Text of the Judgement #Shahzad #Batla House #MC Sharma


IN THE COURT OF SH RAJENDER KUMAR SHASTRI

ADDL. SESSIONS JUDGE02:

SOUTH EAST

SAKET COURT: NEW DELHI

IN RE: ID No. 02403R0176482010

SC No. 42/10

FIR No. 208/08

PS Jamia Nagar

State Vs. Shahzad Ahmad @ Pappu

S/o Sh. Siraj Ahmad

R/o Rehmani Manjil, Jalandhari,

Sadar City, Ajamgarh, U.P.

__________________________________________________________

Date of Institution : 26.05.2010

Date of arguments : 20.07.2013

Date of judgment : 25.07.2013

JUDGMENT

Entire National Capital of India i.e. Delhi was shaken on

13.09.2008 when five bombs in a chain exploded at different places in

its hurt i.e. Connaught Place, Karol Bagh, Greater Kailash and India

Gate. Connaught Place and Karol Bagh are commercial hubs of Delhi.

Greater Kailash is a posh colony, which gives shelter to salt of its

population, while India Gate is a historical and picnic spot, which

remain generally crowded. 26 innocent persons lost their lives, while

133 suffered injuries. Five FIRs numbered as 168/08, 130/08, 293/08,

SC No. 42/10 1 of 46

418/08 and 419/08 were registered in PS Karol Bagh, Greater Kailash,

Tilak Marg and Connaught Place respectively. An outfit ‘Indian

Mujaheddin took responsibility of these blasts by sending emails

to

various electronic and print media. Special Cell of Delhi Police took

the task of investigation. A team under the supervision of Inspector

Mohan Chand Sharma was formed to trace out the culprits. When

injured started recuperating in hospitals and dead bodies were put to

rest, public could take their sleeps well but not the police. In the

morning of 19.09.2008 when people were in the process of waking up,

the police was engrossed in planning to nab the suspects. SI Rahul

Kumar (now Inspector) lodged a complaint (Ex. PW8/

C), narrating the

incident as:

Today (19.09.2008) at around 8.00 am, a

specific information was received to Inspector Mohan

Chand Sharma that Bashir @ Atif alongwith associates is

residing in the top floor Flat No. 108 of L18,

Batla

House, Delhi. This information was lodged in Daily Diary

and discussed with senior officers. After discussion with

senior officers, as per their directions, a team led by

Inspector Mohan Chand Sharma consisting of Inspector

Sanjay Dutt, SI Dharmender, Kumar, SI Ravinder Kumar

Tyagi, SI Dalip Kumar, SI Rakesh Malik, SI Devender

Singh, ASI Anil Tyagi, HC Balwant Singh, HC Rajbir

Singh, HC Satyender Kumar (No. 391/SB), HC Satyender

Kumar (No. 397/SB), HC Vinod Gautam, HC Hansraj, HC

Udaivir Singh, HC Manish Kumar, Ct. Gurmeet, Ct.

Sandeep, Ct. Birender Negi and Ct. Rajeev including me,

was formed to act upon the information. At about 9.30

am, the team left the office of Special Cell NDR with arms

SC No. 42/10 2 of 46

and ammunition in our private cars and two twowheelers

to apprehend him and his associates. At about 10.30 am,

the team of special cell reached Batla House and

requested 78

passerby persons to join raiding party after

apprising them about contents of information, but none

joined by giving genuine excuses. Without wasting further

time, Inspector Mohan Chand Sharma briefed the entire

team and the team reached at L18,

Batla House, Delhi

and surrounded the building. At about 11.00 am,

Inspector Mohan Chand Sharma alongwith SI

Dharmender Kumar, SI Ravinder Kumar Tyagi, HC

Balwant Singh, HC Udaivir Singh, HC Satyender (No.

