Legal provisions regarding Murder under section 300 of Indian Penal Code, 1860.
Murder:
The term ‘murder’ is derived from the Germanic word ‘morth’, which means ‘secret killing’. ‘Murder’ is when one is slain with a man’s will, and with malice or forethought. Murder is unlawful homicide with malice aforethought. Murder is a more serious offence than the culpable homicide. Culpable homicide is a genus, whereas murder is a species. An offence cannot amount to murder unless it falls within the definition of the culpable homicide.
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ADVERTISEMENTS:
Section 300 of the IPC defines the ‘murder’ thus:
“Firstly:-
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, or
ADVERTISEMENTS:
Secondly:-
If it is done 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, or
Thirdly:-
If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or,
ADVERTISEMENTS:
Fourthly:-
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 death or such injury as aforesaid.
Illustrations:
(a) A, shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing 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 in a sound state of health.
But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death.
(c) 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 consequence. Here, A is guilty of murder, although he may not have intended to cause Z’s death.
(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 had a premeditated design to kill any particular individual.
Exception 1:- When culpable homicide is not murder:-
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 causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:
Firstly:-
That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly:-
That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly:-
That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation:-
Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustrations:
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, inasmuch 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 caused 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 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 exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe word of As deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z, This is murder.
(e) 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.
(f) Z strikes В. В 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 that purpose, В kills Z with knife. Here В may have committed only culpable homicide, but A is guilty of murder.
Exception 2:-
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 powers given to him by law and causes 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:
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.
Exception 3:-
Culpable homicide is not 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 causes 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 murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
Explanation:-
It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5:-
Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk 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; A has therefore abetted murder.”
Definition and scope of murder (Culpable homicide, when amounts to murder)
Section 300 defines murder with reference to culpable homicide defined in Section 299. Homicide is the causing of the death of one person by another. Homicide may be culpable, and culpable homicide may amount to murder.
Homicide is culpable homicide simpliciter if death is caused by the doing of an act with the intention of causing, or with the knowledge that the doer of the act is likely by such act to cause death; or with the intention or knowledge of causing death under the following circumstances, namely:
1. If the offender, whilst deprived of the power of self control under grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.
2. If the offender, whilst exercising in good faith the right of private defence, exceeds the power given by the law and causes the death of the person against whom he is asserting the right, without premeditation and intention of doing more harm than is necessary for such defence.
3. If the offender causes the death by doing a lawful act in an unlawful manner.
4. If the death is caused in a sudden mutual combat.
5. If the death is caused by valid consent.
Essentials of the offence of murder
The offence is murder in the following cases:
1. If the act is done with the intention of causing death.
2. If the act is done 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. If the act is done with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death.
4. If the act 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 such act is committed without any excuse for incurring the risk of causing death or injury.
1. Act by which the death caused is done with the intention of causing death:
When an act is done with the intention of causing death, then it is culpable homicide amounting to murder. ‘Act’ includes illegal omission also. Death may be caused by illegal omission as well. It is the action of a person with the clear intention of killing a person.
Intention connotes a conscious state in which mental faculties are roused into activity and summoned into action for the deliberate purpose of being directed towards a particular and specified act and which the human mind conceives and perceives before itself.
Intention has been defined as the fixed direction of the mind to a particular object, or a termination to act in a particular manner, and it is distinguishable from ‘motive’ that which indicates or stimulates action. Intention is what intention does. So, the intention of the person can be gathered from the action of the person.
If a person administers a deadly poison to a man, then it is very clear that he has an intention to kill that man, because the cause and effect of the act are very clear. It is evident that the cause of death is poisoning and effect of poisoning is to cause instant death. Intention to cause death can be inferred from the act or illegal omission.
Intention is related with motive. A man is not supposed to intend to take the life of another just for the fun of it. There must be reasons which provokes or motivates a man to commit the serious crime of murder.
The motive has been defined as the uterion intention i.e., an intention with which the desired result is achieved. As the motive is a state of mind, intention is also a state of mind and it can be proved only by its external manifestations.
