Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 460 OF 2008
Suchand Bouri .. Appellant
Versus
State of West Bengal ..Respondent
JUDGEMENT
R.M. Lodha, J.
We are confronted, in this appeal by special leave,
with a question: whether, on the facts of the case, the offence
is “murder” or “culpable homicide not amounting to murder”.
2. Facts are these, briefly put: Jorehira-Namopara is
a small village in the district of Bankura (W.B.) having about
40/50 houses. On June 21, 1986, there was a quarrel
between Suchand (appellant) and Sanatan (PW-11) in
respect of boundary of land. Suchand blamed that Sarbeswar
(deceased) being a village Chowkidar was instigating Sanatan
against him. Suchand threatened Sarbeswar that he would
behead him and his son. The following day, on June 22, 1986
in the afternoon, three brothers, viz., Bisweswar, Sarbeswar
and Rishi(PW-1) alongwith their family members were chit-
chatting on the pathway near their house. Suchand,
Fulchand, Nepal and 14 other persons armed with deadly
weapons like lathi, tangi, katari, ballam, kural, etc. came there.
Fulchand and Nepal started assaulting Bisweswar with lathi,
tangi, etc.. As a result of which Bisweswar fell down.
Sarbeswar intervened to rescue Bisweswar and at that time
Suchand gave a knife blow on the chest of Sarbeswar. Few
other members of the family also got injured. Sarbeswar died
the next morning.
3. After completion of investigation, 17 persons
including the present appellant were sent up for trial. They
were tried under Sections 147, 302/149 and 307/149 of the
Indian Penal Code. The prosecution examined 14 witnesses in
all; out of them PW-1, PW-2, PW-3, PW-4 and PW-5 were the
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eye witnesses. Bisweswar at whose instance the first
information report was lodged died during the trial and,
therefore, he could not be examined.
4. The first Court, namely, Additional Sessions Judge
(2nd Court), Bankura vide its judgment dated May 28, 1993
acquitted 14 accused persons of all the charges leveled
against them. The present appellant was found guilty of the
offence under Section 302 IPC for the murder of Sarbeswar
and sentenced to suffer rigorous imprisonment for life and a
fine of Rs. 1,000/- with default stipulation. Fulchand and
Nepal were found guilty for the offences under Section 323
IPC and sentenced to suffer rigorous imprisonment for six
months.
5. A common appeal was preferred by the present
appellant as well as Fulchand and Nepal before the High Court
of Judicature at Calcutta. On April 21, 2005, the division
bench of the High Court delivered the judgment. The
conviction of Fulchand and Nepal was set aside. However, the
conviction of the appellant and the sentence awarded to him by
the first Court was upheld.
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6. Although Sarbeswar received multiple injuries,
injury no. 9, as per the post mortem report (Exhibit-7), was
found to be sufficient in the ordinary course of nature to cause
death. Dr. J.N. De who conducted the post mortem
examination on the dead body of Sarbeswar in post mortem
report recorded in respect of injury no. 9 thus;
“one stitched up wound 6″ in length,1″ above the
mid 1/3rd of right clavicle and 2 = to the right of mid
line of front. On removal of stitches it is incised
penetrating in character and cavity deep. On
dissection it is seen to have passed through the skin,
fossa, muscles then cuts through and through the
right external jagular vein then cuts 1st rib on rightside
and enters the right chest cavity then penetrate into
the upper lobe of right lung. Right chest cavity
contains fair amount of extravasated clotted and
liquid blood on further dissection …………. fair
amount of extravasated clotted and liquid blood seen
to infiltrate the tissues over upper part of rightside of
chest, whole of rightside of neck and (Illeg.) surface
of right angle of lower jaw. Fair amount of
extravasated clotted and liquid blood seen to infiltrate
the tissues.”
7. There is no challenge before us that injury no. 9
was caused by the appellant Suchand and that death of
Sarbeswar was homicidal.
