Batla house judgement: Questions remain as court accepts police version and their explanations too

    By M Reyaz,,

    New Delhi: A Delhi court on Thursday found Shahzad Ahmed guilty in the Batla House encounter case on charges of obstructing public servants in discharge of duties, murder of Inspector MC Sharma and attempt to murder of two other police officers. Additional Sessions Judge Rajender Kumar Shastri has set July 29, Monday at 2.0 pm to deliver the quantum of punishment.

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    In 2008 on 19th September, on 4th floor of L-18, Batla House in Delhi’s Jamia Nagar area, two youths of Azamgarh – Atif Amin and Mohammad Sajid were killed in a shootout, which was later claimed to be an encounter by special cell of Delhi police. In this shootout, one of the officers of Delhi police Inspector Mohan Chand Sharma also lost his life.

    In what could be big relief to the Delhi Police, the court has accepted the police version of encounter. Shahzad Ahmed, Special Cell of the Delhi Police, claims was one of the occupants in the flat 108 of L 18 house in the Batla House, where the alleged encounter took place on September 19, 2008, six days after serial blasts in the city. According to the prosecution, he fired at Inspector Sharma and than escaped from the the House L 18 in Batla House, where the ‘encounter’ took place in 2008.

    However, right from the day of the ‘encounter’ civil rights activists have raised several questions on the encounter, like on alleged membership of the accused with Indian Mujahedeen, how he and Junaid – as police says – could escape from the fourth floor of a building that has only one entrance, no evidence to prove that he was in the flat at the time of the shootout. Moreover, if at all he was there how come he escaped even though police was standing at the only gate of the building, etc.

    If encounter was fake how did Inspector MC Sharma die?

    The court agrees with the explanations of the prosecution and says, “it is well proved that Inspector M.C. Sharma died and HC Balwant suffered grievous hurt on being hit by bullets fired by the occupants of Flat No. 108, L18, Batla House,” adding “all of eye witnesses (police officers of the raiding party) mentioned above stated to have seen accused Shahzad Ahmad fleeing from said flat, while firing at police party.”

    The court explained that bullets hit slain Sharma from front and not from back and hence completely ruled out that he might have been hit by gullets from police accidentally or out of rivalry.

    Unanswered question: Ballistic reports confirm that all pellets and empty shells matched the guns, pistols, etc found on the spot, believed to be used by two deceased alleged terrorists Atif Amin and Sajid, or the raiding party. Shahzad it has been said fired at and then escaped with his arms and threw it in some canal, which could not be recovered. There should have been hence empty shells in room or on staircase not matching any of the guns found on spot.

    ‘Evidences’ against Shahzad Ahmed:

    Passport of Shahzad allegedly ‘recovered’ from the same flat, his railway reservation ticket from Delhi to Azamgarh for 24.09.2008, purported call made from the phone of Atif to Shahzad’s father and “all of eye witnesses mentioned above stated to have seen accused Shahzad Ahmad fleeing from said flat, while firing at police party.” Shahzad has retracted his police confession in court and said that he has been fabricated in the case and that he was not present in the said flat.

    Court says: “Apart from him, it is also well proved that a passport belonging to accused Shahzad Ahmad was recovered from that flat after operation was over. It is clear that accused Shahzad Ahmad while leaving said flat, forgot his passport.”

    Questions remain: Defence counsel Satish Tamta also highlighted the fact, conceded by prosecution, that none from eyewitnesses (i.e. cops of raiding party) gave description in their statement recorded under Section 161 Cr.P.C. of two alleged terrorists who fled away from that flat.

    However, additional public prosecutor Satwinder Kaur, who was appointed special prosecutor last year argued, “Even if no such description was given by said witnesses, six eye witnesses…(but they) deposed unequivocally that accused Shahzad Ahmad was one of those two persons, who fled away from the spot, using other gate and firing on the police.”

