REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.663  OF 2018 (ARISING OUT OF S.L.P. (CRIMINAL) NO.7483 OF 2017)

Tularam              …..Appellant

versus

The State of Madhya Pradesh …..Respondent

JUDGMENT

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.  

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 the

midst of that quarrel, they were joined by Bipatlal Lodhi, the grandfather

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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 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 ballam on

the left side of his chest and he fell down.   Bhadri Lodhi was thereafter

taken  home where he was declared dead.

4. Some other persons involved in the altercation sustained injuries

including Sakharam who was accused of having dealt a lathi blows on

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 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 pierced Bhadri 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 Exh.P.32.  This shows one

penetrating wound having a size of 3” x ½” x ¼” on the left 5 th intercostal

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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.  

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

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

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

bodily injury as is likely to cause death.”  There are some exceptions

when  culpable  homicide  is  not  murder  and  we  are  concerned  with

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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.”  

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:

“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” 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 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 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 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

1 (2017) 5 SCC 796

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likely to cause death.  

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 up to imprisonment for life.  On the other hand,

Part II of Section 304 provides that if the offending act is done with the

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 the

basis of the mere fact that Tularam pierced the chest of Bhadri Lodhi with

a ballam, 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 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.        

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14. In  view  of  the  evidence  on  record,  we  are  satisfied  that  the

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.   

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.

16. The appeal is allowed in the aforesaid terms.  

……………………J   ( Madan B. Lokur )

New Delhi;                              ………………………J May 2, 2018                                                               ( Deepak Gupta )  

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