Chapter XVI of the penal code deals with the offences
affecting the human body. This chapter describes which deaths are to be called
murder and provides punishment for that. This chapter consists of 15(fifteen)
sections.
The penal code, 1860 was the result of the then
British parliament which was much different from the Act of England. As because
then India was the colony of England, the British parliament under the
supervision of lord.
Historical background
of punishment of culpable Homicide:
Homicide means the killing of a human being by a human
being. Homicide may be of two types.
a) Culpable homicide:
which is a
criminal offence and punishable under the Statutory law of all countries under the penal code,
1860
b) lawful or simple
homicide: which in
not considered as an offence and which is not punishable under statutory law.
In our country, such homicide are under also the penal code.
Culpable Homicide is such type of offence which has
been considering as an offence from time immemorial. But the relief or
punishments were not same at different times. Ratanlal and Dhirajlal discussed
almost nothing about the punishment for murder1 before
the arrival of the British.But there existed punishments provision for murder
even before British.
Al-Biruni, and Islamist scholar wrote, “If the killer
is a Brahmins and the killed is of another cast the punishment is “upobas’
prayer (yagga), and charity. Such type of murder is called “Bajra Brahma” But
there are different provisions for other castes”2.
In Mughal period, there were also provision for
murder. Death penalty,blood money were the punishment.
The penal code, 1860 was a new one to say the truth,
the first compiled code passed by the British parliament after they took over
the charge of the administration of Indian sub-continent.
The penal code. 1860, deals with the offences of
culpable homicide and the punishment for
that chapter XVI consists of sections from 299 to 311.
Section-299, at first lays down that which
deaths are to be considered as culpable homicide. The section state that,
“Whoever causes 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 the knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide.
This section has two elements to prove whether a
murder is culpable or not. These are——
i.
Causing
death of a human being
ii.
Such
death must have been caused by doing an act
a) With intention of causing death; or
b) With the intention of causing such
bodily injury as is likely to cause death; or
c) With the knowledge that the doer is
likely by such act to cause death3
At first the matter is to be noticed that the offender
has a bad intention to cause death or such bodily injury as is likely to cause
death.
When death is probable it is culpable homicide and
when death is most probable it is murder. Mere killing of a person is not
murder or culpable homicide, but it is so when caused with guilty intention.4
The offence of culpable homicide supposes an intention, or knowledge of
likelihood of cussing death. In the absence of such intention or knowledge, the
offence committed may be grievous hurt or simple heart. The intention of the
murder is the most important to the charge of murder mere killing accidental
killing is not culpable homicide.
Section 299 is introductory section of chapter
16 defines which murder or death is
punishable.
Section 300 deals with murder. All the
culpable homicide are not murder. That means it fixes which killing are to
treated as murder. Murder is the most heinous crime of world. There are five exceptions to this
sections. These five types of killing though cause death are not treated as
murder. An offence cannot amount to murder when it falls within the definition
of culpable homicide; for this section merely points out the cases in which
culpable homicide is murder. But an offence may not amount to culpable homicide
without amounting to murder.
It does not follow that a case of culpable homicide is
murder, because it does not fall within any of the exceptions to section 300.
To render culpable homicide murder the case must within the provisions of
clauses 1, 2, 3, 4 of sec -300 and must not fall within any one of the five
exception attached thereto.
“Excepting the general exceptions attached to the
definition of murder an act constituted culpable homicide amounting to murder
If the criminal act is done with intention of causing death then it is murder.
Clear and simple that if death is likely result of the injuries it is homicide
not amounting to murder; and if death is the most likely result, then it is muder.5
Section 300 is more important than another section of
the Penal Code,1860. This section should be read with section 34 and 35 and 38.
It is of special consideration that, Where the act causing death directly is
amounted as murder but the doer If has no intention or knowledge to cause death
or such bodily injury may cause death can not be treated as murder under
section 300.
