1. Md.shariful Hassan
Initiation:
Section 299 and Section 300 of the Penal Code deal with the offencing
culpable homicide not amounting to murder and murder. Under the Mohammedan system
there were three kinds of punishment namely relation, defined punishment and
discretionary punishment and the entire administration was entrusted to Kazi, resulting in
the punishment and the entire motion of each Kazi. When the British assumed power the
need for uniform criminal law was felt necessary and the result of their labours is the
present Penal Code. Offences affecting life are contained in section 299 to 311. The other
offences depending upon the injury caused fall under section 312to 376 of the Penal
Code.
We shall be now considering regarding homicide to explain very clearly
culpable homicide and murder. The termed homicide is used to describe the killing of a
human being by a human being. Such a killing may be lawful or it may be unlawful and
criminal. Unlawful homicide includes murder, manslaughter causing death by dangerous
driving, killing in pursuance of suicide pact and infanticide. Homicide is the killing of a
human being by a human being .Homicide may be lawful or unlawful. Lawful homicide
may again be classified under the heads (a) excusable homicide and (b) justifiable
homicide; and unlawful homicide may be classified as (1)culpable homicide not
amounting to murder,(2) murder (3) suicide and (4) homicide by rash and negligent acts
not culpable.
Culpable homicide:
According to the section 299of the Penal Code “whoever cause death by
doing an act with the intention of causing death or with the intention of causing such
bodily injury as is likely to cause death, or with commits the offence of culpable
homicide”
Illustration:
(a)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 there by caused. Z believing the
ground to be firm, treads on it, falls in and is killed. A has committed the offence of
culpable homicide.
(b)A knows Z to be behind a bush. B does not know it A, intending to
cause or knowing it to be likely to cause Z’s death, induces b to fire at the bush .B fires
and kills Z. here b may be guilty of no offence: but a has committed the offence of
culpable homicide.
(c)A, by shooting at fowl with intent to kill and steal it, kill and steal it ,
kills B who is behind a bush; A not intent ending that he was there. Here, although A was
doing an unlawful act, he was not guilty of culpable homicide ,as he did not intend to kill
B, or to cause death by doing an act that he knew was likely to cause death.
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2. Md.shariful Hassan
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.
(2) Where death is caused by bodily injury, the person who caused 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.
(3) The causing of the death of child in the mothers womb is not
homicide. But it may amount to culpable homicide to cause the
death of living child, if any part of that child has been brought forth
the child may not have breathed or been completely born.
Murder:
Sir Edward Coke refers that “Murder is when a man of sound memory,
and of the age of discretion, unlawfully killeth with any country of the realm any
reasonable creature in rerum nature under the Kings peace with malice aforethought
either expressed by the party or implied by law, so as the party wounded or hurt etc die of
the wound etc within a year and a year after the same”
So we can say that for the purpose of convenience murder is the unlawful
of a human being under the Queens peace with malice aforethought.
According to the section 300 “ Except in the cases herein after excepted,
culpable homicide is murder ,if the act by which the death is caused is done with the
intention of causing death, or-
Secondly- If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the of the person to whom the caused or
Thirdly – If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to
cause death and commits such act without any excuse for incurring the risk of causing or
such injury as aforesaid.
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3. Md.shariful Hassan
Distinction between Culpable homicide and Murder:
Culpable homicide is the genus of which murder is a species. In
order that an offence may amount to murder it must fall within in the ambit of culpable
homicide, but an offence may amount to culpable homicide without amounting murder It
follows, therefore, that all murder are culpable homicides ,but all culpable homicides are
not murders.
The distinction between culpable homicide and murder has very
ably and lucidly been set forth by Melville J.in Reg V. Govinda case. In this case the
accused, a young man of 18 years was married to a girl of 15. It appeared that he was
habitually ill treating the girl. On the fateful day the accused knocked his wife down, put
one knee on her chest and struck her two or three violent blows on the face with closed
fist, producing extravasations of blood on the brain and she died in consequence, either
on the spot or very shortly afterwards. The accused was held guilty of offence of murder
by the Session Judge .The case came up before a Bench of tow Judges of the Bombay
High court for confirmation of the death sentence. As there was a division of opinion
between the learned Judges constituting the Bench as to whether the fact constituted an
offence of murder, or an offence of culpable homicide not amounting to murder, the case
was referred for opinion to a third Judge, Melville, J.His lordship compared the provision
of section 299 to 300 of Penal Code, viz, culpable homicide and murder, thus
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4. Md.shariful Hassan
Culpable Homicide(sec299) Murder(sec300)
1.Actus Reus 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 death
is caused is done.