397/SB) and myself entered into the building to conduct

raid at flat No. 108, L18,

Batla House, Delhi, whereas

other team members were deployed at ground floor to

cover the building. Inspector Mohan Chand Sharma

knocked at the main door of the flat by disclosing his

identity, but when the occupants of the flat did not

respond, then the team tried to enter into the flat. The

main door was found bolted from inside, but the side door

was found not to be bolted and it was pushed.

Immediately, the team members went inside the flat in

order to apprehend the suspects. No sooner did the team

entered inside the flat, the occupants of the flat opened

fire upon police party. The team members also fired in

self defence to apprehend the terrorists. In between, Sh.

Sanjeev Kumar Yadav, ACP NDR alongwith Inspector

Ramesh Chandra Lamba, SI Bhoop Singh, SI Harender

Kumar, ASI Satish Kumar, ASI Shahjahan and other staff

also reached at the spot. During the cross firing,

Inspector Mohan Chand Sharma and HC Balwant Singh

sustained bullet injuries. Two militants also sustained

bullet injuries in cross firing, while two other militants

managed to escape from the flat while firing on the police

party. The injured police officers and the militants were

immediately removed to hospital. One of the militants

namely Mohd. Saif, son of Sh. Shadab Ahmad, resident of

Village & PO Sanjarpur, PS Sarai Meer, Tehsil

SC No. 42/10 3 of 46

Nijamabad, District Ajamgarh (UP) surrendered before

the police party. The names of the escaped militants were

revealed by Mohd. Saif as Junaid and Pappu. During the

cursory search of the flat, one A.K. Series rifle alongwith

two magazines containing 30 live rounds each was

recovered from the far end right side room of the militants

besides two pistols of .30 bore lying near the two injured

militants. The militants have obstructed the police party

in discharging their official duties and fired with intent to

kill the police officials.

The complaint was endorsed by Inspector J.S. Joon, on

the basis of which FIR No. 208/08 was registered in PS Jamia Nagar for

offence punishable U/s 186/353/307/332/34 IPC and U/s 25 and 27 of

The Arms Act.

Apart from aforesaid complaint, one Ovais Malik,

resident of House No. J1/

A, 4

thFloor, Batla House set legal machinery

into motion, by informing police control room, that he heard sound of

firing between 10.3011.15

am.

During investigation, IO Inspector J.S. Joon found

following articles lying in that flat:KF049MM22,

8 empty cartridges

(fired) having marking of 7.62/2S S&B and three empty cartridges

(fired) having marking of KF01A7 and 13 fired bullets. One A.K Series

Rifle alongwith two magazines and 60 live cartridges from right side

bed room of that flat, one pistol of .30 bore from drawing room

alongwith one live cartridge in its chamber having marking of CAL.30

SC No. 42/10 4 of 46

MAUSER MADE CHINA BY NORINCO written on its barrel, one

another .30 bore pistol having marking of A1 INTERNATIONAL A1

on one side of its barrel and C33097

on the other side of barrel from

left side bed room of that flat. One bullet proof jacket stated to have

been worn by HC Rajbir Singh having marking of two bullets. IO

seized all these as well as took blood samples from right side wall

(pillar) near door, lobby, near drawing room gate, near dustbin drawing

room, middle of drawing room, stairs, outside the flat and from left side

bed room. He also seized a blood stained piece of mattress found lying

in the drawing room, swab from holes made on the walls by the impact

of bullets. All these were kept in different pulandas and sealed by seal

of J.S.

Two injured occupants who were known as Mohd. Atif

Ameen and Mohd. Sajid were declared as brought dead at AIIMS

Hospital, while Inspector M.C. Sharma succumbed to injuries in Holy

Family Hospital. Due to death of said Inspector, Section 302 IPC was

also added during investigation.

IO collected death summary of Inspector M.C. Sharma.

Board of Doctors conducted postmortem on the dead body of deceased

Mohd. Atif Ameen and Mohd. Sajid. Similarly, another Board of

Doctors conducted postmortem on the dead body of Inspector M.C.

