Distinction between Culpable

Homicide and Murder

Ahsan Habib
Lecturer, Faculty of Law, EU
Murder(M) or Culpable Homicide
(CH)?
 Homicide
• The word homicide is derived from two Latin words -
homo and cido. Homo means human and cido means
killing by a human. Homicide means killing of a
human being by another human being.
• A homicide can be lawful or unlawful.
• Lawful homicide includes situations where a person who
has caused the death of another cannot be blamed for
his death e.g. persons non compos mentis.
• For example, in exercising the right of private defense
(but not exceeding the right of private defence) or in
other situations explained in Chapter IV of the Penal
Code covering General Exceptions
(hanumant.com)
 the touchstones to differentiate
betwen CH and M
• death premeditated?
• probability of death?
• the nature of the weapon used?
• the nature of the injury?
• the part of the body where the injury is
inflicted?
 the key point????

Premeditation

Bander Ali v State 40 DLR

(AD) 200
 Murder-"cold blooded"

In case of murder the death of

the victim is calculated,
forethought, designed, pre-
planned or premeditated.
 Culpable Homicide-
• there is no premeditation on the part of the
offender
 Probability of death
State v Ashraf Ali 46 DLR(AD) 241

when death is probable it is culpable

homicide and when death is most
probable it is murder
•
 Section 300 of the Penal Code
defines murder
• Section 300 says that Culpable Homicide is Murder if
the act by which the death is caused is done-
• with the intention of causing death; or
• with an 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
• with an intention of causing such bodily injury as is
sufficient in ordinary course of nature to cause
death; or
• with the knowledge that the act is so dangerous that
it must , in all probability, cause death, and he has
no valid reason for doing that act.
 with the intention of causing death
• A shoots Z with the intention of killing him.
Z dies in consequence. A commits murder.
 with an 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

• 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.
 with an intention of causing such bodily injury as is
sufficient in ordinary course of nature to cause death

• here intention to kill is not required rather

intention to inflict a bodily injury is
sufficient, but that bodily injury is of such a
nature that it (injury) is sufficient in the
ordinary course of nature to cause death
• example: A intentionally gives B a blow
with a heavy sharp edged chapati. A may
say that i did not give the blow to kill him.
But the resultant injury is of such a nature
that in the ordinary course of nature it is
sufficient to cause death.
 ordinary course of nature
• Where the accused inflicted stab injuries
on vital part which penetrated to a deth of
1 and ¾ inch pierced the left lung and had
cut the forth rib of the deceased, it could
be said that considerable force was used
by the accused and injury was sufficient in
the ordinary course of nature to cause
death
with the knowledge that the act is so dangerous that it must , in all
probability, cause death, and he has no valid reason for doing
that act

• 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,
• Here A may not have the intention to kill that
particular person still he has knowledge that
operating a loaded cannon is so dangerous that it
must in all probability cause death of any person of
the crowd.
When Culpable Homicide is not Murder
( Section 299+ exceptions to Sec.300)
• causing death by doing an act with the
intention of causing such bodily injury
as is likely to cause death ( here the
intention is to cause injury not death)
• Causing death by doing an act with the
knowledge that he is likely by such act to
cause death ( here knowledge is to cause
death and not of injury-knowledge only
implies cognitive notice and not desire for
causing death)
 When Culpable Homicide is not Murder (
Section 299+ exceptions to Sec.300)
(contd.)
• the accused committed the homicide whilst
deprived of the power of self-control by grave
and sudden provocation offered by the
victim provided that -
a) provocation is not sought or volunarily provioked
by the offender
b) provocation is not arising out of an action
required by law or of an action done by a public
servant within the colour of his office
c) provocation is not given while exercisin gthe
right of private defence u/s 96-106 of the Penal
Code
When Culpable Homicide is not Murder ( Section
299+ exceptions to Sec.300) (contd.)

