LAW

Substantive Criminal Law

7- Exceptions to Murder
 EXCEPTIONS TO MURDER

Component-I (B) Description of Module:

Description of Module
Subject Name Law
Paper Name Substantive Criminal Law
Module Name/Title Exceptions To Murder

Module Id Module 7
Pre-requisites In order to understand the module, basic understanding
of criminal substantive law of India is essential. This
also requires the knowledge of some of the basic
principle of Indian Criminal Justice system, including
rules relating to burden and standard of proof
generally in a criminal case and specifically in a case
where an accused takes up a ground of exception from
criminal liability, both partial as well as complete
grounds of exceptions.
Objectives The object of this module is to understand the grounds
under which an offence of murder is legally treated as
culpable homicide [not amounting to murder] for
being the one committed under such situation which
reduces to an extent the culpability of the offence. The
module aims to look at the provisions of Indian Penal
Code which provides for 5 such grounds of exceptions
to murder, falling under any of such exception makes
the offence an offence of culpable homicide. The
module also aims at making a brief analysis of all the
five grounds under which partial exemption from legal
liability for murder is granted.

Keywords Culpable homicide, murder, partial defence,

provocation, self-defence, good faith, sudden and
grave, sudden fight, consent, etc.

Component – II – e-Text

Introduction

This module makes a brief analysis of the possibility of converting a case of murder into culpable
homicide not amounting to murder under the legal framework provided by Indian Penal Code. Such
conversion happens when a case of murder falls under any of the five exceptions provided to murder
by section 300 IPC. The module thus examines the grounds of exceptions provided to murder under
section 300 of IPC along with relevant Indian Legal provisions and selected cases.
One of the most heinous crimes against human body dealt with under Indian Penal Code is “Culpable
Homicide amounting to Murder” under section 300. An offence of murder is made punishable under
section 302 of the Penal code with the punishment of either life imprisonment or death sentence along
with fine.

However, it is important to note that “every murder is culpable homicide but every culpable homicide
is not murder” as “culpable homicide is genus and murder is its specie”. Hence all cases of culpable
homicide need not amount to murder and such cases are dealt with under section 299 and punishable
under section 304 of Indian Penal Code. At the same time, culpable homicide amounting to murder if
falls under any of the five exceptional grounds as provided under section 300, Indian Penal Code.

Learning Outcomes:

1. To understand the possibility of legally converting a case of murder into that of culpable
homicide [not amounting to murder]

2. To understand each ground of exception provided to murder and related legal principles and
issues [including the tests applied to determine existence of each grounds of exceptions, etc.]

3. To understand the above from IPC framework.

1. An Offence of Culpable Homicide Amounting to Murder :

An offence of Culpable Homicide [u/s.299] amounts to Murder [u/s. 300], if it falls under any of the
four categories dealt with under section 300 [from first to fourth clauses] that is:

- Firstly, if the act by which the death is caused is done with the intention of causing death, or
- 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
- 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 or causing death or such injury as
aforesaid.”

The above offence is punishable under section 302 with either life imprisonment of with death
sentence. However section 300 starts with the words: “Except in the cases hereinafter excepted,
culpable homicide is murder”, which means the offence of “Murder” is subject to exceptions.

2. Exceptions to Murder:

As stated earlier, the offence of murder is subject certain exceptions. These grounds of exceptions are
the ones which makes an offence of murder into an offence of culpable homicide not amounting
murder. These five grounds of exceptions to Murder as provided under section 300 of INDIAN
PENAL CODEmakes an accused eligible to get partial exemption from his liability. Under such
partial exemption, his liability will be reduced from murder to culpable homicide not amounting to
murder. That is, an offence which should actually be punished under section 302 gets reduced to an
offence punishable under section 304 with lesser punishment in comparison to an actual offence of
murder.
The following diagram shows the 5 grounds of exemptions available to an offence of culpable
homicide amounting to murder under section 300:

Death wtih consent of victim

The following is the explanation of each ground of exceptions:

3.1. First Exception:

According to the first ground of exception: “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”

Under this ground of exception, an offence of murder if committed by an accused though with the
requisite mens rea becomes an offence of “culpable homicide not amounting to murder” if he commits
such offence under Provocation.

According to Goddard C.J, 1 “Provocation is some act, or series of acts done by the dead man to the
accused which would cause in any reasonable person ….. a sudden and temporary loss of self-control,
making him for the moment not master of his mind….”