Sharma. IO collected said reports as well as MLC of injured HC

SC No. 42/10 5 of 46

Balwant Singh.

Investigation of the case was assigned to crime branch

vide an order dated 01.10.2008. On the request of IO, Director CFSL

alongwith his team inspected scene of crime. IO seized weapons used

by members of raiding party on 18.10.2008, collected photographs of

scene of incident, photocopy of log book of PCR van E23

and E25

and

recorded statements of witnesses U/s 161 Cr.P.C. While investigating

the case FIR No. 166/08 registered in PS Karol Bagh, ACP Sanjeev

Kumar Yadav seized one passport belonging to Shahzad Ahmad @

Pappu on the pointing of said Mohd. Saif from that flat apart from

several other articles. Teams were sent to Ajamgarh in search of

absconding accused.

On 06.02.2009, IO requested the court for issuing

NBWs against accused Shahzad Ahmad @ Pappu and Ariz Khan @

Junaid. Same were issued by the court to be executed till 20.02.2009.

On 10.02.2009, SI Naresh Sangwan alongwith Ct. Subhash went to

Ajamgarh for execution of said NBWs, but both of said accused

absconded and the process could not be executed. On 20.02.2009,

process U/s 82 Cr.P.C was ordered to be issued against both of said

accused. Apart from said process, process U/s 83 Cr.P.C was also

issued against said accused, but no movable or immovable property was

found in the name of said accused and hence process remained

SC No. 42/10 6 of 46

unserved. On 03.07.2009, both of said accused were declared as

proclaimed offenders by the court.

On 01.02.2010, accused Shahzad Ahmad @ Pappu was

arrested by ATS of Lucknow (U.P). On being interrogated, said accused

gave disclosure statement. On 03.02.2010, accused was produced before

the court of Ld. ACMM (South East). IO filed an application seeking

TIP of said accused, but same refused to participate and hence no TIP

could be conducted. On an application filed by IO, accused Shahzad

Ahmad @ Pappu was remanded in police custody for three days. The

accused led police party on 04.02.2010 to a bridge of Gang Nehar and

pointed out a place, stating that same had thrown weapon of offence

there in the evening of 19.09.2008, but no such weapon could be

recovered due to strong flow of water.

IO took voice sample of accused Shahzad Ahmad @

Pappu to get the same matched with voice already obtained by him

during monitoring of mobile phone No. 9811004309 stated to be

belonging to Atif Ameen. The IO came to know that accused Shahzad

Ahmad @ Pappu had got railway reservation done for 24.09.2010 from

Delhi to Ajamgarh by Kafiyat Express. IO seized copies of CDR/ CAF/

Ownership detail and railway reservation chart of that day.

After completion of investigation, police filed report U/s

173 Cr.P.C, indicting accused Mohd. Atif Ameen @ Bashir, Mohd. Sajid

SC No. 42/10 7 of 46

(both died), Ariz Khan @ Junaid (PO) and Shahzad Ahmad @ Pappu

for offences punishable U/s 186/ 353/ 333/ 307/ 302/ 34/ 201/ 174A IPC.

No offence was made out against Mohd. Saif @ Rahul @ Sameer.

Accused Mohd. Shahzad was charged by order of this

court on 04.02.2011 for offences punishable U/s 186/34, 353/34, 333/34,

302/34 and 307/34 IPC. Same was also charged for offence punishable

U/s 201 IPC and again for offence punishable U/s 27/54/59 Act and

further for offence punishable U/s 174A IPC. Accused pleaded not

guilty for all these offences and claimed trial.

In order to bring around its case, prosecution examined

70 witnesses. These are aptly categorized by Ld. Defence Counsel in

his written notes as:(

i) Eye witnesses HC Satender (PW7),

Inspector

Rahul Kumar (PW8),

ASI Udaivir Singh (PW11),

HC Balwant

(PW14),

SI Ravinder Kumar Tyagi (PW15)

and Inspector Dharmender

(PW22).

