Batla House Encounter: ‘Court substituted its own version,’ says defense lawyer

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New Delhi, 31 July:  Five years after the shootout in L-18, Batla House in Delhi, a Delhi court on 25 July convicted Shahzad Ahmed of firing at police officials and causing the death of inspector MC Sharma. The incident had also resulted in the death of two other suspected Indian Mujahideen operatives – Atif Ameen and Mohammad Sajid, while Shahzad Ahmed and Junaid (who is still absconding) are said to have escaped by jumping off the roof of the fourth floor apartment.

However, the Batla House case defense counsel, Satish Tamta and members of the Jamia Teachers’ Solidarity Association (JTSA) have poured scorn on the verdict. According to the prosecution case, Ahmed is supposed to have leapt the distance of forty feet safely. “If someone has to jump from the roof of the fourth floor to the first floor, it is a 40 feet jump. How can someone jump 40 feet? I don’t think it was the case of the prosecution that Shahzad was Superman or Spiderman. This aspect went unnoticed by the trial court. The trial court substituted its own theory that in this process Shahzad may have passed off as one of residents of the building. This was neither the case of the prosecution nor the case of the defense. The court has substituted its own version on this story,” Tamta says. He added that it was unlikely that Shahzad went down four stories with a gun in the presence of 19 policemen guarding the periphery who testified that, “so long as they were present, nobody went inside or came out of the building”.

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Batla House Encounter judgment finds no reasonable doubt
Reported by Ushinor Majumdar

A Delhi court on Thursday convicted Shahzad Ahmad in the much-awaited murder trial of the 2008 Batla house encounter in which inspector MS Sharma and two other cops had been slain in the terror-related incident. The judge convicted Ahmad for several offences including murder, attempt to murder, conspiracy, obstructing police officials and firing upon them amongst others in the Batla House encounter case. The sentence is expected on Monday afternoon, July 29, 2013.

The defence counsel Satish Tamta had argued that Ahmad was not present at Batla House. They argued that the forensics team did not match any of the prints listed from the spot. The forensics team went to the place of occurrence nearly a month after the incident occurred. The investigating officer of Jamia Thana arrived at 4 pm, while the encounter began at 11:15 am and went on for a while but not beyond noon.

The most damning evidence of Ahmad’s presence was his expired passport that police claimed to have found at the flat. Mohammad Saif who was in the flat during the entire incident and supposedly hid in the adjoining bathroom pointed out this passport. He surrendered to the police and is in judicial custody for the serial blasts case. During the entire episode, Saif hid in the bathroom. However, he was made neither an accused, nor a witness of the prosecution.

The ASJ noted in his order, “ Md. Saif (one of occupants of flat no. 108) was apprehended by police from that flat. As per Ld. Defence counsel, prosecution did not cite Md. Saif as its witness and did not examine him in the court. All this ensues an adverse inference against the prosecution. I agree with Ld. Defence counsel. Even 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 SC No. 42/10 40 of 46 a witness, it can be presumed that said witness would not have deposed in favour of prosecution.”

Additional sessions judge Rajender Kumar Shatri delivered the verdict on Thursday afternoon after the usual trial process and hearing extensive final arguments from both the prosecution and defence.

The matter pertains to an encounter in which a team of the Delhi Police Special Cell and alleged terrorists exchanged gunfire during a police raid based on a tip off. During the encounter, some police officers including inspector MC Sharma and two head constable Balwant Singh and Rajbir Singh were killed. The police were conducting the raid as part of an investigation into five serial bomb blasts in New Delhi in 2008 that killed 30 civilians and left 100 injured. The said secret Police had claimed that two persons, suspected members of the terror outfit Indian Mujahideen, had fled during the encounter at Batla House. Police believe that Ahmad was one of those that fled from the encounter scene. This was upheld by the sessions court on Thursday.

In his judgment, ASJ Shastri said, “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.”

The encounter took place on September 19, 2008 and Shazad was arrested in 2010 by the anti terror squad of Uttar Pradesh in February 2010. During the course of the investigation, Ahmad supposedly confessed to his presence in Batla House and having used a weapon which he then disposed in the Ganga Nehr (canal). Despite attempts by the Delhi police, this weapon was never recovered.

Secondly, as per defence councel S Qamar, the defence had also argued if the weapon, if it existed, had been used at Batla House since as per the forensics report, no bullets fired from an unrecovered weapon had been fired.

The police had said in its original report that it had stationed its officers around the building, blocking off all exits, and cordoned off the area. The defence used this to argue that no person could have fled from Batla House, especially since the flat where the incident occurred was on the fourth floor. Several activists who have been following this case also remarked that no one could have escaped.

The ASJ ruled out that no one could have escaped on the ground that Ahmed could have been in another flat in the building.

Police officials posted at the exits of the building, however, did not see anyone exit or enter the building. One of the evidence of the prosecution was the call record of Atif Ameen Bashir, a suspected terrorist who was killed during the encounter. The records reflect that a caller had booked tickets for Ahmad’s father from this phone number. That call was made from Batla House as per the records.

