Report No. 42

16.6. Section 299 to be revised to define murder.-

We propose that murder may be defined in section 299 as follows.-

"299. Murder.- Whoever causes death by doing an ac.-

(a) with the intention of causing death, or

(b) with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death, or as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

(c) 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, and without any excuse for incurring such risk, commits murder except in the circumstances specified in section 300.

Explanation.- For the purposes of this section and section 30.-

(i) causing the death of a child in the mother's womb is not causing the death of a human being; but causing the death of a living child, after any part of it has emerged from the womb, is causing the death of a human being, though the child may not have breathed or been completely born;

(ii) 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;

(iii) where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedies and skilful treatment death might have been prevented.

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in con sequence. Here A is guilty of murder although he may not have intended to cause Z's death.

(c) A, knowing that Z has an enlarged spleen a blow against which is likely to cause his death, strikes him there with the intention of causing him such bodily injury. Z dies in consequence of the blow. A is guilty of murder although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person with a sound spleen.

(d) A, without any excuse, fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have designed to kill any particular individual.

(e) A knows Z to be behind a bush. B does not know it. A induces B to fire at the bush knowing that such firing must in all probability cause Z's death or such bodily injury as is likely to cause his death, and without any excuse for incurring the risk. B fires and kills Z. Here B may be guilty of no offence but A is guilty of murder."

16.7. Section 300 to be revised to define culpable homicide not amounting to murder.-

Culpable homicide not amounting to murder has to be defined in two parts which we propose to put in section 300, as two sub-sections. Sub-section (1) will, as indicated above1, cover those cases where the act causing death is done with the intention of causing such bodily injury as is likely to cause death, but the intention is not that specified in clause (b) of the revised definition of murder. It will also cover those cases where the act is done with the knowledge that it is likely to cause death, but it is not murder because the strict conditions laid down in clause (c) of the revised definition of murder are not fulfilled.

The second part of the definition will cover those cases falling within one or other of the five exceptions set out in the existing section 300. In substance, these exceptions appear to us to have been carefully thought out and they have stood the test of practical application over the years. We have only a few minor and formal amendments to suggest. Thus the explanation to exception I is not required after the abolition of the jury trials. A few of the illustrations could also be omitted or modified with advantage.

We propose accordingly that culpable homicide not amounting to murder may be defined in section 300 as follows.-

"300. Culpable homicide not amounting to murder.- (1) Where a person causes death by doing an act with the intention of causing such bodily injury as is likely to cause death or with the knowledge that by such act he is likely to cause death, and such act is not murder under clause (b) of clause (c) of section 299, he commits culpable homicide not amounting to murder.

Illustration

A lays sticks and turf over a pit with the knowledge that death is likely to be thereby caused. Z treads on it, falls in and is killed. A has committed culpable homicide not amounting to murder.

(2) Whoever causes death by doing an act with the intention or knowledge specified in section 299, but in the exceptional circumstances hereinafter specified, commits culpable homicide not amounting to murder, namely.-

(i) when the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gives the provocation or causes the death of any other person by mistake or accident, provided the provocatio.-

(a) is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person, or

(b) is not given by a public servant in the lawful exercise of the powers of such public servant, or

(c) is not given by anything done in the lawful exercise of the right of private defence, or

(d) is not given by anything done in obedience to the law;

(ii) when 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 causes the death of the person against whom he is exercising such right of defence without pre-meditation and without any intention of doing more harm than is necessary for the purposes of self-defence.

(iii) when the offender, not 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 causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duties as such public servant and without against a person whose death is caused;

(iv) where the offender causes death without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner; it is immaterial in such cases which party offers the provocation or commits the first assault;

(v) where the person whose death is caused, being above the age of eighteen years, consents to surfer death or to take the risk of death.

Illustrations

(a) Y gives grave and sudden provocation to A. A on this provocation, fires a pistol at Y, neither in tending 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 not amounting to murder.

