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Published : March 10, 2011 | Author : uditakanwar
Category : Criminal law | Total Views : 29936 | Rating :

  
uditakanwar
Udita Kanwar IV Semester, B.A.LLB Gujarat National Law University
 

Homicide
Homicide from the earliest times has fascinated the human mind and has always been considered as most heinous of offences. The word homicide has been derived from the latin word ‘homo’ which means a man, and ‘caedere’ which means to cut or kill. Thus, homicide means the killing of a human being, by a human being. But then, not all cases of homicide are culpable as all systems of law do distinguish between lawful and unlawful homicide For instance, killing in self defence or in pursuance of a lawful authority or by reason of mistake or fact, is not culpable. Likewise, if death is caused by accident or misfortune, or while doing an act in good faith and without any criminal intention for the benefit of the person killed, the man is excused from criminal responsibility for homicide.

Further in some cases the accused may be punished for lesser offences (for e.g. hurt) even though death has resulted, if the injury resulting in death though voluntarily caused was not likely to cause death . For example, A gives B a blow and B, who suffers from an enlarged spleen of which A was not aware, dies as a result. A is not guilty of Culpable Homicide as his intention was merely to cause an injury that was not likely to cause death.

It is in connection with with homicide that the maxim ‘actus non facit reum nisi mens sit rea’ has been frequently cited as stating the two fundamental requirements of criminal liability.

Culpable Homicide/ Manslaughter
The crime of manslaughter is termed as Culpable Homicide. It is a term in the law of Scotland and England that covers a number of criminal homicides equivalent to manslaughter in legal criminal jurisdictions.

Section 299 of the Indian Penal Code deals with Culpable Homicide and it is stated as follows – “Whoever causes death by doing an act with the intention of causing death , or with the knowledge that he is likely by such act to cause death, commits the offence of Culpable Homicide.”

The Penal Code has first defined Culpable Homicide simpliciter (Section 299, I.P.C) termed as manslaughter under English law which is genus, and then murder (Section 300, I.P.C) which is species of homicide.

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.

Explanation 2 – Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3 – The causing of the death of a child in the mother’s womb is not homicide. But it may amount to Culpable Homicide to caused the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or completely born.

Homicide is the killing of a human being by a human being. It is either a) lawful, or b) unlawful.
a) Lawful Homicide: It is also known as Simple Homicide, includes several cases falling under the General Exceptions. The death is caused in one of the following ways :-

Ø Where death is caused by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act, in a lawful manner, by lawful means, and with proper care and caution (s. 80)

Ø Where the death is caused justifiably, that is to say,

i. By a person, who is bound, or by mistake of fact in good faith believes himself bound, by law (s.76)

ii. By a Judge when acting judicially when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. (s.77)

iii. By a person acting in pursuance of the judgement or order of a Court of Justice. (s.78)

iv. By a person who is justified or who by reason of a mistake of fact, in good faith, believes himself to be justified by law.(s.79)

v. By a person acting without criminal intention to cause harm and in good faith, for the purpose of preventing or avoiding other harm to person or property (s.81)

vi. Where death is caused in the exercise of the right of private defence of person or property (ss. 100, 103)

Ø Where death is caused by a child, or person of unsound mind, or an intoxicated person as will come under ss. 82,83,84 and 85.

Ø Where death is caused unintentionally by an act done in good faith for benefit of the person killed, when
i. He or, if a minor or lunatic, his guardian, has expressly or impliedly consented to such an act (ss. 87, 88); or
ii. Where it is impossible for the person killed to signify his consent or where he is incapable of giving consent, and has no guardianfrom whom it is possible to obtain consent, in time for the thing to be done with benefit. (s.92)

b) Unlawful Homicide : Culpable Homicide is the first kind of unlawful homicide. It is the causing of death by doing:
i. An act with the intention of causing death.
ii. An act with the intention of causing such bodily injury as is likely to cause death; or
iii. An act with the knowledge that it was likely to cause death.

Without one or other of those elements, an act, though it may be in its nature criminal and may occasion death, will not amount to the offence of Culpable Homicide.

Culpable Homicide – Essential Elements:
Culpable Homicide is the first kind of unlawful homicide as defined in Section 299, I.P.C it purports to define and explain as to when an act of causing death constitutes Culpable Homicide. The important elements are:-
1) Causing of death of a human being.

