Moti Malsikar vs State of Bihar

C.M. Prasad, J.—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 u/s 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 u/s 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.

The prosecution case, as appearing in the fardbeyan of the informant Kulendra Malsikar (P.W.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 P.M. 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 fardbeyan that on hearing bulla 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.

As many as eight witnesses were examined by the prosecution in this case. P.W.5 Kulendra Malsikar is the informant himself. P.W.2 Bajrangi Malsikar, P.W.3 Satendra Malsikar, P.W.4 Awadhesh Malsikar are the eye witnesses to the occurrence. P.W.1 Umesh Malsikar states to have learnt about the occurrence from his mother and wife. P.W.6 Chunni Singh is a formal witness who has proved a sale-deed in respect of land sold by Rajdeo Pasi in favour of Narayan Pasi. The sale-deed has been marked Ext-3. He also proved the three Chaukidari receipts marked Ext-4 to Ext-4/2. P.W. 7 Dr. Mithilesh Kumar Sinha is the Doctor who held the P.M. Examination on the dead body of the deceased. P.W.8 Rajeshwar Prasad is a formal witness who proved the writings and signature on the F.I.R. and the fard-beyan marked Ext-2/1. He also proved the inquest report (Ext-4). This witness further deposed that Police Inspector J.N. Prasad, the then Officer In-charge of Guraru Police Station who was the I.O. of the case had died. Therefore, the case diary from Para 1 to 59 in the writing of the said deceased 1.0. was proved as Ext-1/a. This witness also proved the seizure-list (Ext-1/3) and the writing of the said J.N. Prasad, Officer In-charge of Guraru Police Station.

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" � bone deep. Direction of wound backward with one wound of exit of size 1" � 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.

As to the evidence of the informant Kulendra Malsikar (P.W.5), he deposed that on 24.9.1997, at 7.30 P.M. he and his brother Mithilesh Malsikar (the deceased) were sitting on the Dalan. At that time, Krishna Malsikar came there and he stated that the Dalan belonged to him and he also said that he did not accept the transfer of the land by his father in favour of his (informant''s) grand-father. He further deposes that the fodder-cutting maching was fixed in the Eastern Parti portion of the Dalan. A lantern was lighting in the Dalan. When Krishna Malsikar was returning from the Dalan, due to getting struck against the machine, he got hurt on his right hand and head as a result of which Krishna Malsikar started abusing them. The informant and the deceased prohibited Krishna Malsikar from abusing whereupon, saying that he will teach them a lesson, Krishna Malsikar went to his house. At Para-5 this witness further deposes that after some time Krishna Malsikar carrying sword, Moti Malsikar (now dead) carrying Garasa and Ranjeet Malsikar carrying pistol came there from their house. Seeing them, the informant and the deceased started fleeing towards north but they were chased by the three accused. The informant further deposed at Para-6 that Krishna Malsikar and Moti Malsikar captured the deceased and threw him down and thereafter Ranjeet Malsikar shot the deceased on his neck. The informant says that he had seen the assailant from the corner of the Gall He also says at Para-9 that receiving the fire-shot the deceased died. At Para-10 he says that the Police had come at 10.00 P.M. and his statement was recorded and finding the statement correct, he had signed over the same. The signature is marked Ext-2. He identified the accused in dock. At Para-17 of his cross-examination, he deposed that the place where the deceased had died after receiving the fire-shot is situated just 10 steps away from the Dalan.

Thus, the P.O was in close vicinity of the Dalan where the lantern was said to be lighting at the time of occurrence. Thus, the evidence of the informant is reliable and trustworthy and he supports the prosecution case on all the material points.

In order to impeach the credibility of the informant during the trial, the defence counsel, at Paras-27, 28, 29 and 30 of the informant''s evidence confronted the informant with some portions of his evidence as adduced in Court with a view to suggesting him that he had not stated those facts before the I.O. and the informant replied that he had stated those facts before the I.O.

As already stated, the I.O. of the case had died during the trial and the statement of the witnesses as recorded by the I.O. in the case diary as well as other materials recorded by the I.O. in the case diary from Page-1 to 59 was proved as Ext-1/8. Para-12 of the case diary contains the statement of the informant as recorded by the I.O. end the informant has stated in detail about the occurrence. No doubt, there are some minor variations in the statement as in the case diary when compared to the evidence as adduced in the Court but the variations are not of much significance. Here, this is found that while trying to impeach the credibility of the informant, the defence counsel did not confront him to any part of the statement as recorded by the I.O. in the case diary. The defence simply confronted the informant with some portions of his evidence adduced by him in the Court. Hence, treating as omission, it was argued here that since the evidence as confronted in Para-27, 28, 29 and 30 of the evidence of the informant were not stated before the I.O., they are vital omissions and in view of such omissions, the credibility of the informant is impeached to a great extent and, therefore, he does not remain a reliable and trustworthy witness.

