An Expert Analysis of Criminal Homicide in Bangladesh: Distinguishing Culpable Homicide from Murder under the Penal Code, 1860 By- Judge Nazmul Hasan

 

 

 An Expert Analysis of Criminal Homicide in Bangladesh: Distinguishing Culpable Homicide from Murder under the Penal Code, 1860

By-Nazmul Hasan[1]

I. Introduction: The Foundational Statutes and Juridical Relationship

The Penal Code, 1860 (Act XLV of 1860), serves as the paramount authority governing crimes against human life in Bangladesh, primarily through Chapter XVI, which defines and distinguishes Culpable Homicide (Section 299) and Murder (Section 300).¹ Homicide is fundamentally the killing of one human being by another, and the law classifies it into lawful and unlawful acts.² The critical legal mandate for judicial officers is the precise differentiation of the mental state (mens rea) and consequence required for each degree of unlawful homicide.                                                                                   

The relationship between these two offences is a non-negotiable principle of law: Culpable Homicide is the broader genus, and Murder is the narrower, aggravated species.² This axiom dictates that while every murder necessarily meets the statutory requirements of culpable homicide, the converse is not true. The judicial inquiry must rigorously test whether the accused's intention (intent) or knowledge (knowledge) reaches the exceptionally heightened threshold mandated by Section 300 to convert the offense from Culpable Homicide to the capital charge of Murder.³ This legislative hierarchy encompasses a continuum of liability, extending from Section 299 through Section 304 to Section 304A (Causing death by negligence).¹

II. Definitional Precision: Culpable Homicide (Section 299)

Section 299 provides the baseline definition for Culpable Homicide, requiring the act of causing death to be accompanied by one of three distinct mental states ³:

1.       Doing an act with the intention of causing death.⁷

2.      Doing an act with the intention of causing such bodily injury as is likely to cause death.⁷

3.      Doing an act with the knowledge that the offender is likely by such act to cause death.⁷

The operative term "likely to cause death" establishes a standard of high probability or risk, falling short of virtual certainty, thereby defining the lower degree of culpability in the hierarchy.³

Statutory Explanations and the Legal Rule of Causation

The three Explanations appended to Section 299 clarify the legal rules of causation:

1.     Explanation 1 (Acceleration of Death): An offender is deemed to have caused death if the injury inflicted accelerates the death of a victim already suffering from a disorder, disease, or infirmity.⁶

2.     Explanation 2 (Intervening Medical Treatment): The causation remains fixed upon the person who caused the bodily injury, even if the victim’s death might have been prevented by "proper remedies and skillful treatment".⁶ This mechanism ensures that the initial criminal act is viewed as the cause of death, disregarding subsequent intervening factors.⁷

3.     Explanation 3 (Feticide/Infanticide): Causing the death of a child in the mother's womb is explicitly excluded from homicide. However, it may amount to culpable homicide to cause the death of a living child after any part of that child has emerged, regardless of whether the child has breathed or been fully born.⁶

III. The Aggravated Offence: Murder (Section 300)

Section 300 mandates that Culpable Homicide is designated as Murder, "Except in the cases hereinafter excepted," only if the fatal act fulfills one of the four highly stringent criteria of mens rea.⁶

Detailed Analysis of the Four Clauses (The Standard of High Certainty)

The four clauses of Section 300 demand a level of certainty—either intended or known—that is substantially higher than the mere "likely" standard of Section 299 ⁴:

1.       Clause 1 (Intention to Cause Death): The act is done with the intention of causing death.⁸ This represents direct, expressed malice, exemplified by A shooting Z with the intention of killing him, and Z dies.⁸

2.      Clause 2 (Intentional Injury with Specific Knowledge): The act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of that particular person.⁸ This requires specific, subjective knowledge of the victim’s vulnerability (e.g., A striking Z, knowing Z suffers from a disease that makes the blow lethal).⁸

3.      Clause 3 (Intentional Injury Sufficient in Ordinary Course of Nature): The act is done with the intention of causing bodily injury, and the injury intended is "sufficient in the ordinary course of nature to cause death".⁸ This introduces the critical objective test. The prosecution must prove the intent to inflict the specific injury, coupled with objective evidence that the injury was, by its nature, lethal (e.g., A intentionally gives Z a sword-cut "sufficient to cause the death of a man in the ordinary course of nature").⁸ Here, the physical act's severity serves as conclusive evidence of the requisite high culpability.²

