Culpable Homicide Not Amounting to Murder
Culpable Homicide Not Amounting to Murder
Introduction
Criminal
law is enacted by English government on 1st May 1861. A
system of law that deals with the punishment of people who commit crimes; a law
belonging to this system. 1874 in Myanmar According to Regulation Law
No. 9, it came into force in the Rakhine. In 1885, after Upper Myanmar
fell under the British rule, in 1886, From January (1st) it
was designated as a state of India and with Act No. 20 of the same year, from
November (29th) this great punishment was put into effect in all
parts of Myanmar except Shan State. Then in 1895 Regulation No. (1) with
exceptions in Kachin Hill areas and in 1896, Regulation Law (5) also
imposed power on the Chin people in the Chin Mountains. After the independent
of Myanmar in 1948, this law has been translated by the Myanmar law
translation committee from English to Myanmar language. It includes 33
Chapters and 511 Sections. The main provisions of this law are Offences,
Punishments and General Exceptions.
Offence
means any act or omission made punishable by any law for the time being in
force under the Code of Criminal Procedure {India Act V, 1898}. The word
"offence" denotes a thing made punishable by Penal Code {1861}
or under any special or local law is punishable under such law with
imprisonment for a term of six months or upwards whether with or without fine
under the Penal Code. Crime is criminal wrong concerned with the breach of
public rights and duties and affects the community at large. There are two
kinds of offences affecting the human body:
(1) Of offences
affecting life;
(2) Of offences
affecting human body.
The
offences affecting life are: -
(a) Culpable
homicide,
(b) Murder,
(c) Rash or
negligent homicide,
(d) Suicide and
abetment of suicide,
(e) Murder,
culpable homicide and attempt to suicide, and
(f) Causing of
miscarriage, Injuries to unborn children, Exposure of Infants and concealment
of Births and Exposure and Abandonment of Child under Twelve years, by parent
or person having care of it.
To murder,
whoever commit the offence of it. They are:
(1) with the
intention of causing death
(2) with the
intention of causing bodily injury as in fact is sufficient in the ordinary
course of nature of death
(3) in the
absence of any circumstance which makes the act. So, the above mentioned are
the difference between the culpable homicide and murder.
Homicide is
the killing of a human being by a human being. It is either
(a) Lawful or
(b) Unlawful.
Lawful homicide, or simple homicide, includes several cases falling under the
General Exceptions.
If a man
commits a murder, he can be tried and convicted of murder by the death sentence
which the highest form of punishment, but not for every murder. Murder means
whoever, in the absence of any circumstance which makes the act of culpable
homicide not amounting to murder, causes death by doing an act with the
intention of causing death, or with the intention of causing bodily injury as
in fact is sufficient in the ordinary cause of nature to cause death, commits the
offence of murder. Normally, the offender commits murder, but if that act
brought the case within the ambit of one of the Five exceptions
prescribed in Section 299(2) of the Penal Code {1861}, then that offence
does not amount to murder, but culpable homicide not amounting to murder only. These
Five exceptions in short are: -
(1) Deprivation
of the power of self-control by grave and sudden provocation;
(2) Exceeding
the right of private defense of property and person;
(3) Exceeding
the power of public servant given to him by Law;
(4) Acts
without premeditation in a sudden fight; and
(5) Causes the
death of a person who is above the age of (18) years.[1]
Definitions
Culpable Homicide
Culpable
homicide" is: 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 offence of culpable homicide.
Murder
Whoever, in
the absence of any circumstance which makes the act one of culpable homicide
not amounting to murder, causes death by doing an act with the intention of
causing death, or with the intention of causing bodily injury as in fact is
sufficient in the ordinary cause of nature to cause death, commits the offence
of murder.
Self-Defense (or) Private Defense
According
to the Section (100) of the Penal Code, the right of private defense of the
body extends, under the restrictions mentioned in the last preceding section,
to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions
hereinafter enumerated, namely: –
1st
Such an assault as may reasonably cause the
apprehension that death will otherwise be the consequence of such assault;
2nd
Such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the consequence of such
assault;
3rd
An assault with the intention of committing
rape;
4th
An assault with the intention of gratifying
unnatural lust;
5th
An assault with the intention of kidnapping or
abducting;
6th
An assault with the intention of wrongfully
confining a person, under circumstances which may reasonably cause him to
apprehend that he will be unable to have recourse to the public authorities for
his release.
Explanation
Culpable Homicide
According
to Section 299 of the Penal Code (1861) this offence is defined as
follows:
i.
Whoever causes death by doing an act with the
intention of causing such bodily injury as is likely to cause death commits the
offence of culpable homicide not amounting to murder.
ii.
