Greater Kashmir’s Understanding the Law Initiative: When life breaks, what remains is law

The Bharatiya Nyaya Sanhita, 2023 (BNS), heralds a transformative shift in the codification of criminal law in India, replacing the colonial-era Indian Penal Code, 1860. Among its most critical provisions are the ones dealing with Offences Affecting Life, which encapsulate the most serious breaches of the law, those that endanger or extinguish human life. These provisions outline and define offences such as murder, culpable homicide, abetment of suicide, attempt to murder, and terrorist acts, along with their corresponding punishments.

These provisions reflect a blend of continuity with established principles and substantive innovation, particularly in addressing contemporary issues like mob lynching, organized crime, and terrorism. The BNS places significant emphasis on intent, knowledge, proportionality, and the circumstances under which life is taken or endangered, thereby aiming to deliver justice with greater precision and fairness.

What constitutes the offence of culpable homicide?

Culpable homicide is committed when a person causes death:

• with the intention of causing death, or
• with the intention of causing such bodily injury as is likely to cause death, or
• with the knowledge that the act is likely to cause death.

Are there any illustrations of culpable homicide?

• A lays sticks and turf over a pit intending to cause death. Z falls into it and dies. A has committed culpable homicide.
• A knows Z is behind a bush and induces B to fire. Z is killed. A has committed culpable homicide.
• A shoots at a fowl to steal it but accidentally kills B. As A had no intent or knowledge of likely death, he is not guilty of culpable homicide.

What are the explanations associated with culpable homicide?

• Causing death to someone with a pre-existing disorder who dies sooner due to the injury is culpable homicide.
• Death caused by bodily injury remains culpable homicide even if it could have been avoided with medical aid.
• Causing death of a child in the womb is not homicide unless any part of the child has been born alive.

What is the relationship between culpable homicide and murder?

Murder is a type of culpable homicide, but not all culpable homicides are murders. Intention or knowledge determines whether it is murder or only culpable homicide.

What is the duty of the court in deciding murder vs. culpable homicide?

The court must:

• Determine if the accused’s act caused death,
• Decide if the act amounts to culpable homicide,
• Determine if the culpable homicide is murder.

What is euthanasia in legal terms?

Passive euthanasia (not prolonging life) is not intended to cause death and is not murder. Active euthanasia is considered murder.

What constitutes murder?

Murder is committed when culpable homicide includes:

• intention to cause death,
• intention to cause bodily injury likely to cause death,
• bodily injury sufficient to cause death in the ordinary course of nature,
• knowledge that the act is imminently dangerous and likely to cause death, without justification.

Are there any illustrations of murder?

• A shoots Z with intention to kill. Z dies. A commits murder.
• A strikes Z knowing Z has a disease that makes him vulnerable. Z dies. A commits murder.
• A intentionally inflicts a fatal sword wound on Z. A commits murder.
• A fires into a crowd without excuse, killing someone. A commits murder.

What are the exceptions where culpable homicide is not murder?

• Grave and sudden provocation not sought or voluntarily provoked.
• Right of private defence exceeded in good faith.
• Public servant exceeds power in good faith.
• Sudden fight without premeditation or cruel conduct.
• Death with the victim’s own consent (if above 18 years).

What are the legal observations on the exception related to right of private defence?

If a person in good faith exceeds self-defence and causes death, it is not murder if there is no premeditation or intention to do more harm than necessary.

What about sudden fights and premeditation?

A case falls under exception if:

• no premeditation,
• sudden fight in heat of passion,
• no undue advantage taken,
• no cruel/unusual act done.

Who bears the burden of proving exceptions to murder?

The accused must prove applicability of exceptions on a preponderance of probabilities, even through prosecution evidence.

What if someone causes the death of a different person than intended?

If someone causes the death of another unintentionally, the act is treated as if the intended victim had died.

What is the punishment for murder?

Death or life imprisonment with fine. For group murders based on discrimination, each participant is liable to the same.

What are some key judicial principles on murder sentencing?

• Death penalty applies in rarest of rare cases.
• Review of death sentence must be in open court.
• Rehabilitation potential must be assessed.
• Prior offences, gang rape, or honour killing are aggravating factors.
• Single witness may suffice if credible.
• Mental illness post-conviction can impact sentencing.
• Minor discrepancies should not outweigh forensic proof.
• Dying declarations can be sole evidence if reliable.

What is the punishment for a life convict committing murder again?

Death or imprisonment for the remainder of the convict’s life.

What is the punishment for culpable homicide not amounting to murder?

• If committed with intent to cause death: life or 5–10 years imprisonment and fine.
• If committed with knowledge but no intent: up to 10 years and fine.

What if death is caused by negligence?

• Rash or negligent act not amounting to culpable homicide: up to 5 years and fine.
• If by a registered doctor: up to 2 years and fine.
• If due to negligent driving and escaping: up to 10 years and fine.

What is the punishment for abetment of suicide of a child or person of unsound mind?

Death, life imprisonment, or up to 10 years and fine.

What is the punishment for abetment of suicide of a general person?

Imprisonment up to 10 years and fine.

What constitutes abetment of suicide?

There must be intentional aid or instigation that leads to suicide. Mere insults or emotional outbursts are not enough.

What is the punishment for attempt to murder?

• Up to 10 years and fine; life imprisonment if hurt is caused.
• If offender is already serving life imprisonment: death or imprisonment for life.

What is the punishment for attempt to commit culpable homicide?

• Up to 3 years or fine or both.
• If hurt is caused: up to 7 years or fine or both.

What is organized crime?

Continuing unlawful activities like kidnapping, extortion, cyber-crimes, etc., by persons acting as a gang or syndicate for material gain.

What is the punishment for organized crime?

• If death caused: death or life imprisonment and minimum fine of Rs. 10 lakh.
• Otherwise: 5 years to life and minimum Rs. 5 lakh fine.

Who else is punishable under organized crime law?

• Abettors, conspirators, facilitators: 5 years to life and fine.
• Syndicate members: same.
• Harbourers: 3 years to life and fine.
• Possessors of crime proceeds: 3 years to life and fine.
• Unexplained possession of syndicate-linked property: 3 to 10 years and fine.

What is petty organized crime?

Small-scale crimes like theft, snatching, cheating by groups or gangs.

What is the punishment for petty organized crime?

1 to 7 years imprisonment and fine.

What is a terrorist act?

Any act intended or likely to:

• threaten India’s unity, integrity, or security,
• strike terror among people,
• using bombs, chemicals, weapons, etc., or by targeting public functionaries.

What is the punishment for terrorist acts?

• If death caused: death or life imprisonment and fine.
• Otherwise: 5 years to life imprisonment and fine.

Who else is liable under terrorist act provisions?

• Conspirators, abettors, facilitators: 5 years to life and fine.
• Organisers of training/recruitment: 5 years to life and fine.
• Members of terrorist organisations: up to life imprisonment and fine.
• Harbourers: 3 years to life and fine.
• Possessors of terrorist funds: up to life imprisonment and fine.

Therefore, the provisions concerning offences affecting life under the Bharatiya Nyaya Sanhita, 2023, reaffirm the sanctity of human life as the cornerstone of criminal jurisprudence. By codifying clearer distinctions between various forms of homicide, incorporating judicially-evolved principles, and addressing modern forms of violent crime, the BNS seeks to ensure both deterrence and procedural fairness. Its nuanced approach to exceptions, such as acts committed under grave provocation or in self-defence, reflects a commitment to context-sensitive justice.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.