JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.Leave granted.

2.Challenge in this appeal is to the order passed by a Division Bench of the Jharkhand High Court upholding conviction of the appellants for offence punishable under Section 302 IPC read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC').

3.Background facts according to the prosecution in a nutshell are as follows:Bitia Soren (PW-8) is the sister-in-law of Biti Murmu (hereinafter referred to as 'the deceased'). The first appellant's son fell ill and the appellants/accused were under the impression that since the deceased, Biti Murmu, is a witch, she has caused a spell on the son of the accused and, therefore, they were nurturing a grievance against the deceased. On the date of incident, when the villagers had gone to the cremation ground to cremate the dead body of a villager, Jhora Hansda, appellants Phulia Tudu and Malgo Soren, chased the deceased, Biti Murmu, and she took asylum in the house of Bitia Soren (PW-8). The appellants entered the house and caught hold of the deceased, Biti Murmu. Bitia Soren (PW-8) at that time, was engaged in dehusking paddy. The first accused caught the hands of the deceased and pulled her out and the deceased fell down. The first accused, Phulia Tudu, assaulted her with lathi and when PW-8 attempted to intervene, she was threatened with her life. The other accused was present there at that time and after the occurrence, they ran away from the place. After the return of the villagers including the husband of PW-8, information was passed on to them. Thereafter, fardbeyan, Ext.3, was given by PW-8 at Raneshwar police station at 2.30 p.m., which was registered as a crime and Ext.5 is the first information report and investigation was taken up by Bijendra Narain Singh (PW-9). PW-9, on taking up the investigation, reached the scene of occurrence, prepared the inquest report, Ext.5, and sent the dead body to the hospital with a requisition to the Doctor to conduct autopsy. On completion of investigation, charge-sheet was filed. As accused persons pleaded innocence trial was held.

4.The trial Court believed the evidence of PW-8 and recorded conviction under Section 302 read with Section 34 IPC and sentenced each to undergo imprisonment for life. However, the accused Kisto Kisku was acquitted.

5.Matter was carried in appeal before the High Court. Before the High Court it was submitted that only accusation was that A2 held the hands of the deceased while A1 inflicted a lathi blow. It is submitted that lathi blow attributed to A1 could not have caused fatal injuries. In any event, only one blow was given and, therefore, Section 302 has no application.

6.Learned counsel for the State on the other hand supported the judgment of the High Court, which as noted above, dismissed the appeal filed before it.

7.The crucial question is as to which was the appropriate provision to be applied. 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.

8.The academic distinction between 'murder' and 'culpable