Tag: difference between murder and attempt to murder

Murder and Attempt to Murder

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This article is written by Pranit Bhagat. He’s currently pursuing his bachelor in laws from ILS, Pune. In this article, he has discussed the terms ‘Murder’ and ‘Attempt to Murder’, and along with this, he has also tried to distinguish between these two terms.

Introduction to ‘Murder’ and ‘Attempt to Murder’

The term ‘Murder’ has been derived from a German word which means ‘secret killing.’ It is defined under section 300 of the Indian Penal Code, 1860. In a layman’s language, murder will be killing a person without the intention of getting caught for the same while an attempt to kill someone (not resulting in the death of that individual) will be considered as an ‘attempt to murder’. The Indian Criminal law- IPC, 1860 looks at the crime of murder as a very heinous one and sets up punishment like a death sentence or life imprisonment by proper discretion of the court. The article has content aimed at briefly explaining the two and the legislations associated with it.

Murder or Culpable Homicide?

Now to understand the concept of murder, first ‘Culpable Homicide’ should be explained. “Homicide” has been derived from Latin where “homo” means “man” and “cide” means “I cut.” Thus, homicide can be explained as a man killing another man. It can be lawful or unlawful. Thus, culpable homicide means causing death through a human agency which is punishable by law. We can say that Culpable homicide is the genus and murder would be its specie. To understand better, Murder as an offence is the aggravated form of Culpable Homicide. Criminal intention or knowledge of the person is an essential element for committing either of the offences, be it Murder or culpable homicide. There is a very thin line of difference between the two offences which is based on the intention and knowledge involved in it. The basic difference lies in the degree of the commission of the said offence. The person will be held accountable according to the degree of the offence that one has committed. Thus, we can say that all murders are culpable homicide but not all culpable homicides are murders. Section 300 of IPC clearly states the difference of when the act committed will fall under culpable homicide and when the act committed will amount to murder. So, a person throwing a knife at any other individual in a feat of anger resulting into death of the person due to stab would be a culpable homicide because even if there were no dark criminal intentions, the ‘person has blood on his hands’ whereas if a person with gun repeatedly shoots some other aiming at chest has a criminal intent of taking his life and it’s a clear case of murder

Provisions governing-

The Indian Penal Code , 1860

Section 299 of IPC:

  • A person is said to commit culpable homicide if he has done an act through which a death is caused.
  • The person had an intention to cause death.
  • Or the intention to cause such a bodily injury which is likely to cause death.
  • Or the knowledge, that the act is likely to cause death.

For example, a person A has been hiding behind a bush and the fact is known to person B, who induces fire deliberately knowing that it may kill A, A even dies due to it, in that case, B has committed an act of culpable homicide and is guilty of it.

Section 300 of IPC and it’s exceptions-

  • With respect to the exceptions, culpable homicide can be considered as murder, if the act through which death is caused is completed.
  • The person had an intention to cause death.
  • The person with an intention to cause such bodily injury to another person, which he knows can cause the death of that person.
  • The person with the intention of causing such bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
  • The person with the knowledge that the act committed was so dangerous that it in all probability will cause death, or such bodily injury, which may cause death.

For example, a person A shoots another person, B repeatedly in the chest, causing the death of A, such act would be considered as ‘murder’ and will be charged under S. 300 of the Indian Penal Code. 

Explanation- Sec. 299 and Sec. 300

Moreover, both S. 299 and 300 are provisions related to deliberate death of an individual by some other individual but since they are so closely related, to understand them better individually, the difference between two must be noted. The degree of intention or the knowledge to cause the death of a person determines the nature of the offence, whether it would fall under the purview of murder or culpable homicide. The Supreme Court has also expressed its regret that any distinction made between murder and culpable homicide not amounting to murder is often lost sight of because a thin line difference makes it very difficult to differentiate and even prove the same. The more the intention considered as grave and indicating confirmation to kill, more becomes an act heinous and considered as murder. Slow poison administered by an individual requires medical knowledge, which also confirms that the person had a whole-hearted intention with a plan to kill. This will be considered as murder but only beating up a person aimlessly resulting in death would be a culpable homicide. Interestingly even in cases where a person is exercising his/her right to private defence against any other attack, while doing so causes the death of the attacker, it will still be a case of culpable homicide and not murder.

