Offences Affecting the Human Body — Culpable Homicide and Murder

Sections 100 to 110 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 299 to 308 of the Indian Penal Code, 1860 — define and graduate the gravest offences in the criminal calendar. Culpable homicide and its species, murder; the rules on transferred malice; the punishment hierarchy; abetment of suicide; and attempts to murder or to commit culpable homicide. The chapter must be read alongside the parallel comparison between Section 100 BNS and Section 101 BNS and the dedicated treatment of the five mitigating exceptions in Section 101 BNS.

The chapter contains two BNS innovations of structural importance — Section 103(2) BNS introducing the offence of mob lynching, and Section 106(2) BNS introducing the offence of causing death by rash and negligent driving with failure to report and abscondment. Both are addressed in their own dedicated chapters; this article carries the foundational doctrinal framework on which they sit.

Statutory anchor and scheme

The chapter has a clear progressive structure. Section 100 BNS (previously Section 299 IPC) defines culpable homicide. Section 101 BNS (previously Section 300 IPC) defines murder as a species of culpable homicide and sets out the five exceptions. Section 102 BNS (previously Section 301 IPC) codifies the transferred-malice rule. Sections 103, 104 and 105 BNS provide the punishment ladder — for murder, for murder by a life-convict, and for culpable homicide not amounting to murder respectively. Section 106 BNS (previously Section 304A IPC) penalises causing death by rashness or negligence. Sections 107 and 108 BNS (previously Sections 305 and 306 IPC) deal with abetment of suicide of a child or person of unsound mind, and abetment of suicide of an adult. Sections 109 and 110 BNS (previously Sections 307 and 308 IPC) define attempt to murder and attempt to commit culpable homicide.

The conceptual bedrock — restated by the Supreme Court in State of AP v. R. Punnayya (AIR 1977 SC 45) — is the genus-species relationship: culpable homicide is the genus, murder is its aggravated species, and culpable homicide not amounting to murder is the residual category. The Code accordingly recognises three degrees of culpable homicide: the gravest (murder, punishable under Section 103 BNS), the middle degree (Part I of Section 105 BNS) and the lowest (Part II of Section 105 BNS). The classification turns on the mens rea, not on the act.

Culpable homicide — Section 100 BNS

Section 100 BNS (previously Section 299 IPC) defines culpable homicide as causing death by doing an act with — (i) the intention of causing death, (ii) the intention of causing such bodily injury as is likely to cause death, or (iii) the knowledge that the act is likely to cause death. The provision is supplemented by three Explanations: acceleration of death of a person already labouring under a disorder is deemed causation (Explanation 1); proper remedies and skilful treatment that might have prevented death are immaterial (Explanation 2); causing the death of a child in utero is not homicide, but causing the death of a living child any part of which has been brought forth is (Explanation 3).

The ingredients are settled. In Kesar Singh v. State of Haryana (2008) 15 SCC 753, the Supreme Court held that knowledge denotes a bare state of conscious awareness, while intention connotes a conscious mental state directed deliberately at a particular and specific end. Knowledge does not require premeditation; intention does not require it either, but is harder to infer. The expression "likely to cause death" means probably and not merely possibly — when an intended injury is likely to cause death, it means an injury sufficient in the ordinary course of nature to cause death.

The Supreme Court in Richhpal Singh Meena v. Ghasi (AIR 2014 SC 3595) laid down a five-step inquiry: (i) is there a homicide; (ii) if yes, is it culpable homicide or not; (iii) if culpable homicide, does it amount to murder under Section 101 BNS or culpable homicide not amounting to murder under Part I or Part II of Section 105 BNS; (iv) if not culpable homicide, does Section 106 BNS apply; (v) if the perpetrator cannot be identified, the residual provisions on group liability apply.

Three explanatory rules sharpen the actus reus. Explanation 1 — the eggshell-skull doctrine in statutory form — deems acceleration of an existing fatal disease to be causation; the diseased-spleen line in Megha Meeah (1865) and O'Brien (1880) reads the rule narrowly, requiring an element of knowledge of the underlying condition to bridge the gap to culpable homicide. Explanation 2 closes a defence that has appeared often in transit-related deaths: the unavailability or refusal of medical treatment does not break the chain of causation if the original injury was the operative cause. Explanation 3 — the born-alive rule — confines homicide to a child any part of which has been brought forth, leaving the in-utero killing to be addressed by other provisions on causing miscarriage. Read together, these explanations stitch the common-law causation rules into the statutory text.

