HC raps prosecution, upholds acquittal of accused in cop’s killing in 2006

SRINAGAR, SEP 20: When fence starts to swallow the crops, no scope will be left for survival of law and order or truth and justice, the High Court of J&K and Ladakh on Wednesday observed as it dismissed an appeal, challenging the acquittal of the accused persons in a case involving killing of a police officer at Hazratbal here in 2006.
“The case on hand traces its genesis to an incident, where a young police officer was shot point blank in broad daylight in the very presence of his colleagues/police officials around him. The prosecution has examined some shopkeepers, a tata sumo driver and two accused persons, who were taken to the District Court by the deceased Police Officer for obtaining remand, as prosecution witnesses,” said a bench of Justices Sanjeev Kumar and Rajesh Sekhri.
“Besides, only one police official …has been examined. It is unfortunate that except prosecution witness 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.”
The court also observed that while it is a fit case where a retrial as a sequel to recall of the material prosecution witnesses should have been directed, however in the absence of Test Identification Parade, due to serious remissness on the part of the investigating agency, “we are of the view that examination of the remaining eyewitnesses will not change complexion of the case 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 the learned Trial Court that it is a case of “No Evidence”.
The court also observed that discovery, vindication and establishment of truth are the main purposes underlying the existence of Courts of justice.
“It is trite that discovery, vindication and establishment of truth are the main purposes underlying the existence of courts of justice, right from the time the justice delivery system and judicial set-up were put in place,” said the court.
The Courts, the bench said, are obliged to adopt a pro-active role in the trial and to monitor the proceedings in aid of justice.
“They cannot afford to be mute spectators to whatever is being testified before them. The power of the Court under section 311 of Central Cr.P.C. and Section 165 of the Evidence Act, being complimentary to each other, confer vast and wide powers on Presiding Officers of Courts to elicit all necessary materials by playing a participatory role in the evidence collecting process,” the court said, adding, “Even if the 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. 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.” Ultimately the court dismissed the petition.
As per Prosecution on 17.08.2006, at about 1620 hours while Station House Officer (SHO) Police Station Nigeen was patrolling at Hazaratbal, Srinagar, he received source information that SI Mohammad Jamal was fired upon by some unknown militants, with illegal weapons in their possession, in furtherance of common criminal intention to kill him a result whereof, he had been seriously injured. On the receipt of this information, SHO proceeded to the spot. The injured was evacuated to District Hospital, where he was declared brought dead. They were acquitted by the trial court vide judgment dated 19.09.2011.

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