4.      Clause 4 (Imminently Dangerous Act): The act is committed with the knowledge that it is "so imminently dangerous that it must, in all probability, cause death".⁸ This covers acts demonstrating generalized malice or extreme recklessness, such as firing a loaded cannon into a crowd.⁸

IV. The Critical Judicial Distinction: The Degree of Probability Test

The Appellate Division of the Bangladesh Supreme Court established the definitive Degree of Probability Test in the landmark case of State vs. Ashraf Ali and others (46 DLR (AD) 241).⁹ This precedent provides the functional standard for judicial determination:

·       Culpable Homicide: Occurs when death is determined to be probable.⁹

·       Murder: Occurs when death is determined to be most probable (approaching virtual certainty).⁹

This distinction demands meticulous scrutiny of circumstantial evidence, including the type of weapon, the force used, and the situs of the injury. For instance, in the Ashraf Ali case, the post-mortem finding that death was due to "hemorrhage and shock as a result of cut throat injury" (an injury to a vital organ) helped confirm the "most probable" threshold for a murder conviction under Section 300, Clause 3.¹⁰

Element	Culpable Homicide (S. 299)	Murder (S. 300)
Causation Standard	Death is probable or likely.9	Death is most probable or the injury is sufficient in the ordinary course of nature to cause death.8
Intention (General)	Intent to cause bodily injury that is likely to cause death.7	Intent to cause death (Clause 1); or intent to cause a fatal injury (Clause 3).8
Knowledge (General)	Knowledge that the act is likely to cause death (Lesser degree of knowledge).7	Knowledge that the act is imminently dangerous and must, in all probability, cause death (Virtual certainty).8

V. Mitigating Factors: The Five Exceptions to Murder (S. 300)

If a homicidal act technically meets the criteria for Murder, the offense may still be reduced to Culpable Homicide Not Amounting to Murder (punishable under Section 304) if the defense proves that the case falls under one of the five statutory exceptions.²

Exception 1: Grave and Sudden Provocation

Mitigation occurs if the offender, deprived of self-control by provocation that is grave and sudden, causes the death of the provocateur or another person by mistake or accident.¹¹ This exception is subject to three strict provisos that must be satisfied ¹¹:

1.       The provocation was not sought by the offender as an excuse for the harm.¹¹

2.      The provocation was not given by anything done in obedience to the law or by a public servant in the lawful exercise of powers.¹¹

3.      The provocation was not given in the lawful exercise of the right of private defense.¹¹

Exception 4: Sudden Fight and Heat of Passion (The Spontaneity Test)

This exception applies if the homicide is committed without premeditation, in a sudden fight, in the heat of passion upon a sudden quarrel, and the offender did not take undue advantage or act in a cruel or unusual manner.¹¹ The Explanation explicitly states that it is immaterial which party offered the provocation or committed the first assault.¹¹ The judicial focus remains purely on the spontaneity of the conflict and the absence of pre-planning.¹³

Exception 5: Consent (Above 18 Years)

The offense is mitigated when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with their own consent.¹¹ Crucially, if an offender instigates a person under 18 to commit suicide, the youth is legally incapable of giving consent, and the instigator is guilty of murder.¹¹

VI. Sentencing and Judicial Discretion: Sections 302 and 304

The consequence of classification dictates the penalty. Section 302 mandates severe penalties for Murder: death, or imprisonment for life, and liability to a fine.⁴ Imprisonment for life is legally treated as imprisonment for the natural life of the convicted person, subject to executive remissions.¹⁵

Judicial Conversion: Distinguishing Part I and Part II of Section 304

Section 304, which governs Culpable Homicide Not Amounting to Murder, is bifurcated based on the residual mens rea ³:

Part	Mens Rea Standard	Punishment	Application Principle
Part I	Intention (to cause death or injury likely to cause death) 6	Imprisonment for life, or up to ten years, and a fine 6	Applied when strong intent to inflict serious bodily harm remains, but the offense is reduced from murder due to mitigating circumstances.16
Part II	Knowledge Only (that the act is likely to cause death, but without intention) 17	Up to ten years imprisonment, or fine, or both 16	Reserved for purely reckless acts rooted solely in high knowledge but low intent, such as a spontaneous act without premeditation.18

