TULARAM versus THE STATE OF MADHYA PRADESH on 2 May 2018

[2018] 5 S.C.R. 671

TULARAM

v.

THE STATE OF MADHYA PRADESH

(Criminal Appeal No. 663 of 2018)

MAY 02, 2018

[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 soonthey were joined by some other persons – Altercation subsequentlyturned 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 brotherof ‘Rh’ – Held: No – Facts of the instant case indicate that all theingredients of Exception 4 to s.300 IPC were present – The fightwas sudden and not premeditated (a finding of both the Courtsbelow) and appellant was not found to have taken undue advantageof his carrying a ballam (spear) in the sense of inflicting any otherserious injury, except a contusion to ‘Rh’ – That being the position,it cannot be held that appellant had the intention to murder brotherof ‘Rh’ or to cause him such bodily injury as is likely to cause death– None of the witnesses have given any indication that appellanthad intention to cause the death of brother of ‘Rh’ – During thealtercation appellant did pierce the chest of brother of ‘Rh’ but theintention to kill him is not apparent – However, appellant must beattributed with the knowledge that piercing the left side of the chestwith a ballam (spear) would result in a bodily injury that is likely tocause death – Under the circumstances, the conviction ofappellant u/s. 302 set aside – Instead, appellantconvicted u/s.304 Part II – Appellant has been behind bars foralmost 14 years – His sentence altered to the period of incarcerationhe has already undergone and ordered to be released forthwith –Sentence/ Sentencing.

671

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672SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. The facts of the present case indicate that all theingredients of Exception 4 to Section 300 of the IPC are present.The fight was sudden and not premeditated (this is the finding ofboth the courts) and appellant is not found to have taken undueBadvantage of his carrying a ballam (spear) in the sense of inflictingany other serious injury, except a contusion to ‘Rh’. That beingthe position, it cannot be held that appellant had the intention tomurder brother of ‘Rh’ (BL) or to cause him such bodily injury asis likely to cause death. Section 304 of the IPC provides theCpunishment for culpable homicide not amounting to murder. PartI of this Section provides that if the act by which death is causedis done with the intention of causing death or causing such bodilyinjury as is likely to cause death then the punishment may extendupto imprisonment for life. On the other hand, Part II of Section304 IPC provides that if the offending act is done with theDknowledge that it is likely to cause death but without any intentionto cause death or to cause such bodily injury as is likely to causedeath then the punishment may extend to imprisonment for 10years. [Paras 11, 12] [675-F-H; 676-A-B]

2. The intention to cause death must not be readily inferred.EBoth the Trial Court as well as the High Court have, on the basisof the mere fact that appellant pierced the chest of ‘BL’ with aballam (spear) , assumed that he intended to cause the death of‘BL’. There is nothing on the record to suggest such an intentionand none of the witnesses have given any indication of appellant’sintention to cause the death of ‘BL’. It is quite clear that duringFthe altercation, appellant did pierce the chest of ‘BL’ but theintention to kill him is not apparent. However, appellant must beattributed with the knowledge that piercing the left side of thechest with a spear would result in a bodily injury that is likely tocause death. [Para 13] [676-C-D]G

3. In view of the evidence on record, the ingredients ofmurder as explained in Section 300 of the IPC are missing in thiscase. The intention of appellant was to cause bodily injury to ‘BL’and piercing the chest of ‘BL’ with a spear was such an injurythat could possibly cause his death. This knowledge must be H

attributed to appellant. Under the circumstances, the convictionAof appellant of an offence punishable under Section 302 of theIPC is set aside but he is convicted of an offence punishable underthe second part of Section 304 of the IPC. The appellant hasbeen behind bars for almost 14 years. His sentence is altered tothe period of incarceration he has already undergone. He beBreleased forthwith. [Paras 14, 15] [676-E-G]

Surain Singh v. State of Punjab (2017) 5 SCC 796 –relied on.

Case Law Reference

C

(2017) 5 SCC 796 relied on Para 10

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 663 of 2018.

From the Judgment and Order dated 01.08.2013 of the High Courtof Madhya Pradesh, Principal Seat at Jabalpur in Crl. Appeal No. 935of 2004.

D

Ms. Mahalakshmi Pavani, Sr. Adv., Ms. Vanita Mehta, TomyChacko, 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 havingcommitted the murder of Bhadri Lodhi during an altercation that tookplace on 9[th] June, 2002.

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3. On that date, a quarrel took place between Ramnath and Rajuat about 6 p.m. in the flourmill of Ramnath. The details of this quarrelare not available on record but it appears that subsequently at about7.30 p.m. after Ramnath closed his flourmill and was returning home, hewas accosted by Raju. A quarrel again ensued between the two and inthe midst of that quarrel, they were joined by Bipatlal Lodhi, thegrandfather of Raju who came with a lathi, Santu, the nephew of Ramnathand Bhadri Lodhi, brother of Ramnath. The quarrel escalated into thealtercation and these persons were joined by Tularam, uncle of Rajuwho came with a ballam (this is a wooden or bamboo stick with a spear G

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Aattached at the end). Another person Sakharam (also an accused butnot before us) joined the fray carrying a lathi. During the course of thealtercation which turned violent, Tularam pierced Bhadri Lodhi with theballamon the left side of his chest and he fell down. Bhadri Lodhi wasthereafter taken home where he was declared dead.

B4. Some other persons involved in the altercation sustained injuriesincluding Sakharam who was accused of having dealt a lathi blowsonSantu.