(b) A, under the influence of passion excited by a provocation given by Y, kills Z, Y's child standing nearby. This is murder, inasmuch as the provocation was not given by the child.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the lawful exercise of his powers.

(d) 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, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.

(e) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for the purpose. B kills Z with the knife. Here B may have committed only culpable homicide not amounting to murder, but A is guilty of murder.

(f) Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists 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 not amounting to murder."

16.8. Applicability of Exceptions to faction fights.-

With reference to the fifth exception, the question may arise whether it applies where two rival factions, after having thrown out mutual challenges, indulge in a free fight and some of the persons get killed. There was previously a controversy on the subject as is shown by two early Calcutta cases1; but the question was answered in the negative by a later Full Bench decision of that High Court2. We agree with the view taken in the later case. The fifth exception is not meant for situations where there is a pitched battle between two factions.

To hold that the persons killed in the battle had "consented to suffer death or to take the risk of death" would be to take an unrealistic view. Consent requires some degree of particularity with reference to the act consented to or authorised, and with reference to the person or persons authorised. That particularity is missing in such situations. A member of the faction may be prepared to run the risk of being killed; but the does not (in the absence of further facts) 'consent to take the risk of death' vis-a-vis the person who actually causes his death. No change is, therefore, needed in this respect.

1. (a) Rahimuddin, 1873 ILR 5 Cal 31.

(b) Samserai, 1879 ILR 6 Cal 154.

2. Nayamuddin, 1891 ILR 18 Cal 484 (FB).

16.9. Section 30.-doctrine of 'transferred malice'.-

It will be noticed that the law of homicide does not require that the offender must have intended to kill a particular person. It is enough if there is an intention or knowledge to cause the death of a human being. What is sought to be punished is the act of causing death, accompanied by the requisite mens rea. It is immaterial whether the intent to cause death is an intent to kill the person in fact killed, or even any particular person; and the same applies to knowledge.

The application of this principle is illustrated by three situations. First, the offender may be indifferent about his victim; the act charged may be such as to endanger the life of a number of persons, generally, one of whom is killed; but the offender has no particular person in mind. Secondly, the offender may be mistaken about the identity of the person attacked. Or thirdly, the offender may intend to hit A, but actually B is hit and killed, either by reason of accident or extraneous intervention or some such factor.

The law regards all these acts as murder, provided, of course, the requisite mens rea existed. In section 301, a specific provision is made in regard to the last-mentioned situation. Though the language of the section is elaborate, the idea is clear, namely, that where the death of one person is caused by an act constituting culpable homicide, but the mens rea was with reference to another person, then the culpable homicide is of the description of which it would have been if the death had been caused of the person with reference to whom such mens rea existed.

If A intending to kill Y, shoots at him, but misses and kills Z, who, unknown to the accused, was standing close by, A is guilty of murder under section 301, notwithstanding that he did not intend to kill Z. His malice towards Y is 'transferred' (by a legal fiction) as existing towards Z. Section 301 is based on what is referred to in English law as the doctrine of transferred malice.

16.10. Not necessary that death of unintended victim should be a likely consequence.-

The question whether the application of this doctrine is dependent on the knowledge of the accused that the death of the unintended victim was a likely consequence arose before the Madras High Court which held1 by a majority that it is sufficient for the purpose of this section if criminal intention or knowledge on the part of the accused existed with reference to any human being, though the death of the person who actually became the victim was never compassed by the offender.

In other words, it is not necessary that the death of the person must have been a likely consequence of the offender's act. Sundara Ayyar J. dissented and emphasise the need for proof that the death of the unintended victim was a likely consequence of the original act. Since the majority view has been followed in later cases2 elsewhere and has created no difficulty, we do not think any amendment of section 301 is necessary by way of clarification.

1. Suryanarayan Murthy, 13 Cr LJ 145 (Mad).

2. Mt. Jeoni v. Emperor, AIR 1917 All 455; Ballan, AIR 1955 All 626.

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