The Fallacious Interpretation of the Offence of Murder: A Critical

Analysis of Section 300 of The Indian Penal Code

The First law commission drafted the Indian Penal Code (Hereinafter, The IPC) in 1834 under
the chairmanship of Sir Thomas Babington Macaulay. Macaulay was a Benthamite; therefore, it
was fairly certain that the IPC would have provisions ascribing to the philosophy of
utilitarianism.1According to utilitarianism, the criminal justice system should create deterrence in
society, which shifts the focus on consequence (causation) rather than intention. They take a
purely objective outlook toward law. However, Macaulay did an excellent job balancing both
objective and subjective theories in the IPC. As a matter of fact, in the IPC, the mental element is
one of the most basic requirements for bringing in criminal liability.

Section 300 of the IPC defines the offense of ‘murder.’ The section is divided into four clauses;
clause firstly and secondly defines murder with intention and knowledge, respectively. While
clause thirdly and fourthly covers murder without intention. The section seems quite balanced,
covering both objective and subjective definitions of murder. However, it is not as
straightforward as it seems. The interpretation of the Supreme Court in Virsa Singh v. the State
of Punjab (1958),2 which is the most authoritative case in this section presently, is very
problematic. This issue can be observed in the recent judgment of the Supreme Court, wherein
the judges referring to the Virsa Singh case decided that section 300(c) does not even require the
prosecution to prove the knowledge of the seriousness of the injury inflicted. 3 This interpretation
could include other possible circumstances which would lead to unfair and inconsistent
convictions for murder. These circumstances will be elaborated upon later in this article.
1
Sornarajah, M. (1994). The Definition of Murder Under the Penal Code. Singapore Journal of Legal
Studies, 1–28. <https://www.jstor.org/stable/24866686>
2
Virsa Singh v. State of Punjab, 1958 SCC 1495.
3
Ramraj, V. V. (2000). Murder Without an Intention to Kill. Singapore Journal of Legal Studies, 560–589.
<https://www.jstor.org/stable/24868151>
Except for showing an accused's intent to inflict a bodily damage (intensity is irrelevant), the
case is decided objectively.4 However, relying solely on subjective judgement would render
section 300 of the IPC otiose. So, this essay both evaluates and proposes a solution to this issue. 5
The approach uses English common law since "ruthless risk-takers" (who killed unintentionally)
cannot be totally freed of liability.6

This article argues that, in addition to section 300's objective standard of determination, a
subjective element should be added to its interpretation so that a person cannot be convicted of
murder with the mens rea of a minor crime. Awareness plays a key role in determining
responsibility. Even if the harm is significant in nature to cause death, whether the accused took
the risk despite knowing it will determine his guilt.

This article has four parts. Vinod Kumar v Amritpal is discussed first.7 It also examines IPC
section 300's authoritative interpretation (c). Second portion explores legal issues. It looks into
how present understanding can lead to wrongful convictions. Third, accepting subjectivity will
negate legislative intent. It also discusses famous English common law decisions like Woollin. 8
These English judgements, along with US court approaches and the Model Penal Code (MPC),
will be used to interpret IPC section 300.

I. Objective interpretation of the offense of ‘murder’ by the Supreme Court

In its recent judgment, the SC took an entirely objective approach toward the offense of murder,
overturning the decision of the High Court of Rajasthan by applying the principles laid down in
the The bench of Justices Ajay Rastogi and Abhay S. Oka quoted Justice Vivian Bose from Virsa
Singh: "It doesn't matter that there was no desire to kill. It doesn't matter that there was no intent
to cause even a minor harm that could have resulted in death (not that there is any real distinction
between the two). It doesn't matter if an act isn't known to cause death.9 (emphasize mine)