There is a very slight difference between the act of committing murder and culpable homicide. Culpable homicide basically means the killing of a human being by another person. There are five exceptions provided in Sec 300 of Indian Penal Code. 

These are the exceptions where death will not amount to murder-

Exception-1: Sudden and grave provocation

Sometimes a person may commit an act which leads to the death of another person due to grave and sudden provocation. Then such a person will be held for culpable homicide not amounting to murder. In such a case the person loses his self-control for a moment and commits such an act. The Essentials for this exception to be valid are: 

  1. There must be a provocation 
  2. The provocation must be grave and sudden 
  3. By reason of such grave and sudden provocation, the offender must have been deprived power of self-control. 
  4. The death of the person who gave the provocation or of any other person by mistake or accident must have been caused.

For example, A is informed that his wife has been cheating on him, on the enquiry of the same, A himself catches her in compromising position due to which A suddenly goes and shoots his wife in anger. It will be a case of culpable homicide not amounting to murder.

Exception- 2: Exceeding the right of private defence

The law contained in this exception is based on the rule that in a case in which law itself empowers an individual to inflict any harm short of death, it ought hardly to visit him with the highest punishment if he inflicts death. The Essentials for this exception to be valid are:

  1. An act must be done in exercise of the right to private defence of person or property 
  2. The Act must have carried out in good faith. 
  3. The person doing the act must have exceeded his right given to him by law and have already caused the death. 
  4.  The act must have been done with premeditation and without any intention of causing more harm than was necessary for self-defence.

For example, in a case of sexual assault faced by a girl, the girl hits the assaulter with a sharp object to protect herself. While doing so, she kills the person. It will be a case of culpable homicide and not murder.

Exception-3: Offence committed by a public servant

This exception shall not apply where the act of a public servant is illegal and unauthorised by law or if he glaringly exceeds the powers entrusted to him by law. The Essentials for this exception to be valid are:

  1. Offence committed by a public servant or by some other person acting in the aid of such public servant, in the advancement of public justice.
  2. Public servant or such other person exceeds the powers given to him by law. 
  3. Death is caused by doing an act which he in good faith believes to be lawful and necessary for the discharge of his duty as such public servant. 
  4.  The act must have been done without any ill-will towards the person whose death is caused.

While handling protests, a police officer is allowed to throw water at the people in order to control them, while doing so a woman continuously walking ahead gets hit with the water pressure, feels terrified and dies on the spot, the officer had no intentions of killing her but it will be the case of culpable homicide and not murder.

Exception- 4: Death caused in sudden fight

By fight here we mean something more than a verbal quarrel. A fight is a combat between two or more person whether with or without weapons. Fight per se is not a palliating circumstance; it must be sudden, nor pre-arranged. Therefore the time gap between the quarrel and fight is very important. The Essentials for this exception are:

  1. Death must be caused in a sudden fight 
  2. Sudden fight must be without any premeditation.
  3. It must occur in the heat of passion upon a sudden quarrel. 
  4. The offender must have not taken undue advantage or must have not acted in a cruel or unusual manner. 
  5. It is immaterial as to which party offered the provocation or committed the first assault.
  6. The fight must be with the person killed.

For example, two young men get into a fight as one accuses the other of robbing his car. Completely enraged by the accusation, one starts beating the other and the other replies violently, while doing so one of them is killed, it will be a case of culpable homicide and not murder

Exception-5: Death caused of person consenting to it

Culpable homicide is not considered as murder if the death of a person above the age of eighteen is caused and the risk of death is with his own consent. Then, culpable homicide is not considered murder. The Essentials for this exception 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.

For example, the best example to understand this exception is that of arrow shooting the apple on one’s head. If a person stands with an apple on his head and consents to the other to shoot at the apple, putting his own life at risk, in case dies, shall not be called murder but rather culpable homicide, because the person ( more than 18 years) consented to such risk.

Murder is a Cognizable and Non-bailable offence, triable by Court of Sessions.

Caselaw Reference –

Reg. Vs Govinda (1877) ILR 1 Bom 342: 

In the case of Reg. v. Govinda, a clear distinction was seen between culpable homicide and murder. 

Facts of this case :

According to the facts, there was a fight between the husband and wife and in a fit of anger, the husband knocked his wife. Later, she became unconscious and in order to wake up the wife, he punched her with closed palms but unfortunately, the wife died because of internal bleeding in her brain. Herein, the court held that the man was liable under Section 299 of IPC and not under Section 300 because clearly there was no intention to cause the death of his wife and the act was not grave enough to cause the death of the person on the spot. The accused was liable for culpable homicide not amounting to murder.

