Report No. 42
Chapter 16
Offences Affecting the Human Body
16.1. Introductory.-
Chapter 16 covers a wide range of offences affecting the human body, extending from the petty offences of assault and wrongful restraint at one end to the heinous crimes of rape and murder at the other. These are grouped under seven heads, the first and foremost being offences affecting life, and the next offences relating to infants and the unborn. Then follow causing hurt to the body, wrongful restraint and wrongful confinement, criminal force and assault, kidnapping and abduction, and finally, rape and unnatural offences.
Offences affecting Life
16.2. Sections 299 and 30.-Stephen's criticism of the definitions.-
Sections 299 and 300 define the offences of murder and culpable homicide not amounting to murder. An authority of the eminence of Sir James Stephen criticised the drafting of these sections in the following terms1.-
"The definitions of culpable homicide and murder are, I think, the weakest part of the Code. They are obscure, and it is obvious to me that the subject has not been fully thought out when they were drawn. Culpable homicide is first defined, but homicide is not defined at all, except by way of explanation to culpable homicide. Moreover, culpable homicide, the genus, and murder, the species, are defined in terms so closely resembling each other that it is difficult to distinguish them."
1. Stephen History of the Criminal Law of England, Vol. 3, p. 313.
16.3. Criticism considered.-
We do not think there is very much substance in the first two points made by Stephen. Such obscurity as might have been initially felt in interpreting the definition.-Stephen's criticism dates back to 188.-is hardly felt now after they have been expounded and clarified by dozens of authoritative judicial decisions. There was, and is, no need to define a word like 'homicide', which is obviously used in its ordinary signification of causing the death of a human being. (Explanation 3 to which Stephen apparently refers is of course not a definition of homicide but furnishes a guide to help decide a border line case).
The act which causes death is 'culpable' when it is done with the intention or knowledge specified in section 299; and, subject to the five exceptions set out in the second half of section 300 the act amounts to murder, if done with the intention or knowledge specified in the first half of that section. "The difficulty of these sections", as Stephen himself emphasises, "is that the definitions of culpable homicide and murder all but repeat each other; but not quite, or at least, not explicitly.1"
1. Ibid., p. 314.
16.4. Repetition of ideas analysed.-
The crux of Stephen's objection is the repetition, "not quite", of certain ideas in the two definitions, "in terms so closely resembling each other that it is difficult to distinguish them." The obvious repetition occurs in the very first limb of the two definitions. Thus, under section 299, "whoever causes death by doing an act with the intention of causing death commits the offence of culpable homicide"; and under section 300, "except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death." The repetition of the same idea, with an "elegant variation" in the form of expressing it, perhaps helps to indicate that the same act done with the same intention will ordinarily be punished as murder under section 302, but as culpable homicide not amounting to murder under the first part of section 304 if it is covered by one of the five exceptions set out in section 300.
The second limb of the definition of culpable homicide rests on "the intention of causing such bodily injury as is likely to cause death". In the definition of murder, this limb has two branches, marked secondly and thirdly, respectively. The first branch covers the case where the intention is to cause "such bodily injury as the offender knows is likely to cause the death of the person to whom the harm is caused". (Illustration (b) explains the special point sought to be made in the underlined words). The second branch covers the case where "the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death".
It could be said with justification that the distinction between a bodily injury which is likely to cause death and a bodily injury which is sufficient in the ordinary course of nature to cause death is very subtle, if not obscure, and creates considerable difficulty when applied to concrete situations. The courts, however, have resolved the difficulty by saying (to put it broadly) that if the probability of death resulting from the injury is of a high degree, then it is murder, and if the probability is not so high, then it is culpable homicide not amounting to murder.
Finally, we may compare the third limb of the definition of culpable homicide with the fourth clause of the definition of murder. It is culpable homicide if the act is done with the knowledge that such act is likely to cause death: but it is murder, if it is done with the knowledge 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 the act is committed without any excuse for incurring the risk of causing death of such bodily injury. The distinction between the two is clear enough, and the additional circumstances necessary to make it murder are expressed without any obscurity. Here also in a concrete case, the degree of probability will be relevant for deciding between a mere likelihood of causing death by the reckless act and the reckless act being imminently dangerous.
16.5. Two clear definitions desirable.-
Stephen's observation that the two sections make culpable homicide the genus and murder a species, and define them accordingly, cannot be gainsaid. But what is sought to be achieved by the two sections is primarily a definition of murder as one species of the genus culpable homicide, and then a definition of the other species of the same genus, namely, culpable homicide not amounting to murder. It is the latter offence for which punishment is provided in the two paragraphs of section 304.
Each of the five exceptions in section 300 states that culpable homicide (as defined in section 299) is not murder if death is caused in the circumstances specified in that exception. It leaves it to be implied that, in those circumstances, the act is culpable homicide not amounting to murder. Similarly, it is left to a process of deduction that when an act is done with the intention or knowledge specified in the second or third limb of section 299, but that intention or knowledge does not come up to the level specified in the second, third or fourth clause of section 300, the offence committed is culpable homicide not amounting to murder.
Further, though the five exceptions in section 300 are exceptions to the offence of murder, this idea is not clearly brought out in the language used. The question is not merely academic because, by virtue of section 105 of the Evidence Act, the burden of proving that the act comes within the exceptions lies on the accused, but the question of discharging this burden will arise only when the prosecution has affirmatively established that the act amounts to murder.
We feel that the criticism of obscurity and repetition of ideas, employment of terms closely resembling each other for expressing similar ideas etc., should and could be met by redrafting the definitions. Murder being the offence of primary importance, it should be defined first in a self-contained manner, without being expressed as a graver modification of culpable homicide. On the other hand, it would be conducive to clarity to define separately the offence of culpable homicide not amounting to murder which is punishable under section 304. In the redrafting, however, it would be desirable to retain the present formulation of ideas, since judicial interpretation in the course of a century has invested the phrases with well understood significance.
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