But a vital question arises to be considered and decided here. In many of the cases, now-a-days, it is seen that in order to bring on record contradictions or omissions amounting to contradiction, some parts of the evidence of the witness as adduced by him in Court is directly put before the witnesses and he is asked whether he stated the evidence before the I.O. or not and when the witness replies in affirmative that portion of evidence is subsequently put before the Investigating Officer and his evidence that such witness had not stated the same before him is taken to prove omissions or contradictions on record. While adopting this procedure the statement relating to that matter as recorded by the Investigating Officer is completely ignored and the same (statement as recorded in case diary) is not used for confronting the witness and then proving that statement through the evidence of the Investigating Officer. And thus, the denial by the Investigating Officer of the evidence as adduced by the witnesses in Court is sought to be used as contradictions. This has also happened in this case. Though the I.O. of the case has died but the informant has been confronted to his evidence in this case with a view to suggesting to him that he had not stated the same before the I.O. But in order to bring on the record any contradiction or omission this is not the correct procedure. The correct procedure as provided in Sections 155(3) and 145 of the Evidence Act is that the witness has to be confronted with his previous statement as recorded by the I.O. and the contradiction or vital omission amounting to contradiction has to be brought from such statement, as made before the Police.

In the case of Binay Kumar Singh and others Vs. State of Bihar, the Apex Court has laid down in Para-12 of the judgment as follows:

The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that ''if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose for contradicting him.'' There is, thus, a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness, with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross examination even without restoring to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the crossexaminer proceeds to comply with the procedure prescribed in the second limb of Section 145.

Thus, in view of principles of law as enunciated by the Apex Court it is clear that in order to bring on the record omission or contradiction for the purpose of impeaching the credit of a witness it is necessary that the witness has to be confronted first to his previously recorded statement, on that matter and subsequently that statement is proved by the evidence of the Investigating Officer in a criminal case like ''this.'' But this procedure has not been followed by the defence in this case. The previous statement as made by the witness to the Investigating Officer and as recorded by him in the case diary was not confronted to the witness. Hence, it is found that lawfully any omission or contradiction was not proved on record. Therefore, the omission as sought to be proved on the record as in Paras-27, 28, 29 and 30 of the evidence of the informant (P.W.5) cannot be permitted to be used for impeaching the credit of the informant.

As to the witnesses to the occurrence, P.W.2 deposed that at 7.30 P.M. while he was taking meal in his house, he heard hulla and then came out of his house and went to the Baithaka of Sitaram Malsikar. At Para-9 he deposed that Sitaram Malsikar and Kailash Malsikar were brothers and Kulendra Malsikar (the informant) is the son of Kailash Malsikar and thus, the informant is cousin grand-son of Sitaram Malsikar. He further deposed that going to the Baithaka he saw that an altercation was going on between Kulendra Malsikar (the informant) and Mithilesh Malsikar (the deceased) on one side and Ranjeet Malsikar, Moti Malsikar (now dead) and Krishna Malsikar on the other side. Krishna Malsikar had sword, Moti Malsikar had Garasa and Ranjeet Malsikar had pistol in their hands. He further deposed that the informant and the deceased started fleeing away but the three accused chased them. The informant fled into the lane of Hira Malsikar but Mithilesh Malsikar (the deceased) was captured by Krishna Malsikar and Moti Malsikar (now dead) who threw him down. Then this witness further deposes that Ranjeet Malsikar shot the deceased on his neck as a result of which the deceased died there. He further deposed that at the time of occurrence a lantern was lighting at the Baithaka. At Para-3 this witness identified the accused in dock in Court. About cause of occurrence, he stated that there was land dispute between both the parties. At Para-7 of his cross-examination, he deposed that his house situates adjacent west of the Dalan. Thus, this witness was at a very close distance from the Dalan and it was natural for him that he immediately came out of the house on hulla and saw the occurrence. At Para-10, 11 and 13 he deposed that the altercation was going on the question of dispute regarding claim over the land. At Para-14 of his cross-examination, he stated that when he had reached at the P.O. he had seen that the informant was fleeing away. He categorically deposed that during the occurrence, none of the accused had used sword and Garasa. Thus, the accused Krishna Malsikar and Moti Malsikar who are said to have carried sword and Garasa and who had captured the deceased and had thrown him down on the ground had not used such weapon as carried by them.