 

Case Law Principles for Conversion: Courts frequently convert a conviction from Section 302 to Section 304 Part I or Part II when the act, though fatal, occurred in a spontaneous fight, involved a single blow, and lacked the "most probable" certainty of death required for murder.¹⁹ Judicial precedents highlight that the absence of premeditation and the duration of the episode are key factors in adjudging the intention, often leading to conversion to Section 304 Part II in cases where the accused merely had the knowledge of the likelihood of death, but not the specific intent to kill.²⁰ For example, convictions have been altered when a single, spontaneous blow resulted in death due to lack of premeditation.¹⁹

VII. Extended and Vicarious Liability: Sections 34 and 149

The principles of constructive and joint liability significantly expand the scope of homicide prosecutions:

Provision	Section 34 (Common Intention)	Section 149 (Common Object)
Nature of Liability	Joint liability based on a previous meeting of minds.22	Constructive/vicarious liability based on group membership.23
Requirement	Requires a "pre-arranged plot" and some degree of active participation.22	Requires only membership in an unlawful assembly at the time of the offense, provided the fatal act was committed in furtherance of the group's common object.23
Implication for Homicide	Applies equally severe punishment to co-conspirators who acted with a shared purpose.22	Subjects every member of the unlawful assembly (regardless of their active role) to the same punishment as the primary offender.23

 

Procedurally, courts must follow prescribed steps for charge framing in sessions courts, including reading and explaining the charge to the accused. The court retains the judicial power to alter or add charges at any time before judgment is pronounced.²⁴

VIII. Systemic Challenges and Judicial Integrity

The accurate application of the nuanced homicide laws is consistently challenged by profound systemic flaws within the justice system, which magistrates and judges must acknowledge and resist:

1.       Systemic Flaws and Paradox: The criminal justice system is "marred by corruption, incompetence, abuses of due process, and arbitrary and inconsistent treatment of defendants from arrest through to conviction and sentencing".²⁵ A "startling paradox" exists where judges, despite knowing the integrity flaws, maintain a strong utilitarian belief in the death penalty's deterrent effect.²⁵ Disturbingly, some judges articulate justifications for misconduct in pre-trial processes—such as "breaking the rules to secure convictions"—when the system is perceived as dysfunctional.²⁵

2.      Confessional Evidence and Torture: The reliance on confessional evidence is highly problematic.²⁶ In capital cases, documented allegations exist that confessions are secured through torture or coercion, severely undermining the constitutional right to due process.²⁴

3.      Conflict with Special Laws: Special criminal legislation often overrides the Penal Code's proportionality framework. For example, the Nario Shishu Nirjatan (Bishesh Bidhan) Ain (Suppression of Violence against Women and Children Act) mandates the death penalty for specific offenses like death following rape, bypassing the nuanced mens rea analysis of Section 300.²⁸ The case of Shukur Ali, arrested at age 14 and facing mandatory death under the special law for rape and murder, illustrates this mandatory sentencing challenge, even though the Penal Code would have allowed for life imprisonment.²⁷

IX. Conclusion

The distinction between Culpable Homicide and Murder rests upon the legal measurement of the quantum of intent and the degree of probability of death. The Penal Code, 1860, provides the sophisticated statutory architecture necessary for precise legal classification. For all judicial and legal professionals, strict fidelity to the Ashraf Ali "most probable" standard ⁹ and meticulous adherence to evidentiary and procedural safeguards are paramount. Upholding the integrity of the criminal process ensures that the grave penalties prescribed for murder are reserved solely for acts that demonstrate the highest degree of culpability, thereby safeguarding the principles of proportionality and justice. 

Works cited

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About the Author

Nazmul Hasan

Senior Judicial Magistrate

Professional Highlights

• Senior Judicial Magistrate, 11^th  Bangladesh Judicial Service (BJS)
• Merit Position: 7^th  in the 11^th BJS

 Academic Qualifications

• LL.B. (Hons.) – First Class First, University of Rajshahi
• LL.M. – First Class, University of Rajshahi

Honors & Achievements                                                                                        

• Prime Minister Gold Medalist – 2017
• Agrani Bank Gold Medalist for Academic Excellence –  2023

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[1] ‍Senior Judicial Magistrate at 11^th Bangladesh Judicial Service.