    The honurable Additional Sessions Judge Rajender Kumar Shastri says, “I agree with Ld. Addl. PP. Even if no description of those two persons who fled away from flat No. 108 given by the witnesses, this fact has been well proved from other evidence on record” as “apart from depositions of said witnesses, there are other circumstances which favour the prosecution,” like Passport, reservation ticket, and call records.

    A “note” prepared by Karnal Singh, Joint-Commissioner of Police (Special Cell) dated 19-11-2008 – and accessed through RTI by Afroz Alam Sahil – mentions seizures made: “One tub containing explosive residue which was used as explosive material, fake voter I card of accused Shakeel in the name of Ajay, watches, screw driver set, pencil cell, tapes, burnt clothes, whiskey bottle, education documents, one E-railway ticket etc were recovered by South District Police at the instance of the above mentioned militants.” Another letter written by Satish Chandra, Special Commissioner of Police (Vigilance), Delhi Police to the Secretary General of the NHRC (19-11-2008) mentions seizures as follows: laptop, mobile phones, pen drives, internet data card, compact disk, digital video cassettes, broken SIMs, SIM cards of various companies, cycle ball bearings, incriminating documents, including fake voter I card, fake driving license, reservation slips. Both of these do not mention the Passport. This was apparently recovered by ACP Sanjeev Kumar Yadav, the IO of the case (FIR No. 166/08, PS Karol Bagh) from the same spot. So seizures were being made by different police personnel.

    In the FIR filed, Police had said that two persons Junaid and Pappu flee from the spot. In some other documents, besides Junaid, the other name police gave was Shahnawaz or Shahabaz alias Pappu. Now, the police claims that they had found his Passport from the same flat, so if they had the Passport, they should have had the correct name from day one. So why this confusion in name of Shahzad?

    It is also pertinent to mention here that earlier reports have claimed that Shahzad family had called it a case of mistaken identity since Pappu was not his nick name.

    Moreover, even if for the sake of argument it is accepted that Passport was found in the said flat, how does it prove that Shahzad was present in flat at the time of shoot out? The only evidence is the purported call made and witness accounts.

    On call record court says, “In such a circumstance, as per Ld. Addl. PP, it can be presumed that it was accused Shahzad Ahmad, who had talked to his father, by using phone belonging to Atif.” Although judge does not entirely agree with the prosecution, but as Shhahzad failed to explain who talked to his father, “this is a circumstance against the accused.”

    Moreover, “Aaccused examined said Md. Saif in his defence as DW1. It is stated on oath by said witness that accused Shahzad Ahmad @ Pappu was not present in that flat, at the time of incident. Similarly, DW2 i.e. Zeeshan Ahmad was resident of same flat, who left it at 7.007.30 am and as per him, there remained only Atif, Mohd. Saif and Sajid in that flat.”

    How did Shahzad mysteriously escape, if he was present?

    Defence counsel argued, “There was no scope of escape from flat No. 108. The building had only one staircase leading to that flat, which was heavily guarded by police. HC Satender (PW7) stated that some members of raiding party took position in front lane as well as the back lane of L18. Two members were positioned at entry gate of L18. Flat No. 108 is situated at fourth floor which is top floor of the building. Even as per chargesheet, adjoining buildings were double storeyed only.”

    Further, “ASI Anil Tyagi (PW13) also deposed in the court that total nakabandi was done of that gali where said flat is situated. He i.e. PW13 did not see any public person going in or coming out of the building. He was positioned at main gate of L18. Similarly, ACP Sanjeev Yadav, who was examined as PW56 deposed that no occupants of flat met him while climbing the steps of L 18, Batla House.” The adjoining flat 107 was also searched.

    Court says: “Needless to say that as per case of prosecution, said two offenders skipped using the stairs, posing themselves as local residents before the police persons deployed there. Although there is no evidence in that regard, it is case of none that said two offenders were known to the police persons, who were deployed at stairs or on the ground floor of the building to secure it. It was not improbable for a person to have safe exit, posing himself as local resident. Cogitating all this, I do not agree with Ld. Defence Counsel, stating that there was no scope for anyone to escape from said flat.”

