Homicide

Homicide from the earliest times has fascinated the human mind and has
always been considered as most heinous of offences. The word homicide has
been derived from the Latin word homo which means a man, and caedere
which means to cut or kill. Thus, homicide means the killing of a human being,
by a human being. But then, not all cases of homicide are culpable as all
systems of law do distinguish between lawful and unlawful homicide For
instance, killing in self defense or in pursuance of a lawful authority or by
reason of mistake or fact, is not culpable. Likewise, if death is caused by
accident or misfortune, or while doing an act in good faith and without any
criminal intention for the benefit of the person killed, the man is excused from
criminal

responsibility

for

homicide.

Further in some cases the accused may be punished for lesser offences (for e.g.
hurt) even though death has resulted, if the injury resulting in death though
voluntarily caused was not likely to cause death . For example, A gives B a blow
and B, who suffers from an enlarged spleen of which A was not aware, dies as a
result. A is not guilty of Culpable Homicide as his intention was merely to
cause

an

injury

that

was

not

likely

to

cause

death.

It is in connection with homicide that the maxim actus non facit reum nisi
mens sit rea has been frequently cited as stating the two fundamental
requirements

of

Culpable

criminal
Homicide/

liability.
Manslaughter

The crime of manslaughter is termed as Culpable Homicide. It is a term in the

law of Scotland and England that covers a number of criminal homicides
equivalent

to

manslaughter

in

legal

criminal

jurisdictions.

Section 299 of the Indian Penal Code deals with Culpable Homicide and it is
stated as follows Whoever causes death by doing an act with the intention of
causing death , or with the knowledge that he is likely by such act to cause
death,

commits

the

offence

of

Culpable

Homicide.

The Penal Code has first defined Culpable Homicide simpliciter (Section 299,

I.P.C) termed as manslaughter under English law which is genus, and then
murder

(Section

300,

I.P.C)

which

is

species

of

homicide.

Explanation 1 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.

Explanation 2 Where death is caused by bodily injury, the person who causes
such bodily injury shall be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment the death might have been
prevented.
Explanation 3 The causing of the death of a child in the mothers womb is not
homicide. But it may amount to Culpable Homicide to caused the death of a
living child, if any part of that child has been brought forth, though the child
may

not

have

breathed

or

completely

born.

Homicide is the killing of a human being by a human being. It is either a)

lawful,

or

b)

unlawful.

a) Lawful Homicide: It is also known as Simple Homicide, includes several

cases falling under the General Exceptions. The death is caused in one of the
following

ways

:-

Where death is caused by accident or misfortune, and without any criminal

intention or knowledge in the doing of a lawful act, in a lawful manner, by
lawful

means,

Where

the

and
death

with

proper

care

and

is

caused

justifiably,

caution
that

is

(s.

80)

to

say,

i. By a person, who is bound, or by mistake of fact in good faith believes himself

bound,

by

law

(s.76)

ii. By a Judge when acting judicially when acting judicially in the exercise of
any power which is, or which in good faith he believes to be, given to him by
law.

(s.77)

iii. By a person acting in pursuance of the judgement or order of a Court of

Justice.

(s.78)

iv. By a person who is justified or who by reason of a mistake of fact, in good

faith,

believes

himself

to

be

justified

by

law.(s.79)

v. By a person acting without criminal intention to cause harm and in good

faith, for the purpose of preventing or avoiding other harm to person or
property

(s.81)

vi. Where death is caused in the exercise of the right of private defence of
person

or

property

(ss.

100,

103)

Where death is caused by a child, or person of unsound mind, or an

intoxicated

person

as

will

come

under

ss.

82,83,84

and

85.

Where death is caused unintentionally by an act done in good faith for

benefit

of

the

person

killed,

when

i. He or, if a minor or lunatic, his guardian, has expressly or impliedly

consented

to

such

an

act

(ss.

87,

88);

or

ii. Where it is impossible for the person killed to signify his consent or where he
is incapable of giving consent, and has no guardianfrom whom it is possible to
obtain consent, in time for the thing to be done with benefit. (s.92)
b) Unlawful Homicide : Culpable Homicide is the first kind of unlawful
homicide.
i.

