Gotam Raj vs State of Jammu and Kashmir

Y. Kawoosa, J.—The whole prosecution case more or less reels round the statement of one Madavan, Hawaldar, who is stated to have

detected the murder of the deceased Israil Khan, Assistant Commandant, Central Reserve Police Force. The prosecution story which has been

built up on his statement reveals that on 31-5-1992, 5th Batallion of CRPF was posted at the house of Ex-Chief Secretary, Mir Nassar-Ullah

situated at Batwara, Srinagar. Constable Kali Dass was on duty from 2 to 4 p.m. on the main gate of the house and, after he completed his duty,

accused Gotam Rai, Constable was posted on guard duty of the main gate. Gotam Rai had earlier made several requests to deceased Israil Khan,

Assistant Commandant for grant of leave so that he could visit his house after a long spell of time. It is stated that registered letter also had been

received by the Assistant Commandant that the mother of the appellant was ill, so he should visit his house. However, the repeated requests of

appellant, Gotam Rai, were not acceded to. The deceased assured him that he would be granted leave only after change of station. However, on

the said unfortunate date of 31st May, 1992, appellant, Gotam Rai, during his duty hours, at 5 p.m. again approached the Assistant Commandant,

Israil Khan and requested him for grant of leave. Again Israil. Khan is stated to have refused the leave to the appellant, though the deceased on the

same date had sanctioned leave to his two blue-eyed Constables. This provoked the appellant, Gotam Rai who is alleged to have opened fire at

his Assistant Commandant and the bullet fired pierced through, the head of the deceased. who succumbed to the injury in the Hospital. Gun shot

was witnessed by one. But soon after the gun shot, one Madawan, Hawaldar is alleged to have come out of his room and saw the Assistant

Commandant its a pool of blood which was oozing out from his head and found the accused-appellant, Gotam Rai standing at a distance of 4 to 5

feet with his SLR. He at once caught hold of the accused, disarmed him and the accused-appellant made extra judicial confession before the

witness, Madawan, that lie was provoked when, not only leave was disallowed by the Assistant Commandant, but also abused the appellant and

came towards him with hostile posture. Appellant fired at him and killed him. Then the other witnesses came towards the spot after the gun shot

and found that witness Madawan had already caught hold of the appellant and disarmed him. The matter was reported in the SHO, Police Station

concerned, who was on patrol duty at that time. He rushed to the spot and there he was told that the deceased was killed by the appellant. The

civil police thus swung into action. Took, the accused-appellant into custody as also the dead body. The Investigating Officer seized the SLR,

prepared seizure memo at the spot regarding the wearing appeal of the deceased and other things which were seized during the course of

investigation. The appellant is alleged to have made extra judicial confession to one or two witnesses more and the prosecution story was

developed on his extra judicial confession and, thereafter, on 2nd of June, 1992 his confession was extracted arid got recorded u/s 164, Cr.P.C.

before the Judicial Magistrate 1st Class where he gave the details of the occurrence, Challan was produced u/s 302, RPC and 3/25 Indian Arms

Act against the appellate, The case was committed to the Court of Sessions for trial and the learned Sessions Judge framed charge against the

appellant u/s 302, RFC and 3/25 I.A. Act. The accused-appellant pleaded not guilty and opted to face the trial.

At the trial the prosecution examined V. S. Madawan, PW 1, Naik; Muhammad Rais Khan, PW 2; Jagjit Singh, SI. PW 3; Gurbachan Singh,

Hawaldar, PW 4; D.V. Ratnam, PW 5; Ram Krishan, Head Constable, PW 6; Gurdiyal Singh, PW 7; Joginder Singh PW 8; Rampal Singh, PW

9; Muhammad Latief, PW 10; M.F. Zaveed, Naik PW 11, Constable Bashir Ahmad PW 12; Ghulam-ud-Din, ASI, PW 13; Kaneez Fatima PW

14; Mr. Hakim Imtiaz Hussain, PW 15; R.L. Joshi, PW 16, Dr. Ghulam Nabi PW 17, M.A. Qadiii, PW 1'8; S.D. Pandey, Assistant

Commandant, PW 20; and Ashiq Hussain, 1Q, PW 21.