Murder — Section 101 BNS

Section 101 BNS (previously Section 300 IPC) defines murder by enumerating four limbs. The BNS makes a formal drafting change — "Secondly, Thirdly, Fourthly" of the IPC are recast as clauses (a), (b), (c) and (d), and the pronoun "it" is replaced by "the act by which death is caused" — but the substantive content is unchanged. Murder is committed if the act causing death is done — (a) with the intention of causing death; (b) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; (c) with the intention of causing bodily injury and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or (d) with the knowledge that the act is so imminently dangerous that it must in all probability cause death, and the act is committed without any excuse for incurring the risk.

Clause (c) is the most heavily examined limb. The classic exposition in Virsa Singh v. State of Punjab (AIR 1958 SC 465) — restated in Punnayya — sets out the four ingredients: (i) a bodily injury must be present; (ii) the nature of the injury must be proved; (iii) the injury must be intentional and not accidental; and (iv) the injury must be sufficient in the ordinary course of nature to cause death. Once the four are established, the prosecution need not show that the accused intended to cause an injury of that degree of severity — the law presumes the intention from the fact of the deliberate infliction of the injury actually caused.

Clause (d) is the public-danger limb — the cannon-fired-into-a-crowd case in Illustration 4 to Section 300 IPC. The mens rea is knowledge of imminent danger, the actus reus is an act done without any excuse for incurring the risk. Reg v. Govinda (ILR 1 Bom 342) — Melvill J's classic treatment — and the structural analysis in Punnayya are the standard reading. The deeper-dive on the dividing line, with the comparative table, sits in the dedicated chapter on the distinction between culpable homicide and murder.

The five exceptions — overview

Section 101 BNS retains the five exceptions to murder: grave and sudden provocation; exceeding the right of private defence in good faith; act of a public servant exceeding lawful powers in good faith; sudden fight in the heat of passion upon a sudden quarrel; consent of a person above eighteen. Each exception, if proved, reduces the offence from murder to culpable homicide not amounting to murder, attracting punishment under Section 105 BNS. The full doctrinal treatment — including the proviso architecture under the first exception, the relationship with the right of private defence under the second, and the case law on grave and sudden provocation — sits in the dedicated chapter on the exceptions to murder.

Transferred malice — Section 102 BNS

Section 102 BNS (previously Section 301 IPC) codifies the transferred-malice rule. If a person, intending or knowing the death of any one is likely to be caused, kills another person whose death he neither intended nor knew himself likely to cause, the culpable homicide committed is of the same kind as it would have been if he had killed the intended victim. The rule is a settled fixture of criminal-law doctrine — the bullet meant for A but killing B is treated as a killing of A for purposes of mens rea.

The leading restatement is Shankaran Sukumaran v. Krishnan Saraswathi (1975) and the more recent line in Abdul Ise Suleman v. State of Gujarat (1994). The rule does not mean the killing of the unintended victim is to be ignored; it means the offence-grade for the actual killing is computed using the mens rea formed against the intended victim.

Punishment for murder and the BNS innovations — Sections 103 and 104 BNS

Section 103(1) BNS (previously Section 302 IPC) prescribes the punishment for murder — death, or imprisonment for life, and fine. The death-penalty jurisprudence — Bachan Singh v. State of Punjab (AIR 1980 SC 898) for the rarest-of-rare framework, and Macchi Singh v. State of Punjab (AIR 1983 SC 957) for the five-fold balancing test — applies in full to Section 103(1) BNS prosecutions. The Constitution Bench in Bachan Singh held that death is the exception, life is the rule; Macchi Singh identified manner of commission, motive, anti-social or socially-abhorrent nature of the offence, magnitude, and personality of the victim as the five aggravating heads.

Section 103(2) BNS is a BNS innovation — the offence of mob lynching. 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 similar ground, each member of such group is punishable with death or imprisonment for life and fine. The provision codifies the directions issued in Tehseen S. Poonawalla v. Union of India (2018) 9 SCC 501. The full treatment sits in the dedicated mob lynching chapter.

Section 104 BNS (previously Section 303 IPC) deals with murder by a life-convict. The IPC's mandatory death sentence for such murder was struck down by the Supreme Court in Mithu v. State of Punjab (AIR 1983 SC 473) as violative of Articles 14 and 21. The BNS now drafts the section as alternative — death or imprisonment for life which shall mean the remainder of the convict's natural life — bringing the statutory text into line with constitutional doctrine and the long-line jurisprudence on whole-life sentencing in Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767.

