I.A. Ansari, J.@mdashThis 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 u/s 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 u/s 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 u/s 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 u/s 223 IPC rigorous imprisonment for 6 (six) months. For his conviction u/s 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 u/s 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 u/s 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:-
On 12.12.1999, at about 8:30 p.m., the appellant alongwith two others namely Mohan Deka (since absconder) and Mintu Barman (since deceased) came to the house of P.W. 1 (Idris Ali) and shouted to open the door. The wife of Idris Ali told the boys that since there was no male member present, she would not allow them entering into the house. The appellant and his associates have told the said lady that they wanted to make a telephone call. As the appellants and his associates were insisting for entering into the house, Idris''s wife sent her son to the local mosque where Idris had gone to say his prayer. On being informed that 3 (three) boys were creating disturbance at his gate, P.W. 1 accompanied by his sons and some other persons of the locality came to the house and found the three persons. On reaching home when P.W. 1 (Idris) asked the boys as to what they wanted, the boys responded by saying that they wanted to make a phone call whereupon P.W. 1 opened the gate and asked the said boys to make a telephone call but the boys refused to do so and asked other co-villagers of P.W. 1 to leave. Suspicion, therefore, arose in the mind of the villagers and when two of the boys were being interrogated, the 3rd one fled away from the spot firing at random. Because of the firing, which was resorted to, P.W. 1 sustained a bullet injury on his abdomen and several others were injured. In course of time one of the injured Intaz Ali succumbed to the injuries. The boy, who had resorted to firing fled away but the other two were caught by the co-villagers and they were later identified to be Mohan Deka (since absconder) and Mintu Barman(since deceased). P.W. 1 then lodged an ejahar. Based on the said ejahar and treating the same as First Information Report, Belsor P.S. Case No. 94/99, under Sections 326/302/34 IPC, Section 25(1-B) Arms Act and Section 10/13 of Unlawful Activities (Prevention) Act, was registered.
During the course of investigation, police visited the place of occurrence, held inquest over the dead body of deceased Intaz Ali and also seized the empty cartridges found at the place of occurrence. On completion of investigation, police laid Charge-sheet against the present appellant Kamala Pathak and the said Mohan Deka and Mintu Barman.
At the trial, charges were framed under Sections 449/326/323/302 read with Section 34 IPC; under Sections 10 and 13 of the Unlawful Activities (Prevention) Act read with Section 34 IPC and Section 27(1) of the Arms Act read with Section 34 IPC, the appellant and his co-accused Mintu Barman pleaded not guilty thereto.
In support of the case, prosecution examined altogether 14 witnesses. The accused-appellant was, then examined u/s 313 Cr.P.C. inasmuch as the co-accused, Mintu Barman, had died.
In his examination aforementioned, the accused-appellant denied that he had committed the offence, which were alleged to have committed by him, his case being that of total denial. No evidence was adduced by the defence.
Having found the accused-appellant guilty of the offence, which he stood the charges, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which have been passed, the present appeal has been preferred.
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.
4. At the trial there was not even iota of evidence adduced by the prosecution to show that the present appellant was also one of the associates. In fact, P.W. 1 in his examination in chief deposed that out of the two youths present in the Court one was present on the day of the occurrence and the said person being accused Mintu, who has, already mentioned above, died during the course of the trial. Other witnesses also neither named nor identified the appellant as the boy who had fled away. There was thus no Legal evidence on record to hold that the present appellant was one of these youths, who were involved in the occurrence.
5. Situated thus, it becomes abundantly, clear that the present appellant has committed no offence, his conviction can, therefore, not be sustained.
6. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentences passed against him by the impugned judgment and order are hereby set aside. The accused-appellant is held not guilty of the charges, which were framed against him and is acquitted of the same.
7. Let the accused-appellant be set at liberty forthwith unless he is required to be detained in connection with any other case. Send back the L. C. records.
