RAMPAL SINGHversusSTATE OF UP

                          [2012] 7 S.C.R. 160


A                           RAMPAL SINGH
                                    v.
                            STATE OF UP
                 (Criminal Appeal No. 2114 of 2009)

                            JULY 24, 2012
B
        [SWATANTER KUMAR AND FAKKIR MOHAMED
                IBRAHIM KALIFULLA, JJ.]

         Penal Code, 1860 - s. 304 Part I Is. 302 - Death of person
c   due to gunshot injury - Classification of the offence -
    Determination of appropriate penal provision - Deceased had
    constructed a 'ladauri' - Accused-appellant broke the 'ladauri'
    and started throwing garbage on the vacant land of deceased
    - This led to altercation between the appellant and the
0   deceased and they also grappled with eac/:1 other - Appellant
    went to his house, took out a rifle and from a roof in the
    neighbourhood, shot at the deceased which ultimately
    resulted in his death - Conviction of appellant u/s.302 with life
    imprisonment by courts below - Propriety - Held: The
E   appellant and the deceased were related to each other and
    there was no previous animosity between them - The entire
    incident happened within a very short span of time - It was in
    a state of anger that the appellant shot at the deceased - But
    before shooting at the deceased, the appellant had asked
    DW1 (who was talking to deceased at that time) to keep away
F   - On this, the deceased had provoked the appellant by asking
    him to shoot if he had the courage - It was upon this
    provocation that the appellant fired the shot which hit the
    deceased in his stomach and ultimately resulted in his death
    - The appellant committed the offence without any pre-
G   meditation - However, he was a person from the armed forces
    and knew the consequences of using a rifle - He had taken a
    clear aim at the lower part of the body, i.e. the stomach of the
    deceased - The offence was committed with the intent of
    causing a bodily injury which could result in death of the
H
          RAMPAL SINGH v. STATE OF UP                     161

deceased - It was thus not a case of knowledge simplicitor but   A
of intention ex facie - Conviction of appellant accordingly
altered from that uls. 302 to one u/s. 304 Part I - Appellant
sentenced to 1O years rigorous imprisonment along with fine
of Rs 10,000/-.
                                                                 B
    Penal Code, 1860 - ss. 300, 302 and 304 - Culpable
homicide - When amounting to murder and when not
amounting to murder - Distinction between the two parts of
s.304 - Legal principles governing the distinction between
ss.300, 302 on the one hand and s.304, Part I and II on the      C
other - Discussed.

     The prosecution case was that there was altercation
between the appellant and his relative 'RKS', and they
even grappled with each other as the appellant had
demolished the ladauri constructed by 'RKS' and had              D
started throwing garbage on his vacant land; that though
appellant and 'RKS' were thereafter separated by DW1
and another person, but while DW1 was talking to 'RKS',
the appellant climbed on a roof in the neighbourhood
armed with a rifle and warned DW1 to keep away saying            E
that he wanted to shoot 'RKS' on which the latter
remarked that he could shoot at him if he had the courage
and on this, the appellant shot at 'RKS' with his rifle and
ran away. 'RKS' was brought to the hospital. A bullet
wound was found in the right side of his abdomen.                F
Subsequently, on account of the said i.njury, 'RKS'
developed infection and died. The trial court convicted the
appellant under Section 302 IPC and sentenced him to
life imprisonment. The conviction and the sentence was
affirmed by the High Court.                                      G
    In the instant appeal, the appellant did not question
the correctness of the concurrent findings of the courts
below holding him guilty. The only contention raised by
him was that even as per the case of the prosecution,
taken at its best, the only offence that the appellant could     H
    162       SUPREME COURT REPORTS            [2012] 7 S.C.R.


A be said to have committed would be that under Part II of
  Section 304 IPC and not under Section 302 IPC.

          Disposing of the appeal the Court,

          HELD:
B
    Distinction between ss.300, 302 IPC on the one hand and
    s.304, Part I and II IPC on the other.

          1.1. Sections 299 and 300 IPC deal with the definition
C   of 'culpable homicide' and 'murder', respectively. In terms
    of Section 299 IPC, 'culpable homicide' is described as
    an act of causing death (i) with the intention of causing
    death or (ii) with the intention of causing such bodily
    injury as is likely to cause death, or (iii) with the
    knowledge that such an act is likely to cause death. As
D   is clear from a reading of this provision, the former part
    of it, emphasises on the expression 'intention' while the
    latter upon 'knowledge'. Both these are positive mental
    attitudes, however, of different degrees. The mental
    element in 'culpable homicide', that is, the mental attitude
E   towards the consequences of conduct is one of intention
    and knowledge. Once an offence is caused in any of the
    three stated manners noted-above, it would be 'culpable
    homicide'. Section 300, however, deals with 'murder'
    although there is no clear definition of 'murder' in Section
F   300 IPC. 'Culpable homicide' is the genus and 'murder'
    is its species and all 'murders' are 'culpable homicides'
    but all 'culpable homicides' are not 'murders'. Another
    classification is 'culpable homicide not amounting to
    murder', punishable under Section 304 IPC. There is
G   again a very fine line of distinction between the cases
    falling under Section 304, Part I and Part II, IPC. [Paras
    10, 11] [174-D-H]

      1.2. Section 300 IPC proceeds with reference to
H Section 299 IPC. 'Culpable homicide' may or may not
         RAMPAL SINGH v. STATE OF UP                  163


amount to 'murder', in terms of Section 300 IPC. When a      A
'culpable homicide is murder', the punitive consequences
shall follow in terms of Section 302 IPC while in other
cases, that is, where an offence is 'culpable homicide not
amounting to murder', punishment would be dealt with
under Section 304 IPC. [Para 13] [175-E-G]                   B

