TULARAMversusTHE STATE OF MADHYA PRADESH

                          [2018] 5 S.C.R. 671                             671


                             TULARAM                                      A
                                  v.
              THE STATE OF MADHYA PRADESH
                  (Criminal Appeal No. 663 of 2018)
                            MAY 02, 2018                                  B

      [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

       Penal Code, 1860 – Exception 4 to s.300 and s.304 Part II –
Quarrel between ‘Rh’ and ‘Ru’ escalated into altercation and soon
they were joined by some other persons – Altercation subsequently         C
turned violent and appellant, uncle of ‘Ru’, pierced brother of ‘Rh’
with ballam (spear) on left side of his chest and also injured ‘Rh’ –
Brother of ‘Rh’ was taken home where he was declared dead –
Whether appellant had the intention of causing the death of brother
of ‘Rh’ – Held: No – Facts of the instant case indicate that all the      D
ingredients of Exception 4 to s.300 IPC were present – The fight
was sudden and not premeditated (a finding of both the Courts
below) and appellant was not found to have taken undue advantage
of his carrying a ballam (spear) in the sense of inflicting any other
serious injury, except a contusion to ‘Rh’ – That being the position,
it cannot be held that appellant had the intention to murder brother      E
of ‘Rh’ or to cause him such bodily injury as is likely to cause death
– None of the witnesses have given any indication that appellant
had intention to cause the death of brother of ‘Rh’ – During the
altercation appellant did pierce the chest of brother of ‘Rh’ but the
intention to kill him is not apparent – However, appellant must be        F
attributed with the knowledge that piercing the left side of the chest
with a ballam (spear) would result in a bodily injury that is likely to
cause death – Under the circumstances, the conviction of
appellant u/s. 302 set aside – Instead, appellant
convicted u/s.304 Part II – Appellant has been behind bars for
almost 14 years – His sentence altered to the period of incarceration     G
he has already undergone and ordered to be released forthwith –
Sentence/ Sentencing.



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                                  671
672            SUPREME COURT REPORTS                      [2018] 5 S.C.R.


A           Allowing the appeal, the Court
             HELD: 1. The facts of the present case indicate that all the
      ingredients of Exception 4 to Section 300 of the IPC are present.
      The fight was sudden and not premeditated (this is the finding of
      both the courts) and appellant is not found to have taken undue
B     advantage of his carrying a ballam (spear) in the sense of inflicting
      any other serious injury, except a contusion to ‘Rh’. That being
      the position, it cannot be held that appellant had the intention to
      murder brother of ‘Rh’ (BL) or to cause him such bodily injury as
      is likely to cause death. Section 304 of the IPC provides the
C     punishment for culpable homicide not amounting to murder. Part
      I of this Section provides that if the act by which death is caused
      is done with the intention of causing death or causing such bodily
      injury as is likely to cause death then the punishment may extend
      upto imprisonment for life. On the other hand, Part II of Section
      304 IPC provides that if the offending act is done with the
D     knowledge that it is likely to cause death but without any intention
      to cause death or to cause such bodily injury as is likely to cause
      death then the punishment may extend to imprisonment for 10
      years. [Paras 11, 12] [675-F-H; 676-A-B]
            2. The intention to cause death must not be readily inferred.
E     Both the Trial Court as well as the High Court have, on the basis
      of the mere fact that appellant pierced the chest of ‘BL’ with a
      ballam (spear) , assumed that he intended to cause the death of
      ‘BL’. There is nothing on the record to suggest such an intention
      and none of the witnesses have given any indication of appellant’s
      intention to cause the death of ‘BL’. It is quite clear that during
F
      the altercation, appellant did pierce the chest of ‘BL’ but the
      intention to kill him is not apparent. However, appellant must be
      attributed with the knowledge that piercing the left side of the
      chest with a spear would result in a bodily injury that is likely to
      cause death. [Para 13] [676-C-D]
G
            3. In view of the evidence on record, the ingredients of
      murder as explained in Section 300 of the IPC are missing in this
      case. The intention of appellant was to cause bodily injury to ‘BL’
      and piercing the chest of ‘BL’ with a spear was such an injury
      that could possibly cause his death. This knowledge must be
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       TULARAM v. THE STATE OF MADHYA PRADESH                              673


attributed to appellant. Under the circumstances, the conviction           A
of appellant of an offence punishable under Section 302 of the
IPC is set aside but he is convicted of an offence punishable under
the second part of Section 304 of the IPC. The appellant has
been behind bars for almost 14 years. His sentence is altered to
the period of incarceration he has already undergone. He be
                                                                           B
released forthwith. [Paras 14, 15] [676-E-G]
      Surain Singh v. State of Punjab (2017) 5 SCC 796 –
      relied on.
                        Case Law Reference
      (2017) 5 SCC 796              relied on          Para 10             C

