ARIJIT PASAYAT, J.

( 1 ) LEAVE granted.

( 2 ) CHALLENGE in this appeal is to the judgment of the division Bench of the Madras High Court upholding conviction f the appellant under Section 302 of the Indian Penal Code, 1860 (in short the 'ipc'), as was awarded by learned Sessions judge, Kamarajar, District at Srivilliputtur in Sessions case no. 99 of 1994.

( 3 ) THE prosecution case in a nutshell is as follows:-At about 8. 30 p. m. on 4. 4. 1993 the accused indiscriminately cut the victim-Alagarsamy (hereinafter referred to as 'deceased') resulting in his instantaneous death. PWs 1 and 2 were examined as eye witnesses to the occurrence. Gurvammal is the elder sister of PW 1 and deceased alagarsamy is her husband. The accused was known to him. Guruvammla died leaving behind two children - a girl and a boy. This made his father (PW 2) to bring Alagarsamy to his house. At about 8. 30 p. m. on the occurrence day, he was standing opposite to the house of Ramaiah with his son, after returning from the house of Visalam. PW 2 was also coming in the street from the shop and he asked as to whether he had gone to Visalam's house and come back. Alagarsamy alighted from the bus and PW 2 also asked him as to whether he had gone to Visalam's house. Palpandi (son of accused) also alighted from the bus and the accused asked him as to why he has not brought his mother with him for which he had been sent. Palpandi replied to his father (the accused) that unless the accused goes mother will not come. Finding fault that he is repeating the same answer, the accused beat his son. Alagarsamy asked him as to why he was beating the young boy for which the accused responded stating that he had no business to intervene in his family problem and saying so, removed the Aruval from his person and cut Alagarsamy which injury landed on his left hand. Alagarsamy fell down and the accused thereafter indiscriminately cut him. PWs 1 and 2 rushed towards the scene questioning the act of the accused. Threatening them with dire consequences, the accused made good his escape. Alagarsamy was lying dead. PW-1 went to the police station and gave the complaint namely Ex. P-1. He identified MO 1 as the weapon of offence and MOs. 2 to 4 as the personal wearing apparels of the deceased.

( 4 ) THE appellant questioning the correctness of the judgment and conviction and sentence as imposed by the Trial court under Section 302 IPC and sentenced to undergo for life imprisonment.

( 5 ) THE only stand before the High Court was that the scenario as projected by the prosecution clearly rules out the application of Section 302 IPC. The High Court did not find any substance in the plea. ( 6 ) IN support of the appeal, learned counsel for the appellant reiterated the stand before the High Court and submitted that even if the prosecution version is accepted in toto, case under Section 302 IPC is not made out.

( 7 ) LEARNED counsel for the respondent on the other hand supported the order.

( 8 ) THIS brings us to the crucial question 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 grade