(ii) Others involved in raid than eye witnesses HC

Gurmeet (PW4),

Inspector Sanjay Dutt (PW12),

SI Anil Tyagi

(PW13),

ASI Chhajju Ram (PW29)

and Sh. Sanjeev Kumar Yadav,

DCP Special Cell (PW56).

(iii) Arrest and search Sh. Bhisham Singh, Addl. DCP

(PW26),

HC Azad Singh (PW33),

Inspector Manjeet Tomar (PW53),

SC No. 42/10 8 of 46

Inspector Tej Bahadur Singh (PW55)

and Sh. Ravinder Kumar Singh

(PW64).

(iv) PCR W/Ct. Nirmal Singh (PW30),

Ct. Satender

Kumar (PW34)

and HC Nathi Ram (PW39).

(v) Investigating officers Inspector Joginder Singh

Joon (PW66)

and Inspector Satish Sharma (PW68).

(vi) Officials involved in investigation SI Mahesh

Kumar (PW6),

Sh. P.K. Gottam (PW21),

SI Praveen Vats (PW35),

SI

Nafe Singh (PW37),

Ct. R.P. Meena (PW38),

ASI Sant Pal Singh

(PW41),

HC Sunda Ram (PW43),

HC Giri Raj (PW49)

and Inspector

Naresh (PW65).

(vii) Witnesses of registration of FIR ASI Saroj Bala

(PW50).

(viii) Maalkhana HC Rewati Lal (PW45)

and HC

Jugender Singh (PW46).

(ix) Others SI Mahipal Singh (PW5),

ASI Ram Pal

(PW9),

HC Narpat Singh (PW31),

HC Ram Singh (PW32),

HC Vijay

(PW40),

ASI Sanjay Arya (PW42),

HC Parmal Singh (PW44),

ASI

Azam Khan (PW48),

HC Laxman Singh (PW51),

Inspector Sunil

Kumar (PW52),

HC Islamuddin (PW54),

HC Mohan Singh (PW59),

Sh. Alok Kumar, Principal PTC (PW60),

Inspector Suresh Kaushik

(PW61)

and ASI Chiranji Lal (PW70).

SC No. 42/10 9 of 46

(x) Witnesses about call records Sh. Ajeet Singh,

Assistant Nodal Officer from Idea Cellular Limited (PW17),

Sh. Vishal

Gaurav, Nodal Officer from Bharti Airtel Limited (PW24),

Sh. Deepak,

Alternate Nodal Officer from Vodafone Mobile Services (PW25)

and

Sh. G.S. Patnaik, Secretary to the Vice President of India (PW67).

(xi) Railway Officer Ms. Shanti Devi (PW28.

(xii) Judicial Officers and staff Sh. Sudhir Kumar,

Ahlmad in the Court of Sh. Narender Kumar, Special Judge NDPS

(PW10),

Sh. Mohan Singh Assistant Ahlmad in the Court of Sh.

Narender Kumar, Special Judge NDPS (PW23),

Sh. Naveen Arora,

Senior Civil JudgecumRC

(PW57)

and Sh. Saurav Kulshrestra, ARCcumCivil

Judge (PW58).

(xiii) Other public persons Sh. K.N. Masiwal (PW1),

Sh. Abu Talib Akhtar (PW2),

Sh. Syed Ahmed (PW3),

Sh. Moshin

Nisar (PW16),

Sh. Ovais Malik (PW20),

Sh. Ravinder Kumar Singh,

Addl. S.P, UPATS (PW64)

and Sh. Ajeet Singh, Record Clerk, Record

Station, AIIMS Hospital (PW69).

The accused, when incriminating evidence was put to

him while recording his statement U/s 313 Cr.P.C, denied the same as

incorrect. As per him, the witnesses examined by prosecution were

interested witnesses, he was innocent and was falsely implicated in this

case. The accused opted to examine Mohd. Saif, son of Sh. Shadab and

SC No. 42/10 10 of 46

Zeeshan, son of Sh. Ehsaan Ahmad. Both of them were examined as

DW1

and DW2

respectively.