     1.3. Section 300 IPC states what kind of acts, when
done with the intention of causing death or bodily injury
as the offender knows to be likely to cause death or
causing bodily injury to any person, which is sufficient     C
in the ordinary course of nature to cause death or the
person causing injury knows that it is so imminently
dangerous that it must in all probability cause death,
would amount to 'murder'. It is also 'murder' when such
an act is committed, without any excuse for incurring the
risk of causing death or such bodily injury. The Section     D
also prescribes the exceptions to 'culpable homicide
amounting to murder'. The explanations spell out the
elements which need to be satisfied for application of
such exceptions, like an act done in the heat of passion
and without pre-mediation. Where the offender whilst         E
being deprived of the power of self-control by grave and
sudden provocation causes the death of the person who
has caused the provocation or causes the death of any
other person by mistake or accident, provided such
provocation was not at the behest of the offender himself,   F
'culpable homicide would not amount to murder'. This
exception itself has three limitations. All these are
questions of facts and would have to be determined in
the facts and circumstances of a given case. [Para 15]
[177-D-H; 178-A]                                             G

     1.4. Section 300 IPC states both, what is murder and
what is not. First finds place in Section 300 in its four
stated categories, while the second finds detailed
mention in the stated five exceptions to Section 300. The
leqislature in its wisdom. thus, covered the entire gamut    H
   164      SUPREME COURT REPORTS             [2012] 7 S.C.R.

A of culpable homicide that 'amounting to murder' as well
  as that 'not amounting to murder' in a composite manner
  in Section 300 of IPC. Sections 302 and 304 of IPC are
  primarily the punitive provisions. They declare what
  punishment a person would be liable to be awarded, if
B he commits either of the offences. An analysis of these
  two Sections must be done having regard to what is
  common to the offences and what is special to each one
  of them. The offence of culpable homicide is thus an
  offence which may or may not be murder. If it is murder,
c then it is culpable homicide amounting to murder, for
  which punishment is prescribed in Section 302 IPC.
  Section 304 IPC deals with cases not covered by Section
  3<J2 IPC and it divides the offence into two distinct
  classes, that is (a) those in which the death is intentionally
0 caused; and (b) those in which the death is caused
  unintentionally but knowingly. The first clause of this
  section includes only those cases in which offence is
  really 'murder', but mitigated by the presence of
  circumstances recognized in the exceptions to section
  300 IPC, the second clause deals only with the cases in
E which the accused has no intention of injuring anyone
  in particular. In the former case the sentence of
  imprisonment is compulsory and the maximum sentence
  admissible is imprisonment for life. In the latter case,
  imprisonment is only optional, and the maximum
F sentence only extends to imprisonment for 10 years.
  [Paras 18, 19] [179-E-H; 180-A-C]
      1.5, Where the act committed is done with the clear
  intention to kill the other person, it will be a murder within
G the meaning of Section 300 IPC and punishable under
  Section 302 IPC but where the act is done on grave and
  sudden provocation which is not sought or voluntarily
  provoked by the offender himself, the offence would fall
  under the exceptions to Section 300 IPC and is
H punishable under Section 304 IPC. Another fine tool
          RAMPAL SINGH v. STATE OF UP                 165

which would help in determining such matters is the A
extent of brutality or cruelty with which such an offence
is committed. An important corollary is the marked
distinction between the provisions of Section 304 Part I
and Part II of IPC. Linguistic distinction between the two
Parts of Section 304 is evident from the very language of B
this Section. There are two apparent distinctions, one in
relation to the punishment while other is founded on the
intention of causing that act, without any intention but
with the knowledge that the act is likely to cause death.
It is neither advisable nor possible to state any straight- c
jacket formula that would be universally applicable to all
cases for such determination. Every case essentially
must be decided on its own merits. The Court has to
 perform the very delicate function of applying the
 provisions of the IPC to the facts of the case with a clear 0
demarcation as to under what category of cases, the
 case at hand falls and accordingly punish the accused.
 [Paras 20, 21) [180-D-H; 181-A]

     1.6. Classification of an offence into either Part of
Section 304 IPC is primarily a matter of fact. This would    E
have to be decided with reference to the nature of the
offence, intention of the offender, weapon used, the place
and nature of the injuries, existence of pre-meditated
mind, the persons participating in the commission of the
crime and to some extent the motive for commission of        F
the crime. The evidence led by the parties with reference
to all these circumstances greatly helps the court in
coming to a final conclusion as to under which penal
provision of the Indian Penal Code, 1860 the accused is
liable to be punished. This can also be decided from         G
another point of view, i.e., by applying the 'principle of
exclusion'. This principle could be applied while taking
recourse to a two-stage process of determination. Firstly,
the Court may record a preliminary finding if the accused
had committed an offence punishable under the                H
     166      SUPREME COURT REPORTS            [2012J 7 S.C.R.

A substantive provisions of Section 302 IPC, that is,
   'culpable homicide amounting to murder'. Then secondly,
   it may proceed to examine if the case fell in any of the
  exceptions detailed in Section 300 IPC. This would
  doubly ensure that the conclusion arrived at by the court
B is correct on facts and sustainable in law. Such a
  determination would better serve the ends of criminal
  justice delivery. This is more so because presumption of
  innocence and right to fair trial are the essence of our
  criminal jurisprudence and are accepted as rights of the
c accused. [Para 23] [181-F-H; 182-A-D]
       State of Andhra Pradesh v. Rayavarapu Punnayya and
  Anr. (1976) 4 SCC 382: 1977 (1) SCR 601; Abdul Waheed
  Khan@ Waheed and Others v. State of A.P. (2002) 7 SCC
  175: 2002 (1) Suppl. SCR 703; Virsa Singh v. State of
0 Punjab AIR 1958 SC 465: 1958 SCR 1495; Rajwant and
  Anr. v. State of Kera/a AIR 1966 SC 1874; Phulia Tudu & Anr.
  v. State of Bihar (now Jharkhand) AIR 2007 SC 3215: 2007
  (9) SCR 997; Vineet Kumar Chauhan v. State of U.P. (2007)
  14   sec  660: 2001 (13) SCR 727; Ajit Singh v. State of
E Punjab (2011) 9 SCC 462: 2011 (12) SCR 375 and Mohinder
  Pal Jolly v. State of Punjab 1979 AIR SC 577: 1979 (2) SCR
    805 - referred to.

        Fatta v. Emperor 1151. C. 476 - referred to.
F
        Penal Law of India by Dr. Hari Singh Gour, Volume 3,
    2009 - referred to.

