The Fallacious Interpretation of the Offence of Murder: A Critical Analysis of Section 300 of IPC

Kumar Aryan


Introduction

The First law commission drafted the Indian Penal Code (Hereinafter, The IPC) in 1834 under the chairmanship of Sir Thomas Babington Macaulay. Macaulay was a Benthamite; therefore, it was fairly certain that the IPC would have provisions ascribing to the philosophy of utilitarianism.[1]According to utilitarianism, the criminal justice system should create deterrence in society, which shifts the focus on consequence (causation) rather than intention. They take a purely objective outlook toward law. However, Macaulay did an excellent job balancing both objective and subjective theories in the IPC. As a matter of fact, in the IPC, the mental element is one of the most basic requirements for bringing in criminal liability.

Section 300 of the IPC defines the offense of ‘murder.’ The section is divided into four clauses; clause firstly and secondly defines murder with intention and knowledge, respectively. While clause thirdly and fourthly covers murder without intention. The section seems quite balanced, covering both objective and subjective definitions of murder. However, it is not as straightforward as it seems. The interpretation of the Supreme Court in Virsa Singh v. the State of Punjab (1958),[2] which is the most authoritative case in this section presently, is very problematic. This issue can be observed in the recent judgment of the Supreme Court, wherein the judges referring to the Virsa Singh case decided that section 300(c) does not even require the prosecution to prove the knowledge of the seriousness of the injury inflicted.[3] This interpretation could include other possible circumstances which would lead to unfair and inconsistent convictions for murder. These circumstances will be elaborated upon later in this article.

Apart from proving the intention of an accused to inflict a bodily injury (the intensity of the injury is immaterial), the rest of the case is decided entirely on objective analysis.[4]However, it cannot be said that the law should be based entirely on subjective analysis, as this would render the clause firstly or secondly of section 300 of the IPC otiose.[5] Therefore, this article tries to evaluate the solution to this issue presented by other authors and, at the same time, presents a solution. The solution applies the principles laid down in the English common law since it is impossible to completely free the “ruthless risk-takers”[6](who killed without the intention) of any liability.

This article argues that in addition to the objective standard of determination in section 300 thirdly, there is a need to also introduce a subjective element in its interpretation so that, one could not get convicted for the offence of murder while having the mens rea of a significantly smaller offence. The requirement of the actors’ awareness plays an integral part in deciding their culpability. Therefore, even if the injury is sufficient in the ordinary course of nature to cause death, did the accused take the risk even after the awareness of the risk of his act will decide his guilt.

This article is divided into four sections. The first section analyzes the recent SC judgment in Vinod Kumar v Amritpal.[7] Moreover, it analyzes the most authoritative interpretation of section 300(c) of the IPC. The second section elaborates upon the issues present in the current interpretation of the law. It also explores the possible circumstances that will lead to unfair and inconsistent convictions if the current interpretation is applied. The third section explores the issues that will occur if complete subjectivity is introduced and how it will entirely negate the intent of the legislature while introducing that provision. At last, the article analyzes the famous judgments of English common law regarding the same issue, as in the case of Woollin.[8] These English cases and the various approaches put into use by the courts of United States and Model Penal Code (MPC) will be used for deriving an interpretation that, in the author’s opinion, represents the lawmaker’s intent behind section 300 of the IPC more accurately.

I. Objective interpretation of the offense of ‘murder’ by the Supreme Court


In its recent judgment, the SC took an entirely objective approach toward the offense of murder, overturning the decision of the High Court of Rajasthan by applying the principles laid down in the Virsa Singh. The bench consisting of Justice Ajay Rastogi and Justice Abhay S. Oka quoted Justice Vivian Bose from Virsa Singh, stating, “It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death.[9](emphasize mine)

The last sentence from the quote is the root of all-cause. The qualification for imposing criminal liability has been reduced to such an extent that even the knowledge of the kind of act that is ‘likely to cause death’ is not required. This kind of objectivity will open pandora’s box; the same can be seen in Singapore, in the case of Tan Joo Cheng v PP 1992, which held that even if one intends to inflict a minor injury, pursuant to which an injury that is sufficient in ordinary course of nature to cause death occurs, it would attract the punishment of death.[10] Both the countries, Singapore and India, have similar penal laws, therefore, it is highly probable that the interpretation of these provisions might follow from each other.

