Considerations To Decide Whether A Culpable Homicide Amounts To Murder Or Not : Supreme Court Explains

In a recent judgment, the Supreme Court reiterated its views regarding considerations relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder.

In this case, the High Court of Kerala had set aside the conviction of three appellants under sections 143, 147, 148 IPC read with section 149 IPC, however, their conviction and sentence under sections 341, 323, 324, 427 and 302 read with section 34 IPC as awarded by the Trial Court was confirmed. In appeal, the only issue raised was whether the manner in which the entire transaction took place in particular relating to the physical assault, would amount to culpable homicide amounting to murder or culpable homicide not amounting to murder?

The appellants contended that there was no pre­meditation of committing murder and there was no mens rea to commit murder, therefore, the same would fall within the exception of section 300 IPC. The State opposed the appeal contending that there was clear motive to commit murder as after the first episode of verbal altercation took place, it was only with an intention to commit murder that all the accused joined together by forming an unlawful assembly.

While considering this issue,the bench noted that the considerations relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder has been a matter of debate in large number of cases. It noted the following observations made in a recent judgment in Mohd. Rafiq vs. State of M.P (2021) 10 SCC 706:

Subtle but important distinction between the two provisions

The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.

In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice­ versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of section 304. Then, there is "culpable homicide of the third degree". 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 section 304..

The considerations that should weigh with courts

The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh . This court observed that: "29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters ­ plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.""

Taking note of the above observations, the bench found that the present case falls into the category of a culpable homicide not amounting to murder falling under section 304 Part­ II IPC for the following reasons:

(i) There was no pre­meditation of mind to commit murder.

(ii) All the accused were admittedly not armed when they stopped the vehicle of the deceased and his friends and compelled them to alight from the same.

(iii) It was during the verbal altercation at that stage that the three accused picked up the weapon of assault namely, sticks of casuarina tree and a brick from the road side.

(iv) Single blow was given to the deceased by the accused nos.1 and 2. 30

(v) The case set up for exhortation to kill the deceased has not been found to be proved.

(vi) Both the groups consisted of young men.

(vii) The High Court found that there was no unlawful assembly formed with a common object and accordingly had acquitted three other accused and also the present appellants from the charge of unlawful assembly under section 149 IPC.

(viii) The appellants have been convicted with the aid of section 34 IPC.

Partly allowing the appeal, the bench held that the appellants would be entitled for acquittal under section 302 IPC but would be liable to be convicted under section 304 Part ­II IPC. Rest of the conviction upheld by the High Court and the sentence for the charges under sections 341, 323, 324 and 427 read with section 34 IPC is maintained. For the offence under Section 304 Part II IPC, the bench sentenced them for the period already undergone by them. 

Case details 

Ajmal vs State of Kerala 2022 LiveLaw (SC) 609 | CrA 1838 of 2019 | 12 July 2022 | Justices Ajay Rastogi and Vikram Nath

Headnotes

Indian Penal Code, 1860 ; Section 300, 304 Part II - Conviction of appellants modified from Section 302 to Section 304 Part II - Considerations relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder - Referred to Mohd. Rafiq vs. State of M.P (2021) 10 SCC 706. (Para 17)

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