SURENDRA SINGH@ BITTU versus STATE OF UTTARANCHAL

Citation: [2006] SUPP. 1 S.C.R. 490 · Decided: 28-04-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed
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Judgment (excerpt)

A 
B 
SURENDRA SINGH@ BITTU 
v. 
STATEOFUTTARANCHAL 
APRIL 28, 2006 
[S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ .] 
Penal Code, 1860: 
s. 304( Part ll)-Absence of intention to cause death-During exchange 
C of hot words and scufjle, a single gun shot causing death of victim-Three 
accused prosecuted u/s 302134 /PC-Trial court acquitting one of them and 
convicting two under s.304134-High Court acquitting another giving him 
benefit of doubt and convicting appellant u/s. 302 simplicitor-Held, in view 
of acquittal of other two accused, genesis of occurrence cannot be said to 
D have been proved-Appellant did not act on his own- He is said to have 
acted on impulse and that too upon being instigated by his brother--
Appellant cannot be said to have intention to kill the deceased-Conviction 
uls 302 altered to one u/s 304 (part II) with sentence of 7 years RI. 
Appellant, his elder brother and another person were prosecuted for 
E offences inter alia, punishable under s. 302/34 IPC. The appellant and PW-
1 had adjoining agricultural lands. Prosecution case was that cattle belonging 
to appellant used to enter agricultural fields of PW-I. On the date of 
occurrence also cattle of appellant damaged crops of PW-I whereupon his 
son made protests. This led to hot exchanges and a scuffle. Upon exhortation 
F given by his elder brother the appellant was said to have fired a shot which 
hit the son of PW-I on the left flank of the abdomen. PW-I and two other co-
villagers namely PW-2 and one 'K' were said to have witnessed the 
occurrence. However, 'K' was not examined by the prosecution. The trial court 
convicted the appellant and his elder brother inter alia, under s.302/34 IPC. 
On appeal, the High Court acquitted the elder brother of appellant. However, 
G the appellant was convicted inter alia, under s.302 IPC simplicitor. 
In the present appeal, the Court issued limited notice, namely, as to 
whether the judgment of conviction under s.302 IPC should be altered to one 
under s.304 IPC. It was contended for the accused-appellant that it was not a 
case where the accused could be said to have any intention to cause death of 
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SURENDRA SINGH@BITTU v. STA TE OF UTT ARANCHAL 
491 
the deceased. 
Allowing the appeal in part, the Court 
HELD: 1.1. In view of the acquittal of the other two accused, the genesis 
of the occurrence cannot be said to have been proved. The appellant, according 
A 
to the prosecution case itself, did not act on his own. He is said to have acted B 
on impulse and that too upon being instigated by his brother. From the evidence 
of PW-I and PW-2, it is evident that not only there had been hot exchange of 
words, but also a scuffle. PW-I, the father of the deceased, was not at the spot 
and therefore, he did not witness the occurrence. The trial judge did not fully 
rely upon the evidence of PW-2. Thus, there was no witness who can be said 
to have proved the actual genesis of the occurrence. The High Court did not C 
believe the exhortation aspect and acquitted the brother of the appellant giving 
him benefit of doubt. 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. The appellant was not apprehended at D 
the spot. In a situation of this nature, it cannot be said that the appellant had 
an intention to kill the deceased. [494-D-H; 495-A-C) 
Jalaram v. State of Rajasthan, (2005) 9 SCALE 505, referred to. 
1.2. The conviction of the appellant is modified as falling under Fourth E 
Exception to s.300 IPC as he has caused the death of the deceased without 
having any intention therefor. The appellant is found guilty of commission of 
an offence under s.304 (Part II) of the IPC. Keeping in view the facts and 
circumstances of the case, appellant is sentenced to undergo sentence of seven 
years' R.I. and also pay a fine of Rs. 5000- which if realised may be paid to 
· PW-1. [496-A-C) 
F 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 50 I of 
2006. 
From the Judgment and final Order dated 15.9.2005 of the Uttaranchal 
High Court at Nainital, in Criminal Appeal No. 148/2002. 
' 
G 
Venkateswara Rao Anumolu for the Appellant. 
Avatar Singh Rawat and D. Bharathi Reddy for the Respondent. 
The Judgment of the Court was delivered by 
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492 
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
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