ANALYSIS: MURDER AND ATTEMPT TO MURDER

    The expression ‘murder’ has been derived from the Germanic word, mortna, which means secret killing. Although it was said that in the early period German people had drawn the distinction between open killing and secret killing where the former was not punishable and the later one was. But as per twelfth century every homicide whether opened or secret was recognized as grave and punishable.

    Under Section 300 of IPC, murder has been defined. Murder is when a person of sound mind unlawfully kills any human being without any justification or reasonable excuse with a malice intention. Therefore it is considered as one of the gravest crimes which prevents by granting tyrannical punishments for the purpose of retribution, deterrence and incapacitation. Generally, in most of the countries an individual who is convicted of murder is charged by long term imprisonment, in fact a life sentence in some cases. However, there is a provision of death penalty also which is given in rarest of the rare cases as said in Bachan Singh’s case.

    So before elucidating the term murder and its provisions and exceptions, we should firstly know the meaning of ‘Culpable Homicide’ because the legal meaning of murder is homicide. In Indian Penal Code ‘Culpable Homicide’ has been defined under Section 299 which means causing death by doing an act with the intention of causing death; by such bodily injury that is likely to cause death or with the knowledge that his act is likely to cause death. In other words it means killing another human being [1].

    SCOPE OF SECTION 300

    Under the scheme of the code, ‘Culpable homicide’ is genus and ‘murder’ is species. Thus every murder is culpable homicide but not vice-versa. It may be classified into two classes:-

    1.  Culpable homicide amounting to murder (section 300), which is punishable under section 302 of IPC, and
    2.  Culpable homicide not amounting to murder [2] (section 300 with exceptions).

    It would probably have been simpler and less complicated if the code has first defined homicide then separately culpable homicide and murder. However some clauses in section 299 and 300 overlap each other which has led to a lot of differences in judicial pronouncements. There are the cases where the death is caused whilst the accused in the course of exercising his right to private defence or in the exercise of legal powers, or in sudden fight.

    ESSENTIAL INGREDIENTS OF SECTION 300

    INTENTION TO CAUSE DEATH – CLAUSE (1)

    The first clause of section 300 enacts that culpable homicide is murder if the act by which death is caused is caused by such an intention. In other words, where there is intention to kill the offence is always a murder. Further the intention of the person can be gathered from the actions of the person. Since intention is always a state of mind, it can be proved by its external manifestation.  For instance, C shoots Y with the intention to cause death to Y. Thus Y dies and in consequence C commits the murder.

    In Vasanth v. State of Maharashtra,[3] the Supreme Court held that the accused has intentionally dashed his jeep against the accused and ran over him with the intention to cause death. Thus he is liable.

    INTENTION OF CAUSING SUCH BODILY INJURY WITH KNOWING THE PECULIAR CONDITIONS- CLAUSE (2)

    Under this clause the offender is causing such bodily injury by knowing that it is likely to cause death of the person to whom the harm is caused. Example: C’s spleen is enlarged, D is aware of it, and D punches C with the intention of causing C’s death, in consequence spleen of C’s burst and C died. Hence D will be guilty of murder.

    BODILY INJURY WHICH CAUSES DEATH IN THE ORDINARY COURSE OF NATURE – CLAUSE (3)

    The third clause states intention to cause bodily injury which is sufficient to cause death in ordinary course of nature. Here sufficient means where there is a high probability of the injury resulting in death.

    In Virsa Singh v. State of Punjab, [4] the Supreme Court laid down certain essentials which the prosecution has to prove in order to bring a case within clause (3):

    1.  A bodily injury must be present;
    2.  Nature of injury must be proved;
    3.  It must be proved that the intention to cause such offence must not be accidental or unintentional;
    4.  It must be proved that the injury is sufficient cause of death in the ordinary course of nature.

    COMMISSION OF ACT IS SO IMMINENTLY DANGEROUS SO AS TO CAUSE DEATH – CLAUSE (4)

    This clause applies to those imminent dangerous acts where there is no intention to cause death but death has been resulted. For example, death caused as a result of firing at a mark near a public road would be a case of murder under section 300, IPC. In Sehaj Ram v. State of Haryana,[5] a constable who fired several shots on another constable, out of which one shot hit the victim beneath the knee of his right leg and he fell down. Here the accused said that his intention was to give mere threat to the deceased not to cause death. But the Supreme Court rejected the contention and held that the act was done under the clause 4 and accused should be convicted for murder.

