Table of Contents:
1. Introduction
2. Assault
2.1. Ingredients of assault
2.2. Types of Assault
2.3. Difference between assault and criminal force
2.4. Punishment for assault or criminal force
2.5. Offence of assault on grave and
2.6. Exception to grave and sudden provocation
2.7. Assault and the right of private defence
2.8. Assault against woman
2.9 Assault as a tort
3. Culpable Homicide
3.1. Elements of culpable homicide
3.2. Culpable homicide amounting to murder
3.3. Culpable homicide not amounting to murder
3.4. Punishment for culpable homicide amounting to murder
4. Case Laws
5. References
1. Introduction
Crime is an act or omission prohibited by law, punishable by the state, and
considered a public wrong, often causing harm to individuals in particular and state
in general. The Bharatiya Nyaya Sanhita (BNS) is India’s new criminal code,
which came into effect on July 1, 2024. It replaced the Indian Penal Code (IPC) of
1860. Chapter 6 of the BNS concerns with the offences affecting the human body.
It broadly includes offences affecting life, offences causing hurt, those involving
wrongful restraint and confinement and the offences of criminal force and assault.
The subsequent section deals with two offences in particular: assault and culpable
homicide.
2. Assault:
Section 130 of the BNS defines assault as such: “Whoever makes any gesture, or
any preparation intending or knowing it to be likely that such gesture or
preparation will cause any person present to apprehend that he who makes that
gesture or preparation is about to use criminal force to that person, is said to
commit an assault.(1)” The S.130 further explains that mere words do not amount
to an assault. It is when the words which a person uses may give rise to his gestures
or preparation such a meaning as may make those gestures or preparations amount
to an assault.
2.1. Ingredients of assault
(a) any gesture or any preparation
(b) cause any person apprehension of criminal force
(c) intention or knowledge of the gesture or preparation causing such apprehension
Thus, all gestures or preparations do not amount to assault; but only when those
causes an apprehension in the eyes of the other person that he would be harmed by
the person’s actions.
2.2. Types of Assault
(a) Assault or criminal force to deter public servant from discharge of his duty:
“Whoever assaults or uses criminal force to any person being a public servant in
the execution of his duty as such public servant, or with intent to prevent or deter
that person from discharging his duty as such public servant, or in consequence of
anything done or attempted to be done by such person in the lawful discharge of
his duty as such public servant, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both.(2)” (S.132)
(1) Bharatiya Nyaya Sanhita, 2023. S.130
(2) BNS,2023. S.132
(b) Assault or criminal force with intent to dishonour person, otherwise than on
grave provocation:
“Whoever assaults or uses criminal force to any person, intending thereby to
dishonour that person, otherwise than on grave and sudden provocation given by
that person, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.(3)” (S.133)
(c) Assault or criminal force in attempt to commit theft of property carried by a
person:
“Whoever assaults or uses criminal force to any person, in attempting to commit
theft on any property which that person is then wearing or carrying, shall be
punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.(4)” (S.134)
(d) Assault or criminal force in attempt to wrongfully confine a person:
“Whoever assaults or uses criminal force to any person, in attempting wrongfully
to confine that person, shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine which may extend to five
thousand rupees, or with both.(5)” (S.135)
2.3. Difference between assault and criminal force
S.129 of the BNS defines the offence of criminal force as: whoever intentionally
uses force to any person, without that person’s consent, in order to the committing
of any offence, or intending by the use of such force to cause, or knowing it to be
likely that by the use of such force he will cause injury, fear or annoyance to the
person to whom the force is used, is said to use criminal force to that other.
(3) BNS,2023. S.133
(4) BNS,2023. S.134
(5) BNS,2023. S.135
While in assault, there is no use of criminal force, but only the gesture or
preparation which causes the apprehension of use of criminal force; in case
of the offence of criminal force as such, there is the actual use of use. So,
assault can be understood as the stage prior to that of criminal force.