The summary facts of the Vinod Kumar case, were that the deceased along with another person were returning to their home from railway station. On the way, five accused abducted both the victims in their vehicle, and took them to an unmetalled road, where the victims were assaulted. When the accused saw light from another vehicle coming, they immediately put both the victims in the car. The deceased, Balveer Singh, got unconscious from the assault. The accused took him to a doctor’s house, where they were told that the deceased was serious and needed to be taken to the hospital immediately. The accused then took the victims to the city (where the nearest hospital was present), but on their way, the car’s tank emptied because of which they were not able to make it in time. The deceased succumbed to the injuries and the accused then disposed off the body in a canal.[11] The facts of this case make few things clear, first of all there was no intention to kill. Secondly, it is not clear whether any knowledge of the likelihood of death was present. However, the court said that the prosecution does not even require to prove any knowledge of the likelihood of death. Therefore, even if there was no knowledge present on the part of accused and the death was an unexpected consequence of the act in contention, they will still be held liable for murder under section 300(c) of the IPC.


The Inference of Intention taken by the Court


In the present case, the Supreme Court tries to infer the intention of the accused based on the nature of the injuries caused. The Court, while disagreeing with the judgement of the High Court, said that the they failed to consider the nature of injuries inflicted by the accused. It was argued that many injuries were inflicted on the vital parts of the deceased’s body. Those kinds of injuries were ‘sufficient’ in the ordinary course of nature to cause death. However, the test of sufficiency is based on a completely objective analysis. It is objective in the sense that the court detaches the mental state of the accused with the sufficiency of the injury to cause death. In Virsa Singh, the court laid out the elements required to be proved by the prosecution in order to establish the offence of murder under section 300(c) of the IPC.

There were four requirements stated; firstly, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved (whether it is sufficient in the ordinary course of nature to cause death); These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. However, this article only concerns with the first and the second requirements.

It has been straightforwardly laid that the nature of the injury is a ‘purely objective’ investigation. This detachment of the test of sufficiency with the mental element will create various moral conundrums, questioning the basis of the criminal liability in the offence of murder itself. This issue can easily be seen in the 1992 Singapore case mentioned above which will be discussed upon later in this article.

In the present case of Vinod Kumar, the facts state that two people were assaulted, while the one succumbed, the other survived. If it was to argue that the nature of injuries inflicted were intentional, then this will make the offence a matter of luck. Since, it was only luck that one of them died while the other survived. This instance makes the offence of murder, a matter of moral luck. One’s fortune is not under their control so it can be inferred that one can be charged for the offence of murder for the reasons that are not in their control. However, this refutes the basis of criminal liability which says that one should only be punished for the choices they made with their free will.[12]


II. Murder without intention and its questionable basis of criminal liability.


To elaborate upon the issue presented earlier, it is important to establish what exactly is the basis of criminal liability. A criminal offence is some prohibited conduct, it could either be an act or otherwise, which would lead to certain consequences, done with the presence of a mental element. There is an underlying assumption present, which makes the sense of the whole equation of a criminal offence and also the theories of punishment. Implicit in each theory is the assumption of free will, and that social harms can be morally attributed to the choices which people make. And if it is later discovered that the acts of humans were not free, but were influenced by something beyond their control, the theory of criminal liability and punishment will lose any moral justification it has.[13]

This being said, let’s consider a hypothetical situation presented by M Sornarajah in his article,[14] the same that has been supported by Victor V Ramraj.[15] If the offender cuts the victim on his foot specifically with the idea to avoid any fatal injury. However, unexpectedly, that injury severed an artery which is sufficient in the ordinary course of nature to cause death. Should the offender be charged with murder? A similar situation was posed by Mark McBride wherein, a stab injury result into an unexpected effect leading to death.[16] There is a blatant disregard of the differing degrees of culpability, as in the above factual situation it could be argued that the offender was negligent in relation to the death of the victim, for which he should be held liable under IPC (Section 304A of the IPC specifically deals with murder because of negligence). However, the current interpretation will find them guilty of murder, because the objective analysis shifts the focus on causation, completely ignoring the other elements which are required to constitute crime.[17]

This situation questions the basis of criminal liability in the offence of murder. Since, conviction under the offence of murder is a matter of moral luck, because the consequence of one’s act is being taken objectively, without considering the intention and culpability (or knowledge for that matter). If an ‘unexpected consequence’ is enough to make someone a murderer, with the mens rea of lesser offence (like assault), then it would lead to imposing criminal liability based on something that is beyond one’s control. Therefore, it would be relevant to question the basis of criminal liability in section 300(c) of the IPC.