The weapon used was a lethal one and the injury grave
in nature was caused on the vital part of the body the act was done with the
intention of causing death such bodily injury intended to be inflicted as was
sufficient in the ordinary course of nature to cause death. It falls clearly
within the 1st, 2nd, & 3rd clauses of
section 300 of penal code.6
Section 301 deals with the murder which was intended
to cause to another’s death.
Section- 301 states, “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
not 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.
According to section 300, The killer has the intention
to cause death of a particular person but he causes death of another person; it
is to be dealt under section 301.
If the accused commits an offence under section 301,
the offence is regarded as an offence under section 300.
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,7.
The intention of the accused was to kidnap a girl. In
doing so with weapon they killed another person. It was held that they were to
be punished under section 302 and 149.8
Section 299, 300, 301 actually define what are
culpable homicide. But there is no penal provision in these sections.
Section 302 provides the punishment for offences
committed under sections 299, 300 and 301.
Section 302 states “Whoever commits murder
shall be punished with death, or imprisonment for like, and shall also be
liable to fine.
If the charge brought against the accused is proved
without doubt, then and only then death penalty is to be awarded.
The charge brought under this section can be proved
by—
a.
The
death of the victim actually occured
b.
Such
death was caused by the activities of the accused
c.
Such
activities were conducted only to cause the death
d.
The
accused used poison to cause death
The punishment of death is only to be awarded in the
rarest cases. The court observed that the following principles should apply:
a. Where the facts of the case
disclose that the culpability of the accused has assumed extreme depravity;
where the accused is found to be an ardent criminal and menace to the society;
where the crime is committed in an organized manner and is gruesome, cold
blooded heinous, atrocious and cruel, where innocent unarmed persons were
attacked and murdered without any provocation and where the murder is committed
by an accused who was in duty bound to protect the victim.
b. The court shall consider both the
aggravating as well as the mitigating circumstances in the case.
c. Number of ipso facto will not make a case. The rarest of
the rare case but will be a relevant aggravating circumstances and the mental
condition of the accused will be relevant mitigating circumstances.
section 302 states the punishment of committing
murder.
According to section 302 whoever commits murder shall
be punished with death or imprisonment for life and shall also be liable to
fine.
If the charge brought against the accused in proved
undoubtedly, then and only then punishment provided under section 302is to be
awarded.
Distinction between
culpable homicide and murder
Culpable
homicide (s. 299)
|
Murder (s.300)
|
A person
commits culpable homicide, if the act by which the death is cursed is done
|
Subject
to certain exception, culpable homicide is murder, if the act by which death
is caused is done
|
a. With
the intention of causing death.
b. With
the intention of causing such bodily injury as is likely to cause death.
c. With
the knowledge that the act is likely to cause death
|
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 bodily injury to any per son and the bodily
injury intended to be inflicted is sufficient in the ordinary course of
nature 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.
|
Punishment for murder by
life-convict: 303.
This section deals with punishment for murder by a life convict.
Ingredients
of section 303:To prove a conviction
under section 303 of the Penal Code ,the following ingredients must be needed;
a. Whether
death was caused to any person;
b. whether
that death was caused by the act of the accused;
c. Whether
the accused did the act with the intention to cause death and
d. Whether
the accused had been suffering the
sentence for life while he committed the offence.
Punishment for culpable homicide
not amounting to murder: 304.
Section 304 of the Penal code deals with
punishment for culpable homicide not amounting to murder. Section 304 provides
that if any person 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 with intention of causing death ,or of causing
bodily injury as is likely to cause death.
Ingredients
of section 304: To secure a conviction under section 304 of the Penal Code ,the following ingredients must be needed;
a. Whether any person was killed.
b. whether that death
was caused by the act of the accused
c. Whether the accused did the act
with the intention to cause death or intended to cause hurt likely to cause
death.
Causing death by negligence: 304A. 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 five years, or with fine, or
with both.
