The main legal point established in the judgment is the importance of corroborating dock identification of the accused through a Test Identification Parade and the obligation of the court to ensure the discovery and establishment of truth.

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 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’.

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. Be