SUCHAND BOURIversusSTATE OF WEST BENGAL

                       [2009] 5 S.C.R. 796


A                        SUCHAND BOURI
                                  v.
                     STATE OF WEST BENGAL
                 (Criminal Appeal No. 460 of 2008)
                           APRIL 9, 2009
B
               [S.B. SINHA AND R.M. LODHA, JJ.]

       Penal Code, 1860: ss.302, 300 thirdly - Murder - Knife
  blow on chest of deceased, resulting in his death - Day before
c incident accused-appellant threatened to behead deceased
  - Conviction under s.302 by courts below - Plea that case
  was covered by exception 4 to s.300 - Held: The four
  requisites of exception 4 to s.300 not existing- It is not a case
  of sudden fight nor the act was done in a heat of passion -
D Appellant   had a pre-existing malice against deceased -
  Appellant not entitled to benefit of exception 4 - Act squarely
  covered by s.300, thirdly - Conviction upheld.

      Prosecution case was tllat there was quarrel
  between appellant and PW-11 in respect of boundary of
E land. Appellant blamed that the deceased was instigating
  PW-11 against him. Appellant threatened deceased that
  he would behead him and his !;on. The next day, when
  deceased was sitting with his brothers near his house,
  appellant along with others <:ame there armed with
F deadly weapons and started assaulting the deceased's
  brother. Deceased intervened to rescue his brother.
  Appellant gave a knife blow on the chest of the deceased.
  Deceased died the next morning. Trial Court convicted
  appellant under s. 302 IPC and awarded rigorous
G imprisonment for life. High Court affirmed the conviction.

      In appeal to this Court, appellant contended that the           •
  offence committed by him would not come within the
  definition of "murder", but only "culpable homicide not
H                            796
         SUCHAND BOURI v. STATE OF WEST BENGAL             797


     amounting to murder" under Section 304 IPC; that there A
     was no premeditation nor any intention to cause death;
     that deceased was given solitary knife-blow by the
     appellant when he intervened while his brother was being
     assaulted and the case was covered by Exception 4 to
"'   Section 300 and that the appellant cannot be said to have 8
     intention of causing such body injury upon deceased.

         Dismissed the appeal, the Court

          HELD:1. The determinative factor in Section 300
     'Thirdly' is the intentional injury which must be sufficient c
     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 D
     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 diverse factors need to be kept in mind such
     as: the force with which the blow has been dealt with, the E
     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. [Para 12] [804-F-H; 805-A-B]

          Sukhbir Singh v. State of Haryana (2002) 3 SCC 327;
                                                                 F
     Virsa Singh v. state of Punjab AIR (1958) SC 465; Jagup
     Singh v. State of Haryana AIR (1981) SC 1552 and
     Ramashraya and Anr. v. State of M.P. (2001) 3 SCC 439,
     referred to.
                                                                 G
         2. In the present case, the accused appellant had a
     strong feeling of annoyance \gainst deceased as he
     thought that deceased being a 'village chowkidar was
     helping PW-11with wholl'!Jhe accused had a boundary
                                                                 H
    798         SUPREME COURT REPORTS            [2009] 5 S.C.R.


A dispute. On a day preceding the incident, the accused
  had threatened to behead deceased and his son. The
  accused went armed with a deadly weapon like knife to
  the place of occurrence where deceased, his brothers
  and other family members were sitting and inflicted blow
s by that weapon on the chest of deceased. The injury that
  deceased suffered clearly shows that knife was used by
  the accused with a considerable force and injury was
  caused on a vital part of the body . It is true that the injury
  was inflicted on deceased when he intervened while his
c brother was being assaulted but the force with which
  deceased was 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 deceased by the
  accused was surely not accidental or unintentional. The
0
  act of the accused is squarely covered by Section 300
  'Thirdly'. [Para 13) (805-B-G]
        3. For the invocation of Exception 4 to Section 300
  IPC, it has to be probablised by the defence that the
E 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 manner. The existence of
  all the four requisites must be probablised. In absence of
F 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
G transaction in which blows are exchanged- the fight is not
  per se palliating circumstance, only an unpremeditated
  fight is such. The expression "heat of passion" mean that
  there is no time for passion to cool down. The act must
  have been committed in a fit of anger. Unfortunately, in
H
                     SUCHAND BOURI v. STATE OF WEST BENGAL                    799
          .J