       2.1. In the instant appeal, both the accused-appellant
G and the deceased 'RKS' were related to each other. Both
  were serving in the Indian Army. They had come on leave
  to their home and it was when the deceased was about
  to return to the place of his posting that the unfortunate
  incident occurred. The whole dispute was with regard to
H construction of ladauri by the deceased to prevent
            RAMPAL SINGH v. STATE OF UP                  167

  garbage from being thrown on his open land. However,          A
  the appellant had broken the ladauri and thrown garbage
  on the vacant land of the deceased. Rather than having
  a pleasant parting from their respective families and
  between themselves, they raised a dispute which led to
  death of one of them. When asked by the deceased as           B
  to why he had done so, the appellant entered into a
  heated exchange of words. They, in fact, grappled with
  each other and the deceased had thrown the appellant
  on the ground. It was with the intervention of DW1 and
  an uncle of the deceased that they were separated and         c
  were required to maintain their cool. However, the
  appellant went to his house and climbed to the roof with
  a rifle in his hands when others, including the deceased,
  were talking to each other. Before shooting at the
  deceased, the appellant had asked DW1 to keep away
                                                                0
  from the deceased. On this, the deceased provoked the
  appellant by asking him to shoot if he had the courage.
  Upon this, the appellant fired one shot which hit the
  deceased in his stomach. This version of the prosecution
  case is completely established by eye-witnesses, medical      E
  evidence and the recovery of the weapon of crime. The
  appellant has, thus, rightly confined his submissions with
. regard to alteration of the offence from that under Section
  302 to the one under Section 304 Part II of IPC. [Para 24]
  [182-E-H; 183-A-C]
                                                                F
      2.2. PW1 is the wife of the deceased 'RKS'. From the
 statement of PW1, it is clear that there was heated
 exchange of words between the deceased and the
 appellant. The deceased had thrown the appellant on the
 ground. They were separated by DW1 and an uncle of             G
 the deceased. She also admits that her husband had told
 the appellant that he could shoot at him if he had the
 courage. It was upon this provocation that the appellant
 fired the shot which hit the deceased in his stomach and
 ultimately resulted in his death. [Para 26] [184-E-F]          H
    168     SUPREME COURT REPORTS            [2012] 7 S.C.R.


A      2.3. Another very important aspect is that it was not
  a case of previous animosity. There is nothing on record
  to show that the relation between the families of the
  deceased 'RKS' and the appellant was not cordial. On the
  contrary, there is evidence that the relations between
B them were cordial, as deposed by PW1. The dispute
  between the parties arose with a specific reference to the
  lad~uH. It is clear that the appallant had not committed the
  crime with any pre-meditation. There was no intention on
  his part to kill. The entire incident happened within a very
c short span of time. The deceased and the appellant had
  had an altercation and the appellant was thrown on the
  ground by the deceased, his own relation. It was in that
  state of anger that the appellant went to his house, took
  out the rifle and from a distance, i.e., from the roof of
  Muneshwar, he shot at the deceased. But before
0
  shooting, he expressed his intention to shoot by warning
  DW1 to keep away. He actually fired in response to the
  challenge that was thrown at him by the deceased. It is
  true that there was knowledge on the part of the appellant
  that if he used the rifle and shot at the deceased, the
E possibility of the deceased being killed could not be ruled
  out. He was a person from the armed forces and was fully
  aware of consequences of use of fire arms. But this is not
  necessarily conclusive of the fact that there was intention
  on the part of the appellant to kill the deceased. The
F intention probably was to merely cause bodily injury.
  However, the Court cannot overlook the fact that the
  appellant had the knowledge that such injury could
  result in death of the deceased. He only fired one shot at
  the deceased and ran away. That shot was aimed at the
G lower part of the body, i.e. the stomach of the deceased.
  As per the statement of PW2 (the doctor who conducted
  the post-mortem), there was a stitched wound obliquely
  placed on the right iliac tossa which shows the part of
  the body the appellant aimed at. This evidence, examined
H in its entirety, shows that without any pre-meditation, the
            RAMPAL SINGH v. STATE OF UP                   169


 appellant committed the offence. The same, however,             A
 was done with the intent to cause a bodily injury which
 could result in death of the deceased. [Paras 27, 28] [184-
 E-H; 185-A-F]
       2.4. The appellant was a person from the armed
  forces and knew the consequences of using a rifle. He          8
  had not fired indiscriminately but took a clear aim at the
  deceased. For modification of conviction from Section
  302 IPC to Part II of Section 304 IPC, not only should there
  be an absence of the intention to cause death but also
  an absence of intention to cause such bodily injury that       C
  in the ordinary course of things is likely to cause death.
  The present case was not a case of knowledge simplicitor
  but that of intention ex facie. The conviction of the
. appellant is accordingly altered from that under Section
  302 IPC to the one under Section 304 Part I IPC. The           D
  appellant is sentenced to ten years rigorous
  imprisonment alongwith a fine of Rs.10,000/-, and in
  default of payment of fine, to undergo simple
  imprisonment for one month. [Paras 30, 31] [186-D-G]
     Vineet Kumar Chauhan v. State of U.P. (2007) 14 SCC         E
 660: 2007 (13) SCR 727 and Aradadi Ramudu @
 Aggiramudu vs. State, through lnspe tor of Police (2012) 5
 sec 134 - referred to.
                    Case Law Reference:                          F
     1977 (1) SCR 601            referred to    Para 12
     2002 (1) Suppl. SCR 703 referred to        Para 13
     1958 SCR 1495               referred to    Para 13
                                                                 G
     AIR 1966 SC 1874            referred to    Para 13
     2007 (9) SCR 997            referred to    Para 14
     2007 (13) SCR 727            referred to   Paras 16, 29
     2011 (12) SCR 375            referred to   Para 18          H
    170       SUPREME COURT REPORTS               (2012] 7 S.C.R.


A         1979 (2) SCR 805          referred to        Para 22
          1151. c. 476              referred to     Para 19
          (2012) 5 sec 134          referred to     Para 30

B       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2114 of 2009.

