MOTI MALSIKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two appeals have been preferred against the judgment dated 13th of April 2000 of the 4th Additional Sessions Judge, Gaya passed in Sessions Trial No. 45 of 1998/132 of 1998, whereby the two appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life. Appellant Ranjeet Malsikar has also been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for five years. However, the sentences have been ordered to run concurrently. This, has to be mentioned here that the trial court had also convicted and sentenced one accused Moti Malsikar who was one of the appellants under Cr. Appeal No. 191 of 2000, but he died during the pendency of the appeal. Hence, by order dated 15th October 2003 passed in that appeal, the appeal abated against deceased -appellant Moti Malsikar.

(2.) THE prosecution case, as appearing in the fardbeyan of the informant Kulendra Malsikar (RW.5), the brother of deceased Mithilesh Malsikar as recorded by S.I. A.K. Sinha, Officer in -charge of Guraru Police Station on 24th September 1997 at 10.00 RM. in the Gali (lane) situated adjacent left of informant's house where the dead body of the deceased was lying, is that, that day (24.9.1997) at 7.30 P.M., while the informant and the deceased were sitting on their Dalan, the appellant Krishna Malsikar came there, talked for some time and while he was going back, he got struck against the fodder -cutting machine kept in the Dalan due to which he got hurt in the right side of his head. Due to this, Krishna Malsikar got enraged and started abusing the informant and the deceased and questioned as to why the informant had kept the machine there and saying that the Dalan belonged to him asked them to vacate the Dalan. The informant and the deceased prohibited him from abusing whereupon saying that he will teach them a lesson, he (Krishna Malsikar) want to his house situated south of the Dalan. Thereafter, the informant saw that appellant Krishna Malsikar carrying sword and Lathi, Moti Malsikar (now dead) carrying Garasa and appellant Ranjeet Malsikar carrying pistol came out of their house and started abusing them. Getting afraid, the informant and the deceased fled away from the Dalan but they were chased by the accused. The informant entered into the lane situated between the houses of his and Hira Debani and from there, he saw that the deceased who had fled towards his house was captured by Krishna Malsikar and Moti Malsikar (now dead) who threw the deceased on the ground. Then it is said that appellant Ranjeet Malsikar fired shot on the deceased and, thereafter, three accused fled away towards their house. The informant came out of the lane and he saw that receiving fire -shot, the deceased had died. It is further stated in the fard -beyan that on hearing hulla and sound of firing, several villagers and the family members had assembled who saw the occurrence but out of fear, nobody tried to save the deceased. The informant admitted in the fard -beyan that the dispute was going on between the informant's family and Moti Malsikar (now dead) regarding claim over the Dalan land.

(3.) IT is relevant to discuss the evidence of the Doctor first. The Doctor P.W.7 deposed that on 24th September 1997 at 3.15 P.M., he conducted the P.M. Examination on the dead -body of the deceased Mithilesh Malsikar aged about 15 years and found the following ante mortem injuries: i) One oval blackened margin inverted wound of entry over front of upper part of neck 3/4" below chin of approximate size 3/4" x bone deep. Direction of wound backward with one wound of exit of size 1" x 3/4" with everted margin at back of neck below occipital protuberance. ii)There was fracture of 3rd and 4th cervical vertebra with laceration of spinal cord. Blood clots present over floor of the wound. Neck grossly matted with dark blood clots. The Doctor opined that the injury was ante mortem, grievous and dangerous to life and caused by firearm from close range. Death, in his opinion, was due to shock and haemorrhage. Time elapsed since death was within 19 to 24 hours. The P.M. Report was proved as Ext -5. In his cross -examination, the Doctor said that he did not find any foreign object inside the wound. Naturally when the shot was fired from close range and there was wound of entry and exit, finding of any foreign object in the wound was not necessary. Thus, the Doctor found one injury caused by firearm on the neck of the deceased which was the cause of his death.