Culpable Homicide and Murder under IPC: Law, Exceptions and Landmark Judgments

 Under the IPC, every murder is culpable homicide, but every culpable homicide is not murder. The easiest interview formula is: first see whether Section 299 is made out; then ask whether the case falls in any of the four clauses of Section 300, and finally check whether any of the five exceptions to Section 300 reduce it to culpable homicide not amounting to murder.

Core distinction

The Supreme Court has repeatedly said that culpable homicide is the genus and murder is its species. In simple terms, murder is the more aggravated form of culpable homicide, where the intention or knowledge is of a higher degree.

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How to appreciate evidence if in criminal case accused has received injuries and if prosecution fails to explain how accused has sustained injury?

 In Indian criminal law, the failure of prosecution to explain injuries sustained by the accused is a significant circumstance that courts must carefully consider while appreciating evidence. The legal position has evolved through various Supreme Court judgments that have established different theories and approaches.

General Principle

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Leading Supreme Court Judgment on right of private defence

 Before considering this question in the light of the evidential material on record, it will be worthwhile to remind ourselves of the general principles embodied in the Penal Code, governing the exercise of the right of private defence. {Para 12}

13. The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under? Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension (Section 102). That is to say, right avails only against a danger imminent, present and real; Thirdly, it is a defensive and not & punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; Fourthly, the right extends to the killing of the actual or potential assailant when there is] a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. For our purpose, only the first two clauses of Section 100 are relevant The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant ; Sixthly; the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities." (Section 99).

14. Before coming to the facts of the instant case, the principles governing the burden of proof where the accused sets up a plea of private defence, may also be seen, Section 105, Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other Law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this Section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in Dahyabhai v. State of Gujarat   MANU/SC/0068/1964 : 1964CriLJ472 , under Section 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.

15. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of the accused recorded under Section 313 of the CrPC, 1973.

16. Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged. Thus, there may be cases where, despite the failure of the accused to discharge his burden under Section 105, the material brought on the record may, in the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 of the Code (See Dahyabhai v. State of Gujarat (ibid) State of U. P. v. Ram Swarup   MANU/SC/0218/1974 : 1974CriLJ1035 , Pratap v. State of U.P.   MANU/SC/0181/1975 : [1976]1SCR757 .

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 180 of 1973

Decided On: 10.12.1979

Yogendra Morarji Vs. State of Gujarat

Hon'ble Judges/Coram:

D.A. Desai, O. Chinnappa Reddy and R.S. Sarkaria, JJ.

Author: R.S. Sarkaria, J.

Citation:  MANU/SC/0291/1979,AIR 1980 SCC 660.

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Whether accused must prove right to private defence beyond reasonable doubt?

  To sum up, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. The Court's assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice. {Para 21}

In the Supreme Court of India

(Before B.R. Gavai and Hima Kohli, JJ.)

Ex. Ct. Mahadev Vs Director General, Boarder Security Force and Others.

Civil Appeal No. 2606 of 2012

Decided on June 14, 2022

Citation: 2022 SCC OnLine SC 739

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Whether conviction for rash driving and causing injury is maintainable where driver was facing real threat of imminent death?

 In the present case, the evidence shows that the Applicant did not drive the taxi at higher speed on his own volition. It was the case of the Applicant that he was forced to drive at a high speed by robbers at the point of razor. It is the case of the Applicant that he himself had suffered an injury on his neck caused by razor. The defence witness Dr. Loya has described the injury which was attributable to razor. The Applicant was referred to Dr. Loya by the police themselves. At the relevant time, Dr. Loya was attached to Nair Hospital. The Applicant has sufficiently proved his case on the touchstone of probability. The burden on the Applicant to prove his case was not as heavy as that on the prosecution. Therefore, in my considered view, the Applicant has proved that he was made to drive the taxi at the point of razor and he himself suffered injury on his neck. It is his case that he was under real and reasonable apprehension of suffering grievous injury or even of death at the hands of the culprits who had forcibly entered his taxi. Therefore, it cannot be said that he drove his taxi rashly and negligently on his own volition but he was forced to do so.

20. In the context of the circumstances of this case, Section 106 of the IPC is relevant, which reads thus:

“106. Right of private defence against deadly assault when there is risk of harm to innocent person.--If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.”