        From the Judgment & Order dated 15.05.2007 of the High
    Court of Judicature at Allahabad in Crl. Appeal No. 1371 of
    1982.
c
        Manish Bhandari, Omkar Shrivastava, Rameshwar Prasad
    Goyal for the Appellant.

          lrshad Ahmad, AAG, Anuvrat Sharma, Alka Sinha, Kabir
    Dixit for the Respondent.
0
          The Judgment of the Court was delivered by

        SWATANTER KUMAR, J. 1. The present appeal is
  directed against the judgment of a Division Bench of the High
E Court of Judicature at Allahabad dated 15th May, 2007. Vide
  the impugned judgment, the High Court affirmed the judgment
  of conviction and ·order of sentence passed by the VIII
  Additional Sessions Judge, Mainpuri awarding life
  imprisonment to the appellant Rampal Singh for an offence
F punishable under Section 302 of the Indian Penal Code, 1860
  (for short 'the Code').

         2. Necessary facts, eschewing unnecessary details, can
    be stated at the very outset.

G      3. According to the prosecution, one Jograj Singh and
  Chhatar Singh were uterine brothers. Anurag Singh, Rajesh
  Singh and Amar Singh were sons of Jograj Singh. Ram Kumar
  Singh (deceased) was the son of Rajesh Singh. Rampal Singh
  (the appellant) and Ram Saran Singh (DW1) are the grand sons
H of Chhatar Singh. Rampal Singh and the deceased both were
          RAMPAL SINGH v. STATE OF UP                     171
             [SWATANTER KUMAR, J.]
serving in the Army as Lans Naik. Two months prior to the date A
of incident, the deceased had come to his village on leave from
Agra where he was posted. He erected a Ladauri on his vacant
land. After expiry of the term of leave, he went back to join his
duty. Rampal Singh had also come on leave. He had broken
the Ladauri constructed by the deceased and started throwing B
garbage on the vacant land. Five days prior to the date of
occurrence, the deceased had again come to his village on
leave. Upon expiry of the term of his leave on 13th February,
1978, he was returning to Agra on his duty. Meanwhile, Amar
Singh, uncle of the deceased came to his house with another      c
person of village Dhaniapur and they all were chatting. Rampal
Singh, the appellant, also reached there. The deceased
enquired from him about the reason for demolishing his Ladauri
and throwing garbage on his land. Some altercation took place
between them. They even grappled with each other. The 0
deceased threw the appellant on the ground. Ram Saran also
reached the spot and he, along with Amar Singh, separated
the appellant and the deceased. Ram Saran, who was
examined in the Court as DW1 also started talking to the
deceased who was standing alongside a pillar on his verandah. E
The appellant went to his house and climbed on the roof of
 Muneshwar armed with a rifle and from there he asked his
brother Ram Saran to keep away as he wanted to shoot the
deceased. Consequently, the deceased remarked as to
whether the appellant had the courage to shoot him. On this,
the appellant shot at the deceased with his rifle and ran away. F
Ram Saran and others helped the injured and called a village
compounder who filled the injury with dough (Aata). The
deceased then was carried to Bewar and from there he was
brought to Military Hospital in Fatehgarh where he got admitted
at 9.00 p.m. on the same day.                                     G

    4. In the hospital, he was examined by Major Dr. Laxmi
Jhingaran, PW3, who prepared the medical report. She found
the bullet wound in the right side in the abdomen of the
deceased and prepared an injury report (Exhibit Ka-2). Upon      H
     172      SUPREME COURT REPORTS                [2012J 7 S.C.R.

A inquiry, the deceased told her that the appellant had shot at him
  at 2.00 p.m. Resultantly, she prepared a report and sent it to
  the Station Officer, Kotwali Fatehgarh (Exhibit Ka-3) for taking
  necessary action. On receiving this information, Ram Sharwan
  Upadhyaya, PW4, SI of Kotwali Fatehgarh proceeded to the
B Military Hospital. He made inquiry from the deceased who told
  him that the appellant had fired at him with his rifle with the
  intention to kill him. In furtherance to this, PW4 made a report
  (Exhibit Ka-6) to the Station Officer giving result of his inquiry
  and asked him that a case under Section 307 of the Code
c needs to be registered. Upon this basis, the First Information
  Report (FIR) (Exhibit Ka-7) was prepared at 11.55 p.m. on that
  day by Constable Shiv Karan Singh who also registered the
  case as G.D. No.14 (Exhibit Ka-8).

        5. On 13th February, 1978 itself, the deceased had made
D a dying declaration which was recorded by Lieutenant Colonel
   Basu (Exhibit Ka-4) wherein he stated that he had been shot
   at by the appellant with rifle at about 2.00 p.m. on 13th February
   1978, when he was coming out of his house. Subsequently, on
  account of the said injury, the deceased developed infection
E and died on 17th February, 1978 at 7.00 a.m. An information
  was sent vide Exhibit Ka-5 to the Station Officer, Kotwali District
  Fatehgarh by Lieutenant Colonel Officer Commanding N. Basu
  to arrange for post mortem examination of the deceased in the
  district hospital. Upon receipt of the information, the body of the
F deceased was taken from the mortuary of the Military Hospital
  and sent for post mortem. Dr. A.K. Rastogi, PW2, conducted
  the post mortem on the body of the deceased and submitted
  his report vide Exhibit Ka-1. He had found the gun shot wound
  and was of the opinion that the deceased died due to shock
G and toxemia as a result of ante-mortem injuries.
       6. Thereafter, the investigation of the case was entrusted
  to Shri Vedi Singh, Sub-Inspector Police Station Bewar, PW6.
  He recorded the statement of various witnesses, inspected the
H site with the help of other persons and prepared a site plan
           RAMPAL SINGH v. STATE OF UP                       173
              [SWATANTER KUMAR, J.]
(Exhibit Ka-17). After receiving the post mortem report on 1st       A
March, 1978, he further recorded the statement of other
witnesses which, amongst others, included the wife of the
deceased, Smt. Sneh Lata, PW1, and her father, Virendra
Singh, PWS. On 25th July, 1978 the Investigating Officer made
a request to the Military Unit at Delhi to hand over custody of      B
the appellant, who had surrendered there on 3rd May, 1978.
The Investigating Officer also obtained leave certificate of the
appellant Exhibit Ka-19, which shows that the appellant had
proceeded on 60 days leave on from 2nd January 1978 and
reported on duty on 3rd May, 1978. The appellant was handed          c
over to the Investigating Officer, who then produced him before
the Magistrate and submitted the charge sheet (Exhibit Ka-20).
Upon committal, charge under Section 302 of the Code was
framed against the appellant for which he was tried and finally
convicted, as afore-noticed, to suffer imprisonment for life.        D
      7. Learned counsel appearing for the appellant has not
questioned before us the correctness of the concurrent findings
of the courts holding him guilty of the said criminal offence. The
only contention raised before us is that even as per the -case
of the prosecution, taken at its best, the only offence that the     E
appellant could be said to have committed would be that under
Part II of Section 304 of the Code and not under Section 302
of the Code. To substantiate this argument, learned sounsel
appearing for the appellant has taken us through the statements
of PW1, PW2, PW3 and other circumstances besides arguing             F
that the gun fire by the appellant was the result of a provocation
which transpired suddenly at the spot and there was no pre-
meditation on the part of the appellant to commit murder of his
brother, the deceased.
                                                                     G
     8. In response, the learned counsel appearing for the State
relied upon the findings returned by the High Court holding that
once both the appellant and the deceased were separated,
there was no reason for the appellant to climb on the roof and
shoot the deceased. It clearly shows the intent to commit            H
murder of the deceased and it was not a result of any sudden
    174        SUPREME COURT REPORTS                  [2012] 7 S.C.R.