The intention of killing can be presumed from the following:
i) When the house of the victim is set aflame with a view to roast him alive in the house;
ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death;
iii) When the body of the victim is cut into pieces or his body is dismembered in fiendish manner;
iv) When injuries are inflicted on vital parts of the body with sharp edged instruments;
v) When a person sets fire to the deceased, after another had poured kerosene on his body;
vi) When the accused pierced a sharp edged weapon in the heart of the deceased;
vii) When the accused hit on the head of the deceased with an axe or any heavy rod;
viii) When the accused mixed the poison in food or drink to kill the deceased; etc.
The words ’act done with intention of causing death’ in Section 300 are identical with the words ‘doing an act with the intention of causing death’ in Section 299. Therefore, an act coming under clause (1) of Section 300 will also fall under clause (1) of Section 299, and in both instances, it will be culpable homicide amounting to murder.
2. With the intention of causing such bodily injury as the offender knows to be likely to cause death:
As per second clause of Section 300, if a person intentionally causes bodily injury, with the knowledge that such bodily injury will cause death of the person injured, then it will be culpable homicide amounting to murder. In case of offence falling under clause (2) of Section 300, there is first, the intention to cause bodily harm and next, there is the ‘subjective knowledge’ that death will be the likely consequence of the intended injury.
It is said to be ‘subjective knowledge’, because it is the accused’s own personal perception of the consequence of his act. Here ‘knowledge’ on the part of the offender imports certainty and not merely probability.
The word ‘likely’ in clause (2) of Section 300, coupled with the word ‘knowledge’ indicates a definiteness or certainty of death. The clause contemplates a situation, where the offender has a certain special knowledge regarding the peculiar situation or health condition of the particular victim that the intentional bodily injury is likely to be fatal.
The second clause of Section 299, which states ‘with the intention of causing such bodily injury as is likely to cause death’ is similar to clause (2) of Section 300 which states ‘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’.
In Milmadhub Sirchar v. R [(1885) 3 WR(Cr) 22], the accused several times killed the deceased, who after having been severely beaten fell down senseless, it was held that he was guilty of murder as he must have known that such kicks were likely to cause the death of the deceased.
In Sheik Choollye v. R [(1865) 4 WR(Cr) 35], a man struck another on the head with a stick when he was asleep and fractured his skull, it was held that knowledge of likelihood of causing death must be presumed and that he was guilty of murder.
In B.N. Srikantiah v. Mysore State [AIR 1958 SC 672], there were as many as 24 injuries on the deceased and of them 21 were incised. They were either on his head, the neck, or the shoulders or on the forearms. Since, most of the injuries were on vital parts and the weapons used were short, it was held that the intention of causing bodily injuries was established, bringing it under the cover of Section 300.
3. With the intention of causing bodily injury to any person – sufficient in the ordinary course of nature to cause death:
According to clause (3) of Section 300, it is sufficient that there is intention to cause the bodily injury that was actually caused. The subjective factor ends with that. There need be no further enquiry whether the offender has the intention or the knowledge that such bodily injury should be sufficient in the ordinary course of nature to cause death.
For the application of clause (3) of Section 300, two things need to be proved: one that the injury was intentionally inflicted and secondly, that the injury inflicted was sufficient in the ordinary course of nature to cause death of any person. That is, under this clause the emphasis on the sufficiency of the injury was sufficient in the ordinary course of nature to cause death or not depends upon the nature of the weapon used or part of body on which the injury is caused.
The accused, who intentionally caused the injury, may not be aware that injury was sufficient to cause death or was likely to cause death. But, if his intention to cause the injury is established and the injury caused is sufficient to cause death in the ordinary course of nature, then the accused is guilty of culpable homicide amounting to murder.
In Virsa Singh v. State of Punjab [AIR 1958 SC 465], it was held that, in the absence of any circumstances to show that the injury was caused accidentally or unintentionally, the presumption would be that the accused had intended to cause the inflicted injury and the conviction was upheld. The Supreme Court, further laid down in order to bring a case within clause (3) of Section 300, the prosecution must prove the following:
i) First, it must establish, quite objectively, that a bodily injury is present;
ii) Secondly, the nature of the injury must be proved; it is purely objective investigation;
iii) Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended;
Once these three elements are proved to be present, the enquiry proceeds further; and
iv) Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
In Laxman Kalu Nikalje v. State of Maharashtra [AIR 1968 SC 1390], there was a quarrel between the accused and the deceased and the accused whipped out a knife and stabbed the accused on the chest near the shoulder.