2.4. Punishment for assault or criminal force
Assault or criminal force are categorised into two in the BNS - those on grave
provocation and those other than on grave provocation. S.131 of the BNS provides
for punishment for assault or criminal force otherwise than on grave provocation:
“Whoever assaults or uses criminal force to any person otherwise than on grave
and sudden provocation given by that person, shall be punished with imprisonment
of either description for a term which may extend to three months, or with fine
which may extend to one thousand rupees, or with both (6)”.
2.5. Offence of assault on grave and sudden provocation:
The BNS treats the offence of assault or criminal assault on grave and sudden
provocation as different from that without the elements of provocation. Under the
S.136, the punishment for the offence of assault or use of criminal force on grave
and sudden provocation is considered an offence which shall be punished with
simple imprisonment for a term which may extend to one month, or with fine
which may extend to one thousand rupees, or with both.
2.6. Exception to grave and sudden provocation:
Here, S.131 also provides the situations wherein grave and sudden provocation
will not mitigate the punishment for the offence. They are:
(6) BNS,2023. S.131
(a) if the provocation is sought or voluntarily provoked by the offender as an
excuse for the offence; or
(b) if the provocation is 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; or
(c) if the provocation is given by anything done in the lawful exercise of the right
of private defence. (7)
Thus, under the above circumstances, grave and sudden provocation is not
considered an exception for the offence of assault or criminal force. Nonetheless,
S.131 also mentions that “Whether the provocation was grave and sudden enough
to mitigate the offence, is a question of fact. (8)”
2.7.Assault and the right of private defence
The BNS treats nothing to be an offence which is done in the exercise of the right
of private defence. Herein, under S.38, situations when the right of private defence
of body extends to causing death are enumerated:
(a) such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying unnatural lust;
(e) an assault with the intention of kidnapping or abducting;
(f) 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.
(7) BNS,2023. S.131
(8) BNS,2023. S.131
2.8. Assault against woman
Use of criminal force or assault against woman are enumerated from S.74 to S.79
of the BNS
(i) Assault to woman with intent to outrage her modesty:
“Whoever assaults or uses criminal force to any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her modesty, shall be punished
with imprisonment of either description for a term which shall not be less than one
year but which may extend to five years, and shall also be liable to fine.” (9)
(ii) Assault to woman with intent to disrobe:
“Whoever assaults or uses criminal force to any woman or abets such act with the
intention of disrobing or compelling her to be naked, shall be punished with
imprisonment of either description for a term which shall not be less than three
years but which may extend to seven years, and shall also be liable to fine.” (10)
2.9. Assault as a Tort
Assault, though being an offence mentioned under BNS, is also considered a tort as
well. In common law, assault is a tort wherein an act of the defendant causes to the
plaintiff reasonable apprehension of the infliction of a battery on him by the
defendant. When the defendant creates his act thereby an apprehension of battery is
created in the mind of the plaintiff, the wrong of assault is completed. The wrong
of assault consists of an attempt to do harm rather than the harm being caused
thereby. Charges of assault must include conduct that is offensive and causes
another person the fear of their safety. This clearly means that one can be guilty of
assault even if he/she did not physically harm the victim. In the case of R. v. S.
George, the pointing of a loaded gun to another was considered to be an assault.
(9) BNS,2023. S.74
(10) BNS,2023. S.76
3. Culpable Homicide
The word Homicide has been rooted in the Latin expressions “homi” means man
and “cido” means Cut or kill. Accordingly, homicide signifies the slaughtering or
killing of an individual by another human. As in the case of every offence under
BNS, the three elements of mens rea, actus reus, and causality must be present for
the offence of culpable homicide as well.
(i) Mens Rea: which is the guilty mind or the guilty intention required for the
offence. For the offence of culpable homicide, either intention or knowledge has to
be present. It is based on the criminal law doctrine of “actus reus non facit reum
nisi mens sit rea (11)”, which means “an act does not render a man guilty of a
crime unless his mind is equally guilty.” In the case of Dipta Dutta vs. State Of
West Bengal and another (2023), it was stated that, ‘Mens rea’ is the state of mind
which indicates culpability, which is required by a statute as an element of crime.