Feeling satisfied with the evidence of the prosecution, the trial Judge convicted the accused u/s 302 RPC and sentenced him to undergo

imprisonment for life. The trial Judge, however, acquitted the accused-appellant u/s 3/25, I.A. Act for want of sanction,

Appellant has come up through this appeal assailing the judgment of the trial Court dated 15-10-1996. The grounds are two fold. The main

ground of attack to the judgment is that the confessional statement recorded of the accused u/s 164, Cr.P.C. is not voluntary and the Judicial

Magistrate has not taken pains in probing as to whether the statement given by the accused was voluntary or not. This statement, according to the

counsel for defence does not stand on the touch stone of the law laid down by the apex Court time and again and especially in case Shivappa Vs.

State of Karnataka, . Counsel for appellant contended that in case the confessional statement recorded u/s 164, Cr.P.C. is held by the Court to

have been made not voluntarily, the whole case against the accused flops. Secondly, he contended that the accused has not been connected with

the offence, for, it has not been proved that the SLR allegedly carried by the accused at the time of gun shot was allotted to him and more so the

prosecution has not conducted the test fire whether the bullet shot at the deceased was actually shot through the SLR carried by the appellant. The

empty shell allegedly seized at the spot has not been got tested by the ballastic expert. Thirdly, there is material contradiction between the medical

evidence and other circumstantial evidence.

Heard arguments in detail and we have been taken through the entire file by counsel for the parties.

It is obvious from the file and the arguments of the learned counsel for the parties that the case is based on three types of evidence which the

prosecution, more or less, is banking upon. The first set of evidence is extra judicial confession allegedly made by the appellant immediately after

the gun shot. It may be mentioned here that there is not a single eye witness in the case in whose presence the murder is alleged to have been

committed by the appellant. It is immediately after the gun shot that PW 1, Madawan, carne out from his room and saw Israil Khan, deceased,

having received bullet in his head and was in a pool of blood. He is the person who has first seen the appellant standing there at a distance of 4 to 5

feet with his SLR. Though the bullet was not shot in his presence, nor Madawan has seen it, but he at once suspected the appellant, disarmed his

and caught hold of him. Appellant, according to the prosecution story, made an extra judicial confession before PW Madawan. To this part of the

prosecution story also there is no other corroborating evidence, except PW 1 Madawan himself. There was none at the time when Madawan

disarmed the appellant and caught hold of him. According to the prosecution story appellant made a confession before Madawan accepting that he

fired a bullet at the deceased, for, the deceased did not sanction his leave. Then within this short span of time other witnesses poured in and saw

Madawan holding the appellant and carrying the SLR of the appellant in is own hand, The appellant has made extra judicial confession allegedly

before PW 3, Jagjeet Singh also. The evidence of the prosecution witnesses will be discussed at the appropriate stage. What we want to say here

is that the extra judicial confession has been allegedly made by the appellant before PW 1 who is Naik in rank and is an authority over the

accused. Similarly, PW Jagjeet Singh, Sub-Inspector also is higher in rank before whom the extra judicial confession is alleged to have been made

by the appellant.

The trial Court has rightly come to the conclusion that extra judicial confession before the authorities according to Section 26 of the Evidence

Act is inadmissible in evidence. Appellant admittedly was subordinate to the persons before whom he is alleged to have made the extra judicial

confession and was merely holding the rank of Constable. So there is no dispute about this proposition of law that extra judicial confession made

by the appellant before PWs Madawan and Jagjeet Singh and others is not relevant in law and that cannot be read in evidence as rightly done and

observed by the trial Court.

Now the whole brunt of the prosecution case is on the confessional statement made by the appellant before the Judicial Magistrate, 1st Class,

PW 15. This part of evidence has been subjected to serious challenge by the appellant on the ground that the statement recorded u/s 164, Cr.

P.C. allegedly made by the appellant was not voluntary and it was taken out from him under duress of the Police investigating agency. Before going

in detail with regard to the validity of such confession, we must throw light as to what sort of confession he has made and in what manner.