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    EXCEPTIONS OF SECTION 300

    It is evident that, in certain exceptional situation where if murder is committed, it is reduced to mere culpable homicide and not amounting to punishment under Sections 302 and 304 of IPC.  These exceptions are uniformly applicable to all the four clauses of section 300. In other words, even if a case falls within any of the four clause of section 300, if it also falls within any of the five exceptions, then it will cease to murder. It will simply be culpable homicide that is not amounting to murder. The following are the certain exceptions:-

    GRAVE AND SUDDEN PROVOCATION

    In order to consider the provocation as a ground of exception for an offence of murder it must prove certain requirements, i.e.:

    1.  Provocation must be both sudden and grave.
    2.  Due to said provocation, the offender must lose his power of self-control.
    3.  The offence must be committed before the accused cool down.

    Therefore it is important to prove that whether the provocation was amounts to sudden and grave which is enough to prevent the offence from amounting to murder. Thus in order to determine such provocation the court generally applied the principle of reasonableness to get the enough results in the ground of exceptions. However the court inquires that this exception is itself subject to three exceptions:-

    •  If the accused courts gives provocation or uses it as an excuse for assaulting another; or
    •   If the act is legally done by a public servant in the exercise of his legal rights as a public servant; or
    •   If the act is done in the exercise of right to private defence.

    Thus, as was appropriately seen by the Supreme Court in Nanavati’s case[6] : “conditions which instigate a desire for vengeance, or an unexpected passion of outrage, are insufficient. Without a doubt, conditions which instigate a desire for retribution are conflicting with provocation, since the intended plan of a desire for vengeance implies that the individual has had the opportunity to think, to reflect, and that would negative an abrupt transitory loss of self-control which is of the embodiment of provocation.

    There are two things in provocation,  to which the law joins extraordinary significance. Firstly, whether there was a time for cooling, that is, for energy to cool and for motivation to recapture domain over the mind. Secondly, whether incitement has or has not been made out, it should consider the counter in provocation that is to state, whether the method of hatred bears some legitimate and reasonable relationship to such a provocation that has been given.” Further provocation need not really be bound to a physical or verbal ambush however there could be that little class of extraordinary circumstance when the situational provocation offers rise to commission of an offence. [7] Lapse of time, subsequent to provoking occurrence demonstrates that the offense of homicide was a well planned one with adequate time for thought of activity and thus gets excluded from being a ground of exception. [8]

    EXCEEDING THE RIGHT OF PRIVATE DEFENCE

    According to the second exception it deals with those cases wherein a person exceeds his right to private defence. If the excess is intentional, the offence is murder and if not then vice-versa. This exception is applied where the offence has been done by an individual, exercising right to private defence in good faith without premeditation and without any intention of doing more harm than necessary for such defence. Thus it is essential to prove that:

    1.  The act must be done in accordance with self defence of an individual.
    2.  The intention of the offender must be good.
    3.  The person doing such an act must exceed his right to private defence given by law, which leads to death.
    4.  The act of the person must be without premeditation and without any intention of causing death.

    Therefore when an offender while practicing his right to self-defence in accordance with good faith crosses the limits forced by law of self-defence yet falls under the extent of this exception, gets this partial defence rather than the complete defence from criminal liability. Subsequently his offense of murder becomes culpable homicide under this ground of exception.

    In Mohinder Pal Jolly v. State of Punjab[9]  where the accused fired the shot from his gun on the deceased in order to self- defence. The Supreme Court held that the accused has exceeded his right to self- defence and this exception does not apply to the facts of the case.

    PUBLIC SERVANT EXCEEDING HIS POWER

    This exception is similar to the 2nd exception, as it deals with the situation where a public servant exceeds his duties and causes death. The essential elements of this exception are:-

    1. The offence must be acted by a public servant or by a person who is aiding public servants.
    2. It must be done in discharge of his official duties.
    3. He should have exceeded his power of legal limits.
    4. It should be done in good faith.
    5. It should be believed that his act was lawful and necessary for discharge of duties.
    6. It should be without ill-will towards the person whose death is caused.