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 663 of 2018.
      From the Judgment and Order dated 01.08.2013 of the High Court
of Madhya Pradesh, Principal Seat at Jabalpur in Crl. Appeal No. 935       D
of 2004.
     Ms. Mahalakshmi Pavani, Sr. Adv., Ms. Vanita Mehta, Tomy
Chacko, Advs. for the Appellant.
      Arjun Garg, Adv. for the Respondent.
                                                                           E
      The Judgment of the Court was delivered by
      MADAN B. LOKUR, J. 1. Leave granted.
      2. The appellant Tularam was accused and convicted of having
committed the murder of Bhadri Lodhi during an altercation that took
place on 9th June, 2002.                                                   F
       3. On that date, a quarrel took place between Ramnath and Raju
at about 6 p.m. in the flourmill of Ramnath. The details of this quarrel
are not available on record but it appears that subsequently at about
7.30 p.m. after Ramnath closed his flourmill and was returning home, he
was accosted by Raju. A quarrel again ensued between the two and in        G
the midst of that quarrel, they were joined by Bipatlal Lodhi, the
grandfather of Raju who came with a lathi, Santu, the nephew of Ramnath
and Bhadri Lodhi, brother of Ramnath. The quarrel escalated into the
altercation and these persons were joined by Tularam, uncle of Raju
who came with a ballam (this is a wooden or bamboo stick with a spear
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674             SUPREME COURT REPORTS                            [2018] 5 S.C.R.


A     attached at the end). Another person Sakharam (also an accused but
      not before us) joined the fray carrying a lathi. During the course of the
      altercation which turned violent, Tularam pierced Bhadri Lodhi with the
      ballamon the left side of his chest and he fell down. Bhadri Lodhi was
      thereafter taken home where he was declared dead.
B            4. Some other persons involved in the altercation sustained injuries
      including Sakharam who was accused of having dealt a lathi blowson
      Santu.
              5. During the trial that took place as a result of the altercation and
      the death of Bhadri Lodhi, the prosecution examined several eye
C     witnesses including Ramnath (PW1), Maltibai (PW-3),
      Mahasingh (PW-5), Shanta Bai (PW-7), Singh Singh Gond (PW-8) Jogi
      Lodhi PW-10) and Hori Lal (PW-11). Each of these witnesses confirmed
      the altercation and the fact that Tularam had piercedBhadri Lodhi on the
      left side of the chest with a ballam. The injuries were confirmed after
      an autopsy by Dr. S.N. Bhaskar (PW17) and the post mortem report is
D     Exh.P.32. This shows one penetrating wound having a size of
      3" x ½” x ¼” on the left 5th intercostal space, medial to left nipple.
            6. On these broad facts of which there is no dispute, Tularam was
      convicted of an offence punishable under Section 302 of the Indian Penal
      Code for having murdered Bhadri Lodhi.
E
             7. We have gone through the record of the Trial Court as well as
      of the High Court and the only limited issue before us is whether Tularam
      had the intention of causing the death of Bhadri Lodhi.
              8. Section 299 of the IPC explains culpable homicide as causing
F     death by doing an act with the intention of causing death, or with the
      intention of causing such bodily injury as is likely to cause death, or with
      the knowledge that the act complained of is likely to cause death. The
      first two categories require the intention to cause death or the likelihood
      of causing death while the third category confines itself to the knowledge
      that the act complained of is likely to cause death. On the facts of this
G     case, the offence of culpable homicide is clearly made out.
             9. Section 300 of the IPC explains what is murder and it provides
      that culpable homicide is murder if the act by which the death is caused
      is done with the intention of causing death or the act complained of is so
      imminently dangerous that it must in all probability cause death or “such
H     bodily injury as is likely to cause death.”There are some exceptions
          TULARAM v. THE STATE OF MADHYA PRADESH                                 675
                    [MADAN B. LOKUR, J.]

