Gauhati High Court
Phalit Paik vs The State Of Assam on 6 September, 2021
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh, Soumitra Saikia
Page No.# 1/15
GAHC010086022018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/46/2018
PHALIT PAIK
S/O. LT. PEPURAM PAIK,
R/O. SESSA MOIDUMIA,
P.S. BARBARUAH,
DIST. DIBRUGARH,
VERSUS
THE STATE OF ASSAM
REP. BY THE P.P., ASSAM
:: BEFORE::
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Appellant : Mr. U. Choudhury, Amicus Curiae.
For the Respondent : Mr. R. R. Kaushik,
Additional Public Prosecutor, Assam Date of Hearing : 09.08.2021.
Date of Judgment : 06.09.2021
Page No.# 2/15
JUDGMENT & ORDER
(N. Kotiswar Singh, J)
Heard Mr. U. Choudhury, learned Amicus Curiae appointed by this Court to assist this Court on behalf of the appellant. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam for the State.
2. The present appeal has been preferred against the judgment dated 24.01.2018 passed by the learned Additional Sessions Judge, Dibrugarh in Sessions Case No. 21 of 2012 by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/- (Rupees ten thousand) only in default to undergo further simple imprisonment for 3(three) months.
3. The brief facts of the case as can be gathered from the records is that an FIR was lodged by one Sri Taralal Paik, the brother-in-law of the deceased and the brother of the accused on 07.08.2011 stating that while his sister-in-law Pinki Paik @ Rekha Paik was returning back from work on 06.08.2011 at about 4:00 PM, her husband, Phalit Paik hacked her to death with a dao behind Maindamani School.
4. Based on the aforesaid FIR, the police launched investigation and on completion of the investigation, the appellant was charge-sheeted under Section 302 IPC and accordingly, he was tried by the Court of Additional Sessions Judge, Dibrugarh.
5. The learned Trial Court on consideration of the evidences adduced by the prosecution convicted the appellant as mentioned above.
6. To support the case of the prosecution, the prosecution examined 10(ten) witnesses Page No.# 3/15 and relied on other evidences including postmortem report.
7. We will briefly deal with the evidences of the witnesses and other evidences before we examine the correctness or otherwise of the grounds raised by the appellant in challenging the conviction in this appeal.
8. P.W.1, Sri Taralal Paik, is the informant who deposed that the accused Phalit Paik is his younger brother. The appellant along with his wife used to live together a little away from his house. He deposed that while he was sleeping at his home in the evening on the fateful day he saw the wife of the accused in an injured state being carried in front of his house. He then informed the police about it. Thereupon, the police arrested the appellant and also held inquest on the dead body.
In the cross-examination, he stated that he put his thumb impression and did not know as to what was written in the ejahar.
9. P.W.2 is one Sri Dinesh Konwar, who is a resident of the same village and had a shop. When he heard a commotion, he went towards Sesa High School and found the beheaded body of a woman lying at the backside of the school. Soon after he reached the spot, the police also arrived. Later on, the police found the severed head of the woman in a bag which the appellant had in his hand. The police held the inquest on the dead body and they took his signature which was proved by the P.W.2 by identifying his signature on the inquest report.
In the cross-examination, he admitted that he did not witness the incident and also he did not go through the exhibits, inquest report while putting his signature. However, he stated that he had put his signature after preparation of the said documents by the police. He also stated that he did not see any dao and also did not see the severed head. He also could not Page No.# 4/15 say as to whose severed head it was and he was not familiar with the wife of the appellant. He also stated that since it was a body without a head, he could not identify whose dead body it was. He also stated in the cross-examination that the police had shown him the bag where there was a severed head and the bag was in the hand of the accused. He also stated that he did not see the victim being beheaded and did not know whether the appellant had beheaded the victim or not.
10. P.W.3, Sri Samaru Paik, is a relative of the appellant. The appellant was the son of his father's elder brother. He stated that on the afternoon of the fateful day while he was returning home from work he heard a commotion near Maidamani High School and went there. On reaching there he found a beheaded body. He did not see the appellant there. The police who came there, held the inquest of the dead body, obtained his signature which he proved in the court. He stated that later he found the appellant at the police station where he also put his signature on two more documents which were identified. He, however, stated that he did not know how the wife of the appellant died.
