Culpable Homicide

Introduction To Cupable Homicide

Homicide is the act of one human killing another. A homicide requires just a volitional act by someone else that results in death, and along these lines, a homicide may result from accidental, negligent, or careless acts regardless of whether there is an intent to cause hurt. Culpable Homicide is the killing of one individual by another with the intention of causing death.

In India, Culpable Homicide is mentioned in Section 299 of the Indian Penal Code.
Section 299:” Culpable homicide.— Whoever causes death by doing an act 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 he is likely by such act to cause death, commits the offense of culpable homicide.”

Components of Culpable Homicide

• Actus Reus (Act)
• Mens Rea (Intention)

Essentials of Culpable Homicide

1) Causing the death of an individual.

2) Such death must be caused by an act

i. With the intention of causing death; or
ii. With the intention of making such bodily injury as is likely reason death; or
iii. With the information that the doer is likely by such an act to cause death.

The fact that the death of an individual is caused isn’t sufficient. Except if one of the mental states referenced in the element is available, an act of causing death can’t add up to Culpable Homicide.

Types Of Culpable Homicide

I. Culpable homicide amounting to murder.

II. Culpable homicide not amounting to murder.

Culpable homicide is the Genus, and murder is the Species. All murder is culpable homicide yet not the other way around, it has been held in Nara Singh Challan v/s State of Orrisa (1997). Section 299 can’t be taken to be meaning of culpable homicide not amounting to murder. Culpable homicide is the genus. Section 300 characterizes murder which implies murder is the species of culpable homicide. It is to be noted here that culpable homicide not amounting to murder isn’t characterized independently in IPC, it is characterized as a part of Murder in section 300 of IPC.

Section 300 – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Culpable Homicide isn’t adding up to murder:

Special case 1 to 5 of s300 of IPC characterizes conditions when culpable Homicide isn’t amounting to murder:

I. Provocation
II. Right of private defense
III. Public servant surpassing his power.
IV. Sudden fight
V. Consent

Special case 1-culpable homicide isn’t adding up to murder if the guilty party, while deprived of self-control by grave and sudden provocation, caused the death of the individual who gave the provocation or causes the death of any individual by accident or mistake.

The above exemption is liable to these provisions:-

1. The provocation isn’t looked for or intentionally provoked by the guilty party as a reason for killing or harming any individual.
2. The provocation isn’t given by anything done in compliance with the law, or by a public servant in the legal exercise of the powers of such a public servant.
3. The provocation isn’t given by anything done in the lawful exercise of the right of private defense.

The provocation must be grave: maintained in Venkatesan v/s State of Tamil Nadu (1997)

The trial of the grave and sudden provocation is whether a reasonable man having a place with the same class of society as the accused, set in the circumstance in which the accused was set would be so provoked as to lose his self-control.
In India, words and gestures may likewise, in specific situations, cause grave and sudden provocation
The mental background made by the last act of the victim might be taken into consideration in deciding whether the consequent act caused grave and sudden provocation for committing the offense.

Section 300 likewise characterizes the situation when culpable homicide turns into the murder which is punished under Section 302. Under the following 4 conditions:

The intention of causing death-

I. Culpable homicide turns into murder if the act by which the deaths is caused is done with the Intention of Causing death or
II. In an act done with the intention of causing such bodily injury as the offender knows to probably make the death of the individual whom the harm is caused, or
III. In the done with the intention of causing bodily injury to any individual and the bodily injury intended to be inflicted is adequate in the ordinary course of nature to cause death, or
IV. On the off chance that the individual committing the act realizes that it is so imminently dangerous that it must, most likely, cause death or such bodily injury as is probably going to cause death, and commits such act with no reason for acquiring the danger of causing deaths or such injury as previously mentioned.

Whoever commits culpable homicide not amounting to murder will be punishable with
(i) imprisonment for life or imprisonment of either up to ten years, and will likewise be subject to fine if the act by which the death is caused is with the intention of causing death, or of such bodily injury as is probably going to cause death; or
(ii) with imprisonment of either depiction up to ten years or fine or both, if the act is done with the knowledge that it is probably going to cause death, however with no intention to cause death or to make such bodily injury as is likely reason death.

