Culpable Homicide, Murder, Transferred Malice & Death by Negligence (BNS) — Criminal Law I Notes

Culpable homicide and murder

Every law student’s first great puzzle: “all murder is culpable homicide, but not all culpable homicide is murder.” The two offences describe the same result — a dead body — and differ only in the degree of the killer’s intention or knowledge. Get this distinction and you have the key to Unit 3; miss it, and every homicide problem will defeat you.

Think of homicide as two concentric circles. The outer, wider circle is culpable homicide — the genus, all blameworthy killings. The inner, narrower circle is murder — the gravest species, culpable homicide committed with the highest degrees of intention or knowledge. Every murder is a culpable homicide; only the worst culpable homicides are murder.

Culpable homicide — s.100, BNS [old s.299 IPC]. Whoever causes death by an act done — (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (c) with the knowledge that he is likely by such act to cause death — commits culpable homicide.

Murder — s.101, BNS [old s.300 IPC]. Culpable homicide is murder if the act is done — (1) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of that particular person; or (3) with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death; or (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death, and done without any excuse for incurring that risk.

The distinction — read the two side by side. The difference is one of degree of certainty:

Culpable homicide (s.100(b)) needs injury “likely” to cause death; murder (s.101(3)) needs injury “sufficient in the ordinary course of nature” to cause death — a higher probability.
Culpable homicide (s.100(c)) needs knowledge death is “likely”; murder (s.101(4)) needs knowledge the act is “so imminently dangerous that it must in all probability cause death.”

So the graver mental state — a higher degree of likelihood or certainty of death — turns culpable homicide into murder. And even where the act is murder on this test, it drops back to culpable homicide not amounting to murder if one of the five exceptions to s.101 applies (Topic 3).

The classic four-step approach (from Reg v Govinda, 1876, applied ever since): first ask, is it culpable homicide (s.100)? If yes, ask, is it murder (s.101)? If yes, ask, does an exception to s.101 apply, bringing it back to culpable homicide? Then apply the punishment (Topic 4).

🧩 Worked example. A stabs B once in the thigh; the wound severs an artery and B bleeds to death. Was it murder or culpable homicide? If A intended only a thigh wound (likely to cause some harm but not “sufficient in the ordinary course of nature” to kill), it is culpable homicide (s.100), not murder — this is essentially the facts of Govinda. But if A had driven the knife into B’s heart, the injury being sufficient in the ordinary course of nature to cause death, it would be murder (s.101(3)). The seat and depth of the injury, showing the degree of intention, decides which circle the killing falls in.

s.101, BNS: “Culpable homicide is murder — …(3) 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…”

In Simple Terms: the same killing is murder when the killer meant a wound that was certain to kill (or knew his act was almost certain to kill), and only culpable homicide when death was merely a likely consequence. The law reads the killer’s mind through the injury he chose to inflict.

flowchart TD
    D["A KILLING"] --> Q1{"Culpable homicide? (s.100) — intent/knowledge death is LIKELY"}
    Q1 -->|no| NG["No culpable homicide — accident, no mens rea"]
    Q1 -->|yes| Q2{"Murder? (s.101) — injury SUFFICIENT in ordinary course / act imminently dangerous"}
    Q2 -->|no| CH["Culpable homicide NOT murder"]
    Q2 -->|yes| Q3{"Any of the 5 EXCEPTIONS to s.101?"}
    Q3 -->|yes| CH
    Q3 -->|no| M["MURDER s.101 → punished s.103"]

Case Laws

Reg v Govinda (1876) — Melvill J’s classic analysis of the difference in degree between s.299 (s.100) and s.300 (s.101).
State of A.P. v Rayavarapu Punnayya (1976) — culpable homicide is the genus, murder the species; the difference is the degree of probability of death.
Virsa Singh v State of Punjab (1958) — for murder under s.300(3)/s.101(3): the prosecution must prove the injury was intended and was objectively sufficient in the ordinary course of nature to cause death.

Transferred malice

Transferred malice — s.102, BNS [old s.301 IPC]. Where a person, intending to kill (or injure) one person, by mistake or accident kills another, the law transfers his intention from the intended victim to the actual victim. He is guilty of the murder (or culpable homicide) of the person actually killed, as if he had intended to kill him. The malice “follows the blow.”

Why it exists. Without this doctrine, a person who fired at his enemy and killed an innocent bystander could argue “I never intended to kill that person” and escape a murder conviction. The doctrine closes that gap: the guilty intention and the actual death are joined, even though they concern different victims.