The stab injury was not on a vital pari of the chest, but since the knife cut the artery inside, it resulted in death. In this case, the Supreme Court held that there was no proof that the injury caused was the injury intended, as but for the severing of the artery, death might not have occurred. It was held that this case would not fall under clause (3) of Section 300. Accordingly the accused was convicted under Section 304 IPC.
In Salyawan v. State of Haryana [1995 Cr.LJ 379 (P&H)], the accused persons armed with ‘jaili’ (agricultural implement) and assaulted the deceased causing head injury coupled with other multiple injuries with internal damage, intention of causing such bodily injuries as were likely to cause death, could be inferred and clause thirdly of Section 300 was attracted.
In Sudarshan Kumar v. State [1975 Cr.LJ 16 = AIR 1974 SC 2328], the accused killed a girl being frustrated in his attempt to marry her by pouring acid on her person which caused burns to the extent of 35% on her body and she died after 12 days due to malaria and respiratory failure, it was held that despite these supervening factors, the extensive acid burns caused by the accused being sufficient in ordinary course of nature to cause death, his case fell within clause 3 of Section 300 IPC.
4. Person committing the act known that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death
Clause (4) of Section 300 applies to cases of dangerous action without an intention to cause specific bodily injury to any person e.g., furious driving or firing at a target near the public road. However, the act must be accompanied with the knowledge that the act was so imminently dangerous that it must in all probability cause (i) death, or (ii) such bodily injury as is likely to cause death.
Further, the accused must have committed the act without any excuse for incurring the risk of (a) causing death; or (b) such injury as is likely to cause death. Thus a man who strikes another in the throat with a knife, must be taken to know that he is doing an act imminently dangerous to the life of the person at whom he strikes and that a probable result of his act will be to cause that person’s death.
In State of Madhya Pradesh v. Ram Prasad [AIR 1968 SC 881], it was held that although clause (4) of Section 300 is usually involved in those cases where there is no intention to cause the death of any particular person, the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death.
In Thangaiya v. State of Tamil Nadu [(2005) 9 SCC 650], the Supreme Court categorically ruled that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability.
In Sehaj Ram v. State of Haryana [AIR 1983 SC 614], the accused, who is a constable fired several shots with a 303 rifle at another constable. One shot hit the victim beneath the knee of his right leg and he fell down. Even after that, the accused fired another shot at him, though the shot did not hit him.
Since the bullet hit the deceased below the knee, it was contended that the intention of the accused was only to frighten the deceased or cause grievous hurt and not to kill him. The Supreme Court rejected the contention and held that the act would fall within the ambit of clause 4 of Section 300 and convicted the accused of murder.
When the Culpable homicide is not Murder (Sec. 300, Exceptions 1 to 5)
[Culpable homicide not amounting to Murder]
Culpable homicide will not be murder, if it is:
Exception 1:
On grave and sudden provocation;
Explanation:
a) The provocation should not be voluntarily sought or deliberately caused by the accused;
b) Should not be a result of act done by public servant or in obedience to law;
c) Not be in self-defence.
Whether a particular act is grave and sudden is a question of fact.
Exception 2:
In exercise of right of private defence of person or property.
a) And without premeditation and without intention.
Exception 3:
a) An act done by public servant or in aiding a public servant;
b) Acting in advancement of public justice;
c) Such act of the public servant is in excess of the powers conferred on him, but exercised in good faith;
d) And such act is necessary to discharge duty;
e) And is without ill will.
Exception 4:
a) A sudden fight without premeditation;
b) The offender should not take undue advantage or act in a cruel or unusual manner.
Explanation:
Who started the fight or quarrel is not material.
Exception 5:
Death caused to a person above 18 years of age with his consent.