    While exercising his duty, in case  Dukhi Singh v. State [10] where a suspected thief who was arrested by a police officer, while trying to escape by jumping down from the train from its off-side was shot dead by the police constable as he was not in a position to apprehend him. The court held that the case was covered under this exception.

    SUDDEN FIGHT

    Under this exception, the term sudden fight implies mutual provocation and aggravation and the absence of previous deliberation or determination to fight. In such situations, the necessary [11]of this exception are:-

    1.  The murder should be committed without premeditation;
    2.  In a sudden fight;
    3. Upon a sudden quarrel;
    4.  Without the offender having taken undue advantage or acted in a cruel manner.

    The above conditions are required to be proved for bringing the case within the exception 4 of section 300[12].

    In Manke Ram v. State of Haryana [13] the Supreme Court held that the incident took place in a sudden fight, in the heat of passion and granted benefit of exception 4 to appellant.

    DEATH BY CONSENT

    Under this exception the culpable homicide does not amounts to murder if the death is caused by consent of the person. The following are the points to be proved:-

    1.  The death was caused with the consent of the deceased;
    2. Deceased should be above 18 years;
    3.  His consent must be free and without undue influence.

    In Dasrath paswan v. State of Bihar [14] it was held that the deceased was above 18 years and she had suffered death with her own consent and did not give consent under undue influence and misconception of fact but voluntarily so it would fall under exception 5 of section 300, IPC.

    ATTEMPT TO MURDER (SECTION 307)

    A person who commits an offence under section 307, IPC has an intention to attempt murder. For a conviction under this section, it is not necessary that the accused must complete all the stages in the actual offence, except the final stage. Therefore it is enough if he attempts to do the act towards the commission of an offence. [15] If the offender would prove guilty of murder, he shall be punished with imprisonment which may extend to ten years and shall be liable to fine also. On the contrary if hurt is caused to any person by an act, he may be punished with life imprisonment or to such punishment i.e. decided by court of law. In the case of Jai Narain v. State of Bihar[16] the number of the offenders was considered, the court stated that the fact that four or five individuals assaulted an individual, with dangerous weapons demonstrated their intention to cause the death of that individual, hence they will be liable under section 307.

    For instance, if Y shoots A with intention to kill him, if death ensued, X would be guilty of murder and shall be punished under this section.

    CONCLUSION

    In sum up, in case of murder the Court grants capital punishment just in rarest situations and only in cases where the accused is a danger to the general public and the Court understands the estimation of life. The Court has all the rights and capacities to decrease the punishment. On the other hand in case of attempt to murder, there is a common element which is required for the conviction i.e., intention with the knowledge and the implication of act done. Thus, all the courts agree on the facts that in order to commit the above offences there must be presence of intention and the preparation for the act.

    REFERENCES

    [1] K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605.

    [2] Behari v. State of Uttar Pradesh, AIR 1953 All 203.

    [3] AIR 1998 SC 699.

    [4] AIR 1958 SC 465.

    [5] AIR 1983 SC 614.

    [6] Supra note 1.

    [7] Sulaiman K v. State of Karnataka, 1998(1) Crimes 414.

    [8] Supra note 1.

    [9] AIR 1979 SC 577.

    [10] AIR 1955 All 379.

    [11] Kikar Singh v. State of Rajasthan, AIR 1993 SC 2426; Rajendra Singh v. State of Bihar, AIR 2000 SC 1779; Sukhdev Singh v. State, (2003) 7 SCC 441, Prakash Chand v. State of Himachal Pradesh, (2004) 11 SCC 381.

    [12] Sikander @ Mohd. Safiq v. The State (Delhi Administration), AIR 1999 SC 1406; Subhash Shamrao Pachunde v. State of Maharashtra, (2006) 1 SCC 384; Pappu v. State of Madhya Pradesh, (2006) 7 SCALE 24.

    [13] (2003) 11 SCC 238.

    [14] AIR 1958 Pat 190.

    [15] Raghunath alias Ram Singh, (1940) 16 Luck 194.

    [16] 1972 CrLJ 469(SC)(1971) SC 1764.


    BY CHAHAT | UNIVERSITY INSTITUTE OF LAW, REGIONAL CENTRE| LUDHIANA

     

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