This
section relates to cases where the homicide is caused negligence.it does not
apply to cases where death has arisen, not from the negligent or rush mode
of doing the act, but from some
result supervening upon the act which
could not have been anticipated. Under this section rush or negligent act must
be the direct or proximate cause or death .
Ingredients
of section 304 A: To secure a conviction under section 304A of the Penal Code ,the following ingredients must be needed;
a. Whether
any person was killed.
b. whether
that death was caused by the act of the accused
c. Whether
the act of the accused was rush or full of negligence.
A driver
of motor vehicle who is himself negligent can not be his defence, the
negligence of pedestrian though is not unconscious and killed [Abdul Rashid Vs State, 9 DLR 207]
Causing death by rash driving or
riding on a public way 304 B. Whoever causes the death of any
person by rash or negligent driving of any vehicle or riding on any public way
not amounting to culpable homicide shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with
both.
Ingredients
of section 304 B: To secure a conviction under section 304B of the Penal Code ,the following ingredients must be needed;
a. Whether
any person was killed.
b. whether
that death was caused by the act of the accused
c. Whether
that death was caused by rash driving or riding on a public way.
In
Criminal law journal it is stated that “A is coming from a link road to a main
road driving on a motor cycle ,the motor cycle colliding with the accused’s car
which was laying main road .Car not colliding with motor cycle ,Fact that accused was driving a car at
a first speed could not make him liable for rashness and negligence if road was
clear.
Duty
of a person coming deriving from a link
road towards main road ,to see that main road was clear before entering same.
It was
held doubtful ,if death of deceased was
due to any rash or negligence act of accused .Accused given benefit of doubt
and acquitted.[1985-Crlj -2794]
Abetment of suicide of child or insane person 305. If any person under eighteen years
of age, any insane person, any delirious person, any idiot, or any person in a
state of intoxication commits suicide, whoever abets the commission of such
suicide 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.
Ingredients
of section 305: To secure a conviction under section 305 of the Penal Code ,the following ingredients must be needed;
a. Whether
any person committed suicide
b. Whether
the person who committed suicide was under the age of eighteen years, or an
insane or an idiot or a person in state of intoxication and
c. Whether
the accused abetted him to commit
suicide
Abetment of suicide 306. If any person commits
suicide, whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
Ingredients
of section 305: To secure a conviction under section 305 of the Penal Code ,the following ingredients must be needed;
a. Whether
any person committed suicide
b. Whether
the accused abetted him to commit
suicide
Attempt to murder:Section-307
This section deals with one of the major offences
affecting to human body.
Simply this section states as follows:
‘A person when does any act with intention or
knowledge an under such circumstances that if he by that act caused deaths
would be guilty of murder and he shall be punished with imprisonment of either
description upto 10 years, and fine shall also be given.’
Ø Further, if he by that act caused hurt shall be liable to
either life imprisonment or such punishment as aforesaid
Ø Attempt when done by person who is
convicted of life imprisonment and hurt caused would be punished with death.
For the exhaustive understanding of this section we
have to scrutinize the words used in the section, besides there are such other
things to consider which are as follows:
Attempt and
preparation:
we have to be clear about what is attempt and what is
preparation.
An attempt to commit a crime, is more than a mere
preparation and must be move directly towards the commission of a crime.[ AIR
1961, Mad 498].
When the preparations are complete and the culprit
commences to do something with the intention of committing the offence are said
to attempt. [AIR 1961 SC 1698.]
Intention or
knowledge:
In the section there it is said that the doer must
have intention or knowledge. That means either intention or knowledge any one of the above
two elements is necessary to prove him guilty. Further, such intention as refered
in the section refer to the intention as said in sec: 300 of the penal code
that is
1.
intention
to cause death
2.
intention of casing such bodily injury as the offender
knows to be likely to cause death.[ 1978 Raj Cric 432.]
Under such
circumstances:
The word under such circumstances indicates the
requirement that the act to which the section applies must be capable of
causing death.[ (1956) 9 SauLR 407].