The exceptions provided for under Section 300 are:
1. Grave and sudden provocation;
2. Private defence;
3. Acts of public servant;
4. Sudden fight;
5. Consent.
1. Grave and Sudden provocation:
Culpable homicide will not be murder, if the offender, on account of grave and sudden provocation is deprived of his power of self- control and causes the death of a person. The person, whose death is caused, may be the person who gave the provocation or any other person by mistake or accident.
The provocation must be such as will upset, not merely a hasty and hot-tempered or hyper-sensitive person but one of ordinary sense and calmness. Anger is a passion to which good and bad men are both subject, and more human frailty and infirmity ought not to be punished equally with ferocity or other evil feelings.
However this exception is itself subject to three exceptions, namely:
1) The provocation should not have been sought for voluntarily by the offender, as an excuse for killing or doing any harm to any person.
2) The provocation is not as a result of an act done in obedience of law or by the act of a public servant in the lawful exercise of his powers.
3) The provocation is not a result of anything done in the exercise of the right of private defence.
The provocation should be both grave and sudden. Provocation is sudden when there was no time, for the passion to cool down. If the act was done after the first excitement had passed away, and there was time to cool, it is murder. Provocation is grave if it is sufficient to rouse a person’s passion. It must be either illegal or if legal then improper.
The test of grave provocation is whether it would deprive a reasonable man of his power of self-control. If the provocation is sudden but not grave or grave but not sudden, then the offender cannot avail of the benefit of this exception. Further, it should also be shown that: (i) the provocation was of such a nature that the offender was deprived of the power of self-control, so that he might be considered as not being at the moment ‘the master of his own understanding’; (ii) the fatal blow must be clearly traced to the passion arising from that provocation; (iii) the mode of resentment must bear a reasonable relationship to the provocation; and (iv) there must not have been sufficient time between occurrence of the provocation and the killing for the accused’s blood to cool and for reason to resume its seat.
In K.M. Narravati v. State of Maharashtra [AIR 1962 SC 605], the Supreme Court laid down the following postulates or tests of grave and sudden provocation:
i) Whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self- control;
ii) In certain circumstances words and gestures may also cause grave and sudden provocation;
iii) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation, for committing the offence;
iv) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
In Hansa Singh v. State of Punjab [AIR 1977 SC 1801], the accused on seeing one Gurbachan Singh (the deceased) committing sodomy on his son, assaulted him resulting in death. The court held that the accused (appellant) had done so under sudden and grave provocation which led him to commit murderous assault.
The appeal of the accused was allowed. Conviction of the accused was reduced from life imprisonment under Section 302 to imprisonment for seven years under Section 304, part-II of IPC vide Exception 1 to Section 300, IPC.
In Muthu v. State of Tamil Nadu [(2007) 7 Supreme 547], it has been stated that in the heat of the moment people sometimes do act which aren’t premeditated. Hence, the law provides that while those who commit acts in a fit or anger should also be punished, their punishment should be lesser than that of premeditated offences. We are satisfied that Muthu was deprived of the power of self-control by grave and sudden provocation which led him to commit the offence.
If rubbish is thrown into one’s house or shop, one would naturally get very upset. It is evident that the accused had no motive or intention to cause death since he was not carrying the knife from before, and only picked it up during the scuffle with Shiva (deceased). The Court further said that this was not a murder but culpable homicide not amounting to murder punished under Section 304.
In this case, life term reduced to 5 years giving the accused benefit of Exception 1 to 300, IPC considering constant harassment may lead to deprivation of the power of self-control amounting to grave and sudden provocation.
In Dattu Genu Gaikwad v. State of Maharashtra [AIR 1974 SC 387], the accused killed the deceased as the deceased attempted reign to outrage the modesty of accused’s wife a month back. In view of the long time interval, it was held that the plea of ‘sudden and grave’ provocation was not available.
2. Exceeding right of Private defence:
As per Exception 2 of Section 300 of the Code, culpable homicide is not murder if the offender exercises in good faith of the right of private defence of person or property. To apply this provision the following conditions must be fulfilled:
i) Act must be done in exercise of right of private defence of person or property;
ii) Act must have been done in good faith;
iii) The person doing the act must have exceeded his right given to him by law and have thereby caused death;
iv) Act must have been done without premeditation and without any intention of causing more harm than was necessary in self-defence.
