The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr 1976 (4) SCC 382 notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that:
"12. In the scheme of the Penal Code, "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 this generic offence, the Code practically recognises three 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 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..
13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh5. This court observed that:
"29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant
matters - plucking of a fruit, straying of cattle, quarrel of children, utterance
of a rude word or even an objectionable glance, may lead to altercations and
group clashes culminating in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such cases. There may be no
intention. There may be no premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may be cases of murder
where the accused attempts to avoid the penalty for murder by attempting to
put forth a case that there was no intention to cause death. It is for the courts
to ensure that the cases of murder punishable under Section 302, are not
converted into offences punishable under Section 304 Part I/II, or cases of
culpable homicide not amounting to murder are treated as murder punishable
under Section 302. The intention to cause death can be gathered generally
from a combination of a few or several of the following, among other,
circumstances; (i) nature of the weapon used; (ii) whether the weapon was
carried by the accused or was picked up from the spot; (iii) whether the blow
is aimed at a vital part of the body;(iv) the amount of force employed in
causing injury; (v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight; (vi) whether the incident occurs by chance or
whether there was any premeditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger;(viii) whether there was any
grave and sudden provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a single blow or several blows. The
above list of circumstances is, of course, not exhaustive and there may be
several other special circumstances with reference to individual cases which
may throw light on the question of intention.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 856 of 2021
MOHD. RAFIQ @ KALLU Vs THE STATE OF MADHYA PRADESH
Author: S. RAVINDRA BHAT, J.
Dated: September 15, 2021.
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