voluntarily causes Z, a person under eighteen years of age to
commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his
own death; A has therefore abetted murder.
C) Punishment for Murder (S. 103)-
The punishment for murder is outlined in Section 103 of the BNS. The general
punishment is death or imprisonment for life, and a fine (103 (1).
The BNS also includes a new provision in Section 103(2) for "mob lynching."
When a group of five or more people, acting in concert, commits murder on grounds of
race, caste, community, sex, place of birth, language, or personal belief, each member of
the group is punished with death or imprisonment for life.
D) Punishment for murder by life-convict (S. 104)-
The section provides the punishment for murder caused by the life-convict offender.
It provides that whoever, being under sentence of imprisonment for life, commits murder,
shall be punished with death or with imprisonment for life, which shall mean the remainder
of that person’s natural life.
C)
Difference between Murder (S. 300) and Culpable Homicide (S. 299):-
The difference between the offence of ‘Murder’ and ‘Culpable Homicide’ is that of
degree and not of form. The degree of intention or knowledge determines the nature of the
offence, whether it is murder or culpable homicide.
‘Culpable homicide’ is the genus, and ‘murder’ is its species. All murders are
culpable homicides, but all culpable homicides are not murders. Speaking generally,
‘culpable homicide’ without ‘special characteristics of murder’ (i.e., mentioned in S.101
exceptions 1 to 5) is ‘culpable homicide not amounting to murder’. To fix punishment
proportionate to the gravity of the offence of culpable homicide, the Code recognises three
degrees of ‘Culpable homicide.’ Murder is the gravest form of culpable homicide, which
is defined in S. 101. The second is culpable ‘homicide of the second degree’, which is
defined under S. 100, punishable under the first part of S.105. Then comes the ‘Culpable
homicide of third degree’’ i.e. the exceptions 1 to 5 to the definition of Murder as provided
under S. 101. 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 S.105.
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The distinction between these two has been well set out in the case-
Facts: - The accused knocked his wife down, put one knee on her chest, and struck
her two to three violent blows on the face with a closed fist, causing extravagations of
blood and resulting in her death. The issue was whether the offence disclosed from the
facts was murder or culpable homicide?
Held: - that it is culpable homicide not amounting to murder as there was no
intention to cause death and bodily injury was not sufficient in the ordinary course of nature
to cause death.
In this case, Justice Melvill draws a distinction between ‘culpable homicide’ and
‘Murder’, in the following tabular form.
Culpable Homicide S. 299
(BNS, S. 100)
Murder S. 300 (BNS, S. 101)
A person commits culpable Subject to certain exceptions, culpable homicide is
homicide if the act by which the murder if the act by which the death is caused is done
death is caused is done.
Intention
a) With the intention of causing 1) With the intention of causing death, or
death, or
b) with the intention of causing 2) with the intention of causing such bodily injury as the
such bodily injury as is likely to offender knows to be likely to cause the death of the
cause death; or
person to whom the harm is caused or
3) with the intention of causing 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 4) With the knowledge that the act is so imminently
act is likely to cause death
dangerous that it must, in all probability, cause death or
such bodily injury as is likely to cause death.
i.
With the intention of causing death:-
According to Melwill J., though Cl-(a) of S. 299 and clause (1) of S.300, is same
the distinction between these two is that where there is an intention to kill, the offence is
always murder and not culpable homicide.
2 ILR 1 BOM 342
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ii. The act is likely to cause death: -
If the death is likely to result, it is culpable homicide. If it is the most probable result,
it is murder.
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iii.
Intention of causing the bodily injury: -
The intention of causing death is not an essential requirement of clauses (1) and
clause (2). The intention of causing bodily injury is present in both these clauses. Still, the
intention of causing 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. However, clause (b) of S.299 does not postulate such
knowledge.