The limit. The intention transferred must be an intention that, if carried out against the intended victim, would have been the same offence. If A meant only to frighten B and accidentally kills C, there was no intention to kill to transfer.

🧩 Worked example. A, intending to shoot his enemy B, fires at him in a crowd; the bullet misses B and kills C, a bystander. A is guilty of the murder of C — his intention to kill B is transferred to C (Shankarlal Kacharabhai v State of Gujarat). It is no defence that he “did not intend to kill C”; the malice followed the bullet.

s.102, BNS (transferred malice): where the act by which death is caused is done with the intention of causing death, and death is caused of a person whom the offender neither intended nor knew himself to be likely to kill, the offence is still the same as if he had killed the intended person.

In Simple Terms: if you aim to kill one person and kill another by mistake, the law does not let you off — it simply moves your murderous intent onto the person you actually killed.

flowchart LR
    A["A intends to kill B"] -->|"shot misses"| C["kills C (bystander)"]
    A -.->|"intention TRANSFERRED"| G["Guilty of murder of C"]

Case Laws

Shankarlal Kacharabhai v State of Gujarat (1965) — intention to kill one person, resulting in the death of another, is murder of the latter by transferred malice.

When culpable homicide is not murder — the five exceptions

Even where a killing satisfies the definition of murder (s.101), it drops back to culpable homicide not amounting to murder if it falls within one of five exceptions to s.101 [old exceptions to s.300 IPC]. These are the situations where the law, recognising human frailty or a shred of justification, reduces the gravest label.

The five exceptions:

Grave and sudden provocation. Culpable homicide is not murder if the offender, deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation (or another by mistake). Provisos: the provocation must not be sought by the offender as an excuse, nor given by anything done in obedience to law or by a public servant acting lawfully. The provocation must be both grave and sudden — no cooling time (K.M. Nanavati).
Exceeding the right of private defence. Where the offender, in good faith exercising the right of private defence, exceeds the force allowed and causes death without premeditation and without intending more harm than necessary.
Act of a public servant exceeding his powers. Where a public servant, acting in good faith for the advancement of public justice, exceeds his lawful powers and causes death, believing his act lawful.
Sudden fight. Culpable homicide is not murder if the death is caused in a sudden fight in the heat of passion upon a sudden quarrel, without premeditation, and the offender did not take undue advantage or act in a cruel manner.
Consent. Where the person killed, being above eighteen, consents to the death or takes the risk of death (e.g. a genuine suicide pact, or consenting to a dangerous act).

Why it matters. These exceptions are the difference between the death penalty / life imprisonment (murder, s.103) and a lesser sentence (culpable homicide not amounting to murder, s.105). Identifying which exception applies is the second half of every homicide problem.

🧩 Worked example. A returns home to find his wife in the act of adultery; overcome and instantly, without any cooling time, he kills the man. If the provocation was grave and sudden and A lost his self-control, Exception 1 applies and it is culpable homicide, not murder. But in K.M. Nanavati v State of Maharashtra (1962), the naval officer left, collected a gun, drove to the flat and then shot his wife’s lover — the gap between the provocation and the killing gave time to cool, so the exception did not apply and it was murder.

s.101, Exception 1, BNS: “Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

In Simple Terms: a killing that would be murder becomes the lesser offence of culpable homicide when it happens in a moment of genuine loss of control — sudden provocation, a sudden fight, an excess of self-defence — or in the other recognised situations. The key everywhere is no premeditation and no cooling time.

flowchart TD
    EX["EXCEPTIONS to s.101 → culpable homicide NOT murder"] --> E1["1. Grave & sudden provocation (no cooling time)"]
    EX --> E2["2. Exceeding private defence in good faith"]
    EX --> E3["3. Public servant exceeding powers in good faith"]
    EX --> E4["4. Sudden fight, heat of passion, no undue advantage"]
    EX --> E5["5. Consent of a person above 18"]

Case Laws

K.M. Nanavati v State of Maharashtra (1962) — provocation must be sudden; time to cool and plan removes Exception 1; the killing was murder.
Ghapoo Yadav v State of M.P. (2003) — sudden fight (Exception 4): no premeditation, no undue advantage or cruelty.

Punishment and mob lynching

Punishment for murder — s.103, BNS [old s.302 IPC]. Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine. The choice of death is confined to the “rarest of rare” cases (Bachan Singh, Unit 1).

Mob lynching — s.103(2), BNS — NEW. The BNS creates, for the first time, a specific offence of mob lynching: where a group of five or more persons acting in concert commits murder on the ground of race, caste, community, sex, place of birth, language, personal belief or any other similar ground, each member of that group shall be punished with death or life imprisonment and fine. This was enacted in response to the wave of lynchings and the Supreme Court’s directions in Tehseen Poonawalla v Union of India (2018), which had asked Parliament to create a distinct offence.

