ARIJIT PASAYAT, J. - (1.) LEAVE granted.
(2.) CHALLENGE in this appeal is to the judgment of the Division Bench of the Madras High Court, Madurai Bench, upholding the conviction of the appellant for offence punishable under Sections 302 of the Indian Penal Code, 1860 (in short the 'IPC'). The co-accused was tried for offence punishable for offence punishable under Section 302 read with Section 114 and 506(2) IPC and was found not guilty and was acquitted of the charges. Prosecution version, in a nutshell, is as follows: The incident in question took place at around 2 p.m. on 9.12.2001, P.W.1 and her husband were working in the Postal Department and they are the owners of land in their native place, Kanjeerimalaipudur Kattukottagai. Thiruppathy (hereinafter referred to as the 'deceased') was employed with them as a farm servant. The land of the accused-appellant is situated adjacent to the land of P.W. 1. They had a dispute regarding water pipe line. Two days before the date of incident i.e. 9.12.2001 when the deceased was irrigating, the appellant closed the water pipe line. The deceased asked him why he had closed the water pipe line, the appellant abused him and assaulted him with a stick. The deceased filed a complaint in the Uppiliyapuram Police Station. When P.W. 1 and her husband came to know about the same on 11.12.2001, they wanted to convene a Panchayat and, therefore, P.W.1, her husband and others gathered in front of the house of P.W. 1 at about 2.00 p.m. At that time, the appellant and the second accused came in a TVS 50 vehicle and both of them pulled the deceased Thiruppathy and assaulted him with hands. They intervened and prevented them from attacking the deceased. When the deceased, Thiruppathy went to the house of Dhandapani, the appellant and the second accused followed the deceased. The appellant attacked the deceased, Thiruppathy with a wooden log on his right shoulder, right forearm and on his head and the deceased fell down and fainted. The second accused took out billhook out of his shirt and threatened the witnesses with dire consequences. Then the second accused gave billhook to the appellant and both of them ran away from the place of occurrence. Immediately thereafter, P.W. 1 and her husband, Ramalingam went to Uppiliyapuram Police Station and gave a complaint and on the basis of which F.I.R. was lodged and a case was registered as Crime No. 658/2001 under Section 302 I.P.C. and investigation started. P.W.12, conducted the Post-Mortem on 12.12.2001 and opined that the deceased appeared to have died of shock and haemorrhage due to injuries sustained on head. Investigation was undertaken and on completion thereof the chargesheet was filed. The case was committed to the Court of Sessions. Charges were framed. Since the accused persons pleaded innocence, trial was held. In order to establish accusations, 14 witnesses were examined. In order to prove its plea of innocence, three witnesses were examined. The Trial Court found that accusations were not established against the second accused and he was acquitted. Before the High Court the primary stand was that the so called eye witnesses could not have seen the occurrence as claimed. This according to PW.4 she actually did not see the occurrence and also not did not see the accused persons assaulting but she came and found that the deceased was lying severely injured. It was also submitted that the medical evidence was at variance with the so called ocular evidence. Large number of criminal and civil cases were pending between the parties and the present case was the outcome of enmity. In any event, the occurrence took place in course of altercation and Section 302 IPC has no application. The deceased was working under PW1 and her husband. On the earlier occasion when the deceased went over to the field and questioned the conduct of the accused, altercation took place and complaint was given against him. Panchayat was convened. It was also submitted that the injuries were on non-vital parts and, therefore, it cannot be said that the accused had intention to cause death. The High Court did not accept the stand that the occurrence took place in the course of altercation and other pleas. The stand taken before the High Court was reiterated in the present appeal. Learned counsel for the respondent-State supported the judgment.
(3.) THE basic question is whether Section 302 IPC has application. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest 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 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.;