In Paras-17, 18, 19, 20, 21 and 22 of the cross-exanimation of P.W. 2, some portions of the evidence as adduced by him in the Court were confronted to him and an omission was sought to be argued on the ground that such evidence was not stated before the I.O. It is apparent that P.W. 2 was not confronted to any previous statement as recorded by the I.O. Therefore, in view of discussions as made in the preceding paragraphs, the attempt of the defence for bringing about omissions through Paras-17, 18, 19, 20, 21 and 22 of this witness is of no avail and it is found that legally, there is no omission brought on the record which can avail an opportunity to the defence to impeach the credit of this witness. Considering the evidence of this witness it appears that he has corroborated the informant on all the material particulars.

P.W.3 Satendra Malsikar has also deposed to have come on hulla and to have seen the accused persons chasing the informant and the deceased and accused Krishna Malsikar and Moti Malsikar who had captured and thrown the deceased on the ground and accused Ranjeet Malsikar shot the deceased dead hitting the deceased on his neck. He also deposed at Para-4 that he had seen the accused in the light of lantern. At Paragraph-8 he identified the accused in dock. At Para-5 he deposed that the inquest report was prepared in his presence and he had signed over it. His signature is Ext-1. He has also deposed that Daroga had seized the blood soaked soil and a seizure-list was prepared and he had put his signature on the seizure-list. At Para-17 he deposed that the lantern was lighting in the Dalan. At Para-18 of his cross-examination he stated that Daroga had not asked him about the lantern, therefore, he had not stated about it before him. At Para-19 he deposed that Krishna Malsikar and Moti Malsikar had not used the weapon carried by them. In Para-19 of the evidence of this witness, the defence has tried to bring on record some omissions by contradicting this witness with some portion of evidence as adduced in Court but as already discussed, this is of no avail for the defence. The evidence of this witness is cogent and reliable.

P.W. 4 who is another eye witness also says that on hearing hulla and sound of firing he came out of his house and went into the Gall situated west of his house and saw that the deceased was lying there and blood was coming out of his neck and that Krishna Malsikar, Ranjeet Malsikar and Moti Malsikar carrying respectively sword, pistol and Garasa were fleeing away. This witness is the brother of the informant and he says that he saw the informant there who disclosed before him that the three accused were chasing them (the informant and the deceased) and that Krishna Malsikar and Moti Malsikar had thrown the deceased down and Ranjeet Malsikar had shot the deceased on his neck. At Para-5 of his evidence, he says that at that time, a lantern was lighting in his Dalan. This witness identified the accused in Court. In Para-7 of his cross-examination he says that the place where the deceased was lying fallen was at a distance of 6-7 steps from his house. Thus, the place where the deceased had fallen was at a very close distance and it is natural that the witness had come out of his house on hulla and hearing the sound of firing and to have seen the accused persons fleeing away after assault. This witness is also a trustworthy and reliable witness.

P.W. 1 is not an eye-witness to the occurrence and he simply says that when he had returned to his house from Konchi Bagicha he learnt from his mother and wife that Krishna Malsikar and Mithilesh Malsikar had thrown the deceased down and Ranjeet Malsikar had shot him dead. He further deposed at Para-3 that learning about the occurrence, he went to the P.O. and he had seen the deceased lying there and blood was coming out from his neck. At Para-5 he also deposes that Police had also come there and a seizure-list regarding blood soaked soil was made there and he had put his L.T.I. on it. At Para-7 he deposed that it was evening time and house lights had been lighted at that time. At Para-8 he deposed that he had returned to his house from the P.O. at 10.00 P.M. Thus, this witness had gone to the P.O. and had seen the deceased lying dead and a seizure-list regarding seizure of blood soaked soil was also prepared in his presence.

Thus, considering the evidence, it stands proved that the deceased had died of injury caused by firearm. It is also proved through evidence that a lantern was lighting in the informant''s Dalan and that an altercation had taken place between the informant and the deceased and the accused persons and that after the altercation, the informant and the deceased were chased by the accused. It also stands further proved that Appellant Krishna Malsikar who was armed with sword and Moti Malsikar (now dead) who was armed with Garasa captured the deceased and threw him down on the ground. Thereafter, it is further proved that Appellant Ranjeet Malsikar fired his pistol hitting on the deceased''s neck causing injury to him which caused his death.

