GOTAM RAJ Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) 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 in 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 he 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 and got recorded under Section 164, Cr.P.C. before the Judicial Magistrate Ist Class where he gave the details of the occurrence. Challan was produced under Section 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 under Section 302, RPC and 3/25 I.A. Act. The accused-appellant pleaded not guilty and opted to face the trial.

(2.) 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. Qadiri, PW 18; S.D. Pandey, Assistant Commandant, PW 20; and Ashiq Hussain, IQ, PW 21.

(3.) Feeling satisfied with the evidence of the prosecution, the trial Judge convicted the accused under Section 302 RPC and sentenced him to undergo imprisonment for life. The trial Judge, however, acquitted the accused-appellant under Section 3/25, I.A. Act for want of sanction.