Exception 2 is in respect of cases where a person has exceeded his right of private defence. It may be pointed out that the fact that a person has exceeded his right of private defence does not totally exonerate a person under this exception. It merely is considered as a mitigating factor to reduce the offence from that of murder to culpable homicide not amounting to murder.
Of course, before this exception can be availed of, it has to be proved that the accused had the right of private defence. It is only after the existence of the right is established that the question whether the accused had exceeded his right to provide defence will arise. If, in the first instance, it appears that the accused does not have the right of private defence, then obviously this exception clause will not come into play.
If a person genuinely exercises his right of private defence within the limits prescribed by law, then he commits no offence. However, if he exceeds the right, it will amount to a lesser offence than murder. The exceeding of private defence by the accused should be done unintentionally.
Only then can the accused avail of the exception provided under this clause. The question whether the exceeding of the right of private defence was done intentionally or unintentionally is a question of fact, which has to be decided on the facts and circumstances of each case.
In P.P. Sah v. State [AIR 2003 SC 209], it was observed that while exercising his right of private defence of property the accused exceeded his right of private defence and killed a man. It was held that the case fell within Exception 2 of Section 300 and as such he was liable to be punished under Section 304, Part-I and not under Section 302 IPC.
In Balakee Jalahed v. R [(1868) 10 WR(Cr) 9], the accused found that a feeble old woman was stealing his crop. He beat her so violently that she died from the effect of the attack it was held that the accused was guilty of murder and the Exception 2 of Section 300 would not apply.
3. Exercise of Legal Powers:
According to Exception 3 to Section 300, culpable homicide is not 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 causes the 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. The essential ingredients of the Exception 3 of Section 300 are as follows:
1) The offence must be committed by a public servant or by a person aiding a public servant;
2) The act alleged must have been committed by the public servant in the discharge of his official duties;
3) He should have exceeded the powers given to him by law;
4) The act should be done in good faith;
5) The public servant should have believed that his act was lawful and necessary for the due discharge of his duties;
6) He should not have borne any ill-will towards the person whose death was caused.
In Dukhi Singh v. State [AIR 1955 All 379], a constable of Railway Protection Police shot a thief suspected to be tampering with sugar bags from the goods wagon on order by the havaldar. He did so in discharge of his duty and that it was just an accident that he hit the fireman instead. He was convicted under Section 302 by the lower Court.
On appeal, it was held that the case would be covered by Exception 3 to Section 300 of IPC. In the present case, there was no ill-will between the appellant and the deceased. The appellant was a public servant and his object was the advancement of public justice.
He caused the death of the fireman by doing an act which he, in good faith, believed to be lawful and necessary for the due discharge of his duty. In such circumstances, it was held that the offence committed was culpable homicide not amounting to murder punishable under Section 304, Part-11 of I PC and not murder. The conviction under Section 302 for murder was set aside.
Exception 3 of Section 300 gives protection so long as the public servant acts in good faith, but if his act is illegal and unauthorized by law, or if he glaringly exceeds the powers entrusted to him by law, the Exception 3 will not protect him.
In Subha Naik v. R [(1898) 21 Mad. 249], a constable caused death under orders of a superior, it being found that neither he nor his superior believed that it was necessary for public security to disperse certain crowd by firing on them, it was held that he was guilty of murder since he was ‘not protected in that he obeyed the orders of his superior officer’.
4. Death caused in sudden fight:
As per Exception 4 of Section 300, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.
The conditions required to be proved for bringing the case within the ambit of Exception 4 of Section 300 are:
i) The murder should have been committed without premeditation;
ii) It should have been committed in a sudden fight;
iii) It should have been committed in the heat of passion;
iv) It should have been committed upon a sudden quarrel; and
v) It should have been committed without the offender having taken undue advantage or acted in a cruel or unusual manner.
There has to be a fight. The word ‘fight’ conveys something more than a verbal quarrel. It takes to make a fight. It is not necessary that weapons should be used in a fight. In order to constitute fight, it is necessary that blows should be exchanged even if they do not all find target. The fight must be with the person who is killed and not with another person. An actual attack by one party and retreat by another does not constitute fight. One-sided attack cannot be a fight.
