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2015 DIGILAW 277 (JK)

State of J&K v. Nazir Ahmad Ganai

2015-05-29

DHIRAJ SINGH THAKUR, MOHAMMAD YAQOOB MIR

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JUDGMENT : Mohammad Yaqoob Mir, J. 1. This appeal is directed against the judgment passed by the Court of 3rd Additional Sessions Judge, Srinagar dated 08.05.2006 where-under respondents (accused) have been acquitted. During the trial, respondent No. 2 (one of the accused) has died, despite that he has been arrayed as respondent No. 2, now he stands deleted from the array of respondents and appeal survives for consideration against rest of respondents (accused). Failure of criminal law justice system sometimes is attributable to the casual approach of the prosecution and that of the witnesses and even sometimes trial courts get swayed by long pendency of the case, therefore, for avoiding any further delay decline to exercise the power vested for advancing the cause of justice. 2. The case in hand owes its origin to the year 1978 when on 12th January, 1978, a report came to be lodged to the effect that on 5th January, 1978, a young boy of 14 years of age was allured in various activities by the respondents and in the process pursuant to a conspiracy was once taken inside an isolated electric transformer shed located on the bank of Nallah at Karfali Mohalla Srinagar, where at knife point was allegedly subject to unnatural offence. Services of a photographer were also hired for photographing the unnatural activities which photographs are placed on the records. A bare look on those photographs present a horrible situation. 3. The case was registered as FIR No. 21 of 1978 P/S. M.R. Gunj Srinagar, which on completion of investigation resulted in filing charge sheet (challan) which later on was committed to the Court of Sessions Judge and assigned to the Court of 3rd Additional Sessions Judge, Srinagar. 4. From perusal of the judgment and records what emerges is that in the context of statements of witnesses, in particular statement of star witness i.e. Victim (a 14 year old boy), father of the victim and the photographer, namely, Ashok Kumar, the production and examination of another star witness i.e. Dr. Zahoor Ahmad Qazi was imperative. Perusal of the trial court records reveal that the said doctor after examining the victim had recorded his opinion but for proof of the same, examination of the doctor was very much essential. Zahoor Ahmad Qazi was imperative. Perusal of the trial court records reveal that the said doctor after examining the victim had recorded his opinion but for proof of the same, examination of the doctor was very much essential. Perusal of the records further reveal that the prosecution, in fact, had issue a notice for securing his presence but the concerned executing officer had returned the same with a report that Dr. Zahoor Ahmad Qazi, Senior Resident Hospital Administration, has unauthorizedly absented himself from duty and his services have been terminated by the J&K Govt. 5. The interim order dated 14.09.1985 recorded by the trial court suggests that the prosecution had moved an application for proving the medical certificate by secondary evidence as it was not possible to secure the presence of Dr. Zahoor Ahmad Qazi who had gone abroad. Proving of medical certificate by secondary evidence has been allowed by the trial court but then no witness has been produced. 6. Learned trial court while hearing the case was expected to be live to the seriousness of the case, noticing default in production of, that too in the context of statements of three star witnesses i.e. victim, father of the victim and the photographer, should have exercised power so as to ensure production of the witness for proving the medical certificate which has not been done. It appears that the trial court finding that case is pending for quite long time for avoiding further delay has not exercised the power vested in it, even has not properly appreciated the available evidence. For circumventing the delay, justice could not be allowed to be a casualty. Interim orders recorded on the file of trial court from time to time suggests that the accused have substantially contributed to the delay as quite often they have remained absent and then they have dragged the final hearing beyond proportions. If such situation is allowed to continue, criminal will succeed in giving slip to the law. 7. We are conscious of the fact that the case has been pending for quite long time i.e. from the year 1978 but interim orders recorded by the trial court reveal that the case has remained pending for final hearing before the trial court from the year 1999 and has finally been decided in the year 2006. 7. We are conscious of the fact that the case has been pending for quite long time i.e. from the year 1978 but interim orders recorded by the trial court reveal that the case has remained pending for final hearing before the trial court from the year 1999 and has finally been decided in the year 2006. Further from the perusal of the records, it appears that the prosecution evidence as has been produced has not been properly appreciated. The prosecution has also exhibited indolence in the matter. The public prosecutors while handling such type of serious cases are expected to be alert, extra vigilant and devoted so that all steps are taken effectively during the trial, which in turn would help the process of criminal justice. In the facts and circumstances, in-keeping with the interests of justice, we deem it appropriate to set aside the impugned judgment dated 08.05.2006, and to remit the case back to the trial court (now Sessions Judge, Srinagar) with the following directions: 1) Prosecution at the first instance will take steps to locate availability of PW Dr. Zahoor Ahmad Qazi. In case he shall be available in the State, then he shall be produced before the trial court. This exercise shall be taken within ten days from the first date of hearing before the trial court. 2) In case PW Dr. Zahoor Ahmad Qazi shall not be available in the State, then prosecution shall furnish the list of the witnesses for proving the medical certificate as issued by Dr. Zahoor Ahmad Qazi by secondary evidence as has been earlier permitted by the trial court and to produce them on the next date as shall be fixed by the trial court. In the process, if prosecution requires assistance of the Court, same shall be granted. In the process prosecution shall also be at liberty to produce any other material evidence as they may choose to produce. 3) Keeping in view the age of the case, trial court shall schedule hearing of the case in a manner so as to ensure that after proper appreciation of the entire evidence case is finally disposed of, preferably within a period of two months. 4) The prosecution shall be asked to constitute a special team for ensuring presence of either Dr. 4) The prosecution shall be asked to constitute a special team for ensuring presence of either Dr. Zahoor Ahmad Qazi in case of his availability or the witnesses which the prosecution proposes to produce to prove medical certificate by secondary evidence. 5) The respondents are directed to ensure their presence before the trial court on 08.06.2015. 6) Trial court record be sent back forthwith along with copy of the judgment.