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11.Sections 299 and 300 of the Code deal with the definition of culpable homicide and murder, respectively. In terms of Section 299, culpable homicide is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasises on the expression intention while the latter upon knowledge. Both these are positive mental attitudes, however, of different degrees. The mental element in culpable homicide, that is, the mental attitude towards the consequences of conduct is one of intention and knowledge.

(a) with the intention of causing (1) with the intention of causing death ; or death; or

(b) with the intention of causing (2) with the intention of causing such bodily injury as is likely to such bodily injury as the cause death; or offender knows to be likely to

(c) with the knowledge that the cause the death of the person to act is likely to cause death. whom the harm is caused; or (3)with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as is mentioned above, '(Abdul Waheed case, SCC p.184, para12)

21.Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in http://www.judis.nic.in Crl.A.Nos.321 & 861 of 2018 which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really murder, but mitigated by the presence of circumstances recognized in the exceptions to section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer :Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009)

24.A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under: (SCC pp.36-37, para11) “11. A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause 4thly, then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I.”