In this regard, the ASJ held, “I agree with Ld. Counsel alleging that even if it is proved that someone talked using proved that someone talked using mobile phone of Atif Ameen with the SC No. 42/10 30 of 46 father of accused Shahzad Ahmad, it cannot be presumed that said person was accused Shahzad Ahmad himself. The accused gave no explanation as who talked with his father on said day, using a phone from flat No. 108. It is not plea of accused even that his father had any intimate relationship with Atif. This is a circumstance against the accused.”

The verdict has resulted in intense public debate. The human rights activists and the defence lawyers said that the prosecution could not prove its case. “There are too many facts that show that Ahmad was not present at Batla House during the encounter,” said Manisha Sethi, a professor of Jami Milia University who has been observing the court proceedings for a long time.

Mahtab Alam, a human rights acitivist with People’s Union for Civil Liberties, said the same using the unrecovered weapon and the lack of evidence pinpointing Ahmad’s presence at the flat. Investigative journalist Ashish Khetan had another view and said that there did not appear to be any malice in the way that the police had carried out the encounter. “Atif Amin, who was killed during the encounter, was a terrorist responsible for killing of several innocent people,” he said.

The defence team said that they would naturally appeal. In the meantime, the judgment delivered in the Batla House encounter case would weigh heavily on the trial being conducted for the 2008 serial blasts in Delhi, in which Saif and Ahmad are co-accused.

Convicted under IPC section:

  • 186 obstructing public offence
  • 353 Assault or criminal force to deter public servant from discharge of his duty
  • 333 voluntarily causing grievous hurt to deter public servant from his duty
  • 307 attempt to murder
  • 302 murder
  • 34 common intention/conspiracy
  • 201 destruction of evidence for offence punishable

Convicted under Arms Act sections: 27/54/59
27 prohibited use of arms and ammunition

 

 

 

Key developments in the Batla House encounter

2008
On 13 September 2008, five serial bomb blasts took place across Delhi which killed at least 30 people and injured around 100.

On 19 September 2008, a seven-member team led by Mohan Chand Sharma, Inspector in the Special Cell of Delhi Police carried out an encounter in the Batla House area of Jamia Nagar. The controversial operation against a group of boys suspected to have links with the terrorist outfit Indian Mujahideen (IM), resulted in three causalities, including Sharma and two suspected IM operatives Atif Amin and Mohamed Sajid. Two suspects, identified as Mohd Saif and Zeeshan were arrested from the flat. One of the accused Ariz Khan, managed to escape.

The Delhi Police also actively probed the involvement of another suspected terrorist Shahzad, who they claimed also fled from the flat during the encounter. However, this claim has been contested by the defence counsel who questioned how it was possible for anyone to escape when the flat had only one exit. Shahzad has refuted the allegations of him shooting at MC Sharma and has said that he was not present at the flat during the incident.

The encounter led to wide repercussions with a number of locals being arrested and the locality erupted in angst. Many groups, including political parties, civil society groups, activists, teachers and students raised speculations about the encounter being a fake operation and said there were several unanswered questions.

Although Congress leader Digvijay Singh said he believed the encounter was fake, he didn’t get much support from his party over his remarks. The Trinamool Congress and Samajwadi Party were also vocal about a probe into the encounter.

2009
On the Delhi High Court’s directive on 21 May 2009, the National Human Rights Commission (NHRC) in its 22 July report cleared the police of any violations of rights. The NHRC enquiry also ruled out any conspiracy theory about an ‘inter-departmental’ rivalry’ in the death of Inspector Sharma. The post-mortem report showed that Sharma had a gunshot wound on the ‘hypochondriac region of the abdomen’ which did not look like a shot fired from behind.

2010
The police filed the chargesheet against Shahzad, Ariz Khan (absconding), Atif Ameen and Mohammed Sajid on 28 April 2010, accusing them of killing Inspector Sharma.

In April 2010, the Crime Branch ruled out the possibility of any witness of the encounter in Jamia Nagar. The layout plan of the flat was also submitted to support this claim.

2011
On 15 February 2011, Additional Sessions Judge Ajay Kumar Kuhar framed charges against the accused Shahzad Ahmed alias Pappu for the offences of murder (Section 302), attempt to murder (Section 307), causing hurt to public servant (Section 333), assault to deter a public servant from discharge of his duty (Section 353), obstructing public servant in discharge of his public functions (Section 186) and causing disappearance of evidence (Section 201) of the Indian Penal Code, besides Section 27 of the Arms Act for his role in the ‘encounter’.

2013
The Delhi High Court will pronounce its verdict on July 25, in which Shehzad Ahmad, a suspected Indian Mujahideen terrorist, has been facing trail for killing Inspector Mohan Chand Sharma.

 

1 COMMENT

  1. I hope People’s Union for Civil Liberties and Manish Sethi keep up the their fight for truth and justice!

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