In the cross-examination, he stated that since he is an illiterate person, he did not know what was written in the Exts. 2 and 3 which were produced before the prosecution before the court.
11. P.W.4 is one Ms. Rima Mura. The appellant is her maternal uncle and the deceased Pinki was her maternal aunt. She stated that at about 4:30 PM on the fateful day, while she was on her way back from work, the deceased Pinki was coming behind her. On reaching home, she saw the appellant standing in their courtyard. The appellant then told her that someone had cut a goat behind their house and that the goat was lying there. He also told Page No.# 5/15 that his maternal aunt (the deceased) that the goat was lying there and asked her to see it. As soon as her maternal aunt turned around to have a look at it, the appellant hacked her with a dao. As a result, the neck of the maternal aunt got severed. Then the appellant proceeded towards the road with the dao in his hand and the severed head of maternal aunt. She ran away out of fear and entered the nearby house of a Nepali. Later on when the neighbourhood people gathered, she came out. Some of the neighbours searched for his maternal uncle, the appellant, and upon finding him at his house, they informed the police. She also stated that she made her statement under Section 164 Cr.P.C. which was produced before the court as Ext.4 and identified the same.
12. In the cross-examination, she stated that their relation with the appellant deteriorated since the time the appellant along his children went to the house of his father-in-law and stayed there. She denied that she did not witness the incident or that she had adduced false evidence. She also denied that she did not state before the police nor stated in her statement under Section 164 Cr.P.C. that the appellant has stated that some people had cut a goat and that the goat had been lying there and that, the appellant had asked to see it. She also denied that she did not state before the police that on searching for the appellant the villagers found him in his house and got him confined in the house. She also denied that she did not tell the police that the appellant carried the severed head of her maternal aunt and the dao. She also denied that she had falsely stated that her maternal aunt was coming behind her and she also denied that she had adduced false evidence against her maternal uncle out of grudge.
At this stage, it may be apposite to refer to the statement made by the P.W.4, Ms. Rima Mura, recorded under Section 164 Cr.P.C. which is reproduced hereinbelow:
Page No.# 6/15 "At about 4.30 p.m. on the said day, I saw my maternal uncle Phalit Paik asking my maternal aunt to look at a certain direction. Accordingly, when my maternal aunt looked at that direction, my maternal uncle hacked on the neck of my maternal aunt, all on a sudden, with a dao. I witnessed the incident from a distance of about 6/8 feet. It was broad daylight when I witnessed the incident. I raised hue and cry when I saw cut blows being dealt on my maternal aunt. After cutting the neck of my maternal aunt, my maternal uncle left taking the severed head along with him and I saw it. Our house is adjacent to the house of my maternal uncle. Hearing the hue and cry raised by me, my mother came out and saw the beheaded body of my maternal aunt. My maternal uncle killed my maternal aunt."
13. P.W.5, Ms. Sabita Paik is a niece of the appellant, who lives near the house of the appellant. She deposed that it was evening at the time of occurrence. She was sitting on the courtyard of her husband and she saw her uncle, the appellant, coming with the severed head of her aunt in his hand. Her grandmother was also sitting beside her. On being asked by her, she saw the severed head of her aunt and screamed out of fear.
She also made a statement under Section 164 Cr.P.C. which was produced as Ext.5 and proved the same by identifying the signature.
In the cross examination, she admitted that they did not have cordial relationship with their uncle. She did not witness the deceased being hacked. She stated that her uncle was passing through their courtyard and was holding the severed head by the hair. She stated that she did not remember whether she told the police that her grandmother was sitting with her when she asked to have a look at the severed head. She did not see the dao in the court which was in the hand of her uncle. She denied that she deposed falsely.
It may be apposite to refer to statement made by her under Section 164 Cr.P.C. which is reproduced hereinbelow:
"The incident took place on 06.08.2011 (Saturday). The incident took place in the Page No.# 7/15 afternoon. I was sitting on a chair on the courtyard of my house. I saw my uncle Phalit Paik leaving after cutting the neck of my aunt Pinki Paik. I screamed out of fear."