2) Such death must have been caused by an act
i. With the intention of causing death; or
ii. With the intention of causing such bodily injury as is likely to cause death; or.
iii. With the knowledge that the doer is likely by such an act to cause death.

The fact that the death of a human being is caused is not enough. Unless one of the mental states mentioned in ingredient is present, an act causing death cannot amount to Culpable Homicide. Thus where a constable who had loaded but defective gun with him wanted to arrest an accused who was going on a bullock cart by climbing on the cart and there was a scuffle between him and the accused and in course of which the gun went off and killed the constable, it was held that accused could not be held guilty of Culpable Homicide

Circumstances For Culpable Homicide
a) Causes Death: In order to hold a person liable under the impugned Section there must be causing of death of a human being as defined under Section 46 of the Code. The causing of death of a child in the mother’s womb is not homicide as stated in Explanation 3 appended to Section 299, I.P.C. But the person would not be set free. He would be punishable for causing miscarriage either under Section 312 or 315 I.P.C depending on the gravity of the injury. The act of causing death amounts to Culpable Homicide if any part of that child has been brought forth, though the child may not have breathed or been completely born. The clause ‘though the child may not have breathed’ suggests that a child may be born alive, though it may not breath (respire) , or it may respire so imperfectly that it may be difficult to obtain clear proof that respiration takes place. Causing of death must be of a living human being which means a living man, woman, child and at least partially an infant under delivery or just delivered.

b) By Doing An Act With The Intention Of Causing Death: Death may be caused by a hundered and one means, such as by poisioning, drowning,striking,beating and so on and so forth. As explained under Section 32, I.P.C the word ‘act’ has been given a wider meaning in the Code in as much as it includes not only an act of commission, but illegal omissions as well and the word ‘illegal’ is applicable to everything which is an offence or which is prohibited by law, or which is prohibited by law, or which furnishes ground for civil action (s.43). Therefore death caused by illegal omission will amount to Culpable Homicide.

i. Death caused by effect of words on imaginations or passions: The authors of the Code observe : “ The reasonable course, in our opinion , is to consider speaking as an act, and to treat A as guilty of voluntary Culpable Homicide, if by speaking he has voluntarily caused Z’s death, whether his words operated circuitously by inducing Z to swallow a poison or throwing Z into convulsions.”

c) With The Intention Of Causing Such Bodily Injury as is likely to cause death: . The word ‘intention’ in clause (a) to Section 299, I.P.C has been used in its ordinary sense, i.e., volitional act done without being able to forsee the consequence with certitude. The connection between the ‘act’ and the death caused thereby must be direct and distinct; and though not immediate it must not be too remote. If the nature of the connection between the act and the death is in itself obscure, or if it is obscured by the action of concurrent causes, or if the connection is broken by the intervention of subsequent causes, or if the interval of time between death and the act is too long, the above condition is not fulfilled. Where a constable fired five shots in succession at another constable resulting in his death, it was held that it would be native to suggest that he had neither intention to kill nor any knowledge that injuries sufficient to kill in ordinary course of nature would not follow. His acts squarely fell in clauses 2,3 and 4 of s.300, I.P.C i.e Culpable Homicide amounting to murder.

d) With the knowledge that he is likely by such act to cause death : ‘Knowledge’ is a strong word and imports ceratinity and not merely a probability.If the death is caused under circumstances specified under Section 80, the person causing the death will be exonerated under that Section. But, if it is caused in doing an unlawful act, the question arises whether he should be punished for causing it. The Code says that when a person engaged in the commission of an offence, without any addition on account of such accidental death. The offence of Culpable Homicide supposes an intention, or knowledge of likelihood of causing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt, or simple hurt. It is only where death is attributed to an injury which the offender did not know would endanger life would be likely to cause death and which in normal conditions would not do so notwithstanding death being caused, that the offence will not be Culpable Homicide but grievous or simple hurt. Every such case depends upon the existence of abnormal conditions unkown to the person who inflicts injury. Once it is established that an act was a deliberate acct and not the result of accident or rashness or negligence, it obvious that the offence would be Culpable Homicide.

e) Death Caused of Person Other Than Intended: To attract the provisions of this Section it suffices if the death of a human being is caused whether the person was intended to be killed or not. For instance, B with the intention of killing A in order to obtain the insured amount gave him some sweets mixed with poison. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that B as liable for murder of the children though he intended to kill only A.

