IMPORTANT POINT
Where accused caused a single gun shot injury to deceased and was said to have acted on impulse and that too on being instigated by his brother and genesis of occurrence was not established, offence would fall u/s 304 Part II IPC and not u/s 302 IPC.

Headnote:Indian Penal Code, 1860—Section 302—Appellant convicted under by Courts below—Appeal with a limited notice whether conviction u/s 302 IPC was liable to be altered to one u/s 304 IPC—Cattle of appellant allegedly damaged the crop in the field of deceased and deceased made a protest where upon hot exchange of words ensued—On exhortation of elder brother, appellant fired gun shot which hit deceased on left flank of abdomen—Question whether appellant had motive to kill deceased—Brother of appellant tried with accused was acquitted by High Court and another accused was acquitted by trial Court—In view of their acquittal genesis of occurrence could not be said to have been proved—Not only there was exchange of hot words but also a scuffle—No witness who could be said to have proved actual genesis of occurrence—Investigating Officer did not find any damage to crop in field of deceased—Only one shot was fired and appellant was not apprehended at spot—Appellant could not be said to had intention to kill deceased—Offence would fall u/s 304 Part II IPC as falling under Fourth Exception to Section 300 IPC—Sentence of seven years imprisonment award.
Held : 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.(Paras 15 & 16)
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 offence 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 simple Imprisonment. We direct that the fine of Rs. 5000/-, if realized, may be paid to P.W. 1-Madan Singh.(Paras 18 to 20)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. 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.

3. 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 :

4. 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.

5. Indisputably, P.W.1-Madan Singh, the father of the deceased and two co-villagers – 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.

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

7. 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.

8. 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.

9. 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.”

10. 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 Sing

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2006 Supreme(SC) 423

IMPORTANT POINTWhere accused caused a single gun shot injury to deceased and was said to have acted on impulse and that too on being instigated by his brother and genesis of occurrence was not established, offence would fall u/s 304 Part II IPC and not u/s 302 IPC.

Cases Referred (1)

IMPORTANT POINT
Where accused caused a single gun shot injury to deceased and was said to have acted on impulse and that too on being instigated by his brother and genesis of occurrence was not established, offence would fall u/s 304 Part II IPC and not u/s 302 IPC.