Every crime requires a mental element that is some blameworthy mental condition
(12).
(ii) Actus reus: which is the guilty act or omission required for the offence. For the
offence of culpable homicide, the death of a person must be caused.
(iii)Element of causality: The act of the accused must be done with the requisite
mens rea. In other words, the ‘act of causing death’ must be done with the
‘intention or knowledge of causing death’ for the offence of culpable homicide.
3.1. Elements of culpable homicide
Section 100 of the BNS characterizes Culpable Homicide as:
“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. (13)”
(11) https://www.oxfordreference.com/display/10.1093/oi/authority.20110803095349253
(12) https://indiankanoon.org/doc/174374007/
(13) BNS, 2023. S.100
Thus, the elements of culpable homicide are:
(i) Intention of causing death
(ii) Intention of causing such bodily injury likely to cause death
(iii) knowledge that by such an act, death would be caused.
These three aspects are discussed in detail below:
(i) Intention of causing death:
The intention here represents the deep desire to cause a particular consequence. A
person acting with an intention to do something acts with an absolute desire to
achieve the consequence.
As per Russel on Crime (12th Edition),”The mental element in crime, the word
`intention’ is used to denote the mental attitude of a man who has resolved to bring
about a certain result if he can possibly do so. He shapes his line of conduct so as
to achieve a particular end at which he aims (14)”.The law presumes that an
individual intends the natural and inevitable consequences of their actions;
therefore, the accused cannot be allowed to take the defence of ‘lack of intention’
when his conduct shows otherwise. For instance, if it is demonstrated that the
accused fired a gunshot from close range directly into the victim’s head, it can be
concluded that the sole intention was to cause death and any plea by the accused of
lack of intention cannot be accepted. The necessary aspect of intention was dealt
by the honourable Supreme Court in “Shanmugam @ Kulandaivelu v State of
Tamil Nadu (2002)(15)”
(ii) Intention of causing such bodily injury likely to cause death
As per the phrase ‘intention of causing such bodily injury’ the accused must cause
a ‘bodily injury’ like a stab from a knife or injuries from an iron rod and this injury
must be ‘likely’ or probable (may or may not) to cause death. The intention is
directly related not with death but with the bodily injury that is likely to cause
death.
● Particular injury: For the application of this phrase, the accused must have
(14) Russell, Sir William Oldnall, and J.W. Cecil Turner, Russell on Crime (12th ed.) (London:
Stevens & Sons, 1964).
(15) Shanmugam @ Kulandaivelu v State of Tamil Nadu (2002), AIR2003SC209
the intention to cause a ‘particular’ bodily injury, like a stab in the abdomen,
etc. For example, if A was driving a car and he hit B, here no particular
injury was intended. This act cannot fall within the phrase ‘intention to cause
bodily injury likely to cause death’ as no particular injury was intended.
● Intention to cause the injury which is actually inflicted: Additionally, the
accused must have intended to cause the injury that was actually caused. For
example, if a person only intends to hit another on his arm but the victim
moves due to which the blow lands on the head of the victim. Here, the
accused cannot be said to have intended the injury that was actually caused.
● Intended injury likely to cause death: the likelihood of the injury to cause
death is an objective inquiry according to the medical opinion. Therefore,
while the intention to cause the bodily injury that has actually been caused
has to be proved, the knowledge that such bodily injury is likely to cause the
death of the person is not required.
Therefore, the intention to cause the particular body injury that is caused is a
subjective examination and whether the bodily injury intended was likely to
cause death or not is the objective examination.
(iii) Knowledge that by such an act, death would be caused
The third phrase of Section 100 states that ‘culpable homicide is an act done with
the knowledge that such an act is likely to cause death’. This phrase deals with the
element of knowledge. Here, “knowledge” refers to an individual’s awareness or
understanding of facts and circumstances. The accused must know that the act that
he is committing is one that is likely to cause death.
