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2024 DIGILAW 966 (JHR)

Hilarius Tigga v. State of Bihar (now Jharkhand)

2024-11-27

ARUN KUMAR RAI, RONGON MUKHOPADHYAY

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JUDGMENT Per Mr. Rongon Mukhopadhyay, J. Heard Mr. Chandan Kumar, learned counsel for the appellant and Mr. Pankaj Kr. Mishra, learned A.P.P. for the respondent. 2. This appeal is directed against the judgment and order of conviction and sentence dated 20.12.1996 passed by Shri Lakhan Kumar Sahay, learned Sessions Judge, Gumla, in Sessions Trial No. 106/1996, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 302 of the IPC and has been sentenced to undergo R.I. for life. 3. The prosecution case arises out of the fardbeyan of Filmon Beck, in which, it has been stated that he works as a mason in ST. Convent School, Majha Tola and was residing in his room within the precincts of the school and along with him Paulus (deceased) and Hilarious Tigga (appellant) were also residing. All the three inmates of the school used to cook their food inside the room. It has been alleged that on 22.12.1995 they purchased country made liquor and consumed the same. In course of conversation there was hot talk between Hilarious and Paulus and Hilarious with a bamboo stick gave a blow on the head of Paulus as a result of which Paulus sustained injury on his head. On seeing the assault the informant immediately intimated about the incident to the sister-in-charge Gloria Kujur who woke up the other sisters and all rushed to the place of occurrence where they found Paulus lying dead on the ground with blood oozing out from his person. It has been alleged that during the time the informant had called the sister and when they arrived the accused had given repeated blows to Paulus with spade and danda. The accused was present at the place of occurrence smoking bidi but he did not respond when asked to explain the specks of blood found on his person. When the sister went to ask Johanus Minj to inform the Police the accused had fled away. Based on the aforesaid allegations Raidih P.S. Case No. 63/1995 was instituted u/s 302 of the IPC against Hilarious Tigga. On conclusion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 109/1996. Based on the aforesaid allegations Raidih P.S. Case No. 63/1995 was instituted u/s 302 of the IPC against Hilarious Tigga. On conclusion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 109/1996. Charge was framed u/s 302 of the IPC which was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eight witnesses in support of its case. 5. P.W.1 (Sister Gloria Kujur) has stated that the incident is of 22.12.1995 and she was sleeping in her room and sister Swati Ekka and Sister Georgia Baxla were also sleeping in the same room. At around 10:00 P.M. Filmon Beck came and disclosed that Paulus and Hilarious are fighting with each other. He however did not disclose what act Hilarious had done. Thereafter she and the other sisters went to see Paulus and found him dead with blood oozing out from his ears. At the place of occurrence a Kudal and a Hockey stick made of bamboo were lying. Both had blood stains on them. She has stated that Hilarious was present smoking a bidi and he did not respond when she asked him as to how the incident had occurred. Hilarious thereafter fled away. In the night of the occurrence Filmon, Hilarious and Paulus had consumed liquor. On 23.12.1995, Police had come and seized the blood stained Kudal and Bamboo stick and prepared a seizure list, in which, she and Johanus Minj had signed which have been marked as Exhibit-1 and 1/1. In the morning the fardbeyan of Filmon Beck was recorded by the Police. She has proved the signature of Filmon Beck on the fardbeyan which has been marked as Exhibit-2. She has proved her signature as well as the signature of sister Swati Ekka and sister Georgia Baxla which have been marked as Exhibit- 2/1, 2/2 and 2/3 respectively. In cross-examination, she has deposed that when Filmon had informed her it was dark. Paulus was lying dead outside the room. There was no source of light at the place where Paulus was lying. In cross-examination, she has deposed that when Filmon had informed her it was dark. Paulus was lying dead outside the room. There was no source of light at the place where Paulus was lying. When she and the sisters had reached near the dead body of Paulus there was no one else present and Hilarious was found sitting near the room in an intoxicated condition. She had never seen Hilarious in such a condition anytime earlier. 6. P.W.2 (Sister Swati Ekka) has been tendered by the prosecution. 7. P.W.3 (Sister Georgia Baxla) has also been tendered by the prosecution. 