An

It
act

is

the

with

causing
the

of

intention

death
of

by

doing:

causing

death.

ii. An act with the intention of causing such bodily injury as is likely to cause
death;
iii.

An

or
act

with

the

knowledge

that

it

was

likely

to

cause

death.

Without one or other of those elements, an act, though it may be in its nature
criminal and may occasion death, will not amount to the offence of Culpable
Homicide.

Culpable

Homicide

Essential

Elements:

Culpable Homicide is the first kind of unlawful homicide as defined in Section

299, I.P.C it purports to define and explain as to when an act of causing death
constitutes
1)
2)
i.

Culpable

Causing
Such

of

death

With

Homicide.

the

death
must

have

intention

The

important

of

been

caused

of

causing

elements
human
by

are:being.

an

death;

act
or

ii. With the intention of causing such bodily injury as is likely to cause death;
or.
iii. With the knowledge that the doer is likely by such an act to cause death.
The fact that the death of a human being is caused is not enough. Unless one
of the mental states mentioned in ingredient is present, an act causing death
cannot amount to Culpable Homicide. Thus where a constable who had loaded
but defective gun with him wanted to arrest an accused who was going on a
bullock cart by climbing on the cart and there was a scuffle between him and
the accused and in course of which the gun went off and killed the constable, it
was held that accused could not be held guilty of Culpable Homicide
Circumstances

For

Culpable

Homicide

a) Causes Death: In order to hold a person liable under the impugned Section
there must be causing of death of a human being as defined under Section 46
of the Code. The causing of death of a child in the mothers womb is not
homicide as stated in Explanation 3 appended to Section 299, I.P.C. But the
person would not be set free. He would be punishable for causing miscarriage
either under Section 312 or 315 I.P.C depending on the gravity of the injury.
The act of causing death amounts to Culpable Homicide if any part of that
child has been brought forth, though the child may not have breathed or been
completely born. The clause though the child may not have breathed suggests
that a child may be born alive, though it may not breath (respire) , or it may
respire so imperfectly that it may be difficult to obtain clear proof that
respiration takes place. Causing of death must be of a living human being

which means a living man, woman, child and at least partially an infant under
delivery

or

just

delivered.

b) By Doing An Act With The Intention Of Causing Death: Death may be

caused

by

hundered

and

one

means,

such

as

by

poisioning,

drowning,striking,beating and so on and so forth. As explained under Section

32, I.P.C the word act has been given a wider meaning in the Code in as much
as it includes not only an act of commission, but illegal omissions as well and
the word illegal is applicable to everything which is an offence or which is
prohibited by law, or which is prohibited by law, or which furnishes ground for
civil action (s.43). Therefore death caused by illegal omission will amount to
Culpable

Homicide.

i. Death caused by effect of words on imaginations or passions: The

authors of the Code observe : The reasonable course, in our opinion , is to
consider speaking as an act, and to treat A as guilty of voluntary Culpable
Homicide, if by speaking he has voluntarily caused Zs death, whether his
words operated circuitously by inducing Z to swallow a poison or throwing Z
into

convulsions.

c) With The Intention Of Causing Such Bodily Injury as is likely to cause

death: . The word intention in clause (a) to Section 299, I.P.C has been used
in its ordinary sense, i.e., volitional act done without being able to forsee the
consequence with certitude. The connection between the act and the death
caused thereby must be direct and distinct; and though not immediate it must
not be too remote. If the nature of the connection between the act and the
death is in itself obscure, or if it is obscured by the action of concurrent
causes, or if the connection is broken by the intervention of subsequent
causes, or if the interval of time between death and the act is too long, the
above condition is not fulfilled. Where a constable fired five shots in succession
at another constable resulting in his death, it was held that it would be native
to suggest that he had neither intention to kill nor any knowledge that injuries
sufficient to kill in ordinary course of nature would not follow. His acts squarely
fell in clauses 2,3 and 4 of s.300, I.P.C i.e Culpable Homicide amounting to