The Judicial Magistrate asked the appellant certain questions as to whether he knew where he was standing and asked him as to whether he

was going to make the statement under any threat or duress or any promise had been made to him for making the confession. Before recording the

statement, the accused had been sent to Judicial lock-up for one hour. After getting the short reply of the accused that he knew that he was in the

Court and was making the statement voluntarily, the Magistrate, feeling fully satisfied that the statement which the accused was going to make was

voluntary, he recorded the confessional statement in which the accused admitted that he applied for two months' leave in Srinagar which was not

given to him. Thereafter, some Karnail Singh took the charge of his Company. He approached Karnail Singh, but in vain. In April he again

approached Karnail Singh for the leave. He was not again permitted to go on such leave. After Karnail Singh, deceased Israil Khan was made

incharge of the Company. He approached the deceased and told him that his mother was ailing. He had received a letter from his brother, so he

wanted to avail the leave. But the deceased did not sanction the leave. He instead allowed some Jan Muhammed and another Constable to go on

leave. On the date of occurrence, he saw that the deceased had sanctioned leave in favour of Ismail and Haji Patel. Both left for their home

stations. He again tried his luck, met the deceased Israil Khan and requested him for leave and confronted the deceased that he had sanctioned

leave in favour of two Constables. Some altercation took place between him and the deceased. Deceased tried to come forward to assault him,

but the accused-appellant opened fire at the deceased and deceased fell down.

There is beaten law on the point as to what manner and method is to be employed before recording the confession statement. In Aher Raja

Khima Vs. The State of Saurashtra, the apex Court has held:

Now the law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage

the question whether it is true or false does not arise.

It is abhorrent to our notions of justice and fair play, and is also dangerous to allow a man to be convicted on the strength of a confession unless it

is made voluntarily and unless he realise that anything he saefs may be used against him; and any attempt by a person in authority to bully a person

into making a confession to any threat or coercion would at once invalidate it, if the fear was still operating on his mind at the time he makes the

confession if it would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature

in reference to the proceedings against him. Section 24, Indian Evidence Act.

That is why the recording of a confession is hedged around with so many safeguards and is the reason why Magistrates ordinarily allow a period

for reflection and why an accused person is remanded to jail custody and is put out of the reach of the investigating police before he is asked to

make his confession.

Before recording the statement u/s 164, Cr. P.C. the Magistrate has to be fully satisfied that no iota of force and duress has been applied or no

greed or promise has been offered to extract the confession from the accused. Force of these precautions is negatived and neglected when instead

of isolating the accused from police investigating agency, he is again kept in such custody in one form or the other. Magistrate has to be satisfied

that any fear psychosis applied by the police agency is removed from the mind of the accused first. The question of confessional statement u/s 164,

Cr. P.C. has again come up very recently before the apex Court in Shivappa Vs. State of Karnataka, . The law has been thrashed on this point. It

has been held that a confession, if voluntarily and truthfully made, is an efficacious proof of the guilt. It is an important piece of evidence and,

therefore, it would be necessary to examine whether or not the confession made by the appellant was voluntary, true and trustworthy. While

dealing with the case, the apex Court has set certain guidelines for recording the confessional statement and for assessing whether such statement

can be treated as voluntary or not. The apex Court in para 6 of the judgment has laid down as under :-

From the plain language of Section 164, Cr. P.C. and the Rules and guidelines framed by the High Court regarding the recording of confessional

statements of an accused u/s 164, Cr. P.C. is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary

nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the

confessional statement of an accused u/s 164, Cr. P.C. The failure of the Magistrate to put such questions from which he could ascertain the

voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act

upon the same. Full and adequate compliance not merely in form but in essence with the provision of Section 164, Cr. P.C. and the Rules framed

by the High Court is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record the confession and renders the

confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as

to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for

doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the

Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is

asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should

particularly be asked the reason why he wants to make a statement which would surely go against his self-interest in course of the trial, even if he

contrives subsequently to retract the confession. Besides administering the caution warning specifically provided for in the first part of Sub-section

(2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in

relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of

apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the

assurance that even if he declined to make the confession, he shall not be remanded to police custody.