The word ‘sudden fight’ or ‘upon sudden quarrel’ indicates something in the nature of a ‘free-fight’. Free fight is said to take place when both sides mean to fight from the start, go out to fight and there is a pitched battle. A sudden fight implies mutual provocation and blows an each side.
For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no pre-meditation. It must further be shown that the offender has not taken undue advantage or acted in cruel on unnatural manner. The words ‘undue advantage’ means ‘unfair advantage’.
For a case to be covered under Exception 4 to Section 300, IPC, the cause of the quarrel is not relevant, nor is it relevant as to who offered the provocation or started assault and the number of wounds caused during the occurrence is also not decisive, but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner.
In Suraj Mal v. State of Punjab [AIR 1992 SC 559], the dying declaration of the deceased stated that it was only during the quarrel that ensued between the deceased and the appellant, that the appellant stabbed the deceased once with a knife. As the appellant acted without premeditation in the heat of passion upon a sudden quarrel, the court allowing the appeal, held that since Exception 4 of Section 300 is attracted to the facts of this case, the offence is punishable under Section 304 but not under Section 302, IPC.
In Sukhbir Singh v. State of Haryana [(2002) 3 SCC 327], the accused abused a road sweeper who happened to throw mud on him. The father of the sweeper slapped the accused. The infuriated accused went away and came back with others. He alone inflicted the fatal blow.
The occurrence was sudden because the gap between the injury and quarrel was only of a few minutes. There was no previous enmity and blows were not repeated as the deceased fell down helpless. There was no unusual cruelty. It was held that the homicide was caused in sudden fight. The Supreme Court gave benefit of Exception 4 of Section 300 to the accused.
In Suririder Kumar v. Union Territory of Chandigarth [AIR 1989 SC 1094], the appellant had an argument with the deceased and there was heated exchange and the appellant got enraged, went into the kitchen and returned with a knife with which he inflicted blows on the deceased and the deceased collapsed on the floor and later died. Considering the facts that there was no ill-will between the parties, the court held that the appellant was entitled to the benefit of Exception 4 of Section 300. The accused was convicted under Section 304.
5. Death caused of the person consenting to it:
According to Exception 5 of Section 300, culpable homicide is not murder when the person whose death is caused being above the age of 18 years, suffers death or takes the risk of death with his own consent.
The points to be proved are:
1) The death was caused with the consent of the deceased;
2) The deceased was then above 18 years of age;
3) That such consent was free and voluntary and not given through fear or misconception of facts.
In Ujagar Singh v. R [AIR 1918 Lah 145], the accused killed his stepfather who was an infirm, old and invalid man, with the latter’s consent, his motive being to get three innocent men (his enemies) implicated. It was held that the offence was covered by the Fifth Exception to Section 300, and punishable under the first part of Section 304, IPC.
In Dasrath Paswan v. State of Bihar [AIR 1958 Pat 190], the accused was a tenth class student and failed thrice. He decided to end his life and informed his wife. She asked him to first kill her and then kill himself. In accordance with their pact, the accused killed his wife aged 19 years. He was arrested before he could kill himself. He was convicted under Section 302, IPC for the murder of his wife and sentenced to transportation for life.
On appeal, the Patna High Court, having regard to the extraordinary nature of this case, held that a moderate sentence is proper. The appellant is immature young man and was suffering from an inferior complex. The loss of a devoted wife has already been a great punishment to him. Appellant was sentenced to five years of rigorous imprisonment under Section 304 Part-I of the IPC, relying upon Exception 5 to Section 300.
In Ganesh Dooley v. R [(1879) 12 R5 Cal. 351], A and B, snake charmers induced С and D to allow themselves to be bitten by a snake believing that they extracted the fangs. С and D died with snake bite. A and В were held guilty of culpable homicide under Exception 5 to Section 300, on the ground that the deceased gave their consent ‘with full knowledge of the fact, in the belief of the existence of powers which the accused asserted and believed themselves to possess.