TULARAM versus THE STATE OF MADHYA PRADESH
[2018] 5 S.C.R. 671, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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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 soon
they were joined by some other persons – Altercation subsequently
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
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
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
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
he has already undergone and ordered to be released forthwith –
Sentence/ Sentencing.
   [2018] 5 S.C.R. 671
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SUPREME COURT REPORTS
[2018] 5 S.C.R.
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
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
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
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.
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
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]
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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attributed to appellant.  Under the circumstances, the conviction
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
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
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
of 2004.
Ms. Mahalakshmi Pavani, Sr. Adv., Ms. Vanita Mehta, Tomy
Chacko, Advs. for the Appellant.
Arjun Garg, Adv. for the Respondent.
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.
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 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
TULARAM v. THE STATE OF MADHYA PRADESH
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SUPREME COURT REPORTS
[2018] 5 S.C.R.
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.
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
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
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.
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
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when culpable homicide is not murder and we are concerned with
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 likely to cause death.
1(2017) 5 SCC 796
TULARAM v. THE STATE OF MADHYA PRADESH
[MADAN B. LOKUR, J.]
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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
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 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
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
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.
Ankit Gyan
                                                Appeal allowed.