Jammu & Kashmir High Court - Srinagar Bench
State Of J&K vs State Of Bihar Reported As Air 2002 Sc ... on 20 September, 2023
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRAA No. 2/2012
Reserved on: 17th August 2023
Pronounced on: 20.09.2023
State of J&K. ..... Appellant(s)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Maha Majeed, Advocate.
V.
Showkat Ahmad Teeli & Ors. .....Respondent(s)
Through: Mr. Wajid Mohammad Haseeb, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
(Rajesh Sekhri-J)
1. This appeal has been directed against judgment dated 19.09.2011 passed by learned 2nd Additional Sessions Judge, Srinagar, (Trial Court, for short), vide which, respondents 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.
2. The case set up by the Appellant-State/Prosecution in the trial court is that on 17.08.2006, at about 1620 hrs while Station House Officer (SHO) Police Station Nigeen was on patrolling at Hazaratbal, Srinagar, he received source information that SI Mohammad Jamal, 4272/NGO 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 Page 1 of 7 CRAA No. 2/2012 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. The unidentified militants succeeded to escape from the scene of occurrence. A message was forwarded to Police Station, Nigeen, whereupon aforesaid FIR came to be registered. During investigation, respondents 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 respondents for the commission of aforesaid offences.
3. It is pertinent to mention that FIR was lodged against the respondents (accused Nos. 1 to 3), Mohammad Ali Hussain alias Qasim (accused No. 4) and Javed Hussain @ Imran (accused No. 5). Accused No. 5 passed away during the trial. However, since the prosecuting agency failed to produce Accused No. 4 in the Court, who was lodged in Central Jail, Bangalore, learned Trial Court vide order dated 09.12.2009, segregated the trial of said accused from the trial of respondents/accused, who were charged by the Trial Court for the aforesaid offences whereby they pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence. The prosecution has examined 10 out of 22 witnesses listed. On the conclusion of prosecution evidence, the case was posted for statement of respondents/accused in terms of Section 342 of Criminal Procedure Code 1989 (Cr.P.C., for short). However, since the material prosecution witnesses had turned hostile, learned trial court, acquitted the respondents on the premise of „no evidence‟.
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4. The Appellant-State has assailed the impugned judgment on the conventional grounds that learned Trial Court has failed to appreciate the prosecution evidence in the right perspective, the prosecution witnesses have corroborated each other and that learned Trial Court has passed the impugned judgment in a mechanical manner.
5. A cursory glance through the record would show that justice delivery system in the present case has been taken for a ride and literally allowed to be abused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial. The public prosecutor appears to have acted more as a defence counsel and at last but not the least the trial court appeared to be mute to these manipulations and preferred to be indifferent. 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.
6. When fence starts to swallow the crops, no scope will be left for survival of law and order or truth and justice. The case on hand traces its genesis to an incident, where a young police officer was shot point blank in broad day light 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. Besides, only one police official PW-Constable Abdul Qayoom, witness to the seizure memos of bullets EXPW-8, uniform EXPW-8/1, recovery memo of dead body of deceased EXPW-8/3 and search memo EXPW-8/4, has been examined. It is unfortunate that except PW Constable Abdul Qayoom, no other police official including the investigating officers and members of SIT, Page 3 of 7 CRAA No. 2/2012 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.
7. A glance over the statements of most of the prosecution witnesses, recorded under Section 161 Cr.P.C., would show that witnesses to the occurrence had clearly testified that deceased was fired upon by unidentified militants, however, they could identify the assailants, if produced before them. The investigating agency, in such circumstances was obliged to conduct Test Identification Parade of accused persons. The object of Test Identification Parade is to test the observation and memory of a witness as to the identification of an accused, who is stranger to him. As a general rule of law, dock identification of an accused for the first time in the Court is a substantive piece of evidence and can form the basis for conviction, without same being corroborated by any other evidence. However, since the probative value of dock identification is inherently weak, therefore, Test Identification of an accused is considered a safe rule of prudence as it corroborates dock identification. Hon'ble Supreme Court in Dana Yadav and Ors Vs State of Bihar reported as AIR 2002 SC 3225 has extensively dealt with the object and import of Test Identification Parade and made the following observation:
"It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of Page 4 of 7 CRAA No. 2/2012 the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence.........."
8. It is manifest from the aforequoted principle of law enunciated by Hon‟ble Supreme Court that previous identification of an accused in the Test Identification Parade would corroborate dock identification of the accused, which is admissible in evidence. In the present case, least which was expected from the investigating agency was to get the test identification parade of the accused conducted in the presence of Executive Magistrate 1 st Class to lend credence to the recovery and seizure of the weapons consequent upon the disclosure, stated to have been made by the accused persons but the investigating agency has failed in its duty for the reasons best known to it.
9. As already said, the public prosecutor in the present case, too has not acted in a manner befitting the position held by him. It is case of the Appellant-State that material official witnesses of the prosecution including SHO Police Station Nigeen (Inspector Sajad Ahmad) on whose docket FIR in the present case came to be registered, PW-Nazir Ahmad (Scientific Officer, FSL), PW-Manzoor Ahmad Qadri (Scientific Assistant Serology, FSL), PWs ASI Ali Mohammad, ASI Abdul Ahad, Investigating Officers as well as ASI Mohammad Ramzan, have not been examined by learned Trial Court. It is also case of the Appellant-State that some material witnesses to occurrence, namely, HC Ghulam Nabi, SGCT, Mohammad Maqbool, HC Hamid-ud-Din and HC Ghulam Qadir as also members of Special Investigation Team (SIT), too have not been examined by the Trial Court. The grievance of the Appellant-State is that learned Trial Court has recorded Page 5 of 7 CRAA No. 2/2012 the impugned judgment of acquittal without examination of the aforesaid material prosecution witnesses. Be it noted, that all these witnesses are police officers/officials or public functionaries. It is pertinent to mention that prosecution evidence came to be closed by the Trial Court on 01.08.2011. There is nothing on the record to suggest that prosecution at any stage of the proceedings, made any endeavour to lay a motion under Section 540 Cr.P.C. (pari materia to Section 311 of Central Cr.P.C.) for recalling the material prosecution witnesses or question the said order dated 01.08.2011, by virtue of which, prosecution evidence came to be closed by the Trial Court.
10. Be that as it may, learned Trial Court also seems to have eschewed its legal and moral obligation to summon official prosecution witnesses including forensic experts and medical officers. The investigating officers, witnesses to the occurrence, PWs HC Ghulam Nabi, SGCT Mohammad Maqbool, HC Hamid-ud-Din and HC Ghulam Qadir as also members of SIT, being police officers, could be summoned by learned Trial Court by having resort to appropriate modes of service through their senior officers and by resorting to coercive measures to ensure their presence.
11. 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. The Courts 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 Page 6 of 7 CRAA No. 2/2012 role in the evidence collecting process. 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.
12. 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 eye witnesses 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 learned Trial Court that it is a case of „No Evidence‟.
13. Viewed thus, the present appeal is dismissed and the impugned judgment is upheld, subject, however, to the observations made above.
14. Let a copy of this judgment be forwarded to Director General of Police, UT of J&K and Director, Prosecution for action against erring officers/ officials as per law.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
20.09.2023
"Hamid"
1. Whether the Judgment is speaking? Yes
2. Whether the Judgment is reportable? Yes
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