III. The Constructive Dimension of the Offence of Murder


However, it would be erroneous to argue that law should be interpreted in total subjectivity. This would not only make the provision otiose but also leave a vast section of acts unpunished. Section 300(c) of the IPC states:

Except in the cases hereinafter excepted, culpable homicide is murder— (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.

If it is interpreted in a way that requires the prosecution to prove that the offender intended to inflict a bodily injury that is sufficient in the ordinary course of nature to cause death, it would become completely similar to causing injury with the intention to kill (which is defined in section 300(a) of the IPC).[18] And in the case of the hypothetical situation posed earlier, if it is required to prove that the offender had the knowledge that his cut injury is sufficient to cause death then it would come under section 300(b). Therefore, it would be safe to assume that the legislators intended something different from section 300 thirdly. Because section 300 thirdly does not have a clear interpretation like that of firstly and secondly, it catches what the other murder provisions do not.[19]

On top of that, introducing complete subjectivity would mean that the prosecution also needs to prove that the offender had the exact knowledge of how their act would lead to an injury on a specific part of the victim’s body, and that injury would sufficient in the ordinary course of nature to cause death. This would mean that a person without the knowledge of human anatomy could never be held guilty under this provision. This absurdity can be understood in the context of the Virsa Singh case, if it was to be proved that the offender intended to inflict such a blow that would penetrate the liver or the kidney or the heart, then it would have been impossible to prove guilt.[20] Therefore, making the whole provision borderline absurd.

Moreover, the core issue which arises from a complete subjective analysis is that how should the law deal with the killers whose intention may not be to kill but their conduct shows what the Scots law call a ‘wicked disregard of the consequences of life’.[21] As they proceed to take ruthless risks of death and serious injuries without and no redeeming social values.[22] To address this issue, it can be said that section 300(c) has taken a constructive dimension of murder. This can be traced in the judgement of Virsa Singh where it was mentioned that no one should be left free to inflict injuries that are sufficient in the ordinary course of nature to cause death, even if without an intention or knowledge to kill.

This form of ‘constructive’ murder can be traced back to the utilitarian influence on the Penal code of India and Singapore. As the English law during the 1980s and 90s was facing serious issue of dealing with killers who showed utter disregard of human life, but it was difficult to prove guilt of murder since there was no intention to kill. Various landmark cases like that of Woolin,[23] tried to ascertain the law on this issue. These cases will be discussed in later part to find an interpretation of section 300(c) of IPC which will take it closer to the legislator’s intent.


IV. The Introduction of the Elements of Awareness and Foreseeability in the Current Interpretation


So, now that it has been established that complete subjectivity is not the way, it is important to introduce other qualifications in order to make the law just and fair. To achieve this, it is required to address the core issue present, that is the detachment of the test of sufficiency from the mental element of the offender. Now the question arises, what element should be introduced so that both, the sufficiency test and the mens rea attaches without making it completely subjective?

George P. Fletcher in his book ‘Rethinking Criminal Law’ termed this act of murder without intention as ‘Homicide by Excessive Risk-Taking’. He says that the offence under this head depends on two elements, first is the unacceptability of the risk taken, and secondly the actor’s culpability in creating it.[24] These elements of acceptability and culpability can be assessed on the basis of three factors;

Firstly, the likelihood of causing death under the circumstances present. For example, if a person swings a sword at another person, then the likelihood of causing severe injury (or death) would depend on the body part which has been attacked, the force used to swing that sword, and defensive capability of the victim (like if they also have a sword or some shield to defend). This will help in deciding the gravity of the risk, graver the risk more will be the culpability.[25]

Secondly, the utility of the risk should be considered. The amount of social value that risk derives is an equally important factor.[26]

And at last, the most important factor for the purpose of this article is the analysis of the actor’s awareness of the risk being run.[27] This degree of awareness plays a substantial role in determining the culpability of the actor. In case of murder with intention, the awareness should be proved to an extent that death was the only consequence of the actor’s act, and they were completely aware of it. Vice-versa, the punishment should reduce accordingly if the awareness reduces to the extent of ‘negligence and recklessness’. However, the current interpretation totally disregards the awareness of the actor and only considers if the act was sufficient in the ordinary course of nature to cause death, even if the actor did not possess the knowledge of any such consequence.