f) Death Caused Inadvertently without Intention While Doing an Unlawful Act: It has been clearly stated in I.P.C that a person will not be liable for Culpable Homicide, if he causes the death of a person while doing an unlawful act, provided he did not intend to kill or cause death by doing an act that he knew was likely to have that effect. On the other hand, under English law, if a person whilst committing an unlawful act accidently kills another, he would be liable for manslaughter or murder according to whether his act constituted a felony or misdemeanour.

g) Consent is not a defence to Manslaughter: The House of Lords in R v Walker held that the respondent a truck driver carrying illegal immigrants will be criminally responsible for involuntary manslaughter, if the act results in death, even if the victim has consented to take such risk engaged in some joint unlawful activity. In this case the defendant, truck driver ( a Dutch national) drove a lorry from Rotterdam (Netherlands) to Zeebrugge (United Kingdom). The lorry had been loaded with a refrigerated container in which 60 Chinese (illegal immigrants) had been hidden to conceal the illegal human cargo behind a load of tomatoes. The container was sealed apart from a small air vent which was closed for 5 hours prior to the ferry crossing to Dover to preserve secrecy. On disembarkation at Dover (in England) the customs officers examined the container and discovered the bodies of 58 immigrants, who had suffocated to death. Wacker was charged with 58 offences of manslaughterand conspiracy to facilitate the entry of illegal entrants into United Kingdom. Applying the doctrine of negligence( ex turpi causa non oritur actio) for causing death of the victims the trial convicted and sentenced the respondent to 6 years imprisonment for each the manslaughter charges to run concurrently and eight years imprisonment for the conspiracy to facilitate entry of illegal immigrants with a total of 14 years. This decision was upheld by the House of Lords as well.

Section 301; If a person, by doing anything which he intends or knows to be likely to cause death, commits Culpable Homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the Culpable Homicide committed by the offender is of the description of which it would have been if he had caused the death of the person, whose death he intended or knew himself to be likely to cause..

1) Doctrine of Transferred Malice: Blow aimed at the intended victim, if alights on another, offence is the same as it would have been if the blow had struck the intended victim. This Section lays down that Culpable Homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely, to kill. This Section embodies what the English authors describe as the Doctrine of Transfer of Malice or the transmigration of motive. Under this Section, if A intends to kill B but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is, by law attributed to him. Where the accused was deliberately trying to shoot a fleeing man who had criticized his father in a School Committee Meeting but unfortunately his own maternal uncle came in between him and the intended victim and thus got killed, it was held that the act of the accused ws nothing but murder under s.302 read with s.301, I.P.C

Section 304: Whoever commits Culpable Homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is 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.

This Section provides punishment for Culpable Homicide not amounting to murder . Under it there are two kinds of punishments applying to two different circumstances:

a) If the act by which death is caused is done with the inetention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine.

b) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

Where the deceased , an old man with an enlarged and flabby heart, was lifted by the accused during a quarrel and thrown on the ground from some distance with sufficient force and the deceased got his ribs fractured and died of a rupture of the heart, it was held that the offence fell under Section 325 rather than 304 as the accused had no intention or knowledge to cause death.

Section 304 A: Whoever causes the death of any person by doing any rash or negligent act not amounting to Culpable Homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with finr, or both.

The original Penal Code had no provision for punishment in those cases where a person causes death of another by negligence. That is to say, liability for causing death was limited only to cases of murder and Culpable Homicide not amounting to murder. Section 304A was inserted in the Penal Code by the Indian Penal Code Act 27 of 1870 to cover those cases which under English law are termed Manslaughter by negligence.

The impugned Section provides punishment of either description for a term which may extend to two years, or fine, or both in case of homicide by rash or negligent act. The Law Commission of India in 1971 on the basis of strong demand for the increase in punishment for the offences under this Section recommended for enhancements of the sentence of imprisonment upto 5 years.But it was not implemented.