The Magistrate, entrusted with the duty of recording the confession of an accused, coming from Police or Jail custody, must, as a judicial

officer, satisfy himself and his conscience that the statement accused was going to make was not on account of any extraneous influence on him.

This is the essence of voluntary statement within the provision of Section 164, Cr. P.C. It has been laid down by the Apex Court that the

Magistrate must in clear terms disclose to the accused that he was a Magistrate and confession was being recorded by him. Magistrate must make

a probe to satisfy himself that the statement being made was voluntary. He must assure the accused that after recording the statement, he would not

be handed over back to the investigating agency or the police. The matter does not end here. Use Magistrate has to make a probe as to what

compelled the accused to make confessional statement. He must know the reasons for doing so by the accused. In the case supra, the Apex Court

held:-

...The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence

on the record does not establish that the confessional statement of the appellant recorded u/s 164, Cr. P.C. was voluntary.

Coming to the facts of the present case, we see much force in the argument of the learned counsel for appellant that the tests have not been

applied and the Magistrate had in slip-shod manner recorded the confession despite the fact that he had asked certain questions from the appellant

to satisfy himself whether the confession was made voluntarily or not. Instead of explaining to the appellant that he was the Magistrate and he was

going to record his confession himself and after the statement, he would not be sent back to the custody of the police, what the Magistrate did, he

asked the accused :

(Vernacular matter is omitted)

Accused, in reply to the questions, accepted that he was brought from police custody and stated that at the time of statement he had been kept in

judicial lock up. Notwithstanding it was made clear to him that the statement which was going to be given by him will be used against him, but this

question cannot be equated with a probe as envisaged by provision of Section 164, Cr. P.C. and the law laid down by the Apex Court in the

aforementioned authorities. No question has been asked from the accused as to what prompted him to make the confessional statement. It was

incumbent on the Magistrate to know from the accused as to why he was going to make the confessional statement which would go against him.

Secondly, no assurance was made to him that immediately after recording his statement, Magistrate would not send him to police custody. The

Judicial Magistrate has admitted in his statement that he did not enquire from the accused whether he wanted any legal assistance or not, nor he

enquired from him as to whether he had consulted any lawyer before getting his statement recorded. The Magistrate did not enquire who at that

time was incharge of the judicial lockup, where the accused was sent for an hour. He did not make any probe whether there was any police officer

in the judicial lock-up or riot, who carried the accused to judicial lock-up. The Magistrate has also admitted that same police party carried the

accused to the judicial lock up who brought accused before him which included the SHO also. He admitted that generally the under-trial was kept

in judicial lock-up through Prosecuting Officer, but Prosecuting Officer is also himself a Police Officer. The Magistrate did not enquire from the

accused whether he was approached by the Police Officers in the judicial lock-up or not. He has admitted that the accused was accompanied by

SHO, Investigating Officer. In the light of this, it is very difficult to brush-aside the statement of the appellant recorded u/s 342, Cr. P.C. in which

he says that even in the judicial lock-up, where he was kept for an hour, he was pressurised by the Police to make confession and was

manhandled. He has categorically stated that after the shot was fired, he came from his duty post to the spot armed with his own SLR, where

PW1, Madhawan reached after him and caught hold of him. The appellant at that time told PW 1 that some unidentified persons had fired the shot

and not he. In these circumstances, we are unable to believe that the fear psychosis applied by the Police agency on the accused was removed

from his mind. We are also not satisfied by the action taken by the Magistrate by keeping him in judicial lock-up for one hour only before

recording the statement, which does not fulfil the requirement of law. Here learned counsel for the State relied on Mohd. Ishaq Ahmad Din Vs.

The State, in which it has been held that there is no universal mandatory rule of law that a confession recorded after one hour or so, of the

willingness shown by the accused must be declared as inadmissible or untrustworthy. The question has to be decided on the facts of each case.

This authority is not applicable in the present case in view of special circumstances pointed out and in light of the law laid down by the Apex Court

in 1995.