Further the act which would amount to an attempts
under this section must be one which is capable of causing death.
Causing injury :
It is not necessary for the applicability of the
section that any injury should have been caused to person whose murder is
attempted [1979 CriLJ, 400 (BoM)]
If injuries are caused due to the act, the accused
would be liable to enhanced punishment as mentioned in the section. [1969 ker
LT 488.]
Attempt
to commit culpable homicide:
Sec-308 of the penal code, 1860 deals with the offence relating to attempt to
commit culpable homicide. According to this section, whoever does any act with
such intention or knowledge and under such circumstances that, if he by that
act caused death, he would be guilty of culpable homicide not amounting to
murder, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine or with both; and if hurt is
caused to any person by such act, shall be punished with imprisonment of either
description for a term which may extend to seven years or with fine or with
both. So we find that, if any person attempts to commit culpable homicide not
amounting to murder he/she will be punished with imprisonment up to seven years
or fine or both; incase the person is hurt and in case of not being hurt while
attempting to commit culpable homicide the punishment will be imprisonment up
to three years or fine or both.
An
example can be given thus:
A, on grave and sudden provocation,
fires a pistol at z, under such circumstances that if he there by caused death
he would be guilty of culpable homicide not amounting to murder. A has
committed the offence defined in this section. (Ratanlal and Dhirajlal)
Attempt
to commit suicide:
Sec-309 of the penal code, 1860 provides provisions for attempting to commit
suicide. The section states that, whoever attempts to commit suicide and does
any act towards the commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year or with fine or with both.
Suicide is not a crime under the penal code, 1860 only attempt to commit
suicide is punishable. The act done must be in the course of the attempt,
otherwise no offence is committed. Where a woman with the intention of
committing suicide by throwing herself in a well, actually ran towards it, when
she was seized by a person, it was held that she changed her mind, and she was
caught before she did anything might have been regarded as the commencement of
the offence. Her act simply amounted to preparation. [Ramakka, (1884) 8 Mad 5]
Thug: Sec-310 and sec-311 of the penal
code, 1860 deals with the offence of thug and its punishment. According to
Sec-310 of the penal code, whoever at any time after the passing of this Act,
shall have been habitually associated with any other or others for the purpose
of committing robbery or child-stealing by means of or accompanied with murder
and According to sec-311 of the code, whoever is a thug, shall be punished with
imprisonment for life and shall also be liable to fine.
1.
The
Indian penal code. Ratanlal & Dhirajlal 35 edition.
2.
Tahkik-E-Hind-wl-Biruni,
Translated by muhmmad Jalal Uddin Biswas.
3.
The
Indian penal code, Ratanlan Drajlalad, 55edition. page 451.
4.
State
represented by the solicifor to the government of the peoples republic of
Bangladesh Vs Ashraf Ai and others 46 DLR (AD) 245.
5.
State
vs tayeb ali & others 1987 BLD (AD) 265, 40 DLR (AD) 6; BCR 1987 (AD) 312.
6.
Md.
Abdul Masid Vs State 40 DLR (AD), 83.
7.
Viswanath
pillai vs state of serals, 1994 cr LJ 1037
8.
22
DLR (SC) 127
9.
Ashok
komar pandey vs state of Delhi 2002 crLj 1844.
Submitted by:
Chandrima Gosh - 13209112
Fajlea Rabby - 13019020
Mohammad Ashikur Rahman 13089051
Shanta Rahman - 13219074
Swarochita Anubhab Drishty - 13219104
Abdur Rahman - 13109002
Fajlea Rabby - 13019020
Mohammad Ashikur Rahman 13089051
Shanta Rahman - 13219074
Swarochita Anubhab Drishty - 13219104
Abdur Rahman - 13109002
Thanks.
ReplyDeleteProf. Ahsan Kabir
Dept. of Law
RU
Thanks.
ReplyDeleteProf. Ahsan Kabir
Dept. of Law
RU
nice writting
ReplyDelete