21. Therefore, though in the process four innocent pedestrians have suffered minor injuries, the Applicant cannot be held guilty of causing those injuries. The Applicant was deprived of his free will because of the real threat of imminent death at the hands of the person carrying razor. Therefore, in the facts and circumstances of the case, the Applicant cannot be said to have committed the offences for which he is convicted and sentenced.

In the High Court of Bombay

(Before Sarang V. Kotwal, J.)

Hamza Mohd. Ibrahim Ansari  v. State of Maharashtra 

Criminal Revision Application No. 257 of 2002

Decided on March 29, 2019

Citation: 2019 SCC OnLine Bom 547

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When exercise of right of private defence in Murder case is not proved?

The second contention advanced at the hands of learned counsel
for the appellant was, that the entire prosecution version discloses, that
the alleged intention of the accused-appellant – Brij Lal was to murder
Mohan Lal – PW-15. It was submitted, that there was no occasion for
the appellant to cause fatal injuries to three unknown persons, by firing
shots at them. Even though, the second contention advanced by learned
counsel seems to be interesting, yet we find no merit therein. The reason
why the neighbours and the co-villagers had gathered at the place of
occurrence was, to protect Mohan Lal – PW-15, by dissuading the
accused from insisting on to carry out their objective. Consequent upon
their being angered by the villagers, they retaliated by firing
indiscriminately at the gathering. Since it was not disputed by the
accused-appellant – Brij Lal, that three fatal (besides other) injuries, were
caused by the accused-appellant and his co-accused, the onus lies on
the appellant to demonstrate the reason and the justification for their
action. The evidence produced by the prosecution demonstrates, that
the accused had fired gunshots indiscriminately, on being angered by the
gathering, which was trying to persuade them from carrying out their
singular objective – to cause harm to the person of Mohan Lal – PW-15.
Having accepted, that they had actually fired at the neighbours and the
villagers, who had gathered at the place of occurrence, it does not lie in

their mouth to raise such a plea. For the aforesaid reasons, we find no
merit even in the instant contention.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 991 OF 2010

Brij Lal  v State of Rajasthan.

Dated:August 17, 2016.
Citation:(2016) 13 SCC347

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Whether police can file final report saying that no offence is made out against accused considering his right of private defence?

From this provision, it is crystal clear that the an offence either culpable homicide or murder as defined under Sections 299 and 300 of I.P.C. are also subject to the exceptions contained in Chapter IV titled "General Exceptions". Section 96 of I.P.C. declares that nothing is an offence which is done in the exercise of the right of private defence. Section 100 states as to when the right of private defence of body extends to causing of death. Thus, during the course of investigation, if the police officer finds that the act of the accused falls squarely within the ambit of Section 100 of I.P.C. then, he cannot file a positive final report to the effect that an offence either under Sections 302 or 304 I.P.C. has been committed. For arriving at such a conclusion that the act of the assailants falls squarely within the ambit of Section 100 of the Code, during the course of investigation, the police officer is not concerned with Section 105 of the Evidence Act. Section 105 of the Evidence Act deals with proof of exception during trial. It states that it is for the accused to prove that his act would fall under any one of the general exceptions or special exceptions. Since, during investigation, the accused is not called upon to prove any disputed fact, the question of applying Section 105 of the Evidence Act does not arise at all. The argument of the learned counsel for the petitioner in this regard therefore deserves only to be rejected.

IN THE HIGH COURT OF MADRAS

W.P. No. 25743 of 2010

Decided On: 09.02.2016

 P. Pugalenthi Vs. State of Tamil Nadu and Ors.

Coram:

M. Jaichandren and S. Nagamuthu, JJ.

Citation: 2017 CRLJ(NOC)82 Madras

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Leading Supreme Court Judgment on right of private defence