In other common law jurisdictions, the courts have dealt with this problem by establishing a degree of culpability which would help determine whether the act amounts to murder or manslaughter. For a negligent or reckless act to be liable for murder, higher degree of malice needs to be established. In California, juries are instructed to inquire whether the defendant did an act for “a base, anti-social motive and with wanton disregard of human life.[28]

There is an approach which is prevalently used in United States is to treat all killings with deadly weapons presumptively as murder, with the burden of proof on the accused to mitigate his offence to manslaughter. This is a variation on the mode of harm-oriented analysis that prevailed in the common law at least up to the time of Blackstone.[29] However, it is now unconstitutional in US to place the burden of proof against malice on the accused, even if it's simply based on a preponderance of evidence. The issue with this approach is it does not require the court to clarify the concept of malice and prefer to rest its decision on the ground that the burden of proof was on the defendant to show that the gravity of the killing should be mitigated.

There is another approach which was very prevalent in English case laws. The English appear to be completely opposed to a line of thought based on excessive risk-taking. Instead, English judges have tackled the issue by redefining what constitutes intent or knowledge for murder. In the case of Moloney,[30] the accused killed his father with a shotgun in an intoxicated state. It was the result of a drunken argument between them about who had a better shot. Although the relation between the accused and the victim was amicable. Therefore, there was no malice afterthought, or any premeditation before the act. The House of Lords in this case established the principle that foreseeability of the defendant’s actions does not amount to intention; however, the foresight could be used as evidence from which necessary intent can be inferred.

The problem with this approach is that it conflicts with the English courts' emphasis in the cases after Moloney that no inference of intention could be formed unless the defendant foresaw the consequences as likely or even virtually certain. If such a severe test was required before an inference of intention could be drawn, there was little if any space for the even harsher test that would be required if foresight was itself equivalent to intent, which would presumably have to be one of absolute rather than 'moral' or 'virtual' certainty.[31]

Then came the case of Woollin,[32] it was a baby-battering case wherein the accused got annoyed with the infant baby crying, therefore, throwing it away, hitting its head on a hard surface. The accused’s act subsequently resulted to death of the child. The House of Lords in this case held that, if the accused is found to have foreseen death or grievous bodily harm as a virtual certainty, it is equivalent to the necessary intention required. Therefore, equating intention with foreseeability to a certain degree of certainty.

However, the following approach is flawed, as has been argued by George P. Fletcher, because it is both overinclusive and underinclusive.[33] It is overinclusive in the sense that it covers cases with no malice and culpability of causing death. In the same time, it is underinclusive as there are many cases of killing that appear arguably to be with malice, yet there is no intent to inflict grievous bodily harm. This can be illustrated with the example of a racket of organ smugglers, they coercively perform an individual’s medical operation to deprive them of one of their kidneys, but in between, due to some unforeseen accident, the victim dies. According to the first approach i.e., the California test, the defendants would be charged with the offence of causing grievous bodily injury. However, it would amount to murder in English court as causing grievous injury was a virtual certainty. There are several cases present which highlights this issue raised, like in the case of R v. Ward.[34] The same can be seen in R v. Vickers.[35]

Therefore, arguably the California test (the same has been followed in Model Penal Code) stands the test of time, although, there can be no perfect approach, but this is by far the most successful in terms of evaluating the culpability and the extent of risk taken in cases where the intention to cause death is not present or cannot be established.