Principle of Criminal Liability For Negligence: Adomado
The House of Lords in Adomado while dismissing the appeal against conviction of an anesthetist for gross negligence during an eye operation had failed to notice that the supply of oxygen has been discontinued, resulting in death of the patient held that to establish negligence the general principles of law as follows may apply:

Ø Whether or not defendant was in breach of a duty of care owed to the victim who had died. If so, the general principle of ex turpi causa applied.
Ø Whether that breach of duty caused the death of the victim: If so, should that breach of duty be categorized as gross negligence and therefore as a crime.
Ø This will depend upon the seriousness of the breach committed by the defendant when the breach occurred.
Ø In essence, it is permissible for gross negligence manslaughter to be established without necessity to enquire into defendant’ state of mind.

Essential Ingredients:
To bring a case of Homicide under Section 304A I.P.C the following condition must exist, viz;

1) There must be death of the person in question
2) The accused must have caused such death; and
3) That such act of the accused was rash or negligent and that it did not amount to Culpable Homicide.

The requirement of Section 304A, I.P.C are that the death of a person, must have been caused by doing only rash or negligent act, and that there must be a direct nexus between death of a person and the rash and negligent act of the accused, Section 304 A. I.P.C will not apply. Where the accused was allowed to manufacture of wet paints in the same room where varnish and turpentine were stored, fire broke out due to a proximity of open burners to the stored varnish and turpentine. The direct or proximate cause of the fire which resulted in 7 deaths was the act of one Hatim. Apparently in a hurry, he had perhaps not allowed the resin to cool sufficiently and poured the turpentine too quickly.

The deaths were therefore not directly the result of the rash act on the part of the accused, nor one that was proximate and efficient cause without the intervention of another’s negligence. The accused was therefore acquitted of the offence under Section 304 A and held liable for negligent conduct with respect to fire or combustible matter is punishable under Section 285 of the I.P.C. It must be causa causans(immediate cause); it is not enough that it may have been the causa sine qua non (a necessary or inevitable cause).

Rash and Negligent Act
A rash act is primarily an over hasty act. It is opposed to deliberate act. It basically denotes want of proper care and caution and connotes and overt act with a consequence of risk that evil consequences might follow but with hope it will not happen.

Negligence is a breach of duty imposed by law. Negligence may be either civil or criminal negligence depending upon the nature and gravity of the negligence.Criminal negligence is gross and culpable, neglect or failure to exercise reasonable and proper care to guard against injury, either to public generally, or to an individual in a particular, which having regard to al the circumstances out of which charge has arisen, it was duty of person to have adopted.

A Person Convicted Under Section 304A, I.P.C is not entitled to the benefit of probation and lenient Punishment- The apex court in Dalbir Singh, rejected the plea of the accused driver for invocation of the benevolent provision of Section 4 of the Probation of the Offenders Act, 1958.

Medical Negligence: There is an “implied undertaking” by the member of medical profession that he would use a fair, reasonable and competent degree of skill. However, a medical practitioner cannot be found guilty merely because in matter of opinion he made an error of judgement. The doctor would not be liable for taking and adopting one course of treatment, whereas other course might have been preferable.

Doctor liable For Negligence Both in Civil and Criminal Law: A doctor when consulted by a patient owes him certain duties, viz,
1)A duty of care in deciding whether to undertake the case;
2) A duty of care in deciding what treatment to give;
3)A duty of care in administering that treatment.

A breach of duty gives a cause of action under (i) Law of Torts, or (ii) Consumer Protection Act, 1986. The doctor is liable to pay compensation to victim if found liable . In case of civil case in law of torts the plaintiff is required to pay ad valorem court fee, which is about 10% of the amount claimed apart from other expense incurred. However under Consumer Protection Act, 1986 the plaintiff is not required to pay the court fees or engage a lawyer. He may present his case personally.

A doctor may also be held liable under the Penal Code for punishment in case of criminal negligence, for:
a) causing death by rash and negligent act under Section 304A, I.P.C.
b) causing grievous hurt endangering life under Section 388, IPC
c) causing hurt endangering life under Section 337, I.P.C

Both the proceedings (civil and criminal) are may go simultaneously as laid down by Supreme Court in Union Carbide

In order to prove criminal liability in medical negligence there must be causa causans and merely proving causa sine quo non, will not be enough. In criminal law the burden of proof will be much higher on prosecution as compared to civil law. The prosecution will have to prove its case beyond reasonable doubt and the victim will get nothing but mental satisfaction therefore, most of these cases are filed in civil courts preferably under Consumer Protection Act, 1986.