    Why local residents not made independent witness?

    On the question of why local residents were not informed and made the witness, as is the procedure laid down in laws, prosecution counsel additional public prosecutor argued that the raiding party was in hurry; adding, “Moreover, majority of residents of that area are followers of the religion, as was of those suspects. If the police officers tried to involve any such local resident, it would have created social unrest in that area, causing fear to the life of those police persons even.”

    Delhi Police has also maintained that a team of special cell, “requested 7-8 passer by persons to join raiding party after apprising them about contents of information, but none joined by giving genuine excuses.” Hence instead of wasting time they hurried in for the operation.

    The honourable judge wondered, “No religion professes crimes as its tradition, then why the police fostered a belief that it will stir communal violence if they invited local residents to join a raid, to arrest an offender, who was belonging to their religion?”

    The bench of additional Sessions Judge Rajender Kumar Shastri wrote in the judgement explaining, “It is equally true that having witnessed incidents of clashes between different religions, way as apprehended by Ld. Addl. PP (learned additional public prosecutor), the fear of police being targeted, cannot be abnegated outrightly.”

    The honourable judge believes that even otherwise, “public apathy in joining investigation of heinous offences even of general concern as a witness, have been highlighted by the media as well as by the higher courts, time and again.”

    Hence keeping in mind all this trend of general public, in the opinion of the honourable judge, “if the police could not join any public person on the way to spot, same is not fatal to the case of prosecution.”

    Link with Indian Mujahedeen?

    The court found no evidence to prove that Shahzad had any link with Indian Mujahedeen or any other terror outfit. Defence counsel Satish Tamta had argued, “As per the prosecution, the occupants of flat 108 including accused Shahzad were active members of Indian Muzahiddin but this fact has not been proved on file.”

    The honourable judge seemed to have agreed to this as the prosecution failed to provide any clinching evidence. The honourable judge noted, “True, there is no evidence on record to establish that fact.”

    However, it concurred, “At the same time this cannot be expected to endeavour in giving any finding about said fact,” adding, “for the purpose of decision of this case it hardly matters as to whether accused was affiliated to Indian Muzahiddin or not.”

    Delay in lodging the FIR:

    Information about the shoot out was received in PS Jamia Nagar at 11.13 am by one Ovais Malik through DD No. 10A, but rukka was sent at 4.00 pm and the FIR in this case was registered at 4.15 pm. Although Jamia Nagar Police station was just about a kilometer away, there was a delay of 5 hours in filing the FIR.

    Additional Sessions Judge Rajender Kumar Shastri writes in his judgement, “In my opinion, it was not unreasonable if IO opted to visit the injured in the hospital before registration of FIR, particularly when the injured is none but his own colleague.”

    Postmortem report of Atif and Sajid:

    Although this particular case was on the role of Shahzad Ahmed in the shootout, the defence counsel brought the attention of the court as they died in the same incident, and highlighted the injury marks on the bodies of Atif Amin and Mohd. Sajid.

    The Court agrees with prosecution, “Such injuries are more often when a person having lost his senses, falls on hard surface. Injuries on the persons of said deceased are thus well explained.”

    Why was Saif not made a witness?

    Even though Md Saif was present in the flat and was arrested by the Special Cell, he was “not made available to the Jamia Nagar Inspector JS Joon. PW 66 : Insp. J.S.Joon: “Mohd. Shaif did not meet me at spot at 11:40 a.m. on that day. I never examined him till investigation remained with me.”
    Court says: “As per case of prosecution, Md. Saif surrendered before the police after coming out of toilets of said flat. In this way, Md. Saif was an important witness may be an eyewitness of incident and if prosecution did not examine him as a witness, it can be presumed that said witness would not have deposed in favour of prosecution.”