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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) Definition of Murder (S. 101): -
B) When Culpable Homicide is not Murder (S. 101, exceptions 1 to 5):-
These Circumstances are:-
1) Grave and Sudden Provocation (Exception 1):-
2) Exceeding the Right of Private Defence:-
3) Exceeding Lawful Exercise of Power:-
4) Sudden Fight:-
5) Death Caused by Victimās 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:-
ii. The act is likely to cause death:-
iii. Intention of causing the bodily injury:-
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) Death, or
b) Such bodily injury as is likely to cause death, and
c) commits such an act without any excuse for incurring
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 Bās 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.
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 Zās 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.
In K.M. Nanavatiās Case
Facts: Nanavati was working as a second-in-command in the navy. His wifeās 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, āAm I to marry every woman I slept with?ā. 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-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) Without pre-meditation,
b) in the sudden fight,
c) in the heat of passion upon a sudden quarrel, and
d) Without the offenders having-
i) taken undue advantage, or
ii) acting in a cruel or unusual manner, the act is culpable homicide and not murder. In Pappu V/s State of M.P.
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 offers the provocation or commits the first assault.
5) Death Caused by Victimās Consent:-
If the person killed, being above the age of eighteen years, suffers death or takes the 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 Zās 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 personās natural life.
C) Difference between Murder (S. 300) and Culpable Homicide (S. 299):-
The difference between the offence of āMurderā and āCulpable Homicideā 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.
āCulpable homicideā is the genus, and āmurderā is its species. All murders are culpable homicides, but all culpable homicides are not murders. Speaking generally, āculpable homicideā without āspecial characteristics of murderā (i.e., mentioned in S.101 exceptions 1 to 5) is āculpable homicide not amounting to murderā. To fix punishment proportionate to the gravity of the offence of culpable homicide, the Code recognises three degrees of āCulpable homicide.ā Murder is the gravest form of culpable homicide, which is defined in S. 101. The second is culpable āhomicide of the second degreeā, which is defined under S. 100, punishable under the first part of S.105. Then comes the āCulpable homicide of third degreeāā 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.
The distinction between these two has been well set out in the case-
Reg V/s Govinda
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 āculpable homicideā and āMurderā, in the following tabular form.
Culpable Homicide S. 299 (BNS, S. 100) | Murder S. 300 (BNS, S. 101) |
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 |
Intention | |
a) With the intention of causing death, or | 1) With the intention of causing death, or |
b) with the intention of causing such bodily injury as is likely to cause death; or | 2) 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 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 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. |
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.
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.
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 offenderās 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 ālikely to cause deathā 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.
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.
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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