The field of Culpable Homicide is tremendous and is of practical utility. It incorporates all felonious homicide not amounting to murder. It is fundamentally a killing which the killer neither intended nor anticipated as likely to occur; it is an unintentional, accidental felonious killing. There have been numerous cases in which this field of law has been utilized and correctly applied too. The Sections 299, 301, 304, 304A deal with the diverse angles covered under this subject in an elaborate way every one of the provisions are not exhaustive and there is a need to put into application a considerable lot of the recommendation of the Law Commission for better organization of Justice since it would help in the evolvement of this subject with time.

7 Quick Tips Regarding Contract Of Indemnity

What is Contract Of Indemnity?

Contract of indemnity meaning is a special kind of contract. The term ‘indemnity’ literally means “security or protection against a loss” or compensation. According to Section 124 of the Indian Contract Act, 1872  “A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a contract of indemnity.”  

Example: P contracts to indemnify Q against the consequences of any proceedings which R may take against Q in respect of a certain sum of money.

OBJECTIVE OF CONTRACT OF INDEMNITY

The objective of entering into a contract of indemnity is to protect the promisee against unanticipated losses.

PARTIES TO THE CONTRACT OF INDEMNITY

A contract of indemnity has two parties.

1. The promisor or indemnifier
2. The promisee or the indemnified or indemnity-holder

The promisor or indemnifier: He is the person who promises to bear the loss.

The promisee or the indemnified or indemnity-holder: He is the person whose loss is covered or who are compensated.

In the above-stated example,

• P is the indemnifier or promisor as he promises to bear the loss of Q.
• Q is the promisee or the indemnified or indemnity-holder as his loss is covered by P.

Read Also: What are the Remedies for Breach of Contract

ESSENTIALS OF CONTRACT OF INDEMNITY

1. PARTIES TO A CONTRACT: There must be two parties, namely, promisor or indemnifier and the promisee or indemnified or indemnity-holder.
2. PROTECTION OF LOSS: A contract of indemnity is entered into for the purpose of protecting the promisee from the loss. The loss may be caused due to the conduct of the promisor or any other person.
3. EXPRESS OR IMPLIED: The contract of indemnity may be express (i.e. made by words spoken or written) or implied (i.e. inferred from the conduct of the parties or circumstances of the particular case).
4. ESSENTIALS OF A VALID CONTRACT: A contract of indemnity is a special kind of contract. The principles of the general law of contract contained in Section 1 to 75 of the Indian Contract Act, 1872 are applicable to them. Therefore, it must possess all the essentials of a valid contract.

• NUMBER OF CONTRACTS: In a contract of Indemnity, there is only one contract that is between the Indemnifier and the Indemnified.

• RIGHTS OF PROMISEE/ THE INDEMNIFIED/ INDEMNITY HOLDER

As per Section 125 of the Indian Contract Act, 1872 the following rights are available to the promisee/ the indemnified/ indemnity-holder against the promisor/ indemnifier, provided he has acted within the scope of his authority.

1. RIGHT TO RECOVER DAMAGES PAID IN A SUIT [SECTION 125(1)]: An indemnity-holder has the right to recover from the indemnifier all damages which he may be compelled to pay in any suit in respect of any matter to which the contract of indemnity applies.
2. RIGHT TO RECOVER COSTS INCURRED IN DEFENDING A SUIT [SECTION 125(2)]: An indemnity-holder has the right to recover from the indemnifier all costs which he may be compelled to pay in any such suit if, in bringing or defending it, he did not contravene the orders of the promisor, and acted as it would have been prudent for him to act in the absence of any contract of indemnity, or if the promisor authorized him to bring or defend the suit.
3. RIGHT TO RECOVER SUMS PAID UNDER COMPROMISE [SECTION 125(3)]: An indemnity-holder also has the right to recover from the indemnifier all sums which he may have paid under the terms of any compromise of any such suit, if the compromise was not contrary to the orders of the promisor, and was one which it would have been prudent for the promisee to make in the absence of any contract of indemnity, or if the promisor authorized him to compromise the suit.

Read Also: Frustration of Contract

COMMENCEMENT OF LIABILITY OF PROMISOR/ INDEMNIFIER

Indian Contract Act, 1872 does not provide the time of the commencement of the indemnifier’s liability under the contract of indemnity. But different High Courts in India have held the following rules in this regard:

• Indemnifier is not liable until the indemnified has suffered the loss.
• Indemnified can compel the indemnifier to make good his loss although he has not discharged his liability.

In the leading case of Gajanan Moreshwar vs. Moreshwar Madan(1942), an observation was made by the judge that “ If the indemnified has incurred a liability and the liability is absolute, he is entitled to call upon the indemnifier to save him from the liability and pay it off”.

