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CASE NO.: Appeal (crl.)  501 of 2006

PETITIONER: Surendra Singh @ Bittu

RESPONDENT: State of Uttaranchal

DATE OF JUDGMENT: 28/04/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Crl.)No.5674/2005)

S.B. Sinha,  J.

       Leave granted

The appellant is before us being aggrieved by and dissatisfied with a  judgment and order dated 15.9.2005 passed by the High Court of  Uttaranchal in Criminal Appeal No.148/2002, whereby and whereunder an  appeal preferred by him from a judgment dated 17.6.2002 of the Fast Track  Court, Kashipur (Udhamsingh Nagar), convicting him for an offence under  Section 302 of the Indian Penal Code (’IPC’, for short) was dismissed.   

Having regard to the fact that a limited notice was issued in the  matter, namely, as to whether the judgment of conviction under Section 302  IPC should be altered to one under Section 304 IPC, we need only notice the  facts relevant to that aspect:    The parties belong to Mohali Jungle of P.S. Bazpur, District Udham  Singh Nagar.  They have their own agricultural lands in the said village.   The appellant has his own cattle.  The cattle belonging to the Appellant used  to enter into the agricultural lands of the deceased, Ram Singh, which were  adjoining to the agricultural lands of the accused and were separated by a  bund. Ram Singh made a number of complaints thereabout to the appellant.   On 14.6.2001, again the cattle allegedly damaged the crops grown in the plot  of the deceased.  He made a protest thereagainst whereupon hot exchanges  of words ensued.  There was a scuffle.  Rajendra Singh, the elder brother of  the accused, allegedly, exhorted that the deceased has been creating trouble  and he should be killed, whereupon the appellant is said to have fired a shot  from his gun, which hit him on the left flank of the abdomen   

       Indisputably, P.W.1-Madan Singh, the father of the deceased and two  co-villagers \026 P.W.2-Govind Singh and Kharak Singh witnessed the  occurrence.  It is not in dispute that the gun in question was not recovered.   It was further not in dispute that another witness Kharak Singh, who was  also said to be an eye-witness, had not been examined by the prosecution.   

       Along with the appellant herein, his brother Rajendra Singh, as also  the accused No.3 Trilok Singh were charge-sheeted.  The learned Trial  Judge acquitted Trilok Singh of all charges holding, inter alia, that sufficient  evidence was not brought on record to implicate him.  The appellant herein  and Rajendra Singh were, however, convicted under Sections 302/34, 504  and 506 of the IPC.  An appeal was preferred thereagainst.  By reason of the  impugned judgment, the High Court, however, while acquitting Rajendra  Singh of the charges levelled against him, maintained the conviction of  the

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appellant herein under Section 302 IPC simplicitor, as also under Sections  504 and 506 of the IPC.  The appellant is, thus, before us.

       In this appeal we proceed on the basis that the appellant was  responsible for causing the death of the said Ram Singh.  The homicidal  nature of death of Ram Singh is also not in dispute.   

The principal submission of Mr. M.N. Rao, learned Senior Counsel  appearing on behalf of the appellant is that it is not a case where the  appellant can be said to have any intention to cause death of the said Ram  Singh.   

P.W.1, the father of the deceased was not at the spot and, therefore,  did not witness the occurrence.  Govind Singh-P.W.2 and Kharak Singh- P.W.3 were examined by the prosecution.  They allegedly have been passing  through the bund of the said field at about 7.30 p.m.   P.W.3 was at a  distance from them.  Although, in his examination-in-chief he is said to have  stated that Rajendra Singh asked the appellant to kill him with a fire arm,  whereupon the appellant fired a shot, but in his cross-examination he  categorically stated:               "The name of my real brother is Mohan Singh.  Some  scuffle with Ram Singh and accused persons took place  on the bund of the field.  I had not heard the sharing of  abuses because I was behind." It is also not in dispute that only one shot was fired.  P.W.2-Govind  Singh had not been relied upon totally by the Trial Judge.  Possibly, in view  of his evidence the aforementioned Trilok singh was acquitted.  The said  Govind Singh in his examination-in-chief stated that:

"\005..Minor scolding took place between Rajendra Singh  and Ram Singh.  This scolding took place on the question  of damages caused by the cattle.  Rajendra Singh said to  Surendra Singh shoot him with gun, he harasses us daily.   Trilok Singh was shouting from his house, don’t let him  alive, kill him.  Surendra Singh had shot a fire on Ram  Singh."

His evidence has not been found to be reliable by the learned   trial Judge.  He noticed:

"\005.Witness Govind Singh PW-2 has stated in his  examination in chief that exchange of abuses took place  on the question of entering of cattle in the field.  He  stated the fact that exchange of abuse took place between  Ram Singh and Rajendra Singh and on this question no  cross examination of the witness has been made.  By  which it should be admitted that there was no such fact of  causing damages by the cattle.  Thus there were grudge  and enmity between the parties and just due to that  enmity this occurrence has been caused by the accused  persons on the same day in the evening."