Provocation in order to be considered as a ground of exception for an offence of murder must satisfy
certain conditional requirements, namely:

i. Such provocation must be grave and sudden

R.v. Duffy (1949 – 1 ALL ER 932, also referred and quoted in K.M. Nanavathi v. State of
1

Maharashtra (AIR 1962 SC 605)

 ii. Due to it, the accused loses his power of self-control,
iii. That the offence of murder was committed by the accused before he could cool down

It is essential to prove that provocation was “sudden” as well as “grave”. The Statutory explanation of
the provision under Indian Penal Code provides that: “Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a question of fact.” However courts
generally apply the principle of reasonableness in order to determine if such provocation was grave
and sudden enough to result in the ground of exception. Hence courts inquire into the case based on
the question of “what a reasonable man, i.e., a normal person will do in certain circumstances.” In the
case of

Further, the ground of provocation is itself subject to the limitations set by further statutory
explanation to the section, according to which:

1. That the provocation is not sought or voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
2. That the provocation is not given by anything done in obedience to the law, or by public
servant in the lawful exercise of the powers of such public servant.
3. That the provocation is not given by anything done in the lawful exercise of the right to
private defence.

It is important to note that an act for revenge cannot be considered as an act under provocation as
such acts are generally committed after due thought with desire to take such vengeance, which by
itself negates sudden temporary loss of self-control, which in fact is the essence of the defence of
provocation. Hence, as was rightly observed by the Supreme Court in Nanavati’s case2:
“circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough.
Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the
conscious formulation of a desire for revenge means that the person has had time to think, to reflect,
and that would negative a sudden temporary loss of self-control which is of the essence of
provocation. [In] Provocation ........, there are two things, in considering it, to which the law attaches
great importance. The first of them is, whether there was what is sometimes called time for cooling,
that is, for passion to cool and for reason to regain dominion over the mind................Secondly in
considering whether provocation has or has not been made out, you must consider the retaliation in
provocation-that is to say, whether the mode of resentment bears some proper and reasonable
relationship to the sort of provocation that has been given."

Provocation need not necessarily be confined to a physical or verbal attack but there could be that
small class of exceptional situation when the situational provocation gives rise to commission of an
offence3 Lapse of time, after provoking incident indicates that the offence of murder was a well-
planned one with sufficient time for thought of action and hence gets disqualified from being an
ground of exception.4

3.2. Second Exception:

According to the second ground of exception: “Culpable homicide is not murder if the offender, in the
exercise of 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 premeditation, and without any intention of doing more harm than is necessary for the
purpose of such defence.”

2
K.M. Nanavathi v. State of Maharashtra (AIR 1962 SC 605)
3
Sulaiman K v. State of Karnataka 1998(1) Crimes 414
4
K.M. Nanavathi v. State of Maharashtra (AIR 1962 SC 605)
Indian Penal Code makes ground of self defence subject to fulfilment of certain conditions as a
complete ground of defence / exemption from criminal liability. However when such conditions are
not fulfilled entirely but yet the offence of murder is committed while exercising self-defence in good
faith, the liability of the accused gets reduced under this ground of exception to Murder, provided that
such offence was committed without premeditation and without any intention of doing more harm
than was necessary. It is thus essential to prove that:

1. The act must be done in exercise of right of private defence of person or property.

2. The act must be done in good faith

3. The person doing the act must have exceeded his right given to him by law and have thereby
caused death

4. The act must have been done without premeditation and without any intention of causing
more harm than was necessary in private defence

Hence, when an accused while exercising his right to self-defence in good faith unfortunately crosses
the legal limits imposed by law of self-defence [chapter on general exceptions] but falls under the
scope of this exception, gets this partial defence instead of the complete defence from criminal
liability. Hence his offence of murder becomes culpable homicide under this ground of exception.

3.3. Third Exception:

According to the third ground of exception: “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.”

A public servant is vested with few legal powers as well as duties. While exercising his duty, in case
he ends up committing an offence, the criminal law gives few immunities to him. Under the general
exception chapter, any offence committed by a public servant under mistake of fact but with good
faith and also by being within the legal limitations, is not considered as an offence. He thus gets
complete exemption from liability. However sometimes if his act though is committed with good faith
crosses the legal limitations, he will be held liable partially. Hence his offence of murder becomes
culpable homicide under this ground thereby reducing the liability. Thus, this ground of exception can
only be claimed by a public servant or a person aiding a public servant while acting for the
advancement of public justice. The defenceprotects them when they exceed the powers conferred
upon them by law and thereby cause death. In order to come under this partial ground of defence, it is
essential to prove that the act was done with good faith and without any ill-will.

In Dakhi Singh v. State 5 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 officer [finding
himself not in a position to apprehend him] the court held that the accused as guilty of Culpable
Homicide not amounting to murder, as it was a case where the officer though exceeded his legal
powers did not have any ill will and committed the offence for the advancement of public justice.

3.4. Fourth Exception:

According to the fourth ground of exception:

5
AIR 1955 ALL 379
 “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.”

An accused comes under this ground of exception when he commits murder:

- during a sudden fight,

- without any premeditation,
- without taking any undue advantage of the circumstances and
- without acting in a cruel or unusual manner

The statutory explanation to the provision clarifies that: “It is immaterial in such cases which party
offers the provocation or commits the first assault.” Hence the requirements of this exception are: (a)
without premeditation in a sudden fight; (b) in the heat of passion upon a sudden quarrel; (c) the
offender has not taken undue advantage; and (d) the offender has not acted in a cruel or unusual
manner and where these requirements are satisfied, culpable homicide would not be murder.6

It is essential to note that a case which technically may not fall under the first ground of exception,
that is the defence of provocation, can still come under this ground of exception if it is not a deliberate
and malafideact of causing death. Similar to the defence of provocation, this ground requires absence
of premeditation or pre-arranged plans.