Punishment for culpable homicide not amounting to murder — s.105, BNS [old s.304 IPC]. Punished with imprisonment for life, or a term up to ten years, and fine (where the act is done with the intention of causing death or such injury as is likely to cause death); or up to ten years / fine (where done only with the knowledge that it is likely to cause death, but without such intention). The graver punishment tracks the graver mental state.

🧩 Worked example. A mob of eight, enraged by a rumour about a man’s community, drags him from his home and beats him to death because of his religion. Under s.103(2) each of the eight is guilty of mob lynching and liable to death or life imprisonment — the BNS no longer lets members hide in the anonymity of the crowd, and the ground of the killing (religion/community) is what triggers this specific, grave offence.

s.103(2), BNS: “When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.”

In Simple Terms: killing someone because of who they are — their caste, religion, language — as part of a mob of five or more is now its own named crime, and every member of the mob faces the death penalty or life. The law refuses to let the crowd shield the individual.

flowchart TD
    P["PUNISHMENT — HOMICIDE"] --> M["s.103(1) Murder → DEATH or LIFE + fine"]
    P --> ML["s.103(2) MOB LYNCHING 🆕 — group of 5+, on a discriminatory ground → each member: death/life"]
    P --> CH["s.105 Culpable homicide not murder → life or up to 10 yrs"]

Case Laws

Bachan Singh v State of Punjab (1980) — death only in the “rarest of rare” murders (Unit 1).
Tehseen Poonawalla v Union of India (2018) — directed Parliament to create a distinct mob-lynching offence; s.103(2) is the response.

Causing death by a rash or negligent act

s.106, BNS [old s.304A IPC]. Whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide is punished — s.106(1): imprisonment up to five years and fine (for a registered medical practitioner acting in the course of a medical procedure, a lower cap and special protection applies). This is the section for accidental deaths without intention or knowledge — the careless driver, the negligent doctor, the builder whose scaffold collapses.

The dividing line. s.106 begins where culpable homicide ends: there must be no intention and no knowledge that death was likely — only rashness (conscious running of a risk) or negligence (failing to take the care a reasonable person would). If the accused knew death was likely, it is culpable homicide, not s.106.

Medical negligence. Jacob Mathew v State of Punjab (2005) laid down that a doctor is criminally liable under s.304A/s.106 only for gross negligence — a mere error of judgment, or the ordinary risk inherent in treatment, is not enough. The BNS s.106(1) now gives registered medical practitioners a distinct, lower punishment for death caused by a negligent act in the course of medical treatment.

Hit-and-run — s.106(2), BNS — NEW. Where a person causes death by a rash or negligent driving of a vehicle and escapes without reporting the incident to a police officer or magistrate, he is punished with imprisonment up to ten years and fine. This new, harsher provision targets drivers who flee the scene, leaving victims without help.

🧩 Worked example. A drives rashly and knocks down a pedestrian who dies. If A had no intention or knowledge that death was likely, he is guilty under s.106(1) (death by a negligent act), not of culpable homicide. But if A, after the collision, flees without reporting it and without taking the victim to hospital, the aggravated hit-and-run offence (s.106(2)) applies, with up to ten years’ imprisonment — the law punishing the flight far more severely than the accident.

s.106(1), BNS: “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment… which may extend to five years, and shall also be liable to fine…”

In Simple Terms: if you kill someone by carelessness — not meaning it and not knowing death was likely — you are guilty of this lesser offence. And if you cause a fatal accident and then run away instead of getting help, the BNS now punishes that flight with up to ten years.

flowchart TD
    N["DEATH BY RASH/NEGLIGENT ACT s.106"] --> B["s.106(1): no intent/knowledge — up to 5 yrs"]
    B --> MED["Doctor: gross negligence only (Jacob Mathew); special protection"]
    N --> HR["s.106(2) HIT-AND-RUN 🆕: rash driving + flee without reporting → up to 10 yrs"]

Case Laws

Jacob Mathew v State of Punjab (2005) — a doctor is criminally liable only for gross negligence, not a mere error of judgment.
Cherubin Gregory v State of Bihar (1964) — rashness/negligence causing death: the standard of the reasonable person.

Attempt to murder

Attempt to murder — s.109, BNS [old s.307 IPC]. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, commits attempt to murder — punishment up to ten years and fine; and if hurt is caused, up to life imprisonment. Where a person under sentence of life imprisonment attempts murder and causes hurt, he may be punished with death.

