KAMALA PATHAK @ KAMAL PATHAK Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an appeal against judgment and order dated 17.03.2010, passed, in Sessions Case No. 91 of 2006, by the learned Sessions Judge, Nalbari, convicting the accused-appellant, Kamala Pathak @ Kamal Pathak under Sections 302/449/326/323 IPC, Section 27 of the Arms Act and Section 10 and 13 of the Unlawful Activities (Prevention) Act and sentencing him to suffer, for his conviction under Section 302 IPC, imprisonment for life and pay a fine Rs. 5000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of 1 (one) year and to undergo for his conviction under Section 449 IPC, rigorous imprisonment for 7 (seven) years and pay a fine of Rs. 500/- and, in default of payment of fine, suffer rigorous imprisonment for 6 months and also to undergo, for his conviction under Section 326 IPC rigorous imprisonment for 5 (five) years and pay a fine of Rs. 500/- and, in default of fine R.I. for a period of 6 months and further to undergo, for his conviction under Section 223 IPC rigorous imprisonment for 6 (six) months. For his conviction under Section 27 of the Arms Act, the accused-appellant has been sentenced to suffer R.I. for 7 (seven) years and pay a fine of Rs. 1000/- and, in default of payment of fine R.I. for 6 months and also to undergo for his conviction under Section 10 of Unlawful Activities (Prevention) Act, imprisonment for life and pay a fine of Rs. 500/- and, in default of fine, R.I. for a period of 1 (one) month and to suffer, for his conviction under Section 13 of the Unlawful Activities (Prevention) Act, R.I. for 5 years and pay fine of Rs. 500/- and, in default of payment of fine, undergo R.I. for 1 (one) month. The case of the prosecution, may, in brief, be described thus:-

(2.) We have heard Mr. B. K. Mahanta, learned counsel for the accused-appellant and Mr. D. Das, Learned Additional Public Prosecutor, Assam.

(3.) While considering the present appeal, it is noticed that an occurrence took place on 12.12.1999 at the house of Idris Ali (P.W. 1) as described above and this fact had not been disputed at the trial. The pertinent question, which was raised at the trial and has also been raised before us, is as to whether there was any evidence which could have formed the basis of the conviction of the accused-appellant. In this regard, it is noteworthy that in the evidence P.W. 1, his other members of the family and his co-villagers have deposed that when P.W. 1 returned from the Mosque, accompanied by the members of this family and his co-villagers, to his house, he found 3 boys at the gate which was under lock and key and the said boys were demanding that the gate be opened. On making query by P.W. 1, the said boys replied by saying that they wanted to make a phone call and thereupon the gate was opened and the said boys were passed by P.W. 1 to make telephone call. What is significant to note that instead of making the telephone call, said three boys demanded that other than the inmates of the house of P.W. 1, should leave the place. This made P.W. 1 and his co-villagers suspect and they caught hold all the 3 boys and when two of them were being interrogated by the co-villagers, the 3rd boy took out a fire arm and opened firing and shooting at random people around him and in the process, Idris Ali died and several others were injured. What is further significant to note that the boy who resorted to firing, fled away leaving his associates behind and the said two associates turned out to be, as the evidence on record we have, Mohan Deka (since absconder) and Mintu Barman(since deceased). The 3rd boy was not recognized by P.W. 1, and members of his family and his co-villagers. In course of time, when the charge-sheet was submitted, the name of the present appellant was figured as one of the co-accused.