(a) "Homicide means killing of a human being by a human being." Explain the statement and distinguish between culpable homicide…

(a) Homicide and murder

Homicide (homo + cida) is killing of a human being by a human being. Homicide may be lawful (for example, in private defence or by accident) or unlawful. Culpable homicide under Section 100 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 299 IPC) is the genus, and murder the species (State of A.P. v. Rayavarapu Punnayya, 1976): culpable homicide is committed where death is caused by an act done with intention to cause death, with intention to cause bodily injury known to be likely to cause death, or with knowledge that the act is likely to cause death. Murder under Section 101 BNS (formerly Section 300 IPC) is culpable homicide with a graver mental element: (1) intention to cause death; (2) intention to cause such bodily injury as the actor knows is likely to cause death; (3) intention to cause such bodily injury as is sufficient in the ordinary course of nature to cause death; or (4) knowledge that the act is so imminently dangerous that it must in all probability cause death, done without any excuse for incurring that risk. The difference, as Melvill J. explained in Reg v. Govinda (1876), lies in the degree of probability of death: 'likely' for culpable homicide, 'sufficient in the ordinary course of nature' or 'in all probability' for murder; Virsa Singh v. State of Punjab (1958) explained how the third clause of murder is proved. Culpable homicide is not murder either when the act does not satisfy any clause of Section 101, or when it falls within one of the five exceptions, and it is then punishable under Section 105 BNS (formerly Section 304 IPC), while murder is punishable under Section 103 BNS (formerly Section 302 IPC) with death or life imprisonment.

• Grave and sudden provocation: A, deprived of self-control by grave and sudden provocation, kills B; the provocation must not be sought out, and cooling time defeats it (K.M. Nanavati v. State of Maharashtra, 1962).
• Exceeding private defence in good faith: A, defending himself without premeditation, causes death while exceeding the right in good faith, without intending more harm than necessary.
• Consent: B, being above eighteen, suffers death or takes the risk of death with his own consent — for example, A kills B at B's own sincere request.
• Public servant exceeding powers: A, a public servant, in good faith exceeds his lawful powers and kills B.
• Sudden fight: A kills B in a sudden fight in the heat of passion without premeditation.

(b) Private defence

Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 (formerly Sections 96 to 106 IPC) give a right to private defence of one's own or another's body and property. It is a temporary shield, not retaliation, and it arises only when there is no time to have recourse to the public authorities. Section 37 BNS (formerly S99 IPC) denies the right against an act by a public servant acting in good faith under colour of office, or under his direction, only if the act does not reasonably cause apprehension of death or grievous hurt; if such apprehension is reasonably caused, the right exists. Section 38 BNS (formerly S100 IPC) permits causing death to an assailant when the assault gives rise to reasonable apprehension of death or grievous hurt, or is an assault with intention to commit rape, to gratify unnatural lust, to kidnap or abduct, to wrongfully confine in circumstances where the victim cannot reach the authorities, or to throw or administer acid. Sections 41-42 BNS (formerly S103-S104 IPC) extend property defence against theft, robbery, mischief and criminal trespass; death may be caused only in specified cases such as robbery, house-breaking after sunset and before sunrise, mischief by fire to a dwelling, or theft, mischief or house-trespass where there is reasonable ground to apprehend death or grievous hurt if resisted. Section 37(2) BNS (formerly the last paragraph of S99 IPC) requires that the harm caused not exceed what is reasonably necessary; the test is reasonable apprehension and proportionality. The right begins as soon as a reasonable apprehension of danger arises and lasts as long as it continues (Sections 40 and 43 BNS; Deo Narain v. State of U.P., 1973). The courts do not weigh the defender's response 'in golden scales' (James Martin v. State of Kerala, 2004), and Darshan Singh v. State of Punjab (2010) laid down guidelines: a person facing a real threat need not run away and may use force proportionate to the apprehension, but not after the danger has ended. The burden of proving the right lies on the accused on a preponderance of probabilities (Section 108 BSA, 2023). A householder may repel a thief by day with non-lethal force, but not kill him; against an armed robber, lethal force may be justified if necessary.

(c) Nuisance

Nuisance is not a branch of negligence. Negligence is about the defendant's failure to take reasonable care; nuisance is about the result — an unreasonable interference with another's use and enjoyment of land, judged by the reasonableness of the user in the locality — so a defendant may be liable in nuisance even if he took all reasonable care. In Sedleigh-Denfield v. O’Callaghan [1940] AC 880, an occupier who knew of a nuisance created by a trespasser and continued it was held liable. Negligence requires duty, breach and damage. The statement needs one qualification: for continuing a nuisance created by others or by nature, and for the kind of damage recoverable, fault or foreseeability can be relevant (Wagon Mound (No. 2), 1967; Cambridge Water Co. v. Eastern Counties Leather, 1994), so the two torts overlap at the edges. Coming to the nuisance is no defence (Sturges v. Bridgman, 1879), and malice can make an otherwise lawful act a nuisance (Hollywood Silver Fox Farm v. Emmett, 1936). Private nuisance is available only to a person with a proprietary interest or exclusive possession of the land affected (Hunter v. Canary Wharf, 1997), such as an owner or tenant; public nuisance affects the public, and any member suffering special damage may sue, while under Section 91 of the Code of Civil Procedure the Advocate General, or two or more persons with the court's leave, may sue for a declaration and injunction without proving special damage; a Magistrate may also order removal under Section 152 BNSS. Liability may fall on the creator, occupier, predecessor in title, a landlord who authorises the nuisance, and, where relevant, a landlord bound by repair covenants. Statutory authority can be a defence if the nuisance is reasonably necessary and precautions are taken. Indian examples include Dhannalal v. Chittarsingh (1959), where noise from a flour mill was held a nuisance, Dr. Ram Raj Singh v. Babulal (1982), where dust from a brick-grinding machine entering a doctor's clinic was actionable, and Municipal Council, Ratlam v. Vardhichand (1980), where the municipality was ordered to remove open drains.