Here in this case, admittedly, the appellant is alleged to have committed the murder on 31st May, 1992. He was under interrogation of the

Police on 31st May and 1st June, 1992. On 2nd June, 1992 his confessional statement was got recorded. Admittedly, the appellant was brought

by the SHO, Investigating Officer, to the Court where, till he was called by the Magistrate, he was kept in the judicial lock-up for one hour. It is

not denied that the SHO had no access to the judicial lock-up before and after getting the confessional statement of accused recorded. It is not

denied that the accused after getting his statement recorded was again sent to police lockup. It is a known fact that when an accused in custody is

brought to the Court, till the case of the accused is called, or till the Magistrate gives time to the police officer to bring the accused for getting his

statement recorded, he is kept in the judicial lock-up room. We cannot believe that in such circumstances such statement would be voluntary and

free from fear psychosis. Ordinarily, the Magistrates should take precautions before recording statement u/s 164, Cr. P.C. In such circumstances,

the Magistrate should have sent the accused to judicial lock-up for a few days, not few hours, so that the accused could feel free from the clutches

of the investigating agency. In this case the accused was a member of disciplined force. After this mishap he was arrested. His home people were

not informed. He had no relation and no men of acquittance here. He was not asked as to whether he wanted to seek some legal advice, nor it was

offered to him. On the third day of the investigation, his statement was got recorded before the Magistrate u/s 164, Cr. P.C. We are unable to

believe such a statement in such circumstances, when the accused was helpless and isolated, to be voluntary one. Not only this, in his statement

accused u/s 342, Cr. P.C. has made it patently clear that the police used third degree methods on him and under the duress his statement was got

recorded. He has contended that even in the judicial lock-up, where he was kept for one hour police agency maltreated him.

For these reasons, therefore, the confessional statement of the accused u/s 164, Cr. P.C. is held to be not made voluntary, so not admissible in

evidence. The finding of the learned Sessions Judge on this point is held to be erroneous in law.

Now comes the question regarding the circumstantial evidence, excluding the judicial confession and extra judicial confession alleged to have

been made by the accused. Dealing with this aspect of the case, we have to discuss the evidence produced by the prosecution.

PW 1 Madhawan is the star witness of the case. He has deposed that he was deputed in 5th Battalion posted at the Nassarullah House,

Batawara. Deceased Israil Khan was the Company Commander. On the rear side of the house, witness was doing some work. He heard the

sound of gun fire inside the house. He rushed towards the spot, saw the Company Commander fallen from front side. His head was bleeding. The

witness saw the accused standing carrying SLR at 4/5 feet from the deceased. He at once unarmed the accused and asked him as to what he had

done. Accused admitted that he shot the deceased, for, he did not sanction leave in his favour. PW 3 SI Jagjeet Singh and PW 6 Ram Singh also

came on spot immediately after PW 1. They caught hold of the accused with a chain.

PW 2 Mohd Rais Khan was also deputed in 5th Battalion with the deceased. He has deposed that on 31st May, 1992 in Nassarullah House

deceased ordered him to bring a cup of tea. Deceased was sitting in lawn. Witness served tea to the deceased Company Commander and went

back. He was cleaning the cup when he heard the sound of gun fire. He came down and saw the deceased dead. PW Madhawan had already

caught hold of the accused and had seized the rifle from him. In cross-examination the witness has deposed that he was in T. V. room when he

heard the sound of gun fire and rushed to the spot.

PW Jagjeet Singh has also repeated the same story that on 31st May, 1992 he was deputed at the Nassarullah House. Another Constable

Koni was along with him. They heard the sound of gun fire. They came out of the house and saw PW 1 Madhawan had caught hold of the accused

by one hand and his SLR with another hand. Deceased had fallen down and was in a pool of blood. He asked the accused as to why he had killed

the Commander. Accused replied that what else he could do when his leave was not sanctioned. He has further deposed that it is PW. 1

Madhawan who revealed that the SLR which he held belonged to the accused.