4
Ibid.,2.
5
Virsa Singh (n 2) para 18-19
6
Stannard, J. E. (1999). Murder Intention and The Inference of Intention. Irish Jur, 34, 202–222.
<https://www.jstor.org/stable/44026471>
7
Vinod Kumar v. Amritpal alisa Chhotu, 2021 SCC OnLine SC 1150.
8
R v. Woollin, [1999] 1 A.C. 82.
9
Virsa Singh (n 2) para 20
Last line of quote is the root of all-cause. The qualification for imposing criminal liability has
been reduced to such an extent that even the knowledge of the kind of act that is ‘likely to cause
death’ is not required. Singapore is also facing the problem of objectiveity in murder, which has
been criticized by various jurists around the world. In Tan Joo Cheng v PP 1992, Singapore's
Court of Appeal went further ahead and held that even a minor injury that produces death in the
natural run of things will result in execution. 10 Both the countries, Singapore and India, have
similar penal laws, therefore, it is highly probable that the interpretation of these provisions
might follow from each other.
In the recent case of Vinod Kumar, the deceased along with another person were returning to
their home from railway station. On the way, five accused abducted both the victims in their
vehicle, and took them to an unmetalled road, where the victims were assaulted. When the
accused saw light from another vehicle coming, they immediately put both the victims in the car.
The deceased, Balveer Singh, got unconscious from the assault. The accused took him to a
doctor’s house, where they were told that the deceased was serious and needed to be taken to the
hospital immediately. The accused then took the victims to the city (where the nearest hospital
was present), but on their way, the car’s tank emptied because of which they were not able to
make it in time. The deceased succumbed to the injuries and the accused then disposed off the
body in a canal.11 The facts of this case make few things clear, first of all there was no intention
to kill. Secondly, it is not clear whether any knowledge of the likelihood of death was present.
However, the court said that the prosecution does not even require to prove any knowledge of the
likelihood of death. Therefore, even if there was no knowledge present on the part of accused
and the death was an unexpected consequence of the act in contention, they will still be held
liable for murder under section 300(c).

II. The Inference of Intention taken by the Court

In this case, the Supreme Court looks at the nature of the injuries to establish the accused's intent.
While disagreeing with the High Court's decision, the Court noted it failed to evaluate the nature
of the accused's injuries. Many injuries to the deceased's essential organs were claimed. These
10
Tan Joo Cheng v PP, (1992) 1 SLR 620.

11
Vinod Kumar (n 7) para 9-10.
injuries were'sufficient' to cause death in nature. The sufficiency exam is objective. It is objective
in that the court separates the accused's mental state from the injury's sufficiency to cause death.
In Virsa Singh, the court outlined the factors needed to prove murder under IPC section 300(c).
First, objectively prove a bodily damage. Second, the nature of the injury must be proven
(whether it would normally cause death). These are objective examinations. Third, it must be
proven that the injury was intentional, not accidental or inadvertent, or that another injury was
planned. After proving these three elements, the investigation continues. Fourth, it must be
proven that the injury mentioned above is sufficient to induce death in the regular course of
nature. This phase of the investigation is objective and inferential, not related to the offender's
intent. This article just covers the first two. The injury is a 'purely objective' investigation, as
stated. Detaching the sufficiency test from the mental element will generate moral conundrums
and question the basis of murder's criminal responsibility. This is evident in the 1992 Singapore
case addressed later in this article.
Vinod Kumar assaulted two persons, one of whom died. Unless injuries are intentional, the crime
is random. Their survival was just luck. This makes murder immoral. Because one's wealth is
uncontrollable, they can be charged with murder for uncontrollable causes. This violates the
concept that only free-will crimes should be punished.12

III. Murder without intention and its questionable basis of criminal liability.

To elaborate upon the issue presented earlier, it is important to establish what exactly is the basis
of criminal liability. A criminal offence is some prohibited conduct, it could either be an act or
otherwise, which would lead to certain consequences, done with the presence of a mental
element. There is an underlying assumption present, which makes the sense of the whole
equation of a criminal offence and also the theories of punishment. Implicit in each theory is the
assumption of free will, and that social harms can be morally attributed to the choices which
people make. And if it is later discovered that the acts of humans were not free, but were
influenced by something beyond their control, the theory of criminal liability and punishment
will lose any moral justification it has.13

12
Wilson, W. (n.d.). Actus reus. In Criminal Law (pp. 69–99). Pearson Education.
13
Ibid., 69-70.
Let's consider a hypothetical circumstance from Sornarajah's article, 14 If the actor cuts the
victim's foot specifically with the idea of preventing death or any serious injury. Unexpectedly,
the injury severed an artery, which in the ordinary course of nature could causes death. Should
the actor be charged with murder? Mark McBride presented a similar circumstance where a stab
wound resulted in death.15 In the aforesaid situation, it could be argued that the criminal was
careless in the victim's death, for which he could be held accountable under IPC (Section 304A
of the IPC specifically deals with murder because of negligence). The current interpretation will
find them guilty of murder since the objective approach focuses on causality and ignores other
crime elements.16
This situation questions the basis of criminal liability in the offence of murder. Since, conviction
under the offence of murder is a matter of moral luck, because the consequence of one’s act is
being taken objectively, without considering the intention and culpability (or knowledge for that
matter). If an ‘unexpected consequence’ is enough to make someone a murderer, with the mens
rea of lesser offence (like assault), then it would lead to imposing criminal liability based on
something that is beyond one’s control. Therefore, it would be relevant to question the basis of
criminal liability in section 300(c) of the IPC.