8. Mr. Ranjan Mukherjee, learned amicus curiae
strenuously urged that the offence committed by the appellant
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would not come within the definition of “murder”, but only
“culpable homicide not amounting to murder” under Section
304. He would urge that there was no premeditation nor any
intention to cause Sarbeswar’s death; Sarbeswar was given
solitary knife-blow by the appellant when he intervened while
Bisweswar was being assaulted. According to the learned
amicus curiae, the case is covered by Exception 4 to
Section 300 and that the appellant cannot be said to have
intention of causing such body injury upon Sarbeswar which in
fact was caused and as a result of which Sarbeswar died.
He heavily relied upon the following observations of this Court
in the case of Sukhbir Singh Vs. State of Haryana1
” 19. The High Court has also found that the
occurrence had taken place upon a sudden quarrel
but as the appellant was found to have acted in a
cruel and unusual manner, he was not given the
benefit of such exception. For holding him to have
acted in a cruel and unusual manner, the High Court
relied upon the number of injuries and their location
on the body of the deceased. In the absence of the
existence of common object, the appellant cannot be
held responsible for the other injuries caused to the
person of the deceased. He is proved to have inflicted
two blows on the person of the deceased which were
sufficient in the ordinary course of nature to cause his
death. The infliction of the injuries and their nature
1
(2002) 3 SCC 327)
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proves the intention of the appellant but causing of
such two injuries cannot be termed to be either in a
cruel or unusual manner. All fatal injuries resulting in
death cannot be termed as cruel or unusual for the
purposes of not availing the benefit of Exception 4 of
Section 300 IPC. After the injuries were inflicted and
the injured had fallen down, the appellant is not
shown to have inflicted any other injury upon his
person when he was in a helpless position. It is
proved that in the heat of passion upon a sudden
quarrel followed by a fight, the accused who was
armed with bhala caused injuries at random and thus
did not act in a cruel or unusual manner.”
9. To answer the question as to whether the offence,
on the facts of the case, is “murder” or “culpable homicide not
amounting to murder”, we must see whether the case is
squarely covered within Clause Thirdly of Section 300 IPC or
the accused is entitled to the benefit of Exception 4 of Section
300 IPC.
10. It would be preposterous to assume any proposition
in law that in a case of solitary blow on a vital part of the body
that results the death, the offence must necessarily be
reduced to culpable homicide not amounting to murder. Legal
position has been most appropriately summed up, which has
now become a classic statement with regard to exposition of
Section 300 “Thirdly”, by Vivian Bose, J. in Virsa Singh Vs.
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State of Punjab2. Vivian Bose, J. analysed Section 300
“Thirdly” by laying down that the prosecution must prove the
following facts before it can bring a case under Section 300
“Thirdly”:
“First, it must establish, quite objectively, that a bodily
injury is present;
Secondly, the nature of the injury must be proved;
These are purely objective investigations.
Thirdly, it must be proved that there was an intention
to inflict that particular bodily injury, that is to say, that
it was not accidental or unintentional, or that some
other kind of injury was intended.
Once these three elements are proved to be present,
the enquiry proceeds further and,Fourthly, it must be proved that the injury of the type
just described made up of the three elements set out
above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with
the intention of the offender.”
Learned Judge further went on to observe:
“Once these four elements are established by the
prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under
Section 300 “thirdly”. It does not matter that there
was no intention to cause death. It does not matter
that there was no intention even to cause an injury of
a kind that is sufficient to cause death in the ordinary
course of nature ( not that there is any real distinction
between the two). It does not even matter that there
is no knowledge that an act of that kind will be likely
to cause death. Once the intention to cause the
bodily injury actually found to be present is proved,
the rest of the enquiry is purely objective and the
only question is whether, as a matter of purely
2
AIR 1958 SC 465)
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objective inference, the injury is sufficient in the
ordinary course of nature to cause death. No one
has a licence to run around inflicting injuries that are
sufficient to cause death. No one has a licence to
run around inflicting injuries that are sufficient to
cause death in the ordinary course of nature and
claim that they are not guilty of murder. If they inflict
injuries of that kind, they must face the
consequences; and they can only escape if it can be
shown, or reasonably deduced, that the injury was
accidental or otherwise unintentional.”
