JUDGMENT

GYAN SUDHA MISRA, J.

1. 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.

2. 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.

4. 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.

5. In the instant appeal by special leave, once again the aforesaid situation arises which has been preferred against the judgment and order dated 11.3.2008 passed by the Division Bench of the High Court of Punjab and Haryana in Criminal Appeal No.300-DB of 1999 whereby the High Court had been pleased to dismiss the appeal and thus upheld the order of the Additional Sessions Judge, Hoshiarpur convicting the appellant-Ajit Singh for offence under Section 302, I.P.C. sentencing him to undergo rigorous imprisonment for life as also to pay a fine of Rs.2,000/- in default of which he is to undergo further imprisonment for six months. However, the High Court while upholding the conviction and sentence of the appellant herein under Section 302 I.P.C., was pleased to acquit the co-accused-Anil Kumar of the charge and conviction under Section 302/34 I.P.C.

6. The prosecution case recorded in the First Information Report which led to the conviction of the appellant-Ajit Singh was lodged on 22.10.1996 on the basis of the complaint made by Jagdish Kumar, PW-6 who stated that he was running a private middle school in village Terkiana 9 and on the date of the