14. P.W.6 is one Smt. Somari Mura, who is the sister of the appellant as well as the informant. She stated that on the day of incident, she was at her residence. At about 5:00 P.M., she heard a hue and cry from her house and saw the appellant holding the head of his wife by hair which was separated from her body. She also saw headless body of the wife of the appellant lying near the garden which was near her house. She also saw the dao in the hand of the appellant. She stated that she did not know as to how the wife of the appellant died and she did not see any assault of the appellant and the deceased. However, hearing a hue and cry, she came out from her house but could not see anything.
In the cross-examination, she stated that she did not know why the appellant was holding the head of the deceased and did not know if anybody else had severed the head of the deceased as she had not seen the occurrence. She denied having deposed falsely.
15. P.W.7 is Dr. Saurav Jyoti Gogoi, who appeared and deposed before the court on behalf of one Dr. D.K. Das who had conducted the post-mortem examination stated that the dead body was brought in two jute bags. Bag "A" contained the severed human head with a portion of neck with black hair & bindi on forehead and earrings on the ears. He also stated that Bag "B" contained the portion of lower part of neck both upper limbs branch of female and both lower limbs. He also mentioned of blood smear adherent to wound margins and body at places. He also mentioned of contusion present at frontal region of the skull. The opinion given in the post-mortem report was that death was instantaneous resulting due to injury sustained on spinal cord and all injuries were antemortem and caused by heavy sharp cutting weapon and homicidal in nature. He also indentified the signature with seal of Dr. D.K. Page No.# 8/15 Das who conducted the post-mortem whom he knew.
Other injuries mentioned were one lacerated wound present over the right axilla and front of right shoulder size 15 cm x 6 cm x bone deep and one incised wound present over front of left shoulder size 3 cm x 2 cm x muscle deep.
In the cross-examination, it was denied that the portion of Bag "A" and Bag "B" did not belong to one and same person. He also stated the blood group of the portion in Bag "A" and Bag "B" were not examined.
16. P.W.8 was one Sri Ajit Das who knew both the complainant Taralal Paik and accused Phalit Paik but did not know the wife of the appellant properly.
He stated that he came to know from the villagers that one woman had been hacked to death by her husband and later he came to know that police had arrested the accused- appellant from a tea estate but he did not go to see, whereupon he was declared a hostile witness by the prosecution.
In the cross-examination by the prosecution, he denied of making any statement that "I heard that one person had hacked his wife to death in the rear side of Maidamani High School and I went there. I saw many persons there including a carpenter Phalit Paik by name. I learnt that upon cutting the neck of his wife, Phalit Paik had put the severed head into a bag. I saw a bag near him and when I had a look inside the bag, I saw a severed head of a woman and a blood stained dao."
On being cross-examined by the defence, he stated that he had a shop and learnt about the incident from the customers who came to his shop and he did not make any statement before the police. He also stated that he had entered the court premises for the first time on that day and he did not tell police whatever the public prosecutor had read out on that day in Page No.# 9/15 the court. He also stated that the accused was not related to him.
17. P.W.9 is one Moni Thapa who knew both the appellant and the deceased as they were neighbours. He simply stated that one evening about four years ago, he came to know that the appellant had assaulted his wife.
18. P.W.10 is one Sri Suren Bailung who was the Investigating Officer who narrated about the investigation conducted by him by going to the place of occurrence on being instructed after the FIR was lodged.
He stated about his visit to the place of occurrence and questioning the people around who had gathered there. He stated that on reaching there he learnt that a person, namely, Phalit Paik had killed his wife by hacking her neck and put the severed head into a bag and was waiting to go to the police station but the people who gathered there did not allow him to go. On seeing the person there with the bag in his hand, P.W.10 went near him and the people around him identified him as Phalit Paik, the appellant. He then examined the plastic bag and a severed head of a woman with the blood stained dao in the bag. On being asked, the appellant stated that after hacking his wife, he had been waiting to go to the police station with the severed head along with him. Thereafter, P.W.10, the Investigating Officer, took the bag from him and seized the dao found in the bag in presence of the witnesses. He then asked the appellant about the whereabouts of the remaining portion of the dead body and on his disclosure, he went along with him to search for the beheaded body which was found on the boundary of the garden near Maidamani School. He held the inquest on the beheaded body in presence of the witnesses there. Thereafter, he sent the severed head and beheaded body to Assam Medical College & Hospital for post-mortem examination. He also Page No.# 10/15 mentioned regarding the confessional statement made by the appellant.