11. The tests laid down by this Court in Virsa Singh
have been consistently followed by the Courts as providing
the guidelines when an issue regarding the nature of offence
whether murder or culpable homicide not amounting to murder
is raised before the Court.
12. The determinative factor in Section 300 `Thirdly’ is
the intentional injury which must be sufficient to cause death in
the ordinary way of nature. It is immaterial whether the
offender had knowledge that an act of that kind will be likely to
cause death. The offender’s subjective knowledge of the
consequences is irrelevant. The result of the intentionally
caused injury must be viewed objectively. To find out whether
the offender had intention to cause such bodily injury which in
the ordinary course of nature was sufficient to cause death, the
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diverse factors need to be kept in mind such as: the force with
which the blow has been dealt with, the type of weapon used,
the vital organ or the particular spot of the body targeted, the
nature of the injury caused, the origin and genesis of the crime
and the circumstances attendant upon the death. [Jagrup
Singh v. State of Haryana3; and Ramashraya and Anr. V. State
of M.P.4]
13. In so far as the facts of the present case are
concerned, the accused appellant had a strong feeling of
annoyance against Sarbeswar as he thought that Sarbeswar
being a village chowkidar was helping Sanatan with whom the
accused had a boundary dispute. On a day proceeding the
incident, the accused had threatened to behead Sarbeswar
and his son. The accused went armed with a deadly weapon
like knife to the place of occurrence where Sarbeswar, his
brothers and other family members were sitting and inflicted
blow by that weapon on the chest of Sarbeswar. The injury
that Sarbeswar suffered clearly shows that knife was used by
the accused with a considerable force and injury was caused
3
AIR 1981 SC 1552
4
(2001) 3 SCC 439
9
on a vital part of the body. It is true that the injury was
inflicted on Sarbeswar when he intervened while his brother
Bisweswar was being assaulted but the force with which
Sarbeswar has been stabbed by knife, the intention of causing
such bodily injury is obvious. The said injury was sufficient in
the ordinary course of nature to cause death. The stab injury
inflicted on the chest of Sarbeswar by the accused was surely
not accidental or unintentional. The act of the accused is
squarely covered by Section 300 `Thirdly’.
14. Although the learned amicus curiae strenuously
urged that the injury caused by the accused was without
premeditation nor he took any advantage or acted in a cruel
or unusual manner, we are afraid the facts eloquently speak
otherwise. The four requisites of Exception 4 are not at all
satisfied in the present case.
15. For the invocation of Exception 4 to Section 300
IPC, it has to be probablised by the defence that the death is
occurred: (i) in a sudden fight ; (2) without pre-meditation; (3)
the act was committed in a heat of passion; and (4) the
offender had not taken any undue advantage or acted in a cruel
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manner. The existence of all the four requisites must be
probablised. In absence of existence of any of the four
requisites, Exception 4 has no application. By means of
judicial decisions, the expression “sudden fight” occurring in
Exception 4 of Section 300, though not defined, has been
explained. “Sudden fight” implies mutual provocation; a
bilateral transaction in which blows are exchange – the fight
is not per se palliating circumstance, only an unpremeditated
fight is such. The expression “heat of passion” has been
explained by the Courts to mean that there is no time for
passion to cool down. The act must have been committed in a
fit of anger. Unfortunately, in the present case none of the four
requisites of Exception 4 exists much less all the four
requisites. The instant case is not a case of sudden fight nor
the act can be said to have been committed in a heat of
passion. As a matter of fact, the appellant had a pre-existing
malice against the deceased. The appellant is not at all
entitled to the benefit of Exception 4.
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16. In what we have discussed above, the conviction of
the accused under Section 302 IPC and sentence awarded to
him cannot be said to suffer from any legal infirmity.
17. The appeal must fail and is dismissed.
………………………J
(S.B. SINHA)
……………………….J
(R.M. LODHA)
New Delhi
April 9, 2009
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