After the SIT of state police headed by Tahir Saleem Khan, SP North City, submitted its report in the trial court, Ashwin Kumar Sharma, who headed the court accepted the report and declared the killers as untraced and closed the case of Tufail Mattoo. Mattoo, 17, was killed by a tear gas canister fired by police on June 11, 2010.
Kashmir Life publishes the judgment.
IN THE COURT OF THE SPECIAL MOBILE MAGISTRATE PT & E SRINAGAR
Present:- Ashwani Kumar Sharma
FILE No. D Q 1 POD
83/m 29-11-2012 27-02-2013
State V/S Nemo
FIR No. 45/ 2010 U/S 302 RPC P/S Nowhatta
O R D E R
The file is taken up in the open court. SPO on behalf of the state present. On the previous date of hearing, the father of the deceased was present whose statement was recorded on oath before the court. However, this court called the daily diary dated 11-06-2010 from DPL, Srinagar for perusal in order to arrive at just conclusion of the case. The instant final police closure report is outcome of FIR No. 45/2010 U/S 302 RPC of P/S Nowhatta, Srinagar. The investigation in the present case has been closed as un-traced by the investigating agency and it has come in the report that the accused has not been traced so far despite the stringent efforts by the investigating agency.
I have gone through the police final closure report u/s 173 Cr.P.C as well as the statements of the witnesses and the other documents appended with it by the investigating agency. I have gone through the statement of the father of the deceased namely Mohammad Ashraf Matoo who has deposed before the court that he is not inconsonance with the view taken by the IO in closing the investigation on the ground that the accused has not been traced so far.
It has come in the statement of the father of the deceased that his son was killed by the police personnels while he was going back after learning tuition from Soura on 11-06–2010. The father of the deceased has shown his personal ignorance regarding the occurrence but has deposed that as per the witnesses on spot, three police personnels who were boarding in the Government Gypsy after de-boarding from the same, chased children who had been indulging in the stone pelting. As the land on spot was wet as such, the foot of his son was slipped and could not go ahead. And in the meanwhile, the police targeted his son. He has shown his ignorance whether the police shot his son with a bullet or left tear gas. Thereafter, the police personnels checked the body of his son whether he was alive or dead. And in the meanwhile, a lady namely Ateeqa however, the exact name of the lady has not remembered to him who caught hold of the police personnel and told them what they have done. The said lady also attempted to gave beating to the police with cane. In the meanwhile, another police personnel came who rescued his companion from the clutches of the lady and subsequently, the FIR was lodged in the case at the instance of the court. Thereafter, the investigation was undertaken and no enquiry was conducted by the police from him nor his statement was recorded by the police. However, the enquiry was conducted by the police from the public residing in the surrounding of the place of occurrence and enquiry., was conducted from them and their respective statements were recorded.
It has also come in the statement of the father of the deceased that the Test Identification Parade of the accused was conducted and the PW-Ateeqa who had been the eye witness in the case identified the accused. However, it was told by the” police that the person who was identified by the said lady namely Ateeqa was on his duty at the time of occurrence. And it was further told by the police that the person identified by the said lady namely Ateeqa in the said Test Identification Parade was a tailor master. And whatever has been written-by the police in the final report u/s 173 Cr.P.C that no clue regarding the accused has been received’ is wrong/false and he is not inconsonance with the police investigation and wants to get the matter further investigated.
