Back
2009 Supreme(SC) 657
2009(3) Supreme 304
SUPREME COURT OF INDIA
S.B. Sinha and R.M. Lodha, JJ.
Suchand Bouri — Appellant
versus
State of West Bengal — Respondent
Criminal Appeal No. 460 of 2008
Decided on : 09-04-2009
For the Appellant :Ranjan Mukherjee, (A.C.), S. Bhowmick, S.C. Ghosh, Advocates.
For the Respondent:Tara Chandra Sharma, Advocate.
IMPORTANT POINT
Factors for attracting Section 300, thirdly and Exception 4 discussed.
Headnote:(a) Indian Penal Code, 1860 – Section 300 “Thirdly” – Facts to be proved necessarily to attract section 300, thirdly. (Para 10)
AIR 1958 SC 465 – Relied upon.
(b) Indian Penal Code, 1860 – Section 300, Thirdly – 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. (Para 12)
AIR 1981 SC 1552; (2001) 3 SCC 439 – Relied upon.
(2002) 3 SCC 327 – Distinguished impliedly.
(c) Indian Penal Code, 1860 – Section 300, Exception 4 – For the invocation of Exception 4 to Section 300 all these four factors have to be probablised by the defence: (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 – In absence of existence of any of the four requisites, Exception 4 has no application. (Para 15)
Facts of the case :
1. 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.
2. 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 came there. Fulchand and Nepal started assaulting Bisweswar as a result of which he 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. The first Court 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. Fulchand and Nepal were found guilty for the offences under Section 323 IPC.
4. A common appeal was preferred by the present appellant as well as Fulchand and Nepal before the High Court. 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.
Finding of the Court :
The appellant is not at all entitled to the benefit of Exception 4, section 300, IPC.
Result : Appeal dismissed.
JUDGMENT
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 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.
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 committe