Conclusion
The field of Culpable Homicide is very vast and is of practical utility . It includes all felonious homicide not amounting to murder. It is basically a killing which the killer neither intended nor foresaw as likely to happen; it is an accidental, blameworthy felonious killing. There have been many cases in which this field of law has been used and correctly applied as well. The Sections 299, 301, 304, 304A deal with the different aspects covered under this subject in an elaborate manner all the provisions are not exhaustive and there is a need to pit into application many of the suggestion of the Law Commission for better administration of Justice since it would help in the evolevement of this subject with time.
**********************************
# Stephen, Ahistory of the Criminal Law of England, Vol III, 1883, p1, Russell on Crime, 12th Edition, Turner JWC, 1964, pp 399-464, Moreland Roy, The Law of Homicides, pp 1-8

# Under the Indian Penal Code homicide is excusable when it is governed by the following general exceptions in Ch IV of the Code: Mistake of Facts (Ss 76, 79), Accident (Ss 80), Infancy (Ss 82-83), Insanity (S. 84), Intoxication (Ss 85-86) and it is justifiable according to law (Ss 76-79), Choice of evils (S 81), Consent (Ss 88,89,92) excluding cases of intentional causing death, Compulsion by threats ((S 94 excluding the case of murder) and Private Defence (Ss 100-103)

# R v Fox (1879) 2 All 522
# http://www.blurtit.com/q650314.html
# Manslaughter is the unlawful killing of a man without any malice expressed or implied
# Rahee, (1866) Unrep Cr C6.
# Nirbhai Singh, 1972 Cr LJ 1474 (MP)
# Ibid
# Draft Penal Code, note M, p. 142
# Sehaj Ram, 1983 Cr LJ 993 (SC) :AIR 1983 SC 614 : (1983) SCC (Cr) 621
# Shankar Kondiba Gore v State of Maharashtra, 1995 Cr LJ 93 (Bom)
# O’Brien, (1880) 2 All 766; Idu Beg, (1881) 3 All 776
# Safatulla,(1879) 4 Cal 815; Fox , (1879) 2 All 522
# Bai Jiba, (1967) 19 Bom LR 823
# Afrahim Sheikh, AIR 1964 SC 1263
# Public Prosecutor v M.S. Moorty (1912) 13 Cr LJ 145 (146) (Mad)
# (2003) 4 All ER 295 (ER)
# Viswanath Pillai v State of Kerala, 1994 Cr LJ 1037, the Court referred Ballan v The State, AIR 1955 All 626 wherein the scope of s. 301 was discussed
# Shankarlal AIR 1965 SC 1260
# Gyanendra Kumar, 1972 Cr LJ 308 (SC)
# Putti Lal, 1969 Cr LJ 531
# Law Commission of India 42nd report (1971), p 242
# R v Adomado (1993) 4 All ER 935
# An agreement to do an unlawful act is not supported by law.
# Kurbaan Hussain Mohammadelli Bangwalla v State of Maharashtra
# AIR 1965 SC 1616:1965 (2) SCR 622: 1965 (2) Cr LJ 550
# Dalbir Singh v State of Haryana, AIR 2000 SC 1677: (2000) 3 LRI 228
# State of Haryana v Santra, 2003 (3) Supreme 520:2000 ACJ 188 :2000(3) GLR 2309
# Jacob Mathew v State of Punjab, (2005) 6 SCC 1: AIR 2005 SC 3180
# Lakshman Balkrishna Joshi (Dr) v Dr Trimbak Bapu Godbole, AIR 1969 SC 1281 : (1969) 71 Bom LR 236 : (1969) 1 SCR 206:1968 ACJ 183
# Union Carbide Corporation v Union of India 1991, 4 SCC 584: AIR 1992 SC 248.

Authors contact info - articles The  author can be reached at: uditakanwar@legalservicesindia.com




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Article Comments

Posted by kamal hossain on August 12, 2015
this notes is very importent and interested.

Posted by kingsuchit on May 05, 2015
Excellent explanation

Posted by sanjay on September 08, 2014
1.Under 304A Of fence is bailable or not.
2.Under which circumstances Govt. Servant Under arrest will loose his/her job.

Posted by emeldah makonese on March 13, 2012
a question of interest: when can a person be convicted for culpable homicide by omission?

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