During argument, learned Counsel for the Appellants argued that the occurrence took place at 7.30 P.M. and that there was no sufficient light that the accused could have been identified by the witnesses as claimed by them. But it is evident from the evidence of witnesses that they claimed identification in the light of lantern. The informant at Paga-17 has deposed that the place where the deceased was lying, situated 10 steps away from the Dalan. Thus, the occurrence had taken place in a very close area of the Dalan where the lamp was lighting. The occurrence had taken place in a village area. In the case of Ram Gulam Chaudhary v. The State of Bihar 2001 (4) PLJR (S.C.) 123, the Apex Court has observed that visual capacity of urban people who are acclimatised to fluorescent light or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps and that visibility of villagers is conditioned to such lights and it is quite possible for them to identify men and matters in such light. Thus, it was quite possible for the witnesses who have claimed identification that'' they had identified the accused persons in the light of lantern.

Learned Counsel for the Appellants argued that both the Appellants have been convicted u/s 302 read with Section 34 I.P.C. It was argued that Appellant Krishna Malsikar did not cause any assault to the deceased and he had not shared any common intention with Appellant Ranjeet Malsikar who had shot the deceased causing injury to him. From the circumstances of the case, it appears that the accused were chasing the deceased. It further appears that Appellant Krishna Malsikar who carried a sword and Moti Malsikar (now dead) who carried a Garasa both had captured the deceased and thrown him down and then it has been proved that Appellant Ranjeet Malsikar fired a shot with his pistol hitting the deceased on his neck and thus, causing his death. The Appellant Krishna Malsikar and Moti Malsikar (now dead) who had captured the deceased and thrown him down had not used their weapon and they did not cause any injury to the deceased. Had they any kind of intention to cause death even of their own or shared with Appellant Ranjeet Malsikar, they were at full liberty and nothing prevented them in using their weapon to injure the deceased in order to fulfil their intention but this has not been done. Rather it appears that when the deceased had been thrown down, the Appellant Ranjeet Malsikar came there and he fired his pistol shooting the deceased and causing his death. This appears to be an individual and independent act of Appellant Ranjeet Malsikar in shooting the deceased and causing his death. In such view of the matters, Appellant Krishna Malsikar is not found guilty of sharing any common intention in the act of killing of the deceased. However, he is found guilty of the act in capturing the deceased and throwing him down which constitutes an offence u/s 323 I.P.C. Therefore, his conviction is reduced and he is convicted u/s 323 I.P.C. and so far the question of sentence is concerned, he is sentenced td the period of custody already undergone by him during the trial.

As to Appellant Ranjeet Malsikar it is amply proved that he fired pistol pointing the deceased on his neck and, thus, causing the death of the deceased. He has been convicted u/s 302/34 I.P.C. but the facts and circumstances of the case, as proved through the evidence, make out a case u/s 302 I.P.C. and this Appellant is liable for the murder of the'' deceased and he requires to be convicted u/s 302 I.P.C. This Appellant was convicted u/s 302 read with Section 34 I.P.C. by the '' trial Court. Now when other Appellants who were convicted u/s 302/34 I.P.C. are not being convicted under that section, there does not appear to be any illegality in convicting the Appellant Ranjeet Malsikar u/s 302 I.P.C. under the facts and circumstances of the case as proved.

In the case of Willie (William) Slaney Vs. The State of Madhya Pradesh, the Hon''ble Supreme Court in a similar case held that when charge was u/s 302/34 I.P.C. the omission'' to frame alternative charge u/s 302 was not an illegality that vitiated the trial and conviction u/s 302 I.P.C. and it was a curable irregularity as it had not occasioned any prejudice to the Appellants and the conviction u/s 302 I.P.C. was not liable to be set aside.

Therefore, it is perfectly lawful to convict the Appellant Ranjeet Malsikar u/s 302 I.P.C. Accordingly, he is convicted u/s 302 I.P.C. So far the quantum of sentence is concerned, the sentence of life imprisonment is sufficient and is hereby maintained. The Appellant Ranjeet Malsikar has also been convicted u/s 27 of the Arms Act and sentenced to undergo R.I. for 5 years by the trial Court. This conviction and sentence is also hereby maintained. However, it is ordered that both the sentences will run concurrently.

Thus the appeal in respect of Appellant Ranjeet Malsikar is dismissed with modification as stated above. So far the appeal in respect of Krishna Malsikar is concerned, it is partly allowed, as. indicated above and he is discharged from the liability of bail bond.

Aftab Alam J.

I agree.