PW 4 Gurbachan Singh has deposed that on the date of occurrence accused visited the Company Commander, deceased Israil Khan at 10.30

a.m. requested him for leave. Deceased Israil Khan refused to sanction leave and he stated that he could get the leave at another station. They

exchanged some hot words. Deceased at 11 a.m. called the witness and told him that he sanctioned leave in favour of Mohd Ismail and LN Haji

Patel, but the witness reminded the officer about the leave of the accused. Deceased told him that the accused will get his leave sanctioned at the

new location. At 12 a.m. accused sought permission to meet the deceased, but the deceased declined to sanction leave. At 5 p.m. he heard gun

fire and saw PW 1 was holding the accused with one hand and the gun with another hand.

PW D. V. Ratanam has deposed that deceased was sitting in the lawn in front of the house. Deceased asked him for a cup of tea. He went

upstairs, saw PW 2 and asked him to serve a cup of tea to the deceased. They prepared and served the cup of tea to the deceased. When they

carried the tray and the cup upstairs, they heard the sound of gun fire. He came down and saw the deceased in pool of blood. PW 1 was holding

the deceased at that time.

PW 6 Ram Krishan has deposed that his duty was in the 5th Battalion CRPF. On 31-5-1992 he was deployed at Nassaraullah House for

guard purposes. He was busy in his work when he heard the sound of gun fire. He came out and saw PW 1 Madhawan, who was the Group

Commander, had caught hold of the accused. Deceased had fallen down and was in a pool of blood. He saw that PW 1 had held both hands of

the accused with a chain.

PW 7 Gurpaul Singh has stated that he has not seen accused firing the gun shot, but he heard it that the accused had opened fire on the

deceased.

PWs 9 and 10 are the witnesses to seizure list.

PW 11 is not connected with the occurrence. PW 12 is the Photographer, PW 13, ASI is the witness to the seizure list. PW 14 is the Judicial

Magistrate who has sealed the seized items. PW 15 is the Judicial Magistrate who has recorded the statement of accused u/s 164, Cr. P.C.

Material witness is PW 17, Dr. Ghulam Nabi Bhat, who has conducted the autopsy of the deceased . His opinion is that the deceased had

received multiple bullet injuries on his head.

PW 21, Ashiq Hussain IO, has investigated the case.

The crux of the prosecution evidence is that gun shot was heard by the PWs 1 to 7 among whom PW 1 Madhawan is the first person who

reached the spot, witnessed the deceased in a pool of blood whereby, according to him, the accused also was standing thereby with his SLR. PW

1 caught hold of the accused and accused made extra judicial confession before him regarding his guilt. On the statement of this witness, PW 1, the

whole case has been built up by the prosecution. The sum and substance of the prosecution evidence is that gun shot was fired and accused was

seen first by PW 1 there and it is PW 1 who has caught hold to him and when other six witnesses came there, they saw the deceased in a pool of

blood and PW 1 holding the accused and his SLR.

Learned counsel for the appellant has very rightly questioned how the accused has been connected with the crime. The trial Judge is not clear

in his judgment on this point. While dealing with this important question, he again banked upon the judicial confession made by the accused which

we have discarded and have expressed our opinion that the statement recorded u/s 164, Cr. P.C. by the Judicial Magistrate is not voluntary. It is a

fact that there are many cases where gruesome murders are committed and there is no eye witness, but the accused are brought to book with help

of circumstantial evidence, but the circumstantial evidence requires to be positive which connects the criminal with the crime. Here in this case there

seems to be no nexus between the crime and the criminal. Accused has not denied his presence at the spot after the gun shot when PW 1 has

caught hold of him. Accused has taken the plea that he also heard the gun shot. He was on guard duty at that time. He was carrying the SLR. He

rushed to the spot where PW 1 also came and suspected him, and caught hold of him. In these circumstances of the case, it is not an unusual thing

of the accused being in possession of SLR. Admittedly, he was on guard duty. Admittedly, he was having the SLR. The only thing remains is that

he was seen on the spot near the deceased immediately after the gun shot. Now the question arises whether his mere presence with SLR will

connect him with the offence and is it sufficient evidence on which the accused could be convicted u/s 302, RPC. In such circumstances the

