1. Conviction for murder under Section 302 IPC following a sudden altercation where the accused pierced the victim's chest with a spear. (Para 2 , 3 , 6 )
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2018 Supreme(SC) 438
SUPREME COURT OF INDIA
Madan B. Lokur, Deepak Gupta, JJ.
Tularam – Appellant
Versus
The State of Madhya Pradesh – Respondent
CRIMINAL APPEAL NO.663 OF 2018 (ARISING OUT OF S.L.P. (CRIMINAL) NO.7483 OF 2017)
Decided On : 02-05-2018
IMPORTANT POINT
Unless an intention to murder is established, accused cannot be convicted u/s 302.
Headnote:Indian Penal Code, 1860 – Section 302 and 304, Part II – Appellant piercing the chest of deceased with a ballam – No evidence to suggest appellant’s intention to murder deceased – However, appellant must be attributed with knowledge that such act would result in a bodily injury that is likely to cause death – Held, appellant’s conviction u/s 302 not justified – Conviction modified to one u/s 304, Part II. (Para 13, 14)
Facts of the case:
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.
Tularam was convicted of an offence punishable under Section 302 of the Indian Penal Code for having murdered Bhadri Lodhi.
Finding of the Court:
Appellant’s conviction u/s 302 is not justified.
Result: Appeal partly allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the accused possessed the specific intention to cause death or if the act fell under the exception of a sudden fight. (Para 7 )
3. The fight was sudden and not premeditated, and the accused took no undue advantage, though he possessed knowledge that the injury was likely to cause death. (Para 11 , 13 , 14 )
4. Culpable homicide is not murder if committed without premeditation in a sudden fight in the heat of passion without taking undue advantage or acting cruelly. (Para 9 , 10 )
5. Conviction under Section 302 IPC set aside and modified to Section 304 Part II IPC; sentence reduced to period already undergone. (Para 15 , 16 )
6. What are the requirements to invoke Exception 4 to Section 300 of the IPC?
Death must be caused without premeditation, in a sudden fight, without the offender taking undue advantage or acting in a cruel or unusual manner, and the fight must be with the person killed. (Para 10 )
7. How is the distinction between Section 304 Part I and Part II of the IPC determined?
Part I applies if the act is done with the intention of causing death or such bodily injury as is likely to cause death. Part II applies if the act is done with knowledge that it is likely to cause death, but without such intention. (Para 12 )
8. When is a conviction for murder reduced to culpable homicide not amounting to murder based on intention?
When the evidence shows the act occurred during a sudden fight without premeditation or undue advantage, and while the act was likely to cause death, the specific intention to kill is not established. (Para 11 , 13 , 14 )
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 offen