murder.
d) With

the

knowledge

that

he

is

likely

by

such

act

to

cause

death : Knowledge is a strong word and imports ceratinity and not merely a
probability.If the death is caused under circumstances specified under Section
80, the person causing the death will be exonerated under that Section. But, if
it is caused in doing an unlawful act, the question arises whether he should be
punished for causing it. The Code says that when a person engaged in the
commission of an offence, without any addition on account of such accidental
death. The offence of Culpable Homicide supposes an intention, or knowledge
of likelihood of causing death. In the absence of such intention or knowledge,
the offence committed may be grievous hurt, or simple hurt. It is only where
death is attributed to an injury which the offender did not know would
endanger life would be likely to cause death and which in normal conditions
would not do so notwithstanding death being caused, that the offence will not
be Culpable Homicide but grievous or simple hurt. Every such case depends
upon the existence of abnormal conditions unkown to the person who inflicts
injury. Once it is established that an act was a deliberate acct and not the
result of accident or rashness or negligence, it obvious that the offence would
be

Culpable

Homicide.

e) Death Caused of Person Other Than Intended: To attract the provisions of

this Section it suffices if the death of a human being is caused whether the
person was intended to be killed or not. For instance, B with the intention of
killing A in order to obtain the insured amount gave him some sweets mixed
with poison. The intended victim ate some of the sweets and threw the rest
away which were picked up by two children who ate them and died of
poisoning. It was held that B as liable for murder of the children though he
intended

to

kill

only

A.

f) Death Caused Inadvertently without Intention While Doing an Unlawful

Act: It has been clearly stated in I.P.C that a person will not be liable for
Culpable Homicide, if he causes the death of a person while doing an unlawful
act, provided he did not intend to kill or cause death by doing an act that he

knew was likely to have that effect. On the other hand, under English law, if a
person whilst committing an unlawful act accidently kills another, he would be
liable for manslaughter or murder according to whether his act constituted a
felony

or

misdemeanour.

g) Consent is not a defence to Manslaughter: The House of Lords in R v

Walker held that the respondent a truck driver carrying illegal immigrants will
be criminally responsible for involuntary manslaughter, if the act results in
death, even if the victim has consented to take such risk engaged in some joint
unlawful activity. In this case the defendant, truck driver ( a Dutch national)
drove a lorry from Rotterdam (Netherlands) to Zeebrugge (United Kingdom). The
lorry had been loaded with a refrigerated container in which 60 Chinese (illegal
immigrants) had been hidden to conceal the illegal human cargo behind a load
of tomatoes. The container was sealed apart from a small air vent which was
closed for 5 hours prior to the ferry crossing to Dover to preserve secrecy. On
disembarkation at Dover (in England) the customs officers examined the
container and discovered the bodies of 58 immigrants, who had suffocated to
death. Wacker was charged with 58 offences of manslaughterand conspiracy to
facilitate the entry of illegal entrants into United Kingdom. Applying the
doctrine of negligence( ex turpi causa non oritur actio) for causing death of the
victims the trial convicted and sentenced the respondent to 6 years
imprisonment for each the manslaughter charges to run concurrently and eight
years imprisonment for the conspiracy to facilitate entry of illegal immigrants
with a total of 14 years. This decision was upheld by the House of Lords as
well.
Section 301; If a person, by doing anything which he intends or knows to be
likely to cause death, commits Culpable Homicide by causing the death of any
person, whose death he neither intends nor knows himself to be likely to cause,
the Culpable Homicide committed by the offender is of the description of which
it would have been if he had caused the death of the person, whose death he
intended

or

knew

himself

to

be

likely

to

cause..