when culpable homicide is not murder and we are concerned with                   A
Exception 4 which reads:
          “Exception 4.-- Culpable homicide is not murder if it is committed
          without premeditation in a sudden fight in the heat of passion upon
          a sudden quarrel and without the offender having taken undue
          advantage or acted in a cruel or unusual manner.”                      B
          Explanation. - It is immaterial in such cases which party offers
          the provocation or commits the first assault.
          10. Recently in Surain Singh v. State of Punjab1 it was observed
that:
                                                                                 C
          “The help of Exception 4 can be invoked if death is caused (a)
          without premeditation, (b) in a sudden fight, (c) without the
          offenders having taken undue advantage or acted in a cruel or
          unusual manner, and (d) the fight must have been with the person
          killed. To bring a case within Exception 4 all the ingredients
          mentioned in it must be found. It is to be noted that the “fight”      D
          occurring in Exception 4 to Section 300 IPC is not defined in
          IPC……… A fight is a combat between two and more persons
          whether with or without weapons. It is not possible to enunciate
          any general rule as to what shall be deemed to be a sudden quarrel.
          It is a question of fact and whether a quarrel is sudden or not        E
          must necessarily depend upon the proved facts of each case. For
          the application of Exception 4, it is not sufficient to show that
          there was a sudden quarrel and there was no premeditation. It
          must further be shown that the offender has not taken undue
          advantage or acted in a cruel or unusual manner. The expression
          “undue advantage” as used in the provision means “unfair               F
          advantage”.
        11. The facts of the present case indicate that all the ingredients
of Exception 4 to Section 300 of the IPC are present. The fight was
sudden and not premeditated (this is the finding of both the courts) and
Tularam is not found to have taken undue advantage of his carrying a             G
ballam in the sense of inflicting any other serious injury, except a contusion
to Ramnath. That being the position, it cannot be held that Tularam had
the intention to murder Bhadri Lodhi or to cause him such bodily injury
as is likely to cause death.
1
    (2017) 5 SCC 796
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676                SUPREME COURT REPORTS                       [2018] 5 S.C.R.


A            12. Section 304 of the IPC provides the punishment for culpable
      homicide not amounting to murder. Part I of this Section provides that if
      the act by which death is caused is done with the intention of causing
      death or causing such bodily injury as is likely to cause death then the
      punishment may extend upto imprisonment for life. On the other hand,
      Part II of Section 304 provides that if the offending act is done with the
B
      knowledge that it is likely to cause death but without any intention to
      cause death or to cause such bodily injury as is likely to cause death then
      the punishment may extend to imprisonment for 10 years.
              13. The intention to cause death must not be readily inferred. We
      are afraid that both the Trial Court as well as the High Court have, on
C     the basis of the mere fact that Tularam pierced the chest of Bhadri
      Lodhi with aballam, assumed that he intended to cause the death of
      Bhadri Lodhi. There is nothing on the record to suggest such an intention
      and none of the witnesses have given any indication of Tularam’s intention
      to cause the death of Bhadri Lodhi. It is quite clear that during the
D     altercation Tularam did pierce the chest of Bhadri Lodhi but the intention
      to kill him is not apparent. However, Tularam must be attributed with
      the knowledge that piercing the left side of the chest with a spear would
      result in a bodily injury that is likely to cause death.
             14. In view of the evidence on record, we are satisfied that the
E     ingredients of murder as explained in Section 300 of the IPC are missing
      in this case. The intention of Tularam was to cause bodily injury to
      Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was
      such an injury that could possibly cause his death. This knowledge must
      be attributed to Tularam.

F            15. Under the circumstances, the conviction of Tularam of an
      offence punishable under Section 302 of the IPC is set aside but he is
      convicted of an offence punishable under the second part of Section 304
      of the IPC. The appellant has been behind bars for almost 14 years. His
      sentence is altered to the period of incarceration he has already
      undergone. He be released forthwith.
G
            16. The appeal is allowed in the aforesaid terms.


      Ankit Gyan                                                    Appeal allowed.


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