19. The court also examined a Court Witness, namely, Sri Prabin Bharali as C.W.-1 who was the Officer-in-charge of the Police Station who identified the exhibited extract of General Diary which was marked as Ext.14, and he also exhibited the General Diary which was marked as Ext.15 in which an entry was recorded as follows:
"Now a person from Sesa Tiniali informs over phone that Phalit Paik, a resident of Sesa Tiniali, hacked his wife to death and left the body behind Maidamoni High School. On receipt of the information, an Entry in the GD is made and S.I. S. Bailung is entrusted with the charge of investigation."
20. After recording the evidence of the prosecution, the appellant was examined by the Trial Court under Section 313 Cr.P.C.
He denied the charges levelled against him. However, to the question put by the Court that P.W.4 Ms. Rima Mura, the niece of the appellant deposed that the neck got severed as a result of dao blow, the appellant replied in the affirmative-"Yes".
Similarly, to the question put by the Court whether he had anything to say about the deposition of the P.W.1 about carrying of a dao by the appellant that was in his hand and the severed head of the maternal aunt of the witness, and the appellant proceeding towards the road, the appellant answered in the affirmative-"Yes".
21. On being asked by the court about the evidence of P.W.10, Sri Suren Bailung, the I.O. of the case that the appellant told the I.O. that after cutting the neck of his wife, he was waiting to go to the police station carrying the severed head, and as to whether he made such a statement, the appellant replied in the affirmative, stating that he said so.
22. To the question of the Court that P.W.10, the I.O. had deposed, on being interrogated Page No.# 11/15 at the police station the appellant had replied that since he saw his wife Pinki engaged in bad act with many persons, he had hacked her, the appellant had answered in affirmative to the Court. Thereafter, when asked by the Trial Court if he had anything to say, the appellant replied in the following words, "My marriage with (deceased) Pinki was solemnized in the year 1996 and subsequently four children were born to us. I am a carpenter. Pinki worked in Ghurania garden. Around 4.30 P.M. on the day of occurrence when I reached home after returning from work I saw Pinki engaging in bad act with an unknown person. Seeing me the person ran away. I became speechless with rage and hacked on the neck of Pinki with the dao that was in the house itself. When I was waiting to come to the P.S. after putting the severed head of Pinki into a plastic bag used for shopping. Police arrived and took me to the P.S. I heard that on earlier occasions too, Pinki used to engage in bad act with some person, but I did not pay much heed to it. But I witnessed such an act on the day of occurrence."
23. After recording the evidence as mentioned above, the learned Trial Court proceeded to examine as to whether the deceased died a natural death or she was killed.
24. As regards this issue, the learned Trial Court, after examining the evidences of the witnesses and also the evidence of the Doctor, the P.W.7 and the opinion of the Doctor as reflected in the post-mortem report that the death was instantaneous resulting from the injuries sustained on spinal cord and all the injuries were antemortem and were caused by heavy sharp cutting weapon and were homicidal in nature, concluded that the death of the deceased was homicidal.
25. The next question considered by the Trial Court was whether the accused-appellant had caused the death of his wife.
The learned Trial Court referring to the evidence of P.W.4, Rima Mura and her Page No.# 12/15 statement recorded under Section 164 Cr.P.C. as well as the evidence of Sabita Paik and her statement under Section 164 Cr.P.C., the evidence of P.W.6, Somari Mura and the statement made by the appellant before the Trial Court while being examined under Section 313 Cr.P.C. came to the conclusion that it was the appellant who had caused the death of his wife.
26. Referring to the statement made by the appellant under Section 313 Cr.P.C. where he gave an explanation and narrated that on seeing his wife in a compromising position with an unknown person, he was overcome by anger and hacked her neck, the learned Trial Court proceeded to examine whether it would amount to grave and sudden provocation as to bring within the Exception No.4 to Section 300 IPC.
The learned Trial Court held that if the appellant claims that he found his wife in a compromising position with another person in the house and then assaulted her, in that event, the body should have been found in his house.
The Trial Court observed that the evidence of the witnesses revealed that the dead body was, however, found in the backyard of a school. The inquest report also reveals that the dead body was found near the garden in the backyard of the High School.