IV. The Constructive Dimension of the Offence of Murder

However, it would be erroneous to argue that law should be interpreted in total subjectivity. This
would not only make the provision otiose but also leave a vast section of acts unpunished.
Section 300(c) of the IPC states:

Culpable homicide is murder— (Thirdly) If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be in flicted is sufficient in the ordinary course of
nature to cause death.

If it requires the prosecution to prove that the criminal intended to inflict a bodily damage
sufficient in the ordinary course of nature to cause death, it would be the same as causing injury
14
M Sornarajah (n 1).
15
McBride, M. (2014). Section 300(c) of the Indian Penal code: from first Principles. National Law School
of India Review, 26(1), 77–86. <https://www.jstor.org/stable/44283783>

16
Ibid.
with the intent to kill (section 300(a) of the IPC). 17 Because section 300 thirdly lacks a clear
meaning like first and second, it catches what the others don't.18

Moreover, introducing total subjectivity would also require the prosecution to prove that the
defendant knew their act would inflict a fatal damage to a specific part of the victim's body. A
person without anatomical knowledge couldn't be convicted under this rule. In the Virsa Singh
case, it would have been impossible to prove guilt if the criminal meant to pierce the liver,
kidney, or heart. The provision is therefore ridiculous. On top of that, introducing complete
subjectivity would mean that the prosecution also needs to prove that the offender had the exact
knowledge of how their act would lead to an injury on a specific part of the victim’s body, and
that injury would sufficient in the ordinary course of nature to cause death. This would mean that
a person without the knowledge of human anatomy could never be held guilty under this
provision. This absurdity can be understood in the context of the Virsa Singh case, if it was to be
proved that the offender intended to inflict such a blow that would penetrate the liver or the
kidney or the heart, then it would have been impossible to prove guilt. 19 Therefore, making the
whole provision borderline absurd.

A comprehensive subjective examination raises the question of how the law should treat killers
who may not intend to kill but act with a ‘wicked disdain of the costs of life'. 20 As they risk death
and catastrophic injury without redeeming any social values. To address this issue, it can be said
that section 300(c) has taken a constructive dimension of murder.

V. The Introduction of the Elements of Awareness and Foreseeability in the

So, now that it has been established that complete subjectivity is not the way, it is important to
introduce other qualifications in order to make the law just and fair. To achieve this, it is required
to address the core issue present, that is the detachment of the test of sufficiency from the mental
17
Virsa Singh (n 2) para 11
18
McBride (n 17) pg 6.

19
Victor V Ramraj (n 3) pg 14.
20
Stannard (n 6) pg 2.
element of the offender. Now the question arises, what element should be introduced so that
both, the sufficiency test and the mens rea attaches without making it completely subjective?

George P. Fletcher in his book ‘Rethinking Criminal Law’ termed this act of murder without
intention as ‘Homicide by Excessive Risk-Taking’. He says that the offence under this head
depends on two elements, first is the unacceptability of the risk taken, and secondly the actor’s
culpability in creating it.21 These elements of acceptability and culpability can be assessed on the
basis of three factors;

Firstly, the likelihood of causing death under the circumstances present. For example, if a person
swings a sword at another person, then the likelihood of causing severe injury (or death) would
depend on the body part which has been attacked, the force used to swing that sword, and
defensive capability of the victim. Graver the risk taken more will be the culpability.22

Secondly, the utility of the risk should be considered. The amount of social value that risk
derives is an equally important factor.23

And at last, the most important factor for the purpose of this article is the analysis of the actor’s
awareness of the risk being run.24 This degree of awareness plays a substantial role in
determining the culpability of the actor. In case of murder with intention, the awareness should
be proved to an extent that death was the only consequence of the actor’s act, and they were
completely aware of it. Vice-Versa, the punishment should reduce accordingly if the awareness
reduces to the extent of ‘negligence and recklessness’. However, the current interpretation totally
disregards the awareness of the actor and only consider if the act was sufficient in the ordinary
course of nature to cause death, even if the actor did not possess the knowledge of any such
consequence.