The Trial Judge categorically held that Trilok Singh was not present at  the spot.  A site plan was prepared by P.W.4-Rakesh Chandra Thapliyal, the  Investigating Officer of the spot on the basis of identification of the site by  the said Govind Singh and Kharak Singh.  According to the said witness, no  damage of crop by the cattle was shown in the site plan.  It has further been  noticed by the learned Trial Judge that Govind Singh, even in his statements  before the Investigating Officer, did not name Trilok Singh.   

The High Court, as noticed hereinbefore, also acquitted the brother of  the appellant on whose alleged exhortation only the appellant has said to  have fired the shot opining:

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"\005On the other hand we find that in the instant case  there was only allegation of instigation attributed to  accused Rajendra Singh and he was not in the picture  when  the deceased first of all met the accused Surendra  Singh and complained to him about the damage to his  crop by the cattle of the accused.  The accused Surendra  Singh was at that time carrying a gun and therefore there  was no need for accused Rajendra Singh to exhort or  instigate his brother accused Surendra Singh to kill the  deceased by wielding the gun.  Considering the evidence  of P.W.1 and P.W.2 to this effect we are convinced that  there was no meeting of mind of these two accused to  commit the offence with which they were charged and  therefore without casting any reflection on the evidence  of these two eye witnesses and only by way of abundant  caution accused Rajendra Singh should have been  extended benefit of doubt and acquitted of the charges  leveled with the aid of section 34 I.P.C."

       The question as to whether the appellant had the motive to kill the  said Ram Singh is required to be considered on the aforementioned backdrop  of events.                    In view of the acquittal of Trilok Singh and Rajendra Singh, the  genesis of the occurrence cannot be said to have been proved.  The  appellant, according to the prosecution case itself, did not act on his own.   He is said to have acted on impulse and that too upon being instigated by his  brother.  From the evidence of P.W.1 and P.W.2, it is evident that not only  there had been hot exchange of words, but also a scuffle.  The learned Trial  Judge did not fully rely upon the evidence of P.W.2.  Thus, there was no  witness who can be said to have proved the actual genesis of the occurrence.   

The parties have their own agricultural lands adjoining each other.   The prosecution case is that the cattle belonging to the appellant had  damaged the standing crops of the deceased, but the Investigating Officer  did not find any evidence in this behalf.  Why then there had been hot  exchange of words and a scuffle ensued is not known.  Only one shot was  fired.  The Appellant was not apprehended at the spot.  In a situation of this  nature, therefore, we are of the opinion that it cannot be said that the  appellant had an intention to kill the deceased.   

               In Jalaram vs. State of Rajasthan [2005 (9) SCALE 505], this  Court, in a case where there had been a dispute as regard the right of way,  held:

"The right of way on the agricultural land  belonging to Sonaram has not been established.  If  there was not established right of way by way of  easement or otherwise and if there had been an  apprehension in the mind of the accused that there  was a threat of trespass in their land, indisputably  they could exercise their right of private defence.   In any event, such an apprehension on the part of  the Appellant and other accused persons cannot be  ruled out.

       We have noticed hereinbefore, that the only  blow which was hurled by the Appellant herein  was on the forehead of the deceased.  The genesis  of the occurrence, appears also not to have been  disclosed by the prosecution.  It is not the case of  the prosecution that the appellant herein and other  accused persons had been nurturing any grudge  against the deceased or the informant from before

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or had any motive to commit the aforementioned  offence.  Any motive on the part of the Appellant  and other accused persons for hiding themselves  near the place of occurrence and committing the  offence has not been established.  It is, thus,  difficult to accept that part of the prosecution  case."           

       In that view of the matter, we are of the opinion that the offence,  which is established as against the appellant herein, would fall under Section  304 Part II of the IPC and not under Section 302 IPC.

       We, therefore, modify the conviction of the Appellant as falling under  Fourth Exception to Section 300 IPC being of the opinion that the appellant  has caused the death of the deceased without having any intention therefor.   The appellant is, therefore, found guilty of commission of an office under  Section 304 Part II of the IPC.                  We are, further, of the opinion that keeping in view the facts and  circumstances of this case, interests of justice would be subserved if the  appellant is sentenced to undergo sentence of seven years’ Rigorous  Imprisonment and also pay a fine of Rs.5000/-, in default of payment  whereof, to undergo further six months’ Rigorous Imprisonment.  We direct  that the fine of Rs.5000/-, if realized, may be paid to P.W.1-Madan Singh.         The appeal is allowed to the aforementioned extent.