A provocation covered under Section 304 of the Code. According
  to learned counsel, the concurrent judgments do not call for any
  interference.

        9. Having completed narration of the facts and noticed the
  precise contentions raised before us in the present appeal, we
8
  may now refer to the law on the subject. We are of the opinion
  that elucidative discussion on the legal principles governing the
  distinction between Sections 300, 302 of the Code on the one
  hand and Section 304, Part I and Part II of the Code on the
C other, would be necessary to precisely answer the questions
  raised.

          10. Sections 299 and 300 of the Code deal with the
    definition of 'culpable homicide' and 'murder', respectively. In
    terms of Section 299, 'culpable homicide' is described as an
D   act of causing death (i) with the intention of causing death or
    (ii) with the intention of causing such bodily injury as is likely to
    cause death, or (iii) with the knowledge that such an act is likely
    to cause death. As is clear from a reading of this provision, the
    former part of it, emphasises on the expression 'intention' while
E   the latter upon 'knowledge'. Both these are positive mental
    attitudes, however, of different degrees. The mental element in
    'culpable homicide', that is, the mental attitude towards the
    consequences of conduct is one of intention and knowledge.
    Once an offence is caused in any of the three stated manners
F   noted-above, it would be 'culpable homicide'. Section 300,
    however, deals with 'murder' although there is no clear definition
    of 'murder' in Section 300 of the Code. As has been repeatedly
    held by this Court, 'culpable homicide' is the genus and 'murder'
    is its species and all 'murders' are 'culpable homicides' but all
G   'culpable homicides' are not 'murders'.

       11. Another classification that emerges from this
  discussion is 'culpable homicide not amounting to murder',
  punishable under Section 304 of the Code. There is again a
  very fine line of distinction between the cases falling under
H Section 304, Part I and Part II, which we shall shortly discuss.
           RAMPAL SINGH v. STATE OF UP                          175
              [SWATANTER KUMAR, J.]
      12. In the case of State of Andhra Pradesh v. Rayavarapu          A
Punnayya and Anr. (1976) 4 SCC 382, this Court while
clarifying the distinction between these two terms and their
consequences, held as under: -

     "12. In the scheme of the penal Code, 'culpable homicide'
                                                                        8
     is genus and 'murder' its species. All 'murder' is 'culpable
     homicide' but not vice-versa. Speaking generally, 'culpable
     homicide not amounting to murder'. For the purpose of
     fixing punishment, proportionate to the gravity of this
     generic offence, the Code practically recognises three             C
     degrees of culpable homicide. The first is, what may be
     called 'culpable homicide of the first degree'. This is the
     greatest form of culpable homicide, which is defined in
     Section 300 as 'murder'. The second may be termed as
     'culpable homicide of the second degree'. This is
     punishable under the first part of Section 304. Then, there        D
     is 'culpable homicide of the third degree'. This is the lowest
     type of culpable homicide and the punishment provided for
     it is, also, the lowest among the punishments provided for
     the three grades. Culpable homicide of this degree is
     punishable under the second part of Section 304."                  E

      13. Section 300 of the Code proceeds with reference to
Section 299 of the Code. 'Culpable homicide' may or may not
amount to 'murder', in terms of Section 300 of the Code. When
a 'culpable homicide is murder', the punitive consequences shall
                                                                        F
follow in terms of Section 302 of the Code while in other cases,
that is, where an offence is 'culpable homicide not amounting
to murder', punishment would be dealt with under Section 304
of the Code. Various judgments of this Court have dealt with
the cases which fall in various classes of firstly, secondly, thirdly   G
and fourthly, respectively, stated under Section 300 of the Code.
It would not be necessary for us to deal with that aspect of the
case in any further detail. Of course, the principles that have
been stated in various judgments like Abdul Waheed Khan @
Waheed and Others v. State of A.P. [(2002) 7 sec 175], Virsa
Singh v. State of Punjab [AIR 1958 SC 465] and Rajwant and              H
    176       SUPREME COURT REPORTS                [2012] 7 S.C.R.