Difference Between Culpable Homicide and Murder

It is extremely difficult to distinguish between Culpable Homicide and Murder as the end result of both is death but there is a presence of difference to a very subtle distinction of intention and knowledge involved in both the crimes. The main differences between culpable homicide and murder were laid out and principles were held and formed as: 

1. Culpable homicide is wider than the term murder. Culpable homicide is therefore considered as the genus while as murder is regarded as a species. All murders are culpable homicide but all culpable homicides are not regarded as murder. 

2. Murder is an aggravated form of culpable homicide.

 3. In murder, the offender has a definite knowledge that the act would result in the death while as in culpable homicide the knowledge is not so definite. 

4. The probability of causing death is higher in murder than culpable homicide.  

Attempt to Murder

The second part of this article deals with Section 307 of the Indian Penal Code, 1860 which talks about attempt to murder. Attempt to murder is a failed shot of a person to kill some other individual and therefore a lot of what is explained in this section depends on the intention and knowledge of the accused and also, the preparation that he takes before committing the crime.

Provisions governing-

Indian Penal Code, 1860

An offence under IPC section 307 must have these two ingredients:

(a) An intention of or knowledge related to the commission of murder;

There are three considerations which appear to be essential to determine whether an act is done within the ambit of section 307- the nature of the act done, the intention or knowledge of accused and the circumstances under which the act is done. The intention or knowledge of the accused is taken into consideration and not the consequences of the actual act done for the purpose of carrying out the intention. The court has to decide on the basis whether the act was done with the intention or knowledge. The accused must have the intention or knowledge and it is a necessary condition to constitute murder. If this ingredient is not established, there can be no offence of “attempt to murder”. The intention has to be gathered from all circumstances of the case like the nature of the weapon used, the manner in which it is used, the motive of the crime, the body part where the injury is inflicted to determine the intention or knowledge (i.e. Mens Rea ) of the accused and not merely from the consequences that have been followed.

(b) The doing of an act towards it.

Only wrong and evil intent is not sufficient to constitute a crime. Some voluntary act or omission must be shown by a man in order to be punishable. An act should be committed which is capable of causing death in the natural and ordinary course of things to commit an offence of “attempt to murder.” 

Illustration: Mixing of poison in food with intent to cause death will be an offence under this section even though if no death occurs.

If the act which is complained of is not capable of causing death then the accused cannot be convicted under this section. For example, the act of pulling an unloaded gun cannot constitute the offence no matter what the accused intention or belief is.

Note-The attempt to murder under section 307 IPC has a lot of similarities with section 324 IPC, which talks about voluntarily causing hurt using dangerous weapons. The offence of attempt to murder is a very grave offence because it is not very different from the offence of murder itself. These two offences have only one major difference that is the death of the victim which is not present under section 307.

Caselaw Reference

Vasan Jadhav vs. State of Maharashtra, 2004 

The Supreme Court held that to justify any conviction under section 307, it is not essential that bodily injury capable of causing death should have been inflicted. The nature of injury caused can often give considerable assistance in coming to a finding as to the intention of the accused but such intention can also be deducted from other circumstances. The court has to see whether the act was committed with the intention or knowledge under circumstances mentioned in this section irrespective of its result. If the accused had the intention to commit murder and in the pursuance of that intention he does an act towards its commission irrespective of the fact that the act is penultimate or not, the offence is under section 307 of IPC. An attempt in order to be criminal does not need to be the penultimate act. It is sufficient in law, if there is an intention with some act in execution of it.  

Attempt to murder is a Cognizable and Non-bailable offence, triable by Court of Sessions.

Conclusion

It is extremely artistic how two terms explained in the above article are so similar and yet so different, the judicial process due to this thin line difference in crimes given in laws makes it a tedious process to prove the convict as guilty. Perceived knowledge of the perpetrators of crime, their professionalism behind such acts, and surprising glitches in the laws put forth by advocates make their positions far ahead of the judiciary. Judiciary often paves the way for landmark judgements when such close call crimes are committed. In any case, the better understanding of laws of such commonly heard crimes is essential and their difference should be noted by people who wish to understand the criminal laws better.

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