Excelsior Correspondent
SRINAGAR, Dec 27: The High Court has emphasized on trial courts to refrain from closing evidence in heinous crimes like murder as it may amount to failure of justice with the observation that prosecution may not take this as a tool to protract the trial by evading to adduce evidence.
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Justice Sanjay Dhar observed though the trial court does have power to terminate the trial by closing the prosecution evidence but simultaneously recorded that in heinous offences like murder, the Courts generally do not take this extreme step, particularly when the witnesses to be examined are expert witnesses and the investigating officer.
The Courts, Justice Dhar said, refrain from closing the evidence in such cases lest it may amount to failure of justice.
These observations have been made by the court while dealing with a bail application filed by one Fahad Maqsood Khan who is accused of murder and is in the jail for the last 13 years as the trial in the case is on evidence stage.
Khan has sought bail only on the ground of his long incarceration and on account of violation of his right to speedy trial.
“…this Court finds that the petitioner has carved out a case for grant of bail on account of his long incarceration for more than 13 years and on account of the fact that by the conduct of the prosecution and the Police Department, there is hardly any chance of conclusion of trial in near future”, the court said.
“He has invoked jurisdiction of this Court under Section 483 of BNSS seeking his enlargement on bail in a case arising out of FIR No.135/2012 for offences under Sections 302, 307, 326, 324, 506, 201, 120-B, 34 RPC registered with Police Station, Sadder, Srinagar, which is pending for trial before the Court of Additional Sessions Judge, Srinagar.”
The court added that the prosecuting agency has been unable to produce attendance of the witnesses despite repeated directions by the trial court. The witnesses, whose statements are yet to be recorded, are the experts and the police officials.
“Therefore, it is not a case where some civil witnesses, who may have been won over by the accused and avoiding to depose in support of the prosecution but it is a case where even the official witnesses are avoiding to help the prosecution in speedy trial of the case”, read the judgment.
It is apparent from a perusal of the trial court record that out of 33 witnesses, at present 29 prosecution witnesses have been examined by the trial court during the long drawn trial of more than 13 years and four prosecution witnesses are yet to be examined.
“It appears that the trial court has made tireless efforts to procure attendance of prosecution witnesses to complete the trial for which the trial court deserves appreciation. In fact, one of the witnesses has been examined by the trial court on video conferencing as the witness was stationed in Punjab. Despite these efforts, it appears that there is no possibility of conclusion of trial in near future”, Justice Dhar said.
The trial court has also noted that the proceedings in the challan have got protracted on account of inability of the prosecution to produce the witnesses and has directed the SSP, Srinagar, to constitute a team headed by a Sub Inspector to procure the attendance of the prosecution witnesses. The SSP has been apprised about the protraction in trial on account of failure of the prosecution to procure attendance of the witnesses.
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