An Analytical Study of Murder and Culpable Homicide under the BNS, 2023

‘Actus non facit reum nisi mens sit rea’(an act does not make a person guilty unless the intension is also guilty). In criminal law, intension is very important for deciding whether a person is guilty or not, Murder and Culpable Homicide are both the concept of criminal law, covered under the BNS. But there is thin-razor gap between murder and culpable homicide. All murders are culpable homicide, but not all culpable homicide amounting to murder. In this article, we will analyse the culpable homicide and murder, as per the provision laid down under the BNS,2023.

Culpable Homicide

Culpable homicide is defined under Section-100 of BNS. Homicide means killing of one person by another person. Homicide is of two types: Lawful homicide are covered under the general exception in chapter-3 of BNS. Unlawful homicide are not under the general exception, such as murder, culpable homicide, rash and negligent act, suicide. Culpable homicide as an act done with causing death of human, intention to causing death, intension to causing bodily injury to cause death, knowledge of act likely to cause death.

Person A, a young man distressed over repeated academic failures, decided to end his life. He shared this intention with his wife(18+), Person B, who, out of emotional attachment, expressed that she could not live without him and asked him to kill her before he killed himself. Acting on this emotional impulse and under mental disturbance, Person A killed his wife and then attempted to commit suicide. However, before he could take his own life, villagers intervened and saved him.

In this case, though Person B consented to be killed, such consent does not make the act lawful. The act of Person A was done without malice, premeditation, or intention to cause death for a wrongful motive. It was committed under grave emotional distress and upon the deceased’s own request. Therefore, the offence does not amount to murder under Section 101 of the Bharatiya Nyaya Sanhita, 2023, but constitutes culpable homicide not amounting to murder under Section 99 of the BNS, 2023.

Murder

Murder is defined under the Section-101 of the BNS. Murder is an act done with causing death of human, intention to cause death, causing bodily injury, or causing deaththe as offender known to cause death (probability of death is more than culpable homicide), or knowledge that the act is sufficiently dangerous to cause death.

If ‘A’ person shoot ‘B’ and the intention of ‘A’ is to kill the ‘B’. ‘A’ commits murder. Exception where culpable homicide is not murder:

Grave and sudden provocation: if the offender losses his self-control because of sudden grave and provocation, and causes death in that state.

Right of private defence: if a person exercises his private defence without the intension to kill.

Public servant acting in good faith: if a public servant exercise his power in good faith.

No premeditation, murder, sudden quarrel: such as cause death in a sudden fight, in the heat of passion, without pre-planning, and without cruelty or unusual conduct.

Consent of the person: if a person dies because of their voluntary consent (person must be age of majority).

Emperor v. Khwaja Nazir Ahmad (1945): This case was decided by the privy council. In this case council held that the degree of probability of death is high in the Murder as compared to the culpable homicide. Culpable homicide and murder is the genus and species. All murder are culpable homicide, but not all culpable homicide amounting to murder.

Culpable homicide and murder look the same, but their distinction is very important for deciding the punishment, whether an accused is liable for life imprisonment or the death penalty (rarest of rare cases, principal laid down in the Bachan Singh v. State of Punjab). The scope of exception is also available in Section 101 of the BNS. The main difference between culpable homicide and murder is the degree of probability; in culpable homicide degree of probability is lesser, but in murder, the degree of probability is higher.

This article is authored by Ajay Mehta, who was among the Top 40 performers in the Quiz Competition on International Human Rights organized by Lets Learn Law.