5. During the trial that took place as a result of the altercation andthe death of Bhadri Lodhi, the prosecution examined several eyeCwitnesses including Ramnath (PW1), Maltibai (PW-3),Mahasingh (PW-5), Shanta Bai (PW-7), Singh Singh Gond (PW-8) JogiLodhi PW-10) and Hori Lal (PW-11). Each of these witnesses confirmedthe altercation and the fact that Tularam had piercedBhadri Lodhi on theleft side of the chest with a ballam. The injuries were confirmed afteran autopsy by Dr. S.N. Bhaskar (PW17) and the post mortem report isDExh.P.32. This shows one penetrating wound having a size of 3" x ½” x ¼” on the left 5[th] intercostal space, medial to left nipple.

6. On these broad facts of which there is no dispute, Tularam wasconvicted of an offence punishable under Section 302 of the Indian PenalCode for having murdered Bhadri Lodhi.E

7. We have gone through the record of the Trial Court as well asof the High Court and the only limited issue before us is whether Tularamhad the intention of causing the death of Bhadri Lodhi.

8. Section 299 of the IPC explains culpable homicide as causingdeath by doing an act with the intention of causing death, or with theFintention of causing such bodily injury as is likely to cause death, or withthe knowledge that the act complained of is likely to cause death. Thefirst two categories require the intention to cause death or the likelihoodof causing death while the third category confines itself to the knowledgethat the act complained of is likely to cause death. On the facts of thisGcase, the offence of culpable homicide is clearly made out.

9. Section 300 of the IPC explains what is murder and it providesthat culpable homicide is murder if the act by which the death is causedis done with the intention of causing death or the act complained of is soimminently dangerous that it must in all probability cause death or “suchHbodily injury as is likely to cause death.”There are some exceptions TULARAM v. THE STATE OF MADHYA PRADESH[MADAN B. LOKUR, J.]

when culpable homicide is not murder and we are concerned withException 4 which reads:

“Exception 4.-- Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat of passion upona sudden quarrel and without the offender having taken undueadvantage or acted in a cruel or unusual manner.”

Explanation. - It is immaterial in such cases which party offersthe provocation or commits the first assault.

10. Recently in Surain Singh v. State of Punjab[1]it was observed that:

“The help of Exception 4 can be invoked if death is caused (a)without premeditation, (b) in a sudden fight, (c) without theoffenders having taken undue advantage or acted in a cruel orunusual manner, and (d) the fight must have been with the personkilled. To bring a case within Exception 4 all the ingredientsmentioned in it must be found. It is to be noted that the “fight”occurring in Exception 4 to Section 300 IPC is not defined inIPC……… A fight is a combat between two and more personswhether with or without weapons. It is not possible to enunciateany 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 notmust necessarily depend upon the proved facts of each case. Forthe application of Exception 4, it is not sufficient to show thatthere was a sudden quarrel and there was no premeditation. Itmust further be shown that the offender has not taken undueadvantage or acted in a cruel or unusual manner. The expression“undue advantage” as used in the provision means “unfairadvantage”.

11. The facts of the present case indicate that all the ingredientsof Exception 4 to Section 300 of the IPC are present. The fight wassudden and not premeditated (this is the finding of both the courts) andTularam is not found to have taken undue advantage of his carrying aballam in the sense of inflicting any other serious injury, except a contusionto Ramnath. That being the position, it cannot be held that Tularam hadthe intention to murder Bhadri Lodhi or to cause him such bodily injuryas is likely to cause death.

1(2017) 5 SCC 796

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1(2017) 5 SCC 796

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A12. Section 304 of the IPC provides the punishment for culpablehomicide not amounting to murder. Part I of this Section provides that ifthe act by which death is caused is done with the intention of causingdeath or causing such bodily injury as is likely to cause death then thepunishment may extend upto imprisonment for life. On the other hand,Part II of Section 304 provides that if the offending act is done with theBknowledge that it is likely to cause death but without any intention tocause death or to cause such bodily injury as is likely to cause death thenthe punishment may extend to imprisonment for 10 years.

13. The intention to cause death must not be readily inferred. Weare afraid that both the Trial Court as well as the High Court have, onCthe basis of the mere fact that Tularam pierced the chest of BhadriLodhi with aballam, assumed that he intended to cause the death ofBhadri Lodhi. There is nothing on the record to suggest such an intentionand none of the witnesses have given any indication of Tularam’s intentionto cause the death of Bhadri Lodhi. It is quite clear that during the Daltercation Tularam did pierce the chest of Bhadri Lodhi but the intentionto kill him is not apparent. However, Tularam must be attributed withthe knowledge that piercing the left side of the chest with a spear wouldresult in a bodily injury that is likely to cause death.

14. In view of the evidence on record, we are satisfied that theEingredients of murder as explained in Section 300 of the IPC are missingin this case. The intention of Tularam was to cause bodily injury toBhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear wassuch an injury that could possibly cause his death. This knowledge mustbe attributed to Tularam.

F15. Under the circumstances, the conviction of Tularam of anoffence punishable under Section 302 of the IPC is set aside but he isconvicted of an offence punishable under the second part of Section 304of the IPC. The appellant has been behind bars for almost 14 years. Hissentence is altered to the period of incarceration he has alreadyundergone. He be released forthwith.G

16. The appeal is allowed in the aforesaid terms.

Ankit Gyan

Appeal allowed.

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