• if the accused causes the death of the

victim by mistake or accident
• if the accused causes the death of any
person by acting ultra vires while
exercising of his right of private defence
of person or property in good faith
provided that it (death) was caused
without premeditation or without any
intention of doing more harm than is
necessary for the purpose of defence
 When Culpable Homicide is not Murder ( Section
299+ exceptions to Sec.300) (contd.)
• if a public servant acts ultra vires and causes the
death of any person while exercising his power to
advance the public justice provided the act was done in
good faith within the colour of his office and without any
ulterior purpose
• if the accused committed the culpable homicide -
-without premeditation
-in a sudden fight
-in the heat of passion
-upon a sudden quarrel
-without the offender's having taken undue
advantage or acted in a cruel or unusual manner
When Culpable Homicide is not Murder ( Section
299+ exceptions to Sec.300) (contd.)

• culpable homicide is not murder if it is

committed with the consent of the
accused who happens to be at least 18
years of age
to sum up -culpable homicide is not
murder- in the cases of
• when the act is done with an intention to cause an
injury which is likely to cause death
• when the act is done with the knowledge of causing
death of such person by such act
• grave or sudden provocation
• accident
• ultra vires exercise of right of private defence or of
public power
• sudden fight in the heat of passion upon quarrel
• consent
causing death by doing an act with the intention of
causing such bodily injury as is likely to cause death (
here the intention is to cause injury not death)