8. P.W.4 (Johanus Minj) has identified his signature and the signature of Victor Ekka on the inquest report which have been marked as Exhibit-3 and Exhibit-3/1 respectively. In cross-examination, he has deposed that a Kudal and a Bamboo stick were lying besides the body of Paulus. 9. P.W.5 (Filmon Beck) is the informant who has stated that the incident is of seven months ten days back. He had gone to Mission Convent, Majha Toli for working as a Mason. He was staying in his room and Paulus Xalxo as well Hilarious Tigga were also staying with him in the same room. Hilarious was working in the Convent as a labour while the work of iron in constructing the building was being done by Paulus Xaxlo. On Friday at 8:00 P.M. all of them had consumed liquor and in course of drinking there was a quarrel between Hilarious and Paulus and Hilarious had assaulted Paulus with a Bamboo stick and resultantly Paulus fell down. He immediately went to the sister to inform her about the incident and by the time the sisters came Paulus had already expired. There was an injury on the head of Paulus. He had not noticed whether there were other injuries in his body or not. When the sisters had come Hilarious was sitting and smoking bidi. When the sisters had asked Hilarious as to why he committed such assault Hilarious did not answer and instead fled away. In cross-examination, he has deposed that all three were staying in the same room for the last ten days and there has been no occasion between them for quarrel in these ten days. The quarrel had taken place as both were intoxicated. He had gone to inform the sisters when Hilarious had given a danda blow upon Paulus. In cross-examination, he has deposed that all three were staying in the same room for the last ten days and there has been no occasion between them for quarrel in these ten days. The quarrel had taken place as both were intoxicated. He had gone to inform the sisters when Hilarious had given a danda blow upon Paulus. There was a bulb inside the room and it was dark outside. The assault with danda was made outside the room. At the time of assault he was also in an intoxicated state. He was not even in a position to walk properly. When he came back to the place of occurrence with the sisters he was in a more intoxicated condition and in that night he was locked in a room. When the Police reached the door was opened at 6:00-7:00 A.M. 10. P.W.6 (Dr. Angrej Subhas) was posted as a Civil Assistant Surgeon at Sadar Hospital, Gumla and on 23.12.1995 he had conducted autopsy on the dead body of Paulus and had found the following injuries: (i) A lacerated injury frontal part of scalp extending upto mid scalp 4” x 1” x bone deep with fracture of underlying bone with laceration of grey matter. (ii) Lacerated injury in upper part of cheek right side 4” x 1” x 3” with fractured mandibular bone of that side. (iii) Lacerated injury last above eye brow right side 3” x 1” x 2” with fracture of supra arbital bone on that side. (iv) Lacerated injury of chin 2” x 1” x ½”. (v) Fracture of forearm bone right. (vi) Lacerated injury just below ear on right side 1” x ½” x ½”. (vii) Fracture of lygomatic bone right side. All the injuries were antemortem in nature caused by hard and blunt substance may by a piece of Bamboo of the shape of a Hockey stick. The cause of death was hemorrhage and shock due to the above injuries. He has proved the postmortem report which has been marked as Exhibit-4. In cross-examination, he has deposed that except injury no. (iv) all injuries are grievous in nature. The injuries are not possible by fall from height on hard and blunt substance. 11. P.W.7 (Md. Mohiuddin) was posted as an ASI in Raidih P.S. and on 23.12.1995 he had taken over the investigation of Raidih P.S. Case No. 63/1995. In cross-examination, he has deposed that except injury no. (iv) all injuries are grievous in nature. The injuries are not possible by fall from height on hard and blunt substance. 11. P.W.7 (Md. Mohiuddin) was posted as an ASI in Raidih P.S. and on 23.12.1995 he had taken over the investigation of Raidih P.S. Case No. 63/1995. He has proved the fardbeyan which has been marked as Exhibit-2/4. He has proved the formal FIR which has been marked as Exhibit-5. He has also proved the endorsement and signature of S.I. Shyam Bihari Singh on the fardbeyan which has been marked as Exhibit-2/5. He has proved the seizure list of blood stained Kudal, Bamboo stick and Earth which has been marked as Exhibit-1/2. Inquest report has been proved and marked as Exhibit-3/2. He had inspected the place of occurrence which is inside the campus of St. Anna Mahila Vidyalya. He had recorded the statement of the informant and the other witnesses and also obtained the postmortem report. On the orders of the superior authority he had submitted charge- sheet. He had prepared the sketch map of the place of occurrence which is at paragraph 8 of the case diary and which has been proved and marked as Exhibit-6. In cross-examination, he has deposed that he had not seized any article from the place of occurrence. 