Six witnesses i.e. HC Satender (PW7),

Inspector Rahul

Kumar (PW8),

HC Udaivir (PW11),

HC Balwant (PW14),

SI

Ravinder Kumar Tyagi (PW15)

and Inspector Dharmender Kumar

(PW22)

are stated to be eye witnesses of incident. As stated earlier,

FIR in this case was registered on a complaint given by Inspector Rahul

Kumar. The latter (complainant) after verifying his complaint (Ex.

PW8/

C) gave account of incident in the court, as follow:

On 19.09.2008 at about 8.00 am, I was present

in the office and Inspector Mohan Chand Sharma

informed me telephonically that he had received

information through informer that above said Atif @

Bashir is staying in flat No. 108, L18,

Batla House, Jamia

Nagar, New Delhi alongwith his associates. He asked me

to lodge a DD entry in this regard and to constitute a team

for raid. I lodged a DD entry vide DD No. 3 dated

19.09.2008. Attested copy of same is Ex. PW8/

A. A team

comprising of Inspector Mohan Chand Sharma, myself, SI

Dharmender Kumar, SI Ravinder Tyagi, SI Devender, SI

Dalip Kumar, ASI Anil Tyagi, SI Rakesh Malik, HC

Manish, HC Satyender Kumar (No. 391/SB), HC Satender

Kumar (No. 397/SB), HC Balwant, HC Rajbir, HC

Udaivir, HC Rajiv, HC Vinod Gautam and others was

formed to act upon this information. I alongwith SI

Ravinder Tyagi, HC Balwant, HC Satender, Ct. Sandeep,

SI Rakesh Malik, HC Manish, HC Vinod Gautam and Ct.

Birender Negi departed from office in a private car and

two twowheelers

alongwith arms and ammunition. Rest

of members of the team were directed accordingly. DD

No.4 was recorded in this regard, copy of which is Ex.

PW8/

B. At about 10.15 am, we reached at Abbasi Chowk,

SC No. 42/10 11 of 46

Batla House, Jamia Nagar. SI Rakesh Malik and HC

Manish were sent to Saheen Bagh, Jamia Nagar to verify

one address as directed by Inspector Mohan Chand

Sharma. At about 10.45 am, Inspector M.C. Sharma

alongwith other team members also reached there. He

briefed all of the team members about the raid. The team

reached at L18,

Batla House at 11.00 am, where an

advance party including Inspector M.C. Sharma, myself,

SI Dharmender, SI Ravinder Tyagi, HC Balwant, HC

Satender and HC Udaivir was formed to go upstairs to

conduct the raid in the flat. Rest of team members were

deployed in the street to cover the building. SI

Dharmender was sent upstairs posing as Vodafone

Executive to find presence of terrorists inside the flat. I

and Inspector M.C. Sharma alongwith four other members

of the advance party waited at stairs. Within minutes, SI

Dharmender came back and informed that some persons

were present inside the flat No. 108. Inspector M.C.

Sharma alongwith advance party moved and knocked the

main door of said flat and disclosed his identity, but no

one replied from inside. We tried to open the main door,

but it was found bolted from inside. Then we checked the

other door, towards left side of the main door and it was

found closed but not bolted from inside. Immediately,

team entered into the flat to conduct the raid. As soon as

we entered in the drawing room of the flat, terrorists

already present there fired on police party from two

directions. One firing came from drawing room side and

other from the left side room of the flat. The team

members were trapped in the drawing room and we also

fired in self defence. During the shoot out, Inspector M.C.

