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Batla encounter: Why the conviction raises doubts

Last updated on: August 01, 2013 14:16 IST

A new report that has questioned the trial court verdict convicting Shahzad Ahmad in the Batla House encounter case, speaks at length about why the verdict is wrong. The 24-page-report, titled Beyond reasonable doubt? The Conviction of Shahzad Ahmad which has been put out by the Jamia Teachers’ Solidarity Association, states that the findings of the court are based on conjectures. Vicky Nanjappa explains.

18 building in Batla House, where an 'encounter’ resulting in the death of Inspector M C Sharma and two young men -- Atif Ameen and Mohammed Sajid -- houses flat number 108, where the seven-member police party entered to apprehend its occupants.

The plot on which the flat is built is 200 square yards. The front area is larger, measuring 130 sq yards, the rear is 70 sq yards.

It was this 70-sq yard-area that the police raiding party entered. According to the police version, they entered through the left door, which was not locked. The front door was locked from inside. Two 'terrorists', one of whom is the accused Shahzad Ahmad, escaped from the front, unlocking the double iron and wooden doors while firing at the police.

All appeals to the court to visit the building to take a look of the site of the 'encounter' failed.

It is the prosecution's case that Shahzad alias Pappu was among those who fired at the police party on September 19, 2008 at L-18 building. Senior inspector Rahul Kumar, who was a member of the special cell raiding party, wrote in his complaint to the investigating officer: “The names of the escaped terrorists were revealed by Mohammed Saif as Junaid and Pappu.”

No “Shahzad” however is mentioned either in this complaint or the first information report lodged in Jamia Nagar police station. Furthermore, the Delhi police's report submitted to the National Human Rights Commission by R P Upadhyaya, additional commissioner of police, does not mention Shahzad.

“One terrorist, namely Mohammed Saif surrendered before the police party inside the flat. Names of the escaped terrorists were revealed by Saif as Junaid alias Arizand Shahnawaj alias Pappu.”

The same report states: “While firing was going on between the inmates and the police, two of the terrorists later identified as Junaid and Pappu managed to escape from the flat from one of the gates.”

Another letter -- written by Karnail Singh, then joint commissioner of police, special cell, Delhi -- reproduced in the NHRC report says: “One of the terrorists later identified as Mohammed Atif Ameen alias Bashir sustained bullet injuries, while Junaid and Pappu managed to escape from the spot while firing at the police party.”

Shahnawaj, Shahbaz and Shahzad are all different names. Unless of course the court thinks that all Muslim names are the same.

The prosecution has absolutely failed to prove that Shahzad was indeed Pappu.

The court does not seem troubled by the fact that there has been no attempt to prove that Shahzad and Pappu is the same person, because the verdict rests on the assumption that the prosecution story is true and need not to be proved or established through material evidence.

The prosecution has absolutely failed to prove that Shahzad was Pappu. His family has consistently denied that Shahzad was ever referred to as Pappu. The prosecution brought absolutely no evidence on record and no witness in court who could testify to Shahzad being Pappu.

“All of eyewitnesses mentioned above stated to have seen accused Shahzad Ahmad fleeing from said flat, while firing at the police party.”

Manisha Sethi, president, JTSA, says that the court agreed with the explanations of the prosecution that inspector Sharma died and H C Balwant suffered grievous injuries on being hit by bullets fired by the occupants of Flat No 108, L18, Batla House,” adding, “All of eye witnesses mentioned above stated to have seen accused Shahzad Ahmad fleeing from said flat, while firing at police party."

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

The 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.

It is believed Shahzad fired at the police and then escaped. He threw his weapon, and it is yet to be recovered. However, there should have been empty bullet shells in the room or on staircase in Batla House. What was found did not match any of the weapons found at the spot.

Additional sessions judge Rajender Kumar Shastri says, “I agree with the additional public prosecutor. Even if no description of those two persons who fled away from flat No 108 has been 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 a 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 an right to information application by Afroz Alam Sahil -- mentions seizures made: “One tub containing explosive residue which was used as explosive material, a fake voter identity card of accused Shakeel Junder, watches, a screw driver set, pencil cells, tapes, burnt clothes, a whisky bottle, education documents, one e-railway ticket etc were recovered by the south district police at the instance of the above mentioned terrorists.”

Another letter written by Satish Chandra, special commissioner of police (vigilance), mentions seizures as follows: a laptop, mobile phones, pen drives, one internet data card, a compact disk, digital video cassettes, broken SIMs, SIM cards of various companies, cycle ball bearings Also found were incriminating documents, including a fake voter ID, a fake driving licence, and reservation slips. Both of these do not mention the passport. This was apparently recovered by Assistant Commissioner of Police Sanjeev Kumar Yadav, the investigating officer from the same spot.

So seizures were being made by different police personnel.

In the FIR, the police had said that the two persons -- Junaid and Pappu -- fled from the spot. In some other documents, besides Junaid, the other name police gave was Shahnawaz/Shahabaz/Pappu.

Now the police claim that it had found his passport from the same flat. So if they had the passport, they should have had the correct name from day one. Why the confusion about Shahzad’s name?

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

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

On call records court says, “In such a circumstance, as per the prosecutor, it can be presumed that it was the accused Shahzad Ahmad, who had talked to his father, by using a phone that belonged to Atif.”

Although the judge does not entirely agree with the prosecution, but as Shahzad failed to explain who talked to his father, “this is a circumstance against the accused.”

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 the police. Head constable Satender stated that some members of raiding party took positions in the front lane as well as the back lane of L18. Two members were positioned at entry gate. Flat No. 108 is situated on the fourth floor, which is top floor of the building. Even as per charge sheet, the adjoining buildings were double-storeyed.”

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

Why were local residents were  informed and made witnesses?

On the question of why local residents were not informed and made witnesses, as is the procedure laid down in laws, the 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.”

The Delhi police has also maintained that a team of special cell, “Requested 7-8 passersby 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 court states “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 belonged 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 the public prosecutor), the fear of police being targetted, cannot be negated outrightly.”

The 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 judge, “If the police could not join any public person on the way to spot, same is not fatal to the case of prosecution.”

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 the IM, but this fact has not been proved on file.”

The judge seemed to have agreed to this as the prosecution failed to provide any clinching evidence. The 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 the IM or not.”

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 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.”

Read the full report here.

Image:A protest rally against Batla House encounter by teachers and students of Jamia Millia Islamia University.

Photograph: Wikimedia Commons

 

Vicky Nanjappa