2.Mens Rea Intention:
(a) With the intention of causing
death;
(b) With the intention of causing
such bodily injury as is likely
to cause death;
Intention:
(1) With the intention of
causing death;
(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;
(3) With the intention of
causing of bodily injury to
any person, and the bodily
injury intended to be
inflicted is sufficient in
the ordinary course of
nature to cause death:
Knowledge:
(c) With the Knowledge that the
act likely to cause death.
Knowledge:
(4) With knowledge that the act is
so immediately dangerous that it must in all
probability cause death or such bodily injury
as is likely to cause death
3.Ingredients
Human being, unlawful killing, With
oblique intent to kill or to grievous
bodily harm
Human being, unlawful killing with direct
intent with malice aforethought to kill or to
grievous bodily harm
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5. Md.shariful Hassan
4.Punishment
Under section 304
Whoever commits culpable
homicide not amounting murder, shall be
punished with imprisonment for life , or
imprisonment of either description for
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 of 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 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.
Under section 302:
Whoever commits murder shall be
punished with death or imprisonment for
life, and shall also be liable to fine.
When Culpable Homicide is not murder
The following Exceptions to section 300 provide for cases where culpable
is not murder-
Exception1- Grave and Sudden provocation_ Culpable homicide is not
murder if the offender ,whilst deprived of the power of self control by grave and sudden
provocation causes the death of the person who gave the provocation or cause the death
of any other by person by mistake or accident. The above exception is subject to the
following provisos-
First- That the provocation is not sought or voluntarily provoked by offender
as an excuse for killing or doing harm to any person
Second- That the provocation is not given by anything done in obedience to
the lawful exercise of the right of private defiance.
Thirdly- That the provocation is not given by any thing done in the lawful
exercise of the right of private defense
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6. Md.shariful Hassan
Explanation-
Whether the provocation was grave and sudden enough to prevent the
offence from amounting to murder is a question of fact.
Illustration:
(a) A. under the influence of passion excited by a provocation given by Z,
intentionally kills Y, Z’s child. This is murder, in as much as the
provocation was not given by the child and the death of the child was not
caused by accident or misfortune in doing an act causing by the
provocation.
(b) Y gives grave and sudden provocation to A.A, on this provocation, fires a
pistol at Y neither intending nor knowing himself to be likely to kill Z,
who is near him, but out of sight. A kills Z. Here A has not committed
murder, But merely culpable homicide.
(c) A attempts to pull Z’s nose, Z in the exercise of the right of private
defence, lays hold of A to prevent him from doing so. A is moved to
sudden and violent passion in consequence, and kills Z. This is murder ,in
as much as the provocation was given by a thing done in the exercise of
the right of private defence
Exception2-Exceedding the Right of Private Defence- Culpable
homicide is not murder if the offender, in the exercise in good faith of the right of private
defence of person or property, exceeds the power given to him by law and cause the
death of the person against whom he is exercising such right of defence without
premeditation and without any intention of doing more harm than is necessary for the
purpose of such defence.
Illustration’s: attempts to horsewhip a, not in such a manner as to cause
grievous hurt to A. a, draws out a pistol .Z person in the assault. A believing in good faith
that he can by no other means prevent himself from being horsewhipped shoots Z dead. A
has not committed murder, but only culpable homicide.
Exception 3: Public Servant Exceeding His Powers Culpable homicide is
not a murder if the offender, being a public servant or aiding a public servant acting for
the advancement of public justice, exceeds the powers given to him by law and cause
death by doing an act which he in good faith believes to be lawful and necessary for the
due discharge of his duty as such public servant and without ill- will towards the person
whose death is caused
Exception 4 - Culpable homicide is not a murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
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7. Md.shariful Hassan
without the offender having taken under advantage or acted ion a cruel or unusual
manner.
Explanation: It is immaterial in such case which party offers the
provocation or commits the first assault.
Exception 5: Death caused with victims consent- Culpable homicide is
not murder when the person whose death is caused, being above the age eighteen years,
suffers death or takes the risk the of death with his own consent.
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, has therefore abetted murder.
Case leading:
When culpable Homicide is not murder .The first clause of section 300 is
obviously relatable to the first `clause of section 299, its second and third clause to the
second clause of section 299, and it’s forth clause to the last clause of section 299. It is
also evident that simply by reason of an offence being covered by any of the clause of
section 299 which would not doubt make it culpable homicide ,the offence will not be
murder unless ingredient on of the four clause of section 300 it would not be murder and
will remain culpable homicide not amounting to murder.In view of the opening words of
section 300 an o0ffence of culpable homicide will also amount to murder if any of the
five exception mentioned in the section be attracted to the facts of particular case.
[ Mukbul hossian vs. The State] (1970)22 DLR 269
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