               · the present case none of the four requisites of Exception A
 ..              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 B
                 of Exception 4. [Para 15] [806-A-E]
                                      Case Law Reference:
                     (2002) 3 sec 327             referred to           Para 8
                     AIR (1958) SC 465            referred to           Para 10
                                                                                     c
                     AIR (1981) SC 1552            referred to          Para 12
                     (2001) 3 sec 439             referred to           Para 12
 "
                    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal D
                No. 460 of 2008.
                    From the Judgment & Order dated 21.4.2005 of the High
                Court of Calcutta in Criminal Appeal No. 153/1993.
                                                                                     E
..                    Ranjan Mukherjee, (A.C.) S. Bhowmick and S.C. Ghosh
                for the Appellant.
                     Tara Chandra Sharma for the Respondents.

                    The Judgment of the Court was delivered by
-                    R.M. LODHA, J. 1. We are confronted, in this appeal by
                                                                                     F

                special leave, with a question: whether, on the facts of the case,
                the offence is "murder" or "culpable homicide not amounting to
                murder".
                                                                                     G
                    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
                                                                                     H
    800         SUPREME COURT REPORTS              [2009] 5 S.C.R.


A 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)
B 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
c 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
D 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 eye
  witnesses. Bisweswar at whose instance the first information
E 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
                                                                       -
F 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
G 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
H of the High Court delivered the judgment. The conviction of
              SUCHAND BOURI v. STATE OF WEST BENGAL                   801
     )                   [R.M. LODHA, J.]
         · Fulchand and Nepal was set aside. However, the conviction of A
           the appellant and the sentence awarded to him by the first Court
           was upheld.

               6. Although Sarbeswar received multiple injuries, injury no.
          9, as per the post mortem report (Exhibit-7), was found to be B
          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/ c
              3rd of right clavicle and 2 Yi 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 D
              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 E
              upper part of rightside of chest, whole of rightside of neck
              and (llleg.) 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 F
          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 G
          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 H
    802           SUPREME COURT REPORTS               [2009] 5 S.C.R.


A 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
B relied upon the following observations of this Court in the case
  of Sukhbir Singh vs. State of Haryana 1

          "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,
c          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        ,..
D         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 proves the intention of the
E         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
F         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
G         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
       (2002) 3 sec 327.
H 1.
      SUCHAND BOURI v. STATE OF WEST BENGAL                       803
                 [R.M. LODHA, J.]

 squarely covered within Clause Thirdly of Section 300 IPC or A
 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
                                                                   8
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.
State of Punjab2. Vivian Bose, J. analysed Section 300 "Thirdly" C
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;                                                        D
      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 E
      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,                           F

      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 G
      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
2.   AIR 1958 3 SC 465.                                                 H
    804          SUPREME COURT REPORTS                [2009] 5 S.C.R.
                                                                           ..
A         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
8         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
c         present is proved, the rest of the enquiry is purely objective
          and the only question is whether, as a matter of purely
          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
D
          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
E         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
F   whether murder or culpable homicide not amounting to murder             ,
                                                                            "Ji
    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
G 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
H
                     SUCHAND BOURI v. STATE OF WEST BENGAL                 805
                                [R.M. LODHA, J.]
                of nature was sufficient to cause death, the diverse factors need A
                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 B
                of Haryana 3 ; 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 c
                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 D
                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 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 E
                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 F
                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
                                                                                G
                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
                3.   AIR 1981 SC 1552.
                4.   c2001) 3 sec 439.                                           H

..
    806            SUPREME COURT REPORTS             (2009] 5 S.C.R.


A   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     ~
8
    had not taken any undue advantage or acted in a cruel 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
C   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
D   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
E   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.

      16. In what we have discussed above, the conviction of the
F 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.

    D.G.                                        Appeal dismissed.