Harjit Singh Bedi, J. - (1.) I concur with the judgment of my learned sister to the extent that the Appellants conviction ought to be affirmed. I am, however, unable to accept that the case could be covered by Exception 4 to Section 300 in the facts which have been brought out in the course of the evidence. Exception 4 reads thus:Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. It will be seen that this Exception presupposes several conditions for its applicability; they being (i) that the incident happened without premeditation, (ii) in a sudden fight, (iii) in the heat of passion, (iv) upon a sudden quarrel and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. I am of the opinion that the Appellant herein has taken undue advantage and has acted in a cruel and unusual manner which excludes the applicability of Exception 4. The facts show that there had been a sudden quarrel between the Appellant and the deceased (a woman and therefore the weaker sex) and after she had been immobilized he had caused as many as nine injuries on her person. The injuries are re-produced herein below: (i) 6 cm long stitched wound bearing 13 black cotton stitches on front left side of bearing part of neck extending from the middle of left lower jaw up to middle of neck, muscle deep and obliquely placed. (ii) 3 cm long stitched wound bearing 7 black cotton stitches placed obliquely and 2 cm below injury No. 1 on its lateral half and muscle deep. (iii) 7 cm long stitched wound bearing 9 black cotton stitches on front and right side of neck, 4 cm below middle of lower jaw, obliquely placed and muscle deep. (iv) 6 cm stitched wound bearing 12 black cotton stitches placed horizontally on front of neck in the middle and lateral side extending across the middle and 1 cm to the right on dissection, underlying subcutaneous tissue and muscle are clear cut and gapping was present. Underlying laryngopharynx was repaired with the nylon stitches. On removal of stitches the wound was 5 cm x 2 cm surrounding muscle on the lateral side were also cut. (v) 3 cm long curved stitched wound on left side and 2 cm below injury No. 4 wearing 4 black cotton stitches and was skin deep. (vi) Brownish scabbed linear superficial abrasion 6 cm long on left side of neck and 1 cm below injury No. 5. (vii) Brownish scabbed linear curved abrasion 6 cm long and 2 cm below injury No. 6. (viii) Incised wound 3 cm x 2 cm in the lower part of the neck in the mid line. 6 cm above upper end of sternum underlying muscle cut and there is hole 1.5 cm x 1.5 cm in the interior wall of trachea (Tracheotomy wound). (ix) 5 cm long stitched wound on the lateral half of right eyebrow wearing 5 stitches on dissection margins were clear cut and it was bone deep. We see that all the injuries are on the face or neck of the deceased and that injury Nos. (i), (iii), (iv), (viii) and (ix) were very extensive leading to her death. To my mind, the case clearly falls within the ambit of Section 302 of the Indian Penal Code and the Appellants conviction under this provision calls for no interference. The Criminal Appeal is dismissed.
(2.) The Indian Penal Code was enacted in the year 1860 under which the offences within the territory of India have been tried ever since it was enacted dealing with countless number of cases leading either to acquittal or conviction. Yet, the task of the decision making authorities/courts whether an offence of culpable homicide is murder or culpable homicide does not amount to murder in the prevailing facts and circumstances of the case is a perennial question with which the courts are often confronted. We are well aware in view of Section 300 of the I.P.C. that all murders are culpable homicide but all culpable homicide does not amount to murder and this leads the courts quite frequently to consider as to whether an accused charged of an offence of culpable homicide is guilty of murder or he has committed culpable homicide not amounting to murder. When the evidence discloses a clear case of murder or makes out a finding of culpable homicide not amounting to murder, the task of the courts to record conviction or acquittal is generally an easy one. But this task surely becomes an undaunted one when the accused commits culpable homicide/murder but the circumstances disclose many a times that it is done without premeditation or pre-planning, may be to cause grievous hurt, yet it is so grave in nature that it results into death and the role of the factum causing death without premeditation becomes a secondary consideration due to which the decision of the courts in such cases often hinges on discretion while considering whether the case would fall under Section 302 I.P.C. or it would be under 304 Part I or even Part II, I.P.C.
(3.) On a plain reading of Sections 299, 300, 302 and 304 of the Indian Penal Code, it appears that a given case can be conveniently classified into two categories viz. culpable homicide amounting to murder which is 302 I.P.C. or culpable homicide not amounting to murder which is 304 I.P.C. But when it comes to the actual application of these two sections in a given case, the courts are often confronted with a dilemma as to whether a case would fall under Section 302 I.P.C. or would fall under Section 304 I.P.C. Many a times, this gives rise to conflicting decisions of one court or the other giving rise to the popular perception among litigants and members of the Bar that a particular court is an acquitting court or is a convicting one. This confusion or dilemma often emerges in a case when the question for consideration is whether a given case would fall under Section 302 I.P.C. or 304 I.P.C. when it is difficult to decipher from the evidence whether the intention was to cause merely bodily injury which would not make out an offence of murder or there was clear intention to kill the victim making out a clear case of an offence of murder.;