Whoever causes death by doing an act with the
intention of causing such bodily injury as in fact is sufficient in the
ordinary course of nature to cause death, commits the offence of culpable
homicide not amounting to murder in any of the following cases: -
(A)
If he, whilst deprived of the power of
self-control by grave and sudden provocation, causes the death of the person
who gave the provocation, or causes the death of any other person by mistake or
accident:
Provided;
1st
That the provocation is not sought or
voluntarily provoked by the offender as an excuse for killing or doing harm to
any person;
2nd
That the provocation is not given by
anything done in obedience to the Law, or by a public servant in the Lawful
exercise of the powers of such public servant; and
3rd
That the provocation is not given by
anything done in the Lawful exercise of the right of private defense.
(B)
If he, in the exercise in good faith of the
right of private defence of person or property, exceeds the power given to him
by law and causes the death of the person against whom he is exercising such
right of defence without premeditation and without any intention of doing more
harm than is necessary for the purpose of such defence.
(C)
If he, being a public servant or doing a public
servant for the advancement of public justice, exceeds the powers given to him
by Law, and causes death by doing an act which he, in good faith, believes to
be Lawful and necessary for the due discharge of the duty of such public
servant and without ill-will towards the person whose death is caused.
(D)
If he, acts without premeditation in a sudden
fight the heat of passion upon a sudden quarrel and without having taken undue
advantage or acted in a cruel or unusual manner.
(E)
If he, causes the death of a person who is
above the age of eighteen years and who suffers death or takes the risk of
death with his own consent.
Murder
Culpable
homicide is mentioned in Section 300 (A) of the Penal Code {1861}. In
Sections 299 and 300: -
(a) a person
who causes bodily injury to another who is laboring under a disorder, disease
or bodily infirmity, and thereby accelerates the death of that other, shall be
deemed to have caused his death;
(b) where death
is caused by bodily injury, the offender’s knowledge of the weakness or
infirmity of the person on whom the bodily injury is inflicted is a relevant
factor in proving the nature of his intention;
(c) the
offender’s knowledge an act is so imminently dangerous that it must in all
probability cause death, or such bodily injury as is likely to cause death, is
a relevant factor in proving the nature of his intention;
(d) where death
is causes by bodily injury, the person who causes such bodily injury shall be
deemed to have caused the death although by resorting to proper remedies and
skillful treatment the death might have been prevented;
(e) the causing
of the death of a child in the mother’s womb is not homicide. But it may amount
to culpable homicide to cause the death of a living child if any part of that
child has been brought forth, though the child may not have breathed or been
completely born.
If a
person, by doing anything which he intends or knows to be likely to cause
death, commits an offence by causing the death of any person whose death he
neither intends or knows himself to be likely to cause, the offence committed
by the offender is of the description of which it would have been if he had
caused the death of the person whose death he intended or knew himself to be
likely to cause.
Self-Defense
A person is
not deprived of the right of private defense against an act done or attempted
to be done by the direction of a public servant unless he knows, or has reason
to believe, that the person doing the act is acting by such direction, or
unless such person states the authority under which he acts, or if he has
authority in writing, unless he produces such authority if demanded.
Punishment for Culpable Homicide
According
to Section 304 of Penal Code (1861), whoever commits culpable homicide
not amounting to murder shall be punished with imprisonment for a term of
twenty years, or imprisonment of either description for a term which may extend
to ten years and shall also be liable to fine.
Punishment for Murder
According
to Section 302 of Penal Code (1861),
(1) Whoever
commits murder –
a. being under
sentence of imprisonment for a term of twenty years, or
b. with
premeditation, or
c. in the
course of committing any offence punishable under this Code with imprisonment
for a term which may extend to seven years, shall be punished with death, and
shall also be liable to fine.
(2) Whoever
commits murder in any other case shall be punished with imprisonment for a term
of twenty years, or with rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine.