The Supreme Court of India in the case of Smt. Sandhya Jadhav v. State of Maharashtra,7clarified this
by holding: “The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said
Exception deals with a case of prosecution not covered by the First Exception, after which its place
would have been more appropriate. The Exception is founded upon the same principle, for in both
there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of
self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober
reasons and urges them to deeds which they would not otherwise do.”

There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct
consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a
blow may have been struck, or some provocation given in the origin of the dispute or in whatever way
the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of
guilt upon equal footing.”

The court further clarified: “A "sudden fight" implies mutual provocation and blows on each side. The
homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the
whole blame be placed on one side. For if it were so, the Exception more appropriately applicable
would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly
takes place, for which both parties are more or less to be blamed. It may be that one of them starts it,
but if the other had not aggravated it by his own conduct it would not have taken the serious turn it
did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of
blame which attaches to each fighter. …... Heat of passion requires that there must be no time for the
passions to cool down and in this case, the parties have worked themselves into a fury on account of
the verbal altercation in the beginning. A fight is a combat between two and more persons whether
with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to
be a sudden quarrel.

It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it is not sufficient to show that there was a

6
Mahesh Balmiki v. State of Madhya Pradesh, (2001) 1 SCC 319
7
(2006) 4 SCC 653
sudden quarrel and there was no premeditation. It must further be shown that the offender has not
taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as
used in the provision means "unfair advantage” Thus this ground to a large extent is similar to the first
ground of exception.

3.5. Fifth Exception:

According to the fifth ground of exception: “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.”

Causing death with the consent of victim is generally considered as a lesser serious offence than an
offence of murder committed with any other ill-motive. Hence this ground of exception reduces the
liability of an accused who causes death of the victim, if such victim is above eighteen years of age
and has given consent. It is however important to prove that such consent was “unconditional and
without any preservations” and was “express and undoubted one”.

Consent of a person below the age of 18 years will not bring the cases under this partial ground of
exception. Cases of suicide pact, where one of the parties survives may come under this ground of
exception.

4. Liability for the offence of murder falling under the grounds of exceptions:

Chapter IV of Indian Penal Code provides for grounds of exemption from criminal liability for
offence committed under certain circumstances. Most of these grounds are generally referred to as
“complete grounds of exemptions” from criminal liability, as they often result in complete exemption
from punishment for the crime committed.

For illustration, offence committed by a child below seven years of age, being that one which falls
under the principle of “doliincapax” is not treated as an offence and such child is not punished. 8 So is
also the case if the accused was a person of unsound mind. 9

While on the other hand, the five grounds of exceptions to Murder as provided under section 300 of
Indian Penal Codemakes an accused eligible to get partial exemption from his liability. Under such
partial exemption, his liability will be reduced from murder to culpable homicide not amounting to
murder.

The Supreme Court of India’s observations made in the case of State Of Uttar Pradesh v. R.S.
Yadav10makes it clearer. The court said:

“except in cases covered by the 5 exceptions mentioned under section

300, Culpable Homicide is murder if the act is done with the intention
of causing death/ falls within any of other 3 (2nd, 3rd and 4th) clauses of
S.300”.

Hence an offence which should actually be punished under section 302 gets reduced to an offence
punishable under section 304 with lesser punishment in comparison to an actual offence of murder.

8
Section 82 of Indian Penal Code
9
Section 84 of Indian Penal Code
10
AIR 1985 SC 417
5. Summary:

The following flow chart indicates the flow of legal provision thereby indicating the applicability of
relevant provisions of the Penal Code.

CULPABLE HOMICIDE NOT AMOUNTING TO MURDER

Dealt with under section 299, Indian Penal Code

Becomes

MURDER
Dealt with under section 300, Indian Penal Code
[If it falls under any one of the 4 clauses covered under section 300]

Becomes

CULPABLE HOMICIDE

punishable u/s 304

[If it falls under any of the five grounds of exceptions to murder]

Hence a complete analysis of section 300, Indian Penal Code along with the grounds of exceptions
provided under Section 300 makes it clear that an offence of murder must primarily be proved as the
one which falls under any one of the four clauses of section 300. It is then essential to raise one of the
five grounds of exceptions provided under the provision in order to seek partial grounds of exemption
provided for murder, by bringing it back to the status of “culpable homicide.”It is also possible to
state that culpable homicide covered under section 299 becomes murder covered under section 300 if
it falls under one of the clauses of section 300. Further murder under section 300 gets back the status
of being an offence of culpable homicide not amounting to murder, punishable under section 304 of
Indian Penal Code.