Culpable homicide not amounting to murder — Section 105 BNS

Section 105 BNS (previously Section 304 IPC) provides the two-tier punishment for culpable homicide not amounting to murder. Part I — where the act is done with the intention of causing death or such bodily injury as is likely to cause death — carries imprisonment for life or imprisonment up to ten years and fine. Part II — where the act is done with the knowledge that it is likely to cause death, but without the intention to cause death or such bodily injury as is likely to cause death — carries imprisonment up to ten years or fine or both. The BNS adds a minimum of five years and makes fine mandatory.

The Part I / Part II divide is the workhorse distinction in the homicide jurisprudence — restated in Arun Nivalaji More v. State of Maharashtra (AIR 2006 SC 2886). Where intention is the dominant factor, Part I; where knowledge is the dominant factor without the requisite intention, Part II. The dividing line between Section 105 BNS and Section 103 BNS — between culpable homicide not amounting to murder and murder — is the principal subject of the comparative-table chapter.

Causing death by negligence — Section 106 BNS

Section 106(1) BNS (previously Section 304A IPC) penalises causing the death of any person by doing any rash or negligent act not amounting to culpable homicide. The BNS raises imprisonment from two years to seven years and adds a special clause for registered medical practitioners — where death is caused by the rash or negligent act of a registered medical practitioner in the course of medical procedure, the imprisonment is two years and fine. The medical-practitioner carve-out responds to the Supreme Court's reasoning in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, which had set out the test for criminal medical negligence.

The leading exposition of Section 304A IPC — applied to Section 106(1) BNS — is in Cherubin Gregory (AIR 1964 SC 205) and the line of road-traffic cases reaching back to Empress v. Idu Beg (ILR 3 All 776). Rashness imports a conscious risk-taking; negligence is the failure of reasonable care. The two are alternatives, and the prosecution may rely on either. Section 281 BNS — rash driving on a public way — is the parallel, lesser offence where death is not caused.

Section 106(2) BNS is the second BNS innovation — death caused by rash and negligent driving where the driver flees the scene without reporting. The provision has been kept on hold and will not come into force with the rest of the BNS on 1 July 2024. The full treatment sits in the dedicated hit-and-run with failure to report chapter.

Abetment of suicide — Sections 107 and 108 BNS

Section 107 BNS (previously Section 305 IPC) penalises abetment of suicide of a child or person of unsound mind. The BNS replaces the older expression "insane person" with "person of unsound mind". Section 108 BNS (previously Section 306 IPC) penalises abetment of suicide of an adult. Both sections build on the general law of abetment in Sections 45 to 60 BNS — the abettor must instigate, engage in conspiracy with, or intentionally aid the principal in the commission of the act.

The Supreme Court has, since Mahendra Singh v. State of MP (1995) Supp (3) SCC 731 and Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, repeatedly held that abetment of suicide requires an active or direct act, with mens rea — mere harassment or marital discord, without instigation, is insufficient. Sanju v. State of MP (2002) 5 SCC 371 and the recent line in M. Mohan v. State (2011) 3 SCC 626 confirm that proximate, not remote, causation must be shown.

Attempts — Sections 109 and 110 BNS

Section 109 BNS (previously Section 307 IPC) penalises attempt to murder. The actus reus is doing any act with such intention or knowledge, and under such circumstances, that if the act caused death the offender would be guilty of murder. Punishment is imprisonment up to ten years; if hurt is actually caused, life imprisonment is available. The BNS draws an alternate punishment for attempt to murder by a life-convict — death or imprisonment for the remainder of natural life — closing the gap left by Mithu.

The leading authorities — State of Maharashtra v. Balram Bama Patil (AIR 1983 SC 305) and Hari Kishan v. Sukhbir Singh (AIR 1988 SC 2127) — emphasise that what matters is the intention or knowledge with which the act is done, not the result of the act. Even if the victim escapes unharmed, the offence is complete if the act, had it succeeded, would have constituted murder. Section 110 BNS (previously Section 308 IPC) follows the same architecture for attempt to commit culpable homicide not amounting to murder. The general theory of attempt to commit offence in Section 62 BNS supplies the structural overlay.

Selected leading authorities

The genus-species line: Punnayya (1977), Govinda (1876), Virsa Singh (1958), Arun Nivalaji More (2006). The death-penalty jurisprudence: Bachan Singh (1980), Macchi Singh (1983), Mithu (1983), Swamy Shraddananda (2008). The transferred-malice line: Shankaran Sukumaran (1975), Abdul Ise Suleman (1994). The medical-negligence line: Jacob Mathew (2005). The abetment-of-suicide line: Mahendra Singh (1995), Ramesh Kumar (2001), Sanju (2002), M. Mohan (2011). The attempt-to-murder line: Balram Bama Patil (1983), Hari Kishan (1988). The diseased-spleen line on causation: Megha Meeah (1865) — read with Explanation 1 to Section 100 BNS.