Conclusion


The article starts with the issue of objective interpretation by the Indian Courts in cases of murder without intention, by critically analyzing the judgements of SC in the recent case of Vinod Kumar v. Amritpal and Virsa Singh v. State of Punjab. From the analysis it is concluded that, the test of sufficiency required under section 300(c) of the IPC and the mental element of the actor is completely detached, making the serious offence of murder a matter of luck. It is then argued that there is a need to introduce subjective element so that it justifies its basis of criminal liability, however, it should not make the offence completely subjective, requiring the prosecution to prove the accused’s intention for their every small act. Then three approaches from other common law jurisdictions around the world in discussed, like the California test, the harm-oriented analysis and the inference of intention prevalent among the English courts of law. At last it is concluded that the California test by far, sufficiently resolves the issue presented.

Section 300(c) the most frequently invoked murder limb of the Indian Penal Code, is also one of the most contested provisions under the IPC.[36] . It is one of the gravest offences against human body, which calls for a great deal of precaution before imposing the charges. Subjective analysis of intention is crucial for delivering just and fair judgements, after all, the purpose of the law is to punish those who are mentally capable of committing murder and not to label someone a murderer, who in fact is not. The Indian constitution, as it is written in the preamble, thrives to secure justice for all its citizens. Therefore, it is the duty of the judicial courts of India, which derives its powers from the constitution to put justice above all, be it any procedural or interpretive inconsistency in law.

In the present case, there are many people who are suffering because they are being treated as ‘murderer’ even if they never could have dreamed of what has consequently happened from their act. Therefore, it is in the interest of the nation state, to bring changes in the present interpretation in order to put an end to this perpetual injustice, because of which numerous families and citizens are suffering.

Intention is the most integral part of the criminal justice system, and by significantly diluting its importance, it only becomes a recipe of an unjust law. Therefore, this article avers that a test of culpability should be introduced as soon as possible. Because:


“ A unjust law, is no law at all. ”

– Martin Luther



[The author is a 2nd Year, BA-LLB student at National Law University, Delhi]

[1] Sornarajah, M. (1994). The Definition of Murder Under the Penal Code. Singapore Journal of Legal Studies, 1–28. <https://www.jstor.org/stable/24866686> [2] Virsa Singh v. State of Punjab, 1958 SCC 1495. [3] Ramraj, V. V. (2000). Murder Without an Intention to Kill. Singapore Journal of Legal Studies, 560–589. <https://www.jstor.org/stable/24868151> [4] Ibid.,2. [5] Virsa Singh (n 2) para 18-19. [6] Stannard, J. E. (1999). Murder Intention and The Inference of Intention. Irish Jur, 34, 202–222. <https://www.jstor.org/stable/44026471> [7] Vinod Kumar v. Amritpal alisa Chhotu, 2021 SCC OnLine SC 1150. [8] R v. Woollin, [1999] 1 A.C. 82. [9] Virsa Singh (n 2) para 20. [10] Tan Joo Cheng v PP, (1992) 1 SLR 620. [11] Vinod Kumar (n 7) para 9-10. [12] Wilson, W. (n.d.). Actus reus. In Criminal Law (pp. 69–99). Pearson Education. [13] Ibid., 69-70. [14] M Sornarajah (n 1). [15] Victor V Ramraj (n 3). [16] McBride, M. (2014). Section 300(c) of the Indian Penal code: from first Principles. National Law School of India Review, 26(1), 77–86. <https://www.jstor.org/stable/44283783 [17] Ibid. [18] Virsa Singh (n 2) para 11. [19] McBride (n 17) pg 6. [20] Victor V Ramraj (n 3) pg 14. [21] Stannard (n 6) pg 2. [22] Fletcher, G. P. (n.d.). Homicide: Three Lines of Liability. In Rethinking Criminal Law (p. 259). Oxford University Press. [23] Woollin (n 8). [24] Fletcher (n 23) pg 260. [25] Ibid. [26] Ibid. [27] Ibid. [28] Ibid., 265. [29] Ibid. [30] R v Moloney, [1985] A.C. 905. [31] Woollin (n 8) pg. 6. [32] Ibid. [33] Fletcher (n 23) pg 267-268. [34] R v Ward, [1956] 1 Q.B. 351 (Crim. App.). [35] R v Vickers, [1957] 2 Q.B. 664 (Crim. App.). [36] McBride (n 17) pg 2.

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