In clause (3) of S.300, the word sufficient in the ordinary course of nature has been
used instead of the words ‘likely to cause death’ occurring in the corresponding clause (1)
of S.299. 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. This distinction
is one of the degrees of probability of death. This determines whether the culpable
homicide is of the gravest, medium, or lowest degree. It is not necessary that the offender
intended to cause death, so long as the death ensures from the intentional bodily injury or
injuries sufficient to cause death in the ordinary course of nature.
Clause(c) of S. 299 and clause (2) of S. 300 both require knowledge of the
probability of the act causing death, but clause (2) of S. 300 requires knowledge of the
offender's highest degree of probability of causing death.
In conclusion, the difference is one of degree, not of form.
II]
Other offences, even though the death is caused, are not murder or culpable
homicide-
1. Causing death by negligence (S. 106)-
The Bharatiya Nyaya Sanhita (BNS), 2023, which is set to replace the Indian Penal
Code (IPC), 1860, has introduced significant changes to the law concerning deaths caused
by negligence. Section 106 of the BNS, which corresponds to Section 304A of the IPC,
brings a more stringent and nuanced approach to such offences, particularly in cases of hit-
and-run and medical negligence.
"Causing death by negligence S. 106."
It is divided into two key sub-sections:
a. Causing death by rash and negligent act (S. 106(1)):
This clause penalizes any rash or negligent act that causes the death of a person,
where the act does not amount to culpable homicide. The punishment prescribed is
imprisonment for a term that may extend to five years, along with a fine.
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b. Hit and run cases (S. 106(2)):
This is a new and significant addition that specifically targets "hit-and-run" cases.
It stipulates that if a person causes death by rash and negligent driving and escapes from
the scene without reporting the incident to a police officer or a Magistrate soon after, he
shall be punished with imprisonment for a term that may extend to ten years, and shall also
be liable to a fine.
2. Abetment of sucide of child or person of unsound mind (S. 107)-
Section 107 of the Bharatiya Nyaya Sanhita (BNS), 2023, addresses the serious
offense of abetment of suicide. It consolidates and replaces Sections 305 and 306 of the
Indian Penal Code (IPC), 1860, creating a single, comprehensive section that distinguishes
between abetting the suicide of a minor or a person with mental illness and that of an adult.
a. Abetment of Suicide of a Child, Person with Mental Illness (S. 107):-
It states that if a person under eighteen years of age, a person with a mental illness,
a delirious person, or a person in a state of intoxication commits suicide, anyone who abets
the commission of that suicide will be punished. The abettor shall be punished with death,
or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also
be liable to fine.
b. Abetment of Suicide (General) (Section 108))-
The section covers the general offense of abetting the suicide of any person (i.e., an adult
without any specified mental illness).Punishment: Imprisonment for a term which may
extend up to ten years, and the offender shall also be liable to a fine.
This provision is the direct equivalent of Section 306 of the IPC and is the more commonly
invoked section in abetment of suicide cases.
c) Attempt to murder (S. 109)-
Section 109 of the Bharatiya Nyaya Sanhita (BNS), 2023, deals with the offense
of attempt to murder. This provision penalizes any act done with the intent or knowledge
that it could cause death, even if death does not actually occur. The essence of the offense
lies in the guilty intention (mens rea) and the commission of an overt act (actus reus)
towards that end.
Punishment-
The punishment under S.109 is graded based on the consequence of the act and the status
of the offender.
i. If no hurt is caused:
If the act of attempt does not cause any physical injury, the offender shall be
punished with imprisonment for a term which may extend to 10 years, and shall also be
liable to a fine.
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ii. If hurt is caused:
If the act causes hurt to any person, the punishment is more severe. The offender
shall be punished with imprisonment for life OR imprisonment for a term which may
extend to 10 years, and shall also be liable to a fine.
iii. Attempt by a Life Convict:
If a person who is already serving a sentence of imprisonment for life commits an
attempt to murder and hurt is caused, they shall be punished with death or imprisonment
for life.
This section substantially retains the provisions of the erstwhile Section 307 of the Indian
Penal Code (IPC), 1860, ensuring continuity in the legal framework for this serious offense.
The core principle remains that the law punishes the criminal intent, regardless of the final
outcome.
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