1) Doctrine of Transferred Malice: Blow aimed at the intended victim, if

alights on another, offence is the same as it would have been if the blow had

struck the intended victim. This Section lays down that Culpable Homicide may
be committed by causing the death of a person whom the offender neither
intended, nor knew himself to be likely, to kill. This Section embodies what the
English authors describe as the Doctrine of Transfer of Malice or the
transmigration of motive. Under this Section, if A intends to kill B but kills C
whose death he neither intends nor knows himself to be likely to cause, the
intention to kill C is, by law attributed to him. Where the accused was
deliberately trying to shoot a fleeing man who had criticized his father in a
School Committee Meeting but unfortunately his own maternal uncle came in
between him and the intended victim and thus got killed, it was held that the
act of the accused ws nothing but murder under s.302 read with s.301, I.P.C
Section 304: Whoever commits Culpable Homicide not amounting to murder,
shall be punished with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and shall also be liable to
fine, if the act by which the death is caused is done with the intention of
causing death, or causing such bodily injury as is likely to cause death;
Or with imprisonment of either description for a term which may extend to ten
years, or with fine, or with both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause death, or to cause
such

bodily

injury

as

is

likely

to

cause

death.

This Section provides punishment for Culpable Homicide not amounting to

murder . Under it there are two kinds of punishments applying to two different
circumstances:
a) If the act by which death is caused is done with the inetention of causing
death or such bodily injury as is likely to cause death, the punishment is
imprisonment for life, or imprisonment of either description for a term which
may

extend

to

ten

years

and

fine.

b) If the act is done with knowledge that it is likely to cause death but without
any intention to cause death or such bodily injury as is likely to cause death,
the punishment is imprisonment of either description for a term which may

extend

to

ten

years,

or

with

fine,

or

with

both.

Where the deceased , an old man with an enlarged and flabby heart, was lifted
by the accused during a quarrel and thrown on the ground from some distance
with sufficient force and the deceased got his ribs fractured and died of a
rupture of the heart, it was held that the offence fell under Section 325 rather
than 304 as the accused had no intention or knowledge to cause death.
Section 304 A: Whoever causes the death of any person by doing any rash or
negligent act not amounting to Culpable Homicide, shall be punished with
imprisonment of either description for a term which may extend to two years,
or

with

finr,

or

both.

The original Penal Code had no provision for punishment in those cases where
a person causes death of another by negligence. That is to say, liability for
causing death was limited only to cases of murder and Culpable Homicide not
amounting to murder. Section 304A was inserted in the Penal Code by the
Indian Penal Code Act 27 of 1870 to cover those cases which under English law
are

termed

Manslaughter

by

negligence.

The impugned Section provides punishment of either description for a term

which may extend to two years, or fine, or both in case of homicide by rash or
negligent act. The Law Commission of India in 1971 on the basis of strong
demand for the increase in punishment for the offences under this Section
recommended for enhancements of the sentence of imprisonment upto 5
years.But
Principle

it
of

Criminal

was
Liability

not
For

Negligence:

implemented.
Adomado

The House of Lords in Adomado while dismissing the appeal against conviction
of an anesthetist for gross negligence during an eye operation had failed to
notice that the supply of oxygen has been discontinued, resulting in death of
the patient held that to establish negligence the general principles of law as
follows

may

apply:

Whether or not defendant was in breach of a duty of care owed to the victim

who had died. If so, the general principle of ex turpi causa applied.
Whether that breach of duty caused the death of the victim: If so, should
that breach of duty be categorized as gross negligence and therefore as a crime.
This will depend upon the seriousness of the breach committed by the
defendant

when

the

breach

occurred.

In essence, it is permissible for gross negligence manslaughter to be

established without necessity to enquire into defendant state of mind.
Essential

Ingredients:

To bring a case of Homicide under Section 304A I.P.C the following condition
must

exist,

1)

There

2)

The

must

be

accused

death

must

of

have

viz;
the
caused

person
such

in

question

death;

and

3) That such act of the accused was rash or negligent and that it did not
amount

to

Culpable

Homicide.