Sharma and HC Balwant sustained bullet injuries. The

terrorists present in the drawing room were trying to

escape from the flat by opening the main door of the flat

while firing on the police party. One terrorist present in

the drawing room also sustained bullet injuries and two

terrorists managed to escape from the flat while opening

fire on the police party. Out of those two terrorists, one is

SC No. 42/10 12 of 46

accused Shahzad Ahmad @ Pappu present in court. SI

Dharmender and HC Udaivir took injured Inspector M.C.

Sharma to the hospital. SI Ravinder Tyagi took injured

HC Balwant to the downstairs and handed over to HC

Gurmeet to send him to hospital and came back to the flat.

The terrorist who fired from the left side room of the flat

was still hiding inside the room. I searched for the

escaped terrorists. Meanwhile, Sh. Sanjeev Kumar Yadav

(ACP Special Cell) alongwith SI Dalip Kumar, HC Rajbir,

HC Vinod Gautam and other staff came to the flat. I

briefed him about the incident. In between, SI Ravinder

Tyagi informed local police about the shoot out. ACP

Sanjeev Kumar Yadav, myself and HC Rajbir tried to enter

inside the room to apprehend the terrorist present in the

left side room. Immediately, one terrorist fired on us.

ACP Sanjeev Kumar Yadav fired in self defence and

terrorist fell down. We again tried to enter inside the room

but the terrorist again fired on us and two of the bullets hit

HC Rajbir but he was saved as he was wearing bullet

proof jacket. We also fired in self defence and terrorist

sustained bullet injuries. On further search of the flat, one

Mohd. Saif was found present in the toilet of the left side

room. He came out after raising his hand and

surrendered before the police party.

PW8

also stated about a passport belonging to accused

Shahzad Ahmad, having been recovered from the spot, in his presence,

which was seized by ACP Sanjeev Kumar Yadav, the IO of the case

(FIR No. 166/08, PS Karol Bagh), copy of which is marked as Ex.

PW8/

A, signed by him at point A.

Other eye witnesses of incident i.e. HC Satender

(PW7),

HC Udaivir (PW11),

HC Balwant (PW14),

SI Ravinder

Kumar Tyagi (PW15)

and Inspector Dharmender Kumar (PW22)

SC No. 42/10 13 of 46

tautologized the story as disclosed by complainant Inspector Rahul

Kumar.

HC Satender (PW7)

told further about Inspector M.C.

Sharma, having asked SI Rahul Kumar to verify some address of

Saheen Bagh, New Delhi. Two officials were sent to verify that

address. HC Balwant (PW14)

further stated that he saw three persons

inside the flat including accused present in court (Shahzad Ahmad)

were firing upon them. During firing, he (PW14)

suffered bullet injury

on his right arm. He glanced towards Inspector M.C. Sharma, who had

also suffered bullet injuries. He had fallen down on the ground. He

(PW14)

had seen bullet injuries on his (Inspector M.C. Sharma)

abdomen. Pistol of Inspector M.C. Sharma had fallen on the ground,

which was picked up by SI Dharmender. His pistol also fell down, but

he managed to pick it by left hand. Two of assailants including accused

(Shahzad Ahmad) managed to flee away through front gate, firing upon

them. Apart from corroborating the deposition given by PW8

and

other eye witnesses, Inspector Dharmender Kumar (PW22)

stated that

Inspector M.C. Sharma after reaching at spot, directed him to go

upstairs to flat No. 108, posing as a ‘Sales Executive’ of Vodafone

Mobile Company and also to see whether there was any inmate in that

flat i.e. Flat No. 108. On his directions, he went upstairs and found that

both of main doors of said flat were unbolted from outside. He heard

SC No. 42/10 14 of 46

some voices of inmates in that flat. He went down and apprised said fact

to Inspector M.C. Sharma.