In other common law jurisdictions, the courts have dealt with this problem by establishing a
degree of culpability which would help determine whether the act amounts to murder or
manslaughter. For a negligent or reckless act to be liable for murder, higher degree of malice

21
Fletcher (n 23) pg 260.
22
Ibid.
23
Ibid.
24
Ibid.
needs to be established. In California, juries are instructed to inquire whether the defendant did
an act for “a base, anti-social motive and with wanton disregard of human life.25

There is an approach which is prevalently used in United States is to treat all killings with deadly
weapons presumptively as murder, with the burden of proof on the accused to mitigate his
offence to manslaughter. This is a variation on the mode of harm-oriented analysis that prevailed
in the common law at least up to the time of Blackstone. 26 However, it is now unconstitutional in
US to place the burden of proof against malice on the accused, even if it's simply based on a
preponderance of evidence. The issue with this approach is it does not require the court to clarify
the concept of malice and prefer to rest its decision on the ground that the burden of proof was
on the defendant to show that the gravity of the killing should be mitigated.
There is another approach which was very prevalent in English case laws. The English appear to
be completely opposed to a line of thought based on excessive risk-taking. Instead, English
judges have tackled the issue by redefining what constitutes intent or knowledge for murder. In
the case of Moloney,27 the accused killed his farther with a shotgun in an intoxicated state. It was
the result of a drunken argument between them about who had a better shot. Although the
relation between the accused and the victim was amicable. Therefore, there was no malice
afterthought, or any premeditation before the act. The House of Lords in this case established the
principle that foreseeability of the defendant’s actions does not amount to intention, however, the
foresight could be used as evidence from which necessary intent can be inferred.
However, if such a severe test was required before an inference of intention could be drawn,
there was little if any space for the even harsher test that would be required if foresight was itself
equivalent to intent, which would presumably have to be one of absolute rather than 'moral' or
'virtual' certainty.28
Then came the case of Woollin,29 it was a baby-battering case wherein the accused got annoyed
with the infant baby crying, therefore, throwing it away, hitting its head on a hard surface. The
accused’s act subsequently resulted to death of the child. The House of Lords in this case held
that, if the accused is found to have foreseen death or grievous bodily harm as a virtual certainty,

25
Ibid., 265.
26
Ibid.
27
R v Moloney, [1985] A.C. 905.
28
Woollin (n 8) pg. 6.
29
Ibid.
it is equivalent to the necessary intention required. Therefore, equating intention with
foreseeability to a certain degree of certainty.
However, the following approach is both overinclusive and underinclusive. 30 It is overinclusive
in the sense that it covers cases with no malice and culpability of causing death. In the same
time, it is underinclusive as there are many cases of killing that appear arguably to be with
malice, yet there is no intent to inflict grievous bodily harm. This can be illustrated with the
example of a racket of organ smugglers, they coercively do someone’s medical operation to
deprive them of one of their kidneys, but in between, due to some unforeseen accident, the
victim dies. According to the first approach i.e., the California test, the defendants would be
charged with the offence of causing grievous bodily injury. However, it would amount to murder
in English court as causing grievous injury was a virtual certainty. There are several cases
present which highlights this issue raised, like in the case of R v. Ward.31 The same can be seen
in R v. Vickers.32
Therefore, arguably the California test (the same has been followed in Model Penal Code) stands
the test of time, although, there can be no perfect approach, but this is by far the most successful
in terms of evaluating the culpability and the extent of risk taken in cases where the intention to
cause death is not present or cannot be established.

VI. Conclusion
Section 300(c) the most frequently invoked murder limb of the Indian Penal Code, is also one of
the most contested provisions under the IPC.33 . It is one of the gravest offences against human
body, which calls for a great deal of precaution before imposing the charges. Subjective analysis
of intention is crucial for delivering just and fair judgements, after all, the purpose of the law is
to punish those who are mentally capable of committing murder and not to label someone a
murderer, who in fact is not. The Indian constitution, as it is written in the preamble, thrives to
secure justice for all its citizens. Therefore, it is the duty of the judicial courts of India, which
derives its powers from the constitution to put justice above all, be it any procedural or
interpretive inconsistency in law.

30
Fletcher (n 23) pg 267-268.
31
R v Ward, [1956] 1 Q.B. 351 (Crim. App.).
32
R v Vickers, [1957] 2 Q.B. 664 (Crim. App.).
33
McBride (n 17) pg 2.
In the present case, there are many people who are suffering because they are being treated as
‘murderer’ even if they never could have dreamed of what has consequently happened from their
act. Therefore, it is in the interest of the nation state, to bring changes in the present
interpretation in order to put an end to this perpetual injustice, because of which numerous
families and citizens are suffering.
Intention is the most integral part of the criminal justice system, and by significantly diluting its
importance, it only becomes a recipe of an unjust law. Therfore, this article avers that a test of
culpability should be introduced as soon as possible. Because:
“ A unjust law, is no law at all. ”
– Martin Luther