12. P.W.8 (Shyam Bihari Singh) was posted as an Officer- in-Charge in Raidih P.S. and on 23.12.1995 he had recorded the fardbeyan of Filmon Beck. Such fardbeyan was recorded in presence of Sister Gloria, Sister Sweta and Sister Georgia. He had started investigation and prepared the inquest report which has been proved and marked as Exhibit-3/2. He had handed over the investigation to Mohiuddin Khan. He has proved the dead body challan which has been marked as Exhibit-7. 13. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his complicity in the offence. 14. It has been submitted by Mr. Chandan Kumar, learned counsel for the appellant that the conviction is based upon the evidence of P.W.5 and such evidence does not point to the involvement of the appellant in committing the murder. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his complicity in the offence. 14. It has been submitted by Mr. Chandan Kumar, learned counsel for the appellant that the conviction is based upon the evidence of P.W.5 and such evidence does not point to the involvement of the appellant in committing the murder. It has been submitted that even if the allegations are taken to be true the same can at best attract an offence u/s 304 Part-II of the IPC and since the appellant has spent a considerable time in custody the sentence be accordingly modified. 15. Mr. Pankaj Kr. Mishra, learned A.P.P. has submitted that the appellant and the deceased were in the same room and P.W.5 has witnessed the assault. He has submitted that there was a repeated assault upon the deceased by the appellant and, therefore, it cannot be concluded that the incident had occurred at the spur of the moment. 16. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records. 17. The incident appears to have taken place inside the school premises where the appellant, the deceased and the informant were staying together in a room on account of their engagement in various capacities in the school. A rather innocuous evening of enjoyment turned fatal when the appellant on account of a quarrel had assaulted the deceased with a bamboo stick and Kudal resulting in his death. P.W.5 is the only eye-witness to the assault limited only to one blow with a bamboo stick given on the head of the deceased. He immediately informed the sisters and when they reached the place of occurrence Paulus was already dead by then. The postmortem report reveals that multiple injuries were found on the person of the deceased. When P.W.1 and the other sisters arrived they had found the appellant sitting at the place of occurrence smoking a bidi. The evidence of P.W.1 and P.W.5 clearly indicates that it was the appellant who had committed assault upon Paulus leading to his death. 18. The circumstances leading to such assault has been detailed by P.W.5 to the effect that P.W.5, the appellant and the deceased were having liquor and in course of consuming liquor a quarrel ensued between the appellant and the deceased leading to such murderous assault. 18. The circumstances leading to such assault has been detailed by P.W.5 to the effect that P.W.5, the appellant and the deceased were having liquor and in course of consuming liquor a quarrel ensued between the appellant and the deceased leading to such murderous assault. It seems that none of the three persons were in their senses when the incident had occurred as even P.W.5 as per his own admission was not able to walk properly. The appellant after the assault sat at the place of occurrence smoking a bidi in a nonchalant fashion seemingly unaware about his act of taking the life of another person. This conduct of the appellant enhances the submission of the learned counsel for the appellant that the death was caused unintentionally by the appellant. P.W.5 on seeing a single blow had left to inform P.W.1 and in the meantime the deceased was assaulted a few more times in course of the same transaction which can be inferred from the fact that the appellant was present near the dead body when P.W.5 returned back with P.W.1 and the other sisters. The circumstances noted above would attract an offence u/s 304 Part-II of the IPC and consequently the conviction of the appellant is modified to one u/s 304 Part-II of the IPC. The sentence imposed upon the appellant, considering the fact that he had remained for more than two years in custody and the incident being of the year 1995 is accordingly modified to the period already undergone. 19. This appeal is disposed of with the modification in the conviction and the consequent sentence upon the appellant as noted above.