A Anr. v. State of Kera/a [AIR 1966 SC 1874] are the broad
  guidelines and not cast-iron imperatives. These are the cases
  which would provide precepts for the courts to exercise their
  judicial discretion while considering the cases to determine as
  to which particular clause of Section 300 of the Code they fall
B in.
       14. This Court has time and again deliberated upon the
  crucial question of distinction between Sections 299 and 300
  of the Code, i.e., 'culpable homicide' and 'murder' respectively.
  In the case of Phulia Tudu & Anr. v. State of Bihar (now
C Jharkhand) [AIR 2007 SC 3215), the Court noticed that
  confusion is caused if courts, losing sight of the true scope and
  meaning of the terms used by the legislature in these sections,
  allow themselves to be drawn into minute abstractions. The
  safest way of approach to the interpretation and application of
D these provisions seems to be to keep in focus the keywords
  used in the various clauses of these sections. The Court
  provided the following comparative table to help in appreciating
  the points of discussion between these two offences :

E         "Section 299               Section 300

    A person commits culpable     Subject to certain exceptions
    homicide if the act by which culpable homicide is murder if
    the death is caused is done - the act by which the death is
                                  caused is done -
F
                              INTENTION
       (a) with the intention of    (1) with the intention of causing
           causing death; or           death; or

G      (b) with the intention of    (2) with the intention of causing
           causing such bodily         such bodily injury as the
           injury as is likely to      offender knows to be likely
           cause death; or             to cause the death of the
                                       person to whom the harm is
H                                      caused; or
           RAMPAL SINGH v. STATE OF UP                         177
              [SWATANTER KUMAR, J.]
                                 (3) with the intention of causing     A
                                    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                 B
                           KNOWLEDGE
   (c) with the knowledge that (4) with the knowledge that
       the act is likely to        the act is so imminently
       cause death.                dangerous that it must in           C
                                   all probability cause
                                   death or such bodily injury
                                   as is likely to cause
                                   death, and without any
                                   excuse or incurring the
                                                                       0
                                   risk of causing death
                                   or such injury as is
                                   mentioned above."
       15. Section 300 of the Code states what kind of acts, when
done with the intention of causing death or bodily injury as the       E
offender knows to be likely to cause death or causing bodily
injury to any person, which is sufficient in the ordinary course
of nature to cause death or the person causing injury knows that
it is so imminently dangerous that it must in all probability cause
death, would amount to 'murder'. It is also 'murder' when such
                                                                       F
an act is committed, without any excuse for incurring the risk
of causing death or such bodily injury. The Section also
prescribes the exceptions to 'culpable homicide amounting to
murder'. The explanations spell 01:1t the elements which need
to be satisfied for application of such exceptions, like an act
done in the heat of passion and without pre-mediation. Where           G
the offender whilst being deprived of the power of self-control
by grave and sudden provocation causes the death of the
person who has caused the provocation or causes the death
of any other person by mistake or accident, provided such
provocation was not at the behest of the offender himself,             H
    178        SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A 'culpable homicide would not amount to murder'. This exception
  itself has three limitations. All these are questions of facts and
  would have to be determined in the facts and circumstances
  of a given case.

         16. This Court in the case of Vineet Kumar Chauhan v.
8
    State of UP. (2007) 14 SCC 660 noticed that academic
    distinction between 'murder' and 'culpable homicide not
    amounting to murder' had vividly been brought out by this Court
    in State of A.P. v. Rayavarapu Punnayya ((1976) 4 SCC 382],
    where it was observed as under:
c
          "..... that the safest way of approach to the interpretation
           and application of Section 299 and 300 of the Code is to
          keep in focus the key words used in various clauses of the
          said sections. Minutely comparing each of the clauses of
D          section 299 and 300 of the Code and the drawing support
          from the decisions of the court in Virsa Singh v. State of
          Punjab and Rajwani Singh v. State of Kerala, speaking for
          the court, Justice RS Sarkaria, neatly brought out the points
          of distinction between the two offences, which have been
E         time and again reiterated. Having done so, the court said
          that wherever the Court is confronted with the question
          whether the offence is murder or culpable homicide not
          amounting to murder, on the facts of a case, it would be
          convenient for it to approach the problem in three stages.
          The question to be considered at the first stage would be
F
          that the accused has done an act by doing which he has
          caused the death of another. Two, if such causal connection
          between the act of the accused and the death, leads to
          the second stage for considering whether that act of the
          accused amounts to culpable homicide as defined in
G         section 299. If the answer to this question is in the negative,
          the offence would be culpable homicide not amounting to
          murder, punishable under the First or Second part of
          Section 304, depending respectively, on whether this
          second or the third clause of Section 299 is applicable. If
H         this question is found in the positive, but the cases come
           RAMPAL SINGH v. STATE OF UP                          179
              [SWATANTER KUMAR, J.]
     within any of the exceptions enumerated in Section 300,           A
     the offence would still be culpable homicide not amounting
     to murder, punishable under the first part of Section 304
     of the Code. It was, however, clarified that these were only
     broad guidelines to facilitate the task of the court and not
     cast-iron imperative."                                            B

     17. Having noticed the distinction between 'murder' and
'culpable homicide not amounting to murder', now we are
required to explain the distinction between the application of
Section 302 of the Code on the one hand and Section 304 of
the Code on the other.                                                 C

      18. In Ajit Singh v. State of Punjab [(2011) 9 SCC 462],
the Court held that in order to hold whether an offence would
fall under Section 302 or Section 304 Part I of the Code, the
courts have to be extremely cautious in examining whether the          D
same falls under Section 300 of the Code which states whether
a culpable homicide is murder, or would it fall under its five
exceptions which lay down when culpable homicide is not
murder. In other words, Section 300 states both, what is murder
and what is not. First finds place in Section 300 in its four stated   E
categories, while the second finds detailed mention in the stated
five exceptions to Section 300. The legislature in its wisdom,
thus, covered the entire gamut of culpable homicide that
'amounting to murder' as well as that 'not amounting to murder'
in a composite manner in Section 300 of the Code. Sections             F
302 and 304 of the Code are primarily the punitive provisions.
They declare what punishment a person would be liable to be
awarded, if he commits either of the offences.

