Excelsior Correspondent
Srinagar, Sept 20: High Court has upheld the acquittal of three persons who were charged for murder of a Sub Inspector (SI) of police about 17 years ago.
The division bench of Justice Sanjeev Kumar and Justice Rajesh Sekhri upheld the acquittal of trio Showkat Ahmad Teli, Bashir Ahmad Teli and Ferooz Ahmad Najar and recorded that in the absence of Test Identification Parade (TIP) due to serious remissness on the part of the investigating agency, and retrial shall be an exercise in futility. “Given the facts and circumstances of the present case, we have no other option but to concur with the observation of Trial Court that it is a case of ‘No Evidence’,” DB held.
The appeal was moved by the prosecution-State against judgment dated 19.09.2011 passed by 2nd Additional Sessions Judge, Srinagar by which trio have been acquitted in the case lodged on the basis of FIR No. 60/2006 for offences under sections 302, 120-B RPC and 7/20 Indian Arms Act.
The case set up by the State-Prosecution before the trial court was that on 17.08.2006 while Station House Officer (SHO) Police Station Nigeen was on patrolling at Hazaratbal, Srinagar, he received source information that SI Mohammad Jamal, of Police Station Zakura was fired upon by some unknown militants, with illegal weapons in their possession, in furtherance of common criminal intention to kill him, as a result whereof, he had been seriously injured.
During investigation, trio were taken into custody and they made disclosure, consequent whereupon, one pistol magazine and three live cartridges were recovered from their possession. The investigation culminated into filing of charge sheet against the trio for the commission of aforesaid offences.
Other two persons were Mohammad Ali Hussain alias Qasim and Javed Hussain @ Imran. Imran passed away during the trial and the prosecuting agency failed to produce Qasim in the Court, who was lodged in Central Jail, Bangalore and Trial Court on 09.12.2009, segregated the trial of two accused from the trial of trio, who were charged by the Trial Court for the offences whereby they pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence.
The court while taking serious question on the prosecution the way the case in hand was handled and observed “The role of the State Government also leaves much to be desired. We feel that there was no seriousness at all even in the State’s approach to question the Trial Court’s judgment.
Court said it is unfortunate that except one prosecution witness namely Constable Abdul Qayoom, no other police official including the investigating officers and members of SIT could muster courage to appear in the trial Court, in a case in which one of their colleagues in uniform, has been shot dead by the militants. It is a sorry state of affair.
Court reiterated that the public prosecutor in the present case before the trial court too has not acted in a manner befitting the position held by him. The grievance of the State-prosecution is that the Trial Court has recorded the impugned judgment of acquittal without examination of the material prosecution witnesses. “There is nothing on the record to suggest that prosecution at any stage of the proceedings, made any endeavor to lay a motion under Section 540 Cr.P.C. for recalling the material prosecution witnesses or question the order by virtue of which, prosecution evidence came to be closed by the Trial Court”, DB said.
Court added that even if the public prosecutor is remiss in some ways, the Presiding Officer of Court can control the proceedings effectively to ensure that ultimate objective i.e. truth is arrived at and this obligation on the part of the Court becomes more pronounced if the presiding officer has reasons to believe that the prosecuting agency is not acting in a manner it is expected to act.
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