PROTUL PATHAK Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE appellant No. 1, Shri Protul Pathak has been convicted under Sec. 307 of the Indian Penal Code vide judgment and order dated 31. 03. 1998 passed by the learned Session Judge, North Lakhimpur (Assam) in Sessions Case No. 28 (NL) of 1997. By the same judgment, the appellant No. 2, Kumud Bora, has also been convicted under Sec. 448 of the Indian Penal Code. Being aggrieved with this judgment and convictions, both the convicts have preferred this common appeal. It may be mentioned here that once the appeal was disposed of by this court vide judgment and order dated 01. 03. 2006, confirming the convictions. Against that order, the appellant No. 1 preferred criminal appeal being C. A. No. 685 of 2007 before the Hon'ble Supreme Court of India. While disposing of the appeal on 04. 5. 2007, the Hon'ble Supreme Court has remitted back the appeal for re-hearing on the ground that on earlier occasion the appellant was not represented by any lawyer. This is how this judgment.

(2.) I have heard Mr. J. M. Choudhury, learned Senior counsel assisted by his juniors for the appellants. The State was represented by Mr. B. S. Sinha, learned Addl. P. P.

(3.) SHORN of the details the factual matrix of the case are as follows : the appellants and the informant hails from the same village. Both the parties are not only known to each other but it appears from the record that there was also lurking enmity between them. At about 9. 00 p. m. on 19. 9. 1995 while the injured, Shri Puspa Bora was about to take supper, his wife noticed three persons sitting on the halfwall of the compound. Suddenly, the appellant No. 1 entered the dwelling house of the injured almost after thrusting his wife and pointed his gun towards the injured. Since the injured (PW2) was at a catching distance, he got up and raised the barrel of the gun. At this point of time, the appellant No. 1 fired a shot, which missed the exact target and hit bamboo wall of the room, but only after grazing the head of P. W. 2. Thereafter, P. W.-2 struggled with the appellant No. 1 to snatch the gun. In the meanwhile, appellant No. 2 also trespassed in the room and dealt a dao blow on the abdomen of the PW-2. For some reasons, PW-2 did not sustain much injury on his abdomen.