Thus, Contract of Indemnity is a special contract in which one party to a contract (i.e. the indemnifier) promises to save the other (i.e. the indemnified) from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person. Section 124 and 125 of the Indian Contract Act, 1872 are applicable to these types of contracts.

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10 Small But Important Things To Observe In Section 139 Of Negotiable Instruments Act

Section 139 of Negotiable Instruments act, 1881

As per the prevailing laws in India, under the Indian Evidence Act, every person until proven guilty is presumed to be innocent. Section 139 of Negotiable Instruments Act, 1881 talks about the liability of a person who is issuing a cheque which has been dishonored. Such a person is presumed to be guilty until and unless he proves his innocence. When an offense under section 138 is constituted, there is a set of admitted facts and situations where it is presumed that the person is guilty.[3]

In Krishi Vikas Kendra v Mukund[4], the amount due was paid partly by the accused. This amounts to a transaction made and the court held that the burden of proof is on the accused to prove his innocence with respect to dishonored cheque.

Under section 139 there is a presumption that a cheque presented is for a discharge of the liability of debt either partially or wholly. And until and unless the respondent purposes any purpose other than the discharge of liability, it shall be presumed under section 138.[5] The accused person cannot merely escape by saying it was only given as security and the day cheque was issued there was no liability towards the person.[6]

Once the presumption of liability is rebutted, the burden of proof shifts to the complainant to prove that the same cheque was issued for discharge of liability.[7] In the case of Rangappa v. Sri Mohan[8], it was held that if to any fact the accused has not replied in the statutory notice (notice under section 138) proves to be a merit for the complainant side.

This presumption is governed by the rule of evidence which is dealt by in section 118(a) of chapter XIII. Section 140 talks about the possible grounds which may not be allowed as a ground of defense for prosecution under section 138.

In the case of Krishna Janardhan Bhat v. Dattatraya G. Hedge[9],

“Presumption of innocence as human rights and the doctrine of reverse burden which is granted under section 139 should be balanced with respect to the facts of each case, material evidence on record and governing statutes of law.”[10]

For it is a presumption only with regard to existing debts. So, if the amount on the cheque exceeds the amount which is due to the person, then section 138 and section 139 shall not be attracted, this was held in the case of Angu Parameswari Textiles P Ltd. v. Sri Rajan and co.[11]

On the reading of this section, it is pertinent to highlight that court which is taking cognizance should be prima facie satisfied that the case is attracted under this section. The drawer of the cheque gets a chance to rebut this presumption at the trial.[12]

In the case of Kishan Rao v. Shankargouda[13], the SC held that section 1309 cannot be merely rebutted by denial. It has to be proved. The matter in controversy shall be proven to be denied with evidence.

This presumption is however not available to a money lender. He has to prove the fact of due of loan and liability through other evidence and not merely by a presumption of being guilty.[14]

The initial burden after discharged, Section 139 comes into the picture. In the case of A.B.M raja Sah v. B.M.S. Srinivas Sah[15], it was held that once signatures on the cheque were verified by the drawer and he s presumption arose and the accused couldn’t explain the liability. The court ordered the accused to pay twice the amount of the cheque and no sentence was passed.

CONCLUSION

When a cheque which was issued for discharge of liability or debt whether in whole or in part, shall under section 139 be presumed that the accused is liable for the offense under section 138 and thus the accused is under the burden of proof to prove its innocence.

[1] Added by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988

[2] Goa Plast (P) Ltd. V. Chico Ursula D’Souza, (2004) 1 BC 246 (SC)

[3] R. Sankaralingam v. Union of India; (1997) 1 BC 541

[4] (2007) 3 BC 542

[5] K. I George v. Muhammed Master

[6] K.N.Bena v. Muniyappan (2006) 4 BC 287

[7] Pine Products Industries v. RP Gupta and sons

[8] (2010) 11 SC 441

[9] 2008 (1) SCALE 421

[10] M.L. Tannan’s Banking Law and Practice in India, Student Edition, 2015

[11] (2002) 1 BC 99 (mad)

[12] Modi Cements Ltd. v. Kuchil Kumar Nandi, (1998) 1 BC 421 (SC)

[13] Criminal Appeal No. 803 of 2018

[14] M. senguttuvan v. Mahedevaswamy, (2007) 4 BC 708 (Kant)

[15][15] (2007) 4 BC 649 (Mad)