During the course of investigation the police has recorded the statements of the witnesses u/s 161 Cr.P.C and even the statement of the Mst. Ateeqa who happened to be an eye witness in the case has been got recorded by the police during the course of investigation u/s 164-A Cr.P.C before the Judicial Magistrate on 19-08-2010, and in her statement recorded u/s 164-A Cr.P.C she has stated that it was Friday, on 21-06-2010, at 6 pm while she was in her house and the marriage of her daughter was to be solemnized on 26-27 June and they were writing invitation cards. Her sister and brother-in-law had also come, she along with them had gone to Bohri Kadal from where they left for Natipora and she along with her two daughters came back for writing invitation cards . They sat outside the Gani Memorial Stadium as it was very hot on that day. In the meanwhile, Kashmir police came there and started calling names and it was uttered by them “to kill” when they saw, a lad was fleeing and the police was running behind him and police personnels fired the said tad from behind. And the fire hit thesaid lad behind his ear and the said lad fell on spot and died on spot. When she saw the boy while felling down she started crying When it was seen by the police that the said boy had died they fled away from the seen of occurrence and she caught hold of one of the police personnel by whom the fire was given and also gave a slap to the said police personnel and then the another police personnel rescued the said police personnel from her. It has also come in her statement u/s 164-A Cr.P.C that if those police personnels be shown to her by whom the deceased was killed she can identify them. It was told to her by the public that those police personnels were from the police station Maharaj Gunj. Though, the statement of the Mohammad Maqsood Bhat has also been got recorded u/s 164-A Cr.P.C by the investigating agency during the course of investigation but nothing has come in the statement of the said witness whether he can identify the accused persons or whether it were the police personnels who killed the deceased.
The police has also got conducted the test identification parade of the suspects in presence of PW-Ateeqa and in this regard a letter being No. 73/JUD/EMS/ll dated 16-03-2011, issued by the Tehsildar North, Srinagar Magistrate 1st Class has been appended, with the file. The suspects were put on test identification parade at police station Rainwari. And during the course of test identification parade all the suspects police personnels were produced before the eye witness namely Mst. Ateeqa W/O. Maqsood Ahmad Bhat R’/O. Rajouri Kadal, Srinagar in accordance with the police rule 657 of J&K Police Manual. It has come that during the test identification parade one suspect together with other eight uniformed police personnels introduced to the witness in four groups. And during the said exercise the lady witness identified one constable namely Javed Ahmad No. 1398/5 of DPL, Srinagar who was part of the parade.
The said Javed Ahmad was then separated from the rest of the introduced police personnels and was again introduced individually to the lady witness twice, & the lady witness identified him. And in this regard statement of the lady witness was recorded at the same time and her signatures and thumb impression were taken on the photostat copy of the Identity Card of the constable Javed Ahmad No. 1398/S which was attested by the Teshildar concerned.
It has come in the letter that the lady witness stated in her statement that police personnel identified by her has fired upon the said Tufail Ahmad Matoo victim in the aforementioned FIR on 11-06-2010, which caused his death. However, constable Javeed Ahmad was not amongst the suspected persons who were introduced during the test identification parade. The particulars of the actual suspects who were introduced to the lady were (1) constable Fayaz Ahmad No. 95/5 P/S Safa Kadal, (2) Constable Nazir Ahmad 1251/S P/S Safa Kadal, (3) Constable Sheeraz Ahmad 1291 P/S Bagyass and (4) SPO Driver Rouf Ahmad 792/SPO PIP Bagyass.
I have also called the roznamcha dated 11-06-2010, of the District Police Lines, Srinagar because the constable who was identified by the lady Ateeqa was posted at District Police Lines, Srinagar on the day of occurrence itself. But a perusal of the daily diary no where depicts the name of the said constable Javed Ahmad No. 1398/S whether the said constable was deputed en duty on the day of occurrence, but neither the name alonq with number of the said constable has been shown to be deputed for law and order duty on the day of occurrence.
And it has come in the police report that the said constable was a Tailor Master. Thus, in these circumstances even if the father of the deceased has stated before the court that he is not inconsonance with the investigation undertaken by the 10, the same is not enough because in a murder case a innocent person cannot be put forward for trial. The undersigned is in consonance with the investigation of the police final closure report & the same is accepted as not traced. However, if any clue regarding the real culprits is received, in those eventualities the investigation in the case be re-opened and shall be conducted denovo, because a precious life has gone which has caused loss to the nation in general and State of Jammu & Kashmir in particular. The file after its due completion be consigned to record.