      19. An analysis of these two Sections must be done having
regard to what is common to the offences and what is special           G
to each one of them. The offence of culpable homicide is thus
an offence which may or may not be murder. If it is murder, then
it is culpable homicide amounting to murder, for which
punishment is prescribed in Section 302 of the Code. Section
304 deals with cases not covered by Section 302 and it divides         H
    180      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A the offence into two distinct classes, that is (a) those in which
  the death is intentionally caused; and (b) those in which the
  death is caused unintentionally but knowingly. In the former
  case the sentence of imprisonment is compulsory and the
  maximum sentence admissible is imprisonment for life. In the
B latter case, imprisonment is only optional, and the maximum
  sentence only extends to imprisonment for 10 years. The first
  clause of this section includes only those cases in which
  offence is really 'murder', but mitigated by the presence of
  circumstances recognized in the exceptions to section 300 of
C the Code, the second clause deals only with the cases in which
  the accused has no intention of injuring anyone in particular. In
  this regard, we may also refer to the judgment of this Court in
  the case of Fatta v. Emperor, 1151. C. 476 (Refer: Penal Law
  of India by Dr. Hari Singh Gour, Volume 3, 2009)

D      20. Thus, where the act committed is done with the clear
  intention to kill the other person, it will be a murder within the
  meaning of Section 300 of the Code and punishable under
  Section 302 of the Code but where the act is done on grave
  and sudden provocation which is not sought or voluntarily
E provoked by the offender himself, the offence would fall under
  the exceptions to Section 300 of the Code and is punishable
  under Section 304 of the Code. Another fine tool which would
  help in determining such matters is the extent of brutality or
  cruelty with which such an offence is committed.
F
        21. An important corollary to this discussion is the marked
  distinction between the provisions of Section 304 Part I and
  Part II of the Code. Linguistic distinction between the two Parts
  of Section 304 is evident from the very language of this Section.
  There are two apparent distinctions, one in relation to the
G punishment while other is founded on the intention of causing
  that act, without any intention but with the knowledge that the
  act is likely to cause death. It is neither advisable nor possible
  to state any straight-jacket formula that would be universally
  applicable to all cases for such determination. Every case
H
           RAMPAL SINGH v. STATE OF UP                       181
              [SWATANTER KUMAR, J.]
essentially must be decided on its own merits. The Court has         A
to perform the very delicate function of applying the provisions
of the Code to the facts of the case with a clear demarcation
as to under what category of cases, the case at hand falls and
accordingly punish the accused.
                                                                     8
     22. A Bench of this Court in the case of MohinderPal Jolly
v. State of Punjab (1979 AIR SC 577], stating this distinction
with some clarity, held as under:

    "11. A question arises whether the appellant was guilty
    under Part I of Section 304 or Part II. If the accused           C
    commits an act while exceeding the right of private
    defence by which the death is caused either with the
    intention of causing death or with the intention of causing
    such bodily injury as was likely to cause death then he
    would be guilty under Part I. On the other hand if before        D
    the application of any of the Exceptions of Section 300 it
    is found that he was guilty of murder within the meaning of
    clause "4thly'', then no question of such intention arises and
    only the knowledge is to be fastened on him that he did
    indulge in an act with the knowledge that it was likely to       E
    cause death but without any intention to cause it or without
    any intention to cause such bodily injuries as was likely to
    cause death. There does not seem to be any escape from
    the position, therefore, that the appellant could be convicted
    only under Part II of Section 304 and not Part I."               F

      23. As we have already discussed, classification of an
offence into either Part of Section 304 is primarily a matter of
fact. This would have to be decided with reference to the nature
of the offence, intention of the offender, weapon used, the place
and nature of the injuries, existence of pre-meditated mind, the     G
persons participating in the commission of the crime and to
some extent the motive for commission of the crime. The
evidence led by the parties with reference to all these
circumstances greatly helps the court i'n coming to a final
conclusion as to under which penal provision of the Code the         H
    182       SUPREME COURT REPORTS                  [2012] 7 S.C.R.

A accused is liable to be punished. This can also be decided from
  another point of view, i.e., by applying the 'principle of exclusion'.
  This principle could be applied while taking recourse to a two-
  stage process of determination. Firstly, the Court may record
  a preliminary finding if the accused had committed an offence
B punishable under the substantive provisions of Section 302 of
  the Code, that is, 'culpable homicide amounting to murder'.
  Then secondly, it may proceed to examine if the case fell in any
  of the exceptions detailed in Section 300 of the Code. This
  would doubly ensure that the conclusion arrived at by the court
c is correct on facts and sustainable in law. We are stating such
  a proposition to indicate that such a determination would better
  serve the ends of criminal justice delivery. This is more so
  because presumption of innocence and right to fair trial are the
  essence of our criminal jurisprudence and are accepted as
  rights of the accused.
0
       24. Having examined the principles of law applicable to
  the cases like the one in hand, now we would turn to the present
  case. We have already noticed that both the accused and the
  deceased were related to each other. Both were serving in the
E Indian Army. They had come on leave to their home and it was
  when the deceased was about to return to the place of his
  posting that the unfortunate incident occurred. The whole
  dispute was with regard to construction of /adauri by the
  deceased to prevent garbage from being thrown on his open
F land. However, the appellant had broken the /adauri and thrown
  garbage on the vacant land of the deceased. Rather than having
  a pleasant parting from their respective families and between
  themselves, they raised a dispute which led to death of one of
  them. When asked by the deceased as to why he had done
G so, the appellant entered into a heated exchange of words.
  They, in fact, grappled with each other and the deceased had
  thrown the appellant on the ground. It was with the intervention
  of DW1, Ram Saran and Amar Singh that they were separated
  and were required to maintain their cool. However, the appellant
H went to his house and climbed to the roof of Muneshwar with a
           RAMPAL SINGH v. STATE OF UP                       183
              [SWATANTER KUMAR, J.]
rifle in his hands when others, including the deceased, were        A
talking to each other. Before shooting at the deceased, the
appellant had asked his brother to keep away from him. On this,
the deceased provoked the appellant by asking him to shoot if
he had the courage. Upon this, the appellant fired one shot
which hit the deceased in his stomach. This version of the          B
prosecution case is completely established by eye-witnesses,
medical evidence and the recovery of the weapon of crime. The
learned counsel appearing for the appellant has, thus, rightly
confined his submissions with regard to alteration of the offence
from that under Section 302 to the one under Section 304 Part       c
II of the Code.