Attempt to commit culpable homicide — s.110, BNS [old s.308 IPC]. The parallel, lesser offence: an act done with such intention/knowledge that, if death resulted, it would be culpable homicide not amounting to murder.

The essentials of s.109. Two things must be shown: (i) the intention or knowledge that would make the killing murder if death resulted; and (ii) an act done towards that end. The injury is not essential — the offence is complete on the act plus the murderous intent, even if the victim escapes unhurt (the empty-bed, missed-shot cases from Unit 2’s law of attempt).

🧩 Worked example. A, intending to kill B, fires a pistol at him; the bullet misses. Even though B is unharmed, A is guilty of attempt to murder (s.109) — he did an act with the intention that, had it caused death, would have been murder. If the bullet had merely wounded B, A would face the enhanced punishment (up to life) for attempt causing hurt.

s.109, BNS: “Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment… which may extend to ten years, and shall also be liable to fine; and if hurt is caused… may be punished with imprisonment for life…”

In Simple Terms: if you do something meant to kill — and it would have been murder had it worked — you are guilty of attempt to murder even if the victim walks away without a scratch. The graver the intent and the harm caused, the graver the punishment.

flowchart TD
    AM["ATTEMPT s.109 / s.110"] --> A1["Act done with intent/knowledge that would make death MURDER (s.109) or CULPABLE HOMICIDE (s.110)"]
    A1 --> A2["Injury NOT essential — offence complete on act + intent"]
    A1 --> A3["s.109: up to 10 yrs; if hurt caused → up to life; lifer → death"]

Case Laws

State of Maharashtra v Balram Bama Patil (1983) — for s.307, the intention to kill and an act towards it suffice; actual injury is not required.
Om Prakash v State of Punjab (1961) — starving a wife with intent to kill was attempt to murder though death did not result.

Suicide

Abetment of suicide — s.108, BNS [old s.306 IPC]. Whoever abets the commission of suicide — by instigation, conspiracy or intentional aid — is punished with imprisonment up to ten years and fine. s.107 [old s.305] deals with the graver case of abetment of the suicide of a child, an insane person, or an intoxicated person — punishable with death or life.

Essentials of abetment of suicide. There must be (i) a suicide (or attempt); and (ii) abetment — active instigation or aid with the intention that the person take his life. Mere harassment is not enough unless there was positive instigation or the creation of circumstances leaving the deceased no option but suicide (Ramesh Kumar v State of Chhattisgarh).

Attempt to commit suicide. Under the old IPC, s.309 made attempt to suicide itself an offence. This has been substantially decriminalised: the Mental Healthcare Act, 2017 (s.115) presumes that a person who attempts suicide is suffering from severe stress and shall not be prosecuted, treating attempted suicide as a mental-health matter rather than a crime. The BNS retains a narrow provision (s.226) punishing an attempt to commit suicide with intent to compel or restrain a public servant from discharging his duty (e.g. a protester’s coercive suicide attempt), but ordinary attempted suicide is no longer prosecuted.

🧩 Worked example. A husband and his mother relentlessly instigate a young bride — taunting her daily to “go and die” and creating conditions of unbearable cruelty — until she takes her own life. If there was positive instigation with intent that she die, they are guilty of abetment of suicide (s.108), and often of cruelty (s.85) too. But mere domestic friction, without instigation or intent, does not amount to abetment (Ramesh Kumar).

s.108, BNS: “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment… which may extend to ten years, and shall also be liable to fine.”

In Simple Terms: driving or helping someone to take their own life is a serious crime. But attempting suicide is now treated mainly as a cry for help under mental-health law, not punished — except where it is used to coerce a public servant.

flowchart TD
    SU["SUICIDE"] --> AB["Abetment s.108 — instigation/aid + intent → up to 10 yrs"]
    SU --> AB2["s.107 — abetment of suicide of child/insane/intoxicated → death/life"]
    SU --> AT["Attempt to suicide — decriminalised (MHA 2017 s.115); BNS s.226 only if to coerce a public servant"]

Case Laws

Ramesh Kumar v State of Chhattisgarh (2001) — words uttered in a quarrel (“go and die”) without intent are not instigation; abetment needs positive instigation.
Gian Kaur v State of Punjab (1996) — there is no fundamental right to die; upheld the criminalisation of abetment of suicide (attempt separately dealt with by the MHA 2017).

📄 Full notes + Question Bank (₹199) — every topic in depth, model answers to all past exam questions, in one printable PDF. Get the bundle · 10 Solved Problems · All BNS topics