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2019 DIGILAW 1116 (RAJ)

Shayam Bihari v. State of Rajasthan

2019-04-12

BANWARI LAL SHARMA, KANWALJIT SINGH AHLUWALIA

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JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. This is unfortunate case, where on the spur of moment without any premeditation while having dinner, upon hot words exchanged between father and the son, the present appellant Shyam Bihari @ Shyam being son caused three injuries in quick succession with scissor (Kainchi) to his father Roop Narayan. 2. The case of the prosecution, as stated in the charge is that on the intervening night of 22nd and 23rd of May, 2014, in the revenue estate of village Dhipri Chambal, Kota, the present appellant caused injuries to his father Roop Narayan with scissor and thus committed offence punishable under Section 302 IPC. 3. The present appeal has been filed through jail. During the pendency of the appeal, Mr. Dheeraj Singhal has filed Vakalatnama on behalf of the appellant. 4. The appellant was tried by the court of Additional Sessions Judge, No. 3, Kota. The said court vide impugned judgment dated 27.8.2016 held the appellant guilty of offence under Section 302 IPC. The trial court having convicted the appellant for the aforesaid offence, vide a separate order of even date, sentenced him to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default of payment of fine to further undergo additional six months SI. 5. The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/1) submitted by Satyanarain (P.W. 1) younger brother of the deceased Roop Narayan. In the written report, the complainant stated that on 22.5.2014 at about 10:15 PM he was informed by Pooja Birla (P.W. 7) daughter-in-law of the Roop Narayan that upon quarrel, the accused appellant Shyam Bihari @ Shyam elder brother of husband of Pooja Birla (P.W. 7) caused injuries with scissor in quick succession to Roop Narayan brother of the complainant. 6. From the perusal of the FIR (Exhibit-P/11), it is discernible that Pooja Birla (P.W. 7) is the eyewitness of the occurrence being daughter in law of the deceased Roop Narayan. 7. Before we revert to the testimony of Pooja Birla (P.W. 7) and her sister Krishna Maheshwari (P.W. 8), who are only eyewitness of the occurrence, it will be apposite for us to take note of the medical evidence. 8. Roop Narayan, after injuries were caused was taken to the hospital, where he was declared dead. 9. Dr. 7. Before we revert to the testimony of Pooja Birla (P.W. 7) and her sister Krishna Maheshwari (P.W. 8), who are only eyewitness of the occurrence, it will be apposite for us to take note of the medical evidence. 8. Roop Narayan, after injuries were caused was taken to the hospital, where he was declared dead. 9. Dr. K.C. Sharma (P.W. 17) in the court deposed that on 23.5.2014 he was posted as Senior Medical Officer at Community Health Center, Itawa. Upon the application filed by the investigating officer, he conducted autopsy on the dead body of Roop Narayan aged 70 years vide Post Mortem Report (Exhibit-P/16. 10. A perusal of the Post Mortem Report (Exhibit-P/16) reveals that the deceased had suffered following three injuries:- (i) Incised stab wound 2" x 1" X muscle deep piercing pleura accelerating in apex of left lung (1 cm X 1 cm X 1 cm) 4" inch above left nipple anteriorly on left side of chest. Clotted blood is present. Nature is dangerous to life. (ii) Incised wound with reg. margin with clotted blood 6" x 2" gapping X bone deep cutting muscles and artery and vein- on left lower upper arm and on left upper arm lateral to medial, vertical and continuous- dangerous to life. (iii) Incised wound stab wound with clean cut margins. Horizontal in epigastrium. Piercing abdomen peritoneum 1" X 1" inch. No injury to internal organ, no internal bleeding, size of wound 3" X 1" gapping piercing peritoneum. Nature dangerous to life. 11. As per opinion of the doctor, the cause of death was asphyxia and syncope due to lung injury and excessive blood loss. 12. Pooja Birla (P.W. 7) in the court deposed that on 22.5.2015 in the night at about 9:00-10:00 PM all family members sat to take dinner. This witness stated that Shyam Bihari @ Shyam accused is elder brother (Jeth) of her husband. He had taken vegetable alongwith Puris (Sabji-Puri) due to which hot words were exchanged and Shyam Bihari started abusing Pooja Birla, who was serving the dinner. Upon which, Roop Narayan father-in-law of Pooja Birla (P.W. 7) reprimanded his son and advised him to take dinner in peace. Upon this, hot words were exchanged between father and the son. He had taken vegetable alongwith Puris (Sabji-Puri) due to which hot words were exchanged and Shyam Bihari started abusing Pooja Birla, who was serving the dinner. Upon which, Roop Narayan father-in-law of Pooja Birla (P.W. 7) reprimanded his son and advised him to take dinner in peace. Upon this, hot words were exchanged between father and the son. Puja Birla (P.W. 7) has stated that her neighbours confined the appellant Shyam Bihari @ Shyam in the kitchen and the accused appellant started throwing chilli powder. It is stated that after sometime, Roop Narayan opened the door of the kitchen and the accused gave scissor blows in quick succession to Roop Narayan. 13. To similar extent is the statement made by Krishna Maheshwari (P.W. 8), who is sister of Puja Birla (P.W. 7). 14. Learned counsel for the appellant has submitted that implicit reliance cannot be placed upon the testimony of Pooja Birla (P.W. 7) as she is the root cause of the trouble. It is further submitted that Krishna Maheshwari (P.W. 8) being sister is bound to support her sister Puja Birla (P.W. 7). 15. In the present case, the special report reached Illaqa Magistrate with delay. 16. Having heard the learned counsel for the appellant and the learned Public Prosecutor, we are of the view that it is necessary for us to sift the prosecution version to rule out the consultations and deliberations. 17. To us, it seems that the occurrence had taken place immediately while taking dinner when accused abused Pooja Birla (P.W. 7) wife of his younger brother and he was reprimanded by his father Roop Narayan deceased. In the fit of anger having lost the control, in the heat of moment, without any premeditation accused picked up scissor and caused injuries to his father Roop Narayan. It is not a case where the accused was armed with any lethal weapon or he had made any preparation to commit the crime. 18. On the spur of moment, suddenly, when the father of the accused took side of his daughter-in-law, who is wife of younger brother to the appellant, the accused appellant lost control of his senses and acted violently. 19. Having gone through the record and hearing the learned counsel for the parties, we are of the firm view that the presence of Pooja Birla (P.W. 7) at the spot cannot be doubted. 19. Having gone through the record and hearing the learned counsel for the parties, we are of the firm view that the presence of Pooja Birla (P.W. 7) at the spot cannot be doubted. But taking events accompanying the incident, we are of the view that the accused was not having intention to cause murder of his father. Therefore, we shall hold that the accused was not having necessary mens-rea to commit offence of culpable homicide amounting to murder. 20. Consequently, the conviction of Shyam Bihari @ Shyam for offence under Section 302 IPC is set aside and he is convicted for offence under Section 304 Part-II IPC. As a result of conversion of offence, we set aside the life imprisonment awarded upon appellant Shyam Bihari @ Shyam. 21. With the modification of offence, we have to determine the quantum of sentence. 22. Considering that the appellant has caused injuries to his father, we are of the view that sentence of five years, which we ordinarily award is not called for. In the present case, we award sentence of seven years RI to the appellant. 23. Consequently, the conviction of accused appellant Shyam Bihari @ Shyam is modified and for the offence under Section 304 Part II IPC, he is awarded seven years RI. The sentence of fine and default clause awarded by the trial court are maintained. 24. In view of above conversion of offence and modification of sentence in above terms, the present appeal is disposed of.