Nadimarg massacre: HC directs trial court to expedite proceedings, examination of 17 witnesses

Srinagar, Oct 29: The High Court (HC) of Jammu & Kashmir and Ladakh Saturday directed the trial court to expedite proceedings in 2003 Nadimarg massacre of Kashmiri Pandits case and asked it to ensure all measures for examination of 17 witnesses related to the matter.
Allowing the revision plea filed by the government through the police station, Zainapora, the court of Justice Vinod Chatterji Koul directed the trial court to take all necessary measures for ensuring the examination of 17 material prosecution witnesses related to the case.
The court while setting aside the order issued by Principal Sessions Judge, Shopian, on February 09, 2011 allowed the application for issuance of commission for examination of witnesses moved by the prosecution (government).
“The court shall now take all the necessary measures for ensuring the examination of the witnesses concerned by issuing commission and/or recording their statement videoconferencing and shall ensure expeditious proceedings so as to conclude the matter at the earliest,” the court directed.
In August this year, the High Court had recalled its order passed in December 2011 wherein it had upheld the trial court order dismissing a plea by prosecution seeking examination of witnesses on commission after the intervention of the Supreme Court.
On February 02, 2011, the trial court had dismissed an application of government seeking appointment of commission to examine the 17 material eye witnesses.
The prosecution submitted that the witnesses had migrated from Kashmir to Jammu and they were reluctant to depose before the trial court at Shopian in view of the threat perception.
The court noted that the court below has not appreciated the difficulty of the prosecution in procuring the presence of the witnesses and that endeavour of the court below in a case of “heinous nature like one on hand” should be to examine all the witnesses on commission so as to unveil the truth.
The bench underscored that the trial court has dismissed the application of the prosecution-State for examining the witness on commission on the “irrelevant consideration” while overlooking the material and relevant aspects of the case.
“The application of the prosecution for recording statements of witnesses on commission deserved to be allowed,” the court said while allowing the plea.
Justice Koul recorded that Section 503 Cr.P.C. which is almost pari materia to Section 284 of the Central Cr.P.C. provides that whenever, in the course of any inquiry, trial or other proceedings, it appears to the High Court, Court of Sessions or any Magistrate that the examination of witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense of inconvenience which under the circumstances of the case would be unreasonable such court or magistrate may dispense with the attendance and may issue a commission for the examination of the witness.
Citing Supreme Court verdict in “State of Maharashtra vs. Dr. Praful B. Desai” the bench recorded that recording of evidence by way of video-conferencing is permissible.
“The Supreme Court has also said that where attendance of witnesses cannot be procured, the court could consider issuing a commission to record the evidence by way of videoconferencing,” the bench noted while dealing the current case on the same lines.
In 2003, a total of 24 persons belonging to the minority community were killed by a group of gunmen wearing army fatigues in Nadimarg, district Shopian.
The challan of the case was filed against seven accused persons including the LeT commander, Zia Mustafa, who was killed in an encounter in October last year, besides six police personnel.
The accused persons were charged for commission of offences under Sections 302, 450, 395, 307, 120-B, 326, 427 RPC, 7/27 Arms Act and Section 30 Police Act at Police Station, Zainapora.
The trial court had discharged the accused police personal who were charged under section 302 (murder), however, the court charged them under Section 30 of Police Act accusing the police men of being guilty of cowardice.
As per the plea, the evidence under section 302/120 B is made out against all accused persons but the trial court has at the threshold discharged the accused police personnel persons under section 302/120 B and has charged them under section 30 of Police Act.
It was contended that all the accused persons were liable to be charged under section 302 but at the time of framing of charge the trial court has tried to “sift evidence” and find out contradiction in the statements recorded by the prosecution evidence in support of charge-sheet under section 173 Cr.P.C which in terms of settled principles of law is not power of the Court at the time of framing of charge.
The prosecution urged that either the challan deserves to be transferred to some competent court at Jammu so that evidence in the challan is recorded without any fear and terror and witnesses are able to appear before court and give statements before the court so that Court comes to a just conclusion and fear trial is conducted or it is bounded duty to issue commission and get the statements of the witnesses who have migrated to Jammu recorded through commission.
The plea stated that the trial court even failed to call the witnesses itself under section 540 and on that ground rejected the application under section 503 “which order is absolutely illegal and against the spirit of section 540 and 503 Cr.P.C.”
“Therefore entire proceedings are liable to be set-aside,” it contended.