Further, the BNS classifies culpable homicide into two; culpable homicide
amounting to murder and culpable homicide not amounting to murder.
3.2. Culpable homicide amounting to murder:
S.101 of the BNS lists out the scenarios where culpable homicide would be treated
as murder. These are:
(i) if the act by which the death is caused is done with the intention of causing
death; or
(ii) if the act by which the death is caused is done 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; or
(iii) if the act by which the death is caused is done with the intention of causing
bodily injury to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death; or
(iv) if the person committing the act by which the death is caused, knows that it is
so imminently dangerous that it must, in all probability, cause death, or such bodily
injury as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.(16)
So, to summarize, culpable homicide amount to murder if the death is caused by:
(i) an intention of causing death, (ii) bodily injury likely to cause death, (iii)bodily
injury is sufficient in the ordinary course to cause death, (iv) the act was so
imminently dangerous.
3.3. Culpable homicide not amounting to murder:
Not all homicides amount to murder. S.101 of BNS provides for the cases of
exceptions where culpable homicide does not amount to murder. These are:
Exception 1.—Culpable homicide is not murder if the offender, 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 (17).
In the case of R vs. Duffy (1949), Goddard, CJ defines provocation as “Provocation
is some act or a series of acts which done by the dead man to the accused would
cause in any reasonable person and actually cause the accused, a sudden and
temporary loss of self-control which would render the accuse so
(16) BNS,2023. S.101
(17) BNS,2023. S.101
subject to passion as to make him for the moment, not master of his mind”(18).The
exception of grave and sudden provocation was also dealt with in the famous case
of K.M. Nanavati v State of Maharashtra (1961) (19). In the famous “Reg v
Govinda (1876)” (20), the accused knocked down his wife, held her down with his
knees on her chest, and struck her face with his fists, causing internal bleeding in
the brain. Which led to her death. In the case, it was held that the primary
distinction between murder and culpable homicide lies in the intention to cause
death.
Exception 2.—Culpable homicide is not murder if the offender 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. (20)
Thus, culpable homicide does not amount to murder if the act is caused by grave
and sudden provocation and when the act is caused in the exercise of the right of
private defence against person and property.
3.4. Punishment for culpable homicide amounting to murder
S.103(1) provides for punishment for murder committed by an individual while
S.103(2) provides for the murder committed by a group of five or more persons, i.e
murder by a mob.
S. 103. (1) Whoever commits murder shall be punished with death or
imprisonment for life, and shall also be liable to fine. (21)
(18) https://vlex.co.uk/vid/r-v-duffy-792598097
(19) K.M. Nanavati v State of Maharashtra (1961), AIR 1962 SC 605, 1962 SCR Supl. (1) 567
(20) Reg v Govinda (1876), ILR 1BOM342
(21) BNS,2023. S.103
(2) 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 shall be punished with death
or with imprisonment for life, and shall also be liable to fine.
4. Case Laws
(i) Dipta Dutta vs State Of West Bengal & Anr
(ii) K.M. Nanavati v State of Maharashtra (1961), AIR 1962 SC 605
(iii) Reg v Govinda (1876), ILR 1BOM342
(iv) Shanmugam @ Kulandaivelu v State of Tamil Nadu (2002),
AIR2003SC209
5. References
(i) The Bharatiya Nyaya Sanhita, 2023
(ii)https://blog.ipleaders.in/criminal-force-and-assault/#Punishment_for_Ass
ault_or_Criminal_Force
(iii)https://www.legalserviceindia.com/legal/article-8760-an-analysis-of-culp
able-homicide-and-murder.html
(iv) https://lawctopus.com/clatalogue/clat-pg/ipc-notes-ingredients-of-crime/
(v)https://blog.ipleaders.in/culpable-homicide-under-indian-penal-code/#Cas
e_laws_on_Section_100_BNS_2023