Thus, the learned Trial Court took the view that it was apparent that the occurrence had not taken place inside the house of the accused but in a place away from the house.
The learned Trial Court also took into consideration the evidence of P.W.4 Rima Mura who had witnessed his wife following her while coming back home.
27. Under the circumstances, the learned Trial Court held that it cannot be said that the appellant had struck his wife under grave and sudden provocation, rather, it appears that it was planned and he had intentionally committed the offence of causing death by causing Page No.# 13/15 such an injury.
28. Accordingly, the learned Trial Court came to the conclusion that the prosecution has been successful in establishing the guilt of the appellant under Section 302 IPC.
29. Mr. U. Choudhury, learned Amicus Curiae, however, has submitted that it is clear from the statement made by the appellant under Section 313 Cr.P.C. that he had committed the aforesaid offence under grave and sudden provocation on seeing his wife in a compromising position with another person.
30. It has been submitted that it is quite natural that if a person sees his wife leading an immoral life and catches her red handed engaging in such an act, it would certainly amount to grave and sudden provocation as no husband worth the name would tolerate such an act and accordingly, it has been submitted that the conviction of the appellant ought to be converted under Section 304 IPC as culpable homicide not amounting to murder.
31. As regards the submission of the learned Amicus Curiae regarding conviction of the appellant, we are not able to accept the said submission for the following reasons.
There is clear evidence through the mouth of the P.W. No.4 who stated that the deceased was coming behind her when she was returning home from work on the day of occurrence and on reaching home, she saw the appellant standing in the courtyard at that time and the appellant told the deceased that someone had cut a goat behind her house and the goat was lying there and he told her maternal aunt to go and see and as soon as the maternal aunt turned around, the appellant hacked her with a dao. As a result, the head of her maternal aunt got severed and then the appellant proceeded towards the road with a dao in his hand and the severed head of her maternal aunt. To the same effect, the said P.W.4 Page No.# 14/15 had stated in her statement recorded under Section 164 Cr.P.C. The testimony of the respondent No. 4 stands corroborated by the statement made under Section 164 Cr.P.C.
32. We do not find any substantial variation in the testimony of the respondent No.4 before the Trial Court and the statement recorded under Section 164 Cr.P.C. The evidence of P.W.4 also could not be shaken during the cross-examination.
33. The only contradiction which the defence tried to demonstrate was that while the P.W.4 deposed before the Court that the appellant had told her that someone had cut a goat behind the house and the goat was lying, that was not mentioned in her statement under Section 164 Cr.P.C. However, we are of the view that such omission in the statement recorded under Section 164 Cr.P.C. is not material.
In the statement recorded under Section 164 Cr.P.C., it has been mentioned that the appellant had asked the wife to look at the certain direction and thereafter, the appellant hacked on the neck. Thus, there is no material variation or contradiction in the deposition before the Trial Court and statement recorded under Section 164 Cr.P.C.
Thus, the evidence of P.W.4 would clearly show that the plea of the appellant that he saw his wife in a compromising position in his house is not credible.
There is no evidence that there was any person present in the house of the appellant or anybody saw any person running away from the house of the appellant. In a village location it will not be difficult to see a person running away from the house as the houses are located nearby.
34. Further, if the appellant saw his wife in a compromising position with another person, it was most unlikely that he would leave that person unscathed. Certainly, he would also have Page No.# 15/15 made some attempt to assault or apprehend such a person whom he allegedly found in a compromising position with his wife.
Thus, in absence of any evidence of the presence of a person in the house or nearby house of the appellant when the incident occurred, it would be difficult to accept the plea of the appellant that he found his wife in a compromising position with another person, in which event, the plea of "grave and sudden provocation" cannot be taken.
The finding by the Trial Court that as the headless body was found in another location away from the house, which is based on evidence, will negate the plea of the appellant.
35. On the other hand, this plea of the appellant would provide the proof or motive for killing his wife on the suspicion of infidelity.
36. Accordingly, for the reasons discussed above, we are of the view that no case has been made out to interfere with the impugned judgment dated 24.01.2018 passed by learned Additional Sessions Judge, Dibrugarh in Sessions Case No.21/2012 and accordingly, the present appeal is dismissed as devoid of merit.
JUDGE JUDGE Comparing Assistant