Procedural side and sentencing

Murder under Section 103 BNS is triable exclusively by a Court of Session. Culpable homicide not amounting to murder under Section 105 BNS is triable by a Court of Session. Section 106 BNS is triable by a Magistrate of the first class. Attempt to murder under Section 109 BNS is triable by a Court of Session. Sentencing in murder cases follows the Bachan Singh rarest-of-rare framework; sentencing in Section 105 BNS Part I cases follows the proportionality principle restated in State of MP v. Ghanshyam Singh (2003) 8 SCC 13. Where the case turns on the boundary between hurt and grievous hurt and culpable homicide — for example, a single blow case where the victim dies — the courts have repeatedly reduced the conviction from Section 302 IPC to Section 304 Part II IPC where the requisite mens rea is absent.

Exam angle

Three lines of question recur. First, the genus-species architecture and the three degrees — candidates must be able to distinguish Sections 100 and 101 BNS, Part I and Part II of Section 105 BNS, and Section 106 BNS. The Punnayya comparative table is the standard mains framework. Second, the four limbs of Section 101 BNS — particularly clause (c) and the Virsa Singh four-fold test. Third, the BNS innovations — Section 103(2) BNS (mob lynching), Section 106(2) BNS (hit-and-run), Section 104 BNS (life-convict alternative). Cross-cutting questions on transferred malice (Section 102 BNS), abetment of suicide (Sections 107 and 108 BNS), and attempt to murder (Section 109 BNS) appear regularly. The full doctrinal exposition of the dividing line, the five exceptions, and the rarest-of-rare framework is best approached through the dedicated chapters on the CH-versus-murder distinction and on the five exceptions to murder under Section 101 BNS.

Frequently asked questions

What is the difference between culpable homicide and murder under the BNS?

Culpable homicide is the genus, defined in Section 100 BNS (previously Section 299 IPC). Murder is its aggravated species, defined in Section 101 BNS (previously Section 300 IPC). Every murder is culpable homicide; the converse is not true. The Supreme Court in State of AP v. R. Punnayya (AIR 1977 SC 45) held that the Code recognises three degrees of culpable homicide — the gravest (murder, under Section 103 BNS), the middle (Part I of Section 105 BNS), and the lowest (Part II of Section 105 BNS). The classification turns on the mens rea, restated in the comparative-table approach Melvill J adopted in Govinda (1876).

What are the four ingredients of the Virsa Singh test?

Under clause (c) of Section 101 BNS — previously Thirdly of Section 300 IPC — the Supreme Court in Virsa Singh v. State of Punjab (AIR 1958 SC 465) laid down four ingredients: (i) a bodily injury must be present; (ii) the nature of the injury must be proved; (iii) the injury must be intentional and not accidental; and (iv) the injury must be sufficient in the ordinary course of nature to cause death. Once these four are established, the offence is murder — the prosecution need not show that the accused intended to inflict an injury of that exact severity.

What is the BNS innovation in Section 103(2)?

Section 103(2) BNS introduces a new substantive offence of mob lynching. 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 similar ground, each member of the group is punishable with death or imprisonment for life and fine. The provision codifies the directions issued by the Supreme Court in Tehseen S. Poonawalla v. Union of India (2018) 9 SCC 501. The doctrinal core remains Section 101 BNS — the mob-lynching provision is an aggravation by group identity-based motive.

Does the IPC mandatory death penalty for murder by a life-convict still apply?

No. The Supreme Court in Mithu v. State of Punjab (AIR 1983 SC 473) struck down Section 303 IPC's mandatory death penalty as violative of Articles 14 and 21. The BNS — in Section 104 — has now drafted the section as alternative: death or imprisonment for life which shall mean the remainder of that person's natural life. The BNS formulation aligns the statutory text with Mithu and with the whole-life-sentencing line in Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767.

What is required to prove abetment of suicide under Section 108 BNS?

An active or direct act of instigation, conspiracy or intentional aiding, with mens rea, that proximately caused the suicide. The Supreme Court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618 and M. Mohan v. State (2011) 3 SCC 626 has held that mere harassment or marital discord, without instigation, is insufficient. Sanju v. State of MP (2002) 5 SCC 371 emphasises that the chain of causation must be proximate, not remote. The general principles of abetment under Sections 45 to 60 BNS supply the structural overlay.