prosecution has not only insulated their investigation from all other probabilities causing the murder of the deceased, but have cribbed, cabbed and

confined their investigation only to the extent of making out a case against the accused. Prosecution has escaped to note that the occurrence has

taken place under the period when militancy was at top in the Valley and every area in the Valley was infested with militants. Severe gun firing was

resorted to every minute, every hour, every day almost in every part of the city in particular. In such circumstances, the prosecution should have

investigated the case in a broader manner. In the circumstances when there was no eye account of any witness in whose presence the gun shot was

fired by the accused, it was incumbent upon the prosecution to connect this shot with the weapon of offence. Prosecution has nowhere proved that

the SLR which the accused was carrying was allotted to him. Prosecution has not proved as to how many rounds had been issued to the accused,!

how many were seized and how many were missing. One of the witnesses says that 58 cartridges were seized another says 59 were seized. One

set of witnesses say that only one empty Khokha was seized from the spot, the seizure memo is also regarding the seizure of only one Khokha, but

the Investigating Officer says that two Khokha were seized at the spot. So it creates a suspicion as to whether one gun shot was fired or two were

fired. Again all the ocular evidence is to the effect that only one gun shot was fired, but the medical evidence says that the deceased had received

multiple injuries of gun shots. Be that as it may, the ballistic expert has not been examined. It has not been proved that the empty Khokha, which

was seized, was of the SLR which was carried by the accused and which was used for the gun fire. Meaning thereby the bullet which has killed the

deceased has not been proved that it was the bullet of the SLR which was allotted to the accused. This is a big lacunae in the case. We are in full

agreement with the arguments of learned counsel for the appellant that by this way accused has not been connected with the crime. Even this empty

Khokha one set of witnesses say that it was seized by the Police within 10 to 15 minutes. Another set of witnesses say that after a great search the

empty Khokha was seized from the spot. One set of witnesses depose that the Khokha was seized near the dead body but another set of

witnesses say that it was seized at a distance of at least 20 feel from the dead body. Even if we disbelieve the medical evidence that the deceased

had multiple injuries of gun shots in his skull and we believe the police story that only one gun shot was fired, even then that bullet has not been

connected with the SLR and no test fire was conducted which was very important for the prosecution to do. The cartridges alleged to have been

seized form the SLR, not a single one has been put to test fire to ascertain as to whether the bullet shot was from the same cartridges or from the

same SLR or that whether these cartridges were live at all. Excluding the extra judicial confession and the judicial confession, from the prosecution

story, what remains there is only that the witnesses have heard gun shot and PW 1 had seen the accused near the deceased and nothing else. It is

PW 1 who has caught hold of the accused, who alleges to have disarmed the accused. To this action of PW 1 also, there is no evidence. PW 1 in

the presence of none has disarmed the accused. It is PW 1 who has produced the SLR before the Police. There is no witness to this effect also.

We cannot say that the leave story developed by the prosecution is wholly false. We cannot rule out the possibility of the accused having fired the

bullet shot, but may be true and must be true, there is a big distance to be covered by the prosecution by producing legal, impartial and

unimpeachable evidence. Prosecution cannot take the refuge that the accused has not produced the defence witnesses, that the accused has not

proved the enmity with the prosecution witnesses or with PW 1 as the trial Judge has in his judgment put it, this is no reply to the duty of the

prosecution to prove the case beyond reasonable doubt against the accused. The learned trial Judge should have considered that the accused docs

not belong to the State where he was tried. His home people were not informed who could have assisted him; on the date of occurrence he was

arrested and on the third day his confessional statement was recorded. Investigation was completed within two days and challan was produced.

No opportunity was afforded to him to seek legal advice. Accused was helpless. We wonder how he could produce the defence witnesses and

how he could defend himself in such circumstances. Judges in such circumstances have to be shield for the innocent and not sword for the guilty.

For these reasons, therefore, there seem to be clouds of doubt and the benefit of doubt is given to the accused-appellant. Judgment dated 15-

10-1996 is set aside. Accused is acquitted and the respondent-State is directed to release the accused. This appeal is, accordingly allowed.