 The right of private defence is contemplated by Section 97 of IPC
which reads as follows:-
“Section 97. Right of private defence of the body and
of property.— Every person has a right, subject to
the restrictions contained in section 99, to defend—
First — His own body, and the body of any other
person, against any offence affecting the human
body;
Secondly —The property, whether movable or
immovable, of himself or of any other person,
against any act which is an offence falling under the
definition of theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass.”
In Darshan Singh vs. State of Punjab and Another (2010) 2 SCC 333
, this court laid
down the following principles which emerged upon the careful consideration
and scrutiny of a number of judgments as follows:-
“58. The following principles emerge on scrutiny of
the following judgments:
(i) Self-preservation is the basic human instinct and
is duly recognised by the criminal jurisprudence of all
civilised countries. All free, democratic and civilised
countries recognise the right of private defence
within certain reasonable limits.
(ii) The right of private defence is available only to
one who is suddenly confronted with the necessity of
averting an impending danger and not of
self-creation.
(iii) A mere reasonable apprehension is enough to
put the right of self-defence into operation. In other
words, it is not necessary that there should be an
actual commission of the offence in order to give rise
to the right of private defence. It is enough if the
accused apprehended that such an offence is
contemplated and it is likely to be committed if the
right of private defence is not exercised.
(iv) The right of private defence commences as soon
as a reasonable apprehension arises and it is
coterminous with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault
to modulate his defence step by step with any
arithmetical exactitude.
(vi) In private defence the force used by the accused
ought not to be wholly disproportionate or much
greater than necessary for protection of the person
or property.
(vii) It is well settled that even if the accused does
not plead self-defence, it is open to consider such a
plea if the same arises from the material on record.
(viii) The accused need not prove the existence of
the right of private defence beyond reasonable
doubt.
(ix) The Penal Code confers the right of private
defence only when that unlawful or wrongful act is
an offence.
(x) A person who is in imminent and reasonable
danger of losing his life or limb may in exercise of
self-defence inflict any harm even extending to death
on his assailant either when the assault is attempted
or directly threatened.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1548 OF 2011

SURESH SINGHAL .V STATE (DELHI ADMINISTRATION) 

Dated:February 02, 2017

Citation:(2017)2 SCC737

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Whether right of private defence is available even if there is no actual commission of offence?

 Having regard to the above, we are of the view that the appellant
reasonably apprehended a danger to his life when the deceased and his
brothers started strangulating him after pushing him to the floor.
As observed by this Court a mere reasonable apprehension is enough to put
the right of self-defence into operation and it is not necessary that there
should be an actual commission of the offence in order to give rise to the
right of private defence. It is enough if the appellant apprehended that such
an offence is contemplated and is likely to be committed if the right of
private defence is not exercised.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1548 OF 2011

SURESH SINGHAL  V  STATE (DELHI ADMINISTRATION) 

Dated:February 02, 2017

Citation:(2017)2 SCC 737

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How to appreciate evidence if right of private defence is claimed?

Once the Court came to a finding that the prosecution has suppressed
the genesis and origin of the occurrence and also failed to explain the
injuries on the person of the accused including death of father of the
appellants, the only possible and probable course left open was to
grant benefit of doubt to the appellants. The appellants can
legitimately claim right to use force once they saw their parents being
assaulted and when actually it has been shown that due to such
assault and injury their father subsequently died. In the given facts,


adverse inference must be drawn against the prosecution for not
offering any explanation much less a plausible one. Drawing of such
adverse inference is given a go-bye in the case of free fight mainly
because the occurrence in that case may take place at different spots
and in such a manner that a witness may not reasonably be expected
to see and therefore explain the injuries sustained by the defence
party. This is not the factual situation in the present case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.416 OF 2016
(Arising out of SLP(Crl.) No. 2301 of 2016)

Bhagwan Sahai V State of Rajasthan 

Dated:June 03, 2016.
SHIVA KIRTI SINGH, J.

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There is no right of private defence against acts done by public servants acting in good faith under colour of his office

The need of self preservation has its root in the doctrine of

necessity.
The right of self defence is therefore basis of necessity and
without such necessity a right to resort thereto does not exist. There are
limits within which the right of private defence can be exercised. The
policemen are public servants. There is no right of private defence against
an act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a public servant acting
in good faith under colour of his office, though that act may not be strictly
justifiable by law. Thus, when a public officer acts bona fide under colour of
his office, right of private defence cannot be exercised against him though
his act may not be strictly justifiably by law.

IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 33 OF 2012

 GIRIDHAR DEU DEVSEKAR, Vs  STATE OF GOA

A.P. LAVANDE &
U. V. BAKRE, JJ.
Dated;
24th June,2013.
Citation;2013 CRLJ(NOC) 561 bombay,Goa

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