shooing on the leg, arm etc. but the victim

had a pevious injury and died.
 Causing death by doing an act with the
knowledge that he is likely by such act to
cause death
• where A digs a pit in front of the door of B.
He knows that B may die if he falls into the
pit. ( vandalizing in the car ???)
 Time to cool down?
• provocation contemplated in Exception no.1
to sec.300 shall not only be grave, but also it
shall be sudden and if considerable time
intervened in which the passion aroused by
the provocation subsides , then there is
hardly any scope for deprivation of power of
self-control-----Khan Abdul Hafiz vs. The
State BCR (1987) (AD) 214
• a provocation cannot be said to be "sudden"
if it takes place 12 hours before the murder---
State vs. Siddiqur Rahman 2 BLC 145
 Majibar Rahman vs. State 1983
BLD 145
• provocation must be such as will upset not
merely a hasty, hot-headed and
hypersensitive person but would upset
also a person of ordinary sense and
calmness
• the test of grave and sudden provocation
is whether a reasonable man belonging to
the same class of society as the accused,
placed in the situation in which the
accused was placed , can be so provoked
as to cause loss of its self-control
 Makbul Hossain vs. State (1970)
22 DLR 269
• When an offence is culpable homicide
not amounting to murder-
- if it falls within the ambit of the any of the
clauses of Sec.299
- if it does not attract the ingredients of one
of the four clauses of Sec.300
-if any of the five exceptions mentioned in
Section 300 be attracted to the facts of a
particular case
 1960 CrLJ 303
• Culpable homicide is a generic term.
• the difference between the two
offences of culpable homicide and
murder is not only fine but also real.
• the offence will amount to murder if any
of the conditions laid down four
clauses in s.300 are satisfied
• if the offence comes under s.299 or any
of the exceptions to S.300, it will be
culpable homicide not amount to
murder.
 1960 CrLJ 303
• Where the intention to kill is present, the
act amounts to murder. where such an
intention is absent the act amounts to
culpable homicide not amounting to
murder. determination of the intention to
kill depends on the merits of each case.
• a person is presumed to intend the nature
and probable consequences of his acts.
Intention has to be inferred from the acts
done by him.
 clause 3, sec.300
• Clause three of s.300 speaks of an intention to
cause bodily injury which is sufficient in the
ordinary course of nature to cause death.
Emphasis here is on the sufficiency of injury to
cause death. sufficiency is the high probability of
death depending upon the nature of weapon
used or the part of the body where the injury is
inflicted or both. If the probability of death is very
great, the requirements of clause (3) are
satisfied.
 45 CrLJ 729 (contd.)
• the fact that a particular individual having secured
specially skilled treatment or being in possession of
particularly strong constitution has survived an injury
which would prove fatal to the majority of persons
subjected to it, is not enough to prove that the injury is
not sufficient in the ordinary course of nature.
• so here the test " ordinary course of nature" refers to the
situation of an average person whose constitution is not
much weak or strong.
 clause 3, sec.300
• whether the injury which the accused
intended was "sufficient in the ordinary
course of nature" to cause death or was
merely "likely" to cause death will depend
upon th eweapon used, the number of
blows stuck, the force with which the
weapon was used and the part of the body
injured (AIR 1966 SC 148)
 Clause 4 of Sec.300
• the main ingredient of this clause is that
the person committing the act in question
should have had the knowledge that the
act done is so immently dangerous that it
must in all probability cause death or such
bodily injury as is likely to cause death.
 illustrations for clause 4
• the explosion of a bomb in a confined
room -imputes such a knowledge to the
individual accused-intention to kill a
particular individual does not exculpate
him from the ambit of the clause ( 31 CrLJ
290)
• a person who plunges his knife into the
neck of another must be imputed with the
knowledge that the injury he inflicts must
in all probability will cause death of the
victm ( AIR 1954 Mad 323)
 AIR 1968 SC 881
• where a person sets fire to the clothes
of another, the former must have
known that he was running the risk of
causing the death of the latter or such
bodily injury asis likely to cause his
death. His act will fall within clause
"fourthly" of S.300.
section 300, exception 2 -essentials to prove
the right of self-defence
• firstly, it was the other party (victim) who
initiated the fight,
• secondly, that party taking plea of self-
defence also suffered injuries at the hands of
the other part first and then resort was taken
to defend against the aggressor, and
• thrirdly, right of private defence continues so
long as the apprehension of hurt or grievous
hurt continues to exist
• case: Md Taj alias Kala vs. State 1997 CrLJ
1043
 Sec. 300, Exception 4
• to invoke exception 4 it must be
established that the accused committed
the offence:
-without premeditation
-in a sudden fight
-in th eheat of passion upon a sudden
quarrel
-without offender's having taken undue
advantage or acted in a cruel or unusal
manner ( AIR 1956 SC 99)
 AIR 1980 SC 108
• where the accused chased the
deceased who was unarmed and
stabbed him twice and was poised to
give a further blow which was foiled by
the intervention of a third person who
gave a blow to the accused on his head
and it was found that the deceased had
not come armed for a fight and there
was no mutual exchange of blows
between the accused and the
deceased. It was held that the case did
not fall within the exception 4.
 AIR 1956 SC 99
• a fight is a combat between two or more
persons, whether with or without weapons
• the word "sudden" implies that the fight
should not have been prearranged
 Abdul Majid vs. Crown 7 DLR(FC) 11
• the question whether a person can be said to
have taken undue advantage or acted in a
cruel manner is a question of facts
• "cruelty" here carries ordinary meaning to
imply heartless use of force to cause injury
to a person who had no power of resistance
• if on the course of sudden fight one party
resorts to a dangerous weapon, like a knife
or a dagger, the other party being wholly
unarmed, and causes mortal injuries to his
adversary, the person is said to have taken
an undue advantage
Doctrine of “transferred malice”-
s.301
• The doctrine of transferred malice applies
where the mens rea of one offence can be
transferred to another. For example, suppose A
shoots at B intending to kill B, but misses and
hits and kills C. Transferred malice can operate
so that the mens rea of A (intention to kill B) can
be transferred to the killing of C. Consequently A
is liable for the murder of C, despite the fact that
he did not actually intend to kill C.
•
 R v Saunders (1573) 2 Plowd 473

facts: The defendant gave his wife an apple which he

had poisoned with arsenic. He wanted to kill her so that
he could marry another. The wife took a bite from the
apple then gave it to their daughter. The daughter died.

Held:

The defendant was liable for the murder of his daughter.

His intention to kill his wife was transferred to the
daughter.
 s.301 (Contd.)
• When a person intending to kill one person
kills another person by mistake, he is
guilty of murder as if he had killed the
person whom he intended to kill (1967
AllLJ 631)
Attempt to murder (s.307)