IMPORTANT POINT
Unless an intention to murder is established, accused cannot be convicted u/s 302.

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 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 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 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 Punjab, (2017) 5 SCC 796 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 offende