The requirement of Section 304A, I.P.C are that the death of a person, must
have been caused by doing only rash or negligent act, and that there must be a
direct nexus between death of a person and the rash and negligent act of the
accused, Section 304 A. I.P.C will not apply. Where the accused was allowed to
manufacture of wet paints in the same room where varnish and turpentine
were stored, fire broke out due to a proximity of open burners to the stored
varnish and turpentine. The direct or proximate cause of the fire which
resulted in 7 deaths was the act of one Hatim. Apparently in a hurry, he had
perhaps not allowed the resin to cool sufficiently and poured the turpentine too
quickly.
The deaths were therefore not directly the result of the rash act on the part of
the accused, nor one that was proximate and efficient cause without the
intervention of anothers negligence. The accused was therefore acquitted of the
offence under Section 304 A and held liable for negligent conduct with respect
to fire or combustible matter is punishable under Section 285 of the I.P.C. It
must be causa causans(immediate cause); it is not enough that it may have
been

the

causa

sine

qua

non

(a

necessary

or

inevitable

cause).

Rash

and

Negligent

Act

A rash act is primarily an over hasty act. It is opposed to deliberate act. It

basically denotes want of proper care and caution and connotes and overt act
with a consequence of risk that evil consequences might follow but with hope it
will

not

happen.

Negligence is a breach of duty imposed by law. Negligence may be either civil or

criminal

negligence

depending

upon

the

nature

and

gravity

of

the

negligence.Criminal negligence is gross and culpable, neglect or failure to

exercise reasonable and proper care to guard against injury, either to public
generally, or to an individual in a particular, which having regard to al the
circumstances out of which charge has arisen, it was duty of person to have
adopted.
A Person Convicted Under Section 304A, I.P.C is not entitled to the benefit of
probation and lenient Punishment- The apex court in Dalbir Singh, rejected the
plea of the accused driver for invocation of the benevolent provision of Section
4

of

the

Probation

of

the

Offenders

Act,

1958.

Medical Negligence: There is an implied undertaking by the member of

medical profession that he would use a fair, reasonable and competent degree
of skill. However, a medical practitioner cannot be found guilty merely because
in matter of opinion he made an error of judgement. The doctor would not be
liable for taking and adopting one course of treatment, whereas other course
might

have

been

preferable.

Doctor liable For Negligence Both in Civil and Criminal Law: A doctor when
consulted
1)A
2)
3)A

by

duty
A

of

duty
duty

a
care
of
of

patient
in
care
care

owes

deciding
in

whether

deciding
in

him

certain

duties,

viz,

to

undertake

the

case;

what

treatment

to

give;

administering

that

treatment.

A breach of duty gives a cause of action under (i) Law of Torts, or

(ii) Consumer Protection Act, 1986. The doctor is liable to pay compensation to

victim if found liable . In case of civil case in law of torts the plaintiff is required
to pay ad valorem court fee, which is about 10% of the amount claimed apart
from other expense incurred. However under Consumer Protection Act, 1986
the plaintiff is not required to pay the court fees or engage a lawyer. He may
present

his

case

personally.

A doctor may also be held liable under the Penal Code for punishment in case of
criminal

negligence,

for:

a) causing death by rash and negligent act under Section 304A, I.P.C.
b)
c)

causing

grievous

causing

hurt

hurt

endangering

endangering

life

life

under

under

Section

Section

388,

337,

IPC
I.P.C

Both the proceedings (civil and criminal) are may go simultaneously as laid
down

by

Supreme

Court

in

Union

Carbide

In order to prove criminal liability in medical negligence there must be causa

causans and merely proving causa sine quo non, will not be enough. In
criminal law the burden of proof will be much higher on prosecution as
compared to civil law. The prosecution will have to prove its case beyond
reasonable doubt and the victim will get nothing but mental satisfaction
therefore,

most

of

these

cases

under Consumer Protection

are

filed

in

civil

courts

Act,

preferably
1986.

Conclusion
The field of Culpable Homicide is very vast and is of practical utility . It
includes all felonious homicide not amounting to murder. It is basically a
killing which the killer neither intended nor foresaw as likely to happen; it is an
accidental, blameworthy felonious killing. There have been many cases in
which this field of law has been used and correctly applied as well. The
Sections 299, 301, 304, 304A deal with the different aspects covered under
this subject in an elaborate manner all the provisions are not exhaustive and
there is a need to pit into application many of the suggestion of the Law
Commission for better administration of Justice since it would help in the
evolevement

of

**********************************

this

subject

with

time.