လူသတ်မှုများတွင် သုံးသပ်ရမည့်အချက်များ
လူသတ်မှုဆိုင်ရာ မှုခင်းများကို စီရင်ဆုံးဖြတ်ရာ၌
သက်သေခံအထောက်အထားများကို အောက်ပါအတိုင်း အဆင့်ဆင့် စိစစ်သုံးသပ်ရမည်။
Ø သေသူသည်
တရားခံ၏ လက်ချက်ကြောင့် သေဆုံးရခြင်း ဟုတ်မဟုတ်။
Ø မည်သို့သောကြံရွယ်ချက်ရှိသည်။
Ø မျက်မြင်အားဖြင့်
လူသတ်မှုလား၊ ပြစ်ဒဏ်ထိုက်သော လူသေမှုလော၊ နာကျင်စေမှုလော၊ အရမ်း သို့မဟုတ်
ပေါ့ဆမှုကြောင့် သေစေခြင်းလား။
Ø ပြုလုပ်မှုကို
ပြစ်မှုမမြောက်စေရန် ဖန်တီးသော အကြောင်းခြင်းရာများ ပေါ်ပေါက်ခြင်းရှိမရှိ၊
(သို့မဟုတ်) ကြီးသောပြစ်မှုကို ငယ်သောပြစ်မှုအဖြစ်သို့ ရောက်စေရန်
အကြောင်းခြင်းရာများ ပေါ်ပေါက်ခြင်းရှိမရှိ။[2]
သေသူသည် တရားခံကြောင့် သေဆုံးရခြင်းလော
မည်သည့်
အကြောင်းကြောင့် သေသူ သေဆုံးရခြင်းနှင့် ပတ်သက်၍ ဆရာဝန်၏ စစ်ဆေးတွေ့ရှိချက်
မရှိလျှင် တရားခံအား လူသတ်မှုဖြင့် ဖြစ်စေ၊ လူသေမှုဖြင့်ဖြစ်စေ၊ စိတ်ချ
လက်ချအပြစ်ပေးနိုင်မည် မဟုတ်ပေ။[3]
သေသူသည်
ကိုယ်ချွတ်ယွင်းသူ သို့မဟုတ် အနာရောဂါစွဲကပ်သူ သို့မဟုတ် ကိုယ်အင်္ဂါချိနဲ့ သော
သူဖြစ်ပြီး တရားခံက ၎င်းအား ကိုယ်အင်္ဂါနာကျင်စေမှုဖြစ်စေ၍ ထိုသူ၏သေခြင်းကို
မြန်စေပါမူ ထိုသူအား သေစေသည်ဟု မှတ်ယူရမည်။[4]
မိမိကြောင့် သေဆုံးရခြင်း မဟုတ်ဘဲ သေသူရှိ ပင်ကိုယ်ရောဂါကြောင့် သေရသည်ဟု တရားခံက
ထုချေ၍မရ။
လူသေမှုများတွင်
အသတ်ခံရသူ၏ အလောင်းကို ဖော်ထုတ်ပြီး မည်သူမည်ဝါ၏ အလောင်းဖြစ်သည်ကို
ပြည့်ပြည့်စုံစုံသိရှိအောင် လုပ်ဖို့လိုသည်။[5]
Causing Death by Negligence
Whoever
causes the death of any person by doing any rash or negligent act not
punishable as culpable homicide or murder shall be punished with imprisonment
of either description for a term which may extend to seven years and shall also
be liable to fine: provided that, if such act is done with the knowledge that
it is likely to cause death the term of imprisonment may extend to ten years.[6]
Suicide or abetment of Suicide
If any
person under eighteen years of age, any insane person, any delirious person,
any idiot or any person in a state of intoxication commits suicide, whoever
abets the commission of such suicide shall be punished with death or
transportation for life, or imprisonment for a term not exceeding ten years,
and shall also be liable to fine.[7]
If any
person commits suicide, whoever abets the commission of such suicide shall be
punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.[8]
Conclusion
The
offender commits the offence by doing one of the acts under Section 299 (2)
of the Penal Code (1861), normally he commits murder; but if that act
brought the case within the ambit of one of the (5) exceptions prescribed in Section
299 (2) of the Penal Code (1861), then the offence does not amount to
murder, but culpable homicide not amounting to murder only. The provisions Section
299 and 300 of the Penal Code (1861) must be compared carefully and Section
302 of the Penal Code (1861) also be needed to mention for the offence of
murder. Whoever commits the killing of a person under Section 302 (1) of the
Penal Code (1861), then that offender commits murder, he shall be punished
with death; but under Section 302 (2) of the Penal Code (1861) he shall
be punished with transportation for life. Punishment for culpable homicide not
amounting to murder is transportation for life, or ten years and fine under Section
304 of the Penal Code (1861).
[1] Section
105 of Evidence Act
[2] ဦးမြ၊
လူသတ်လူသေမှုခင်းဥပဒေ၊ ၁၉၈၄ခုနှစ်၊ အောက်တိုဘာလ၊ ပထမအကြိမ်၊ စာ-၆။
[3] ဖြူသီးအောင်နှင့်
နိုင်ငံတော်၊ ၁၉၆၀၊ မတစ၊ ၃၅၆(လွှတ်တော်)။
[4] ပြစ်မှုဆိုင်ရာဥပဒေပုဒ်မ
၃၀၀-က(က)။
[5] မောင်ညိုနှင့်
နိုင်ငံတော်၊ S.J. ၃၂၅။
[6] Section
304 (A), Ibid.
[7]
Section 305, Ibid
[8] Section
306, Ibid
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