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

J U D G E M E N T

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 ½  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

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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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