     25. At this stage, it would be relevant to refer to the
statement of one of the most material witnesses which will aid
the Court in arriving at a definite conclusion. Smt. Snehlata,
who was examined as PW1, is the wife of the deceased. After         D
giving the introductory facts leading to the incident, she stated
as under:
    "In the meantime, Amar Singh, my uncle-in-law (Chachiya
    Sasur) came there and one man from Dhaniyapur also
                                                                    E
    came there. My husband started talking with them and by
    that time the accused who is present in the court, came
    there. My husband told him that why's you have started
    using as your Goora in our land why you have demolished
    our ladauri which was constructed by us. On this issue,
    there was heated discussion in between my husband and           F
    Rampal Singh and my husband has thrown the accused
    on the ground. By that time, his son Ramsaran came there
    and thereafter he and Amar Singh have separated both
    of them. Ramsaran has made the accused understand and
    he started talking with him. My husband got down from the       G
    thatch and stood up by the help of pillar and he started
    talking with these people and in the meantime, Rampal
    had left for his house. Then one of people saw that the
    accused present in the court, has climbed on the roof of
    Munishwar and stood towards wall which is situated              H
    184        SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A         towards the southern side of my house and he further told
          that our land which is vacant land, in the Munder of the wall
          situated east side of the same, where he was standing,
          he told to his brother go aside, I will fire bullet. On this, his
          brother said that are you going mad. On this, my husband
B         told that have you courage to shoot at me. On this the
          accused said that see his courage and saying this, the
          accused fired bullet which hit my husband. On the said
          bullet hit, my husband fell down and then the accused
          climbed down from the stairs and fled away. Thereafter,
          Ramsaran etc. have helped my husband and they called
c
          the compounder from village. The compounder had made
          wet Aata and sealed/filled the wound of my husband and
          he advised to immediately take him to some big hospital
          and thereafter, we took my husband to Bewar. My husband
          said the report will be lodged on some other day, first you
D
          take me to the Army Hospital, Fatehgarh. On the same
          very day at about quarter to nine O'clock, we had taken
          him to the Fatehgarh Hospital where after four-five days,
          he died."

E       26. From the above statement of this witness, it is clear
  that there was heated exchange of words between the
  deceased and the appellant. The deceased had thrown the
  appellant on the ground. They were separated by Amar Singh
  and Ram Saran. She also admits that her husband had told the
F appellant that he could shoot at him if he had the courage. It
  was upon this provocation that the appellant fired the shot which
  hit the deceased in his stomach and ultimately resulted in his
  death.
       27. Another very important aspect is that it is not a case
G of previous animosity. There is nothing on record to show that
  the relation between the families of the deceased and the
  appellant was not cordial. On the contrary, there is evidence
  that the relations between them were cordial, as deposed by
  PW1. The dispute between the parties arose with a specific
H reference to the ladauri. It is clear that the appellant had not
           RAMPAL SINGH v. STATE OF UP                        185
              [SWATANTER KUMAR, J.]
committed the crime with any pre-meditation. There was no            A
intention on his part to kill. The entire incident happened within
a very short span of time. The deceased and the appellant had
had an altercation and the appellant was thrown on the ground
by the deceased, his own relation. It was in that state of anger
that the appellant went to his house, took out the rifle and from    B
a distance, i.e., from the roof of Muneshwar, he shot at the
deceased. But before shooting, he expressed his intention to
shoot by warning his brother to keep away. He actually fired in
response to the challenge that was thrown at him by the
deceased. It is true that there was knowledge on the part of the     c
appellant that if he used the rifle and shot at the deceased, the
possibility of the deceased being killed could not be ruled out.
He was a person from the armed forces and was fully aware
of consequences of use of fire arms. But this is not necessarily
conclusive of the fact that there was intention on the part of the   D
appellant to kill his brother, the deceased. The intention
probably was to merely cause bodily injury. However, the Court
cannot overlook the fact that the appellant had the knowledge
that such injury could result in death of the deceased. He only
fired one shot at the deceased and ran away. That shot was
                                                                     E
aimed at the lower part of the body, i.e. the stomach of the
deceased. As per the statement of PW2, Dr. A.K. Rastogi,
there was a stitched wound obliquely placed on the right iliac
tossa which shows the part of the body the appellant aimed at.

     28. This evidence, examined in its entirety, shows that         F
without any pre-meditation, the appellant committed the
offence. The same, however, was done with the intent to cause
a bodily injury which could result in death of the deceased.

     29. In the case of Vineet Kumar Chauhan v. State of Uttar       G
Pradesh (supra), the Court noticed that concededly there was
no enmity between the parties and there was no allegation of
the prosecution that before the otcurrence, the appellant had
pre-meditated the crime of murder. Faced with the hostile
attitude from the family of the deceased over the cable
connection, a sudden quarrel took place between the appellant        H
    186       SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A and the son of the deceased. On account of heat of passion,
  the appellant went home, took out his father's revolver and
  started firing indiscriminately and unfortunately one of the bullets
  hit the deceased on the chin. Appreciating these circumstances,
  the Court concluded :
B
          "Thus, in our opinion, the offence committed by the
          appellant was only culpable homicide not amounting to
          murder. Under these circumstances, we are inclined to
          bring down the offence from first degree murder to
          culpable homicide not amounting to murder, punishable
c         under the second part of Section 304 IPC."

        30. The above case is quite close on facts and law to the
  case in hand, except to the extent that the appellant was a
  person from the armed forces and knew the consequences of
D using a rifle. He had not fired indiscriminately but took a clear
  aim at his brother. Thus, the present is not a case of knowledge
  simplicitor but that of intention ex facie. In the case of Aradadi
  Ramudu @ Aggiramudu vs. State, through Inspector of Police
  [(2012) 5 SCC 134], this Court also took the view that for
E modification of sentence from Section 302 of the Code to Part
  II of Section 304 of the Code, not only should there be an
  absence of the intention to cause death but also an absence
  of intention to cause such bodily injury that in the ordinary course
  of things is likely to cause death.
F       31. In view of the above discussion, we partially accept this
  appeal and alter the offence that the appellant has been held
  guilty of, from that under Section 302 of the Code to the one
  under Section 304 Part I of the Code. Having held that the
  accused is guilty of the offence under Section 304 Part I, we
G award a sentence of ten years rigorous imprisonment and a
  fine of Rs.10,000/-, in default to undergo simple imprisonment
  for one month. The judgment under appeal is modified in the
  above terms. The appeal is disposed of accordingly.

H B.B.B.                                       Appeal disposed of.