HC Gurmeet (PW4),

Inspector Sanjay Dutt (PW12),

SI

Anil Tyagi (PW13),

ASI Chhajju Ram (PW9)

and ACP Sanjeev Kumar

Yadav (now DCP) (PW56)

are the witnesses, who reached at spot. As

per DCP Sanjeev Kumar Yadav (PW56),

on 19.09.2008 at about

8.008.30

am, Inspector M.C. Sharma informed him that one of accused

of Delhi Serial Blast has taken shelter in Batla House, alongwith his

accomplices. He directed him (Inspector M.C. Sharma) to conduct a

raid. PW56

also stated to have reached at Jamia Nagar at 11.15 am and

joined the raid. This witness mentioned about Mohd. Saif, having been

interrogated by him and again about complaint given by SI Rahul

Kumar to Inspector J.S. Joon, which was endorsed by the latter and was

sent for registration of FIR. In his cross examination done by Ld.

Defence Counsel, this witness admitted that no article belonging to

accused Shahzad Ahmad like wearing clothes etc. was found at spot,

except his passport.

HC Gurmeet (PW4)

deposed to have received

instruction from Inspector Rahul Kumar on 19.09.2008 to reach office

of Special Cell to join some raid. He proceeded for Batla House

alongwith Inspector Sanjay Dutt and HC Hansraj. When they were at

Abbasi Chowk, Inspector Sanjay Dutt received information about

SC No. 42/10 15 of 46

Inspector M.C. Sharma and HC Balwant having suffered injuries in

shoot out at Batla House. He alongwith HC Hansraj proceeded towards

Batla House on foot. They found SI Ravinder Tyagi bringing down HC

Balwant in injured condition. He took HC Balwant in a private vehicle

belonging to SI Ravinder Tyagi and got him admitted in Trauma Centre,

AIIMS. Inspector Sanjay Dutt (PW12)

verified aforesaid facts and

stated further to have reached Holy Family Hospital. Inspector M.C.

Sharma was admitted in OPD of that hospital. He signed necessary

documents for his admission. SI Anil Tyagi (PW13)

also stated to have

joined raid on 19.09.2008 after reaching building No. L18.

He took

position in gali near that building. As per this witness, after about 12

minutes, he heard sound of firing. Few minutes thereafter, HC Udaivir

and SI Dharmender brought down Inspector M.C. Sharma in injured

condition. He called SI Devender asking him to bring some vehicle. SI

Devender brought a car (i10)

and he alongwith SI Dharmender, HC

Udaivir and SI Devender took Inspector M.C. Sharma to Holy Family

Hospital. Admission papers of Inspector M.C. Sharma were filled up

by SI Dharmender and SI Devender.

SI Chhajju Ram (PW29)

deposed that on 19.09.2008,

he was posted in PCR (South Zone). On that day, he was serving as

Incharge of Eagle 25 PCR van from 8.00 am to 8.00 pm. At 11.12 am,

they received a call from EagleI

about firing at Batla House near

SC No. 42/10 16 of 46

KhalilUlLah

Mosque. They drove their van and reached at spot within

four minutes. He was told that Inspector M.C. Sharma and HC Balwant

had suffered bullet injuries. He was asked to take one injured to

Trauma Centre. He alongwith HC Ram Gopal took the same to Trauma

Centre. Other van (Eagle 23) followed them having some other injured

in it.

Inspector J.S. Joon deposed on oath that on 19.09.2008,

he was posted in PS Jamia Nagar. On that day on receipt of DD No. 10,

he alongwith HC Subhash, Ct. Ramphal and Ct. Satender went to House

No. L18,

Batla House. He came to know about an encounter between

officials of Special Cell with terrorists. SI Rahul gave him a complaint

(Ex. PW8/

C). He made endorsement on it, which is Ex. PW66/

A and

gave it to Ct. Ramphal for registration of FIR. This witness stated about

recovery of one pistol loaded with one live cartridge from drawing

room, one pistol in a room situated at left side, one rifle of A.K. Series

alongwith two magazines containing 30 live cartridges each, which

were folded in a mattress (gadda). PW66

also stated about 30 used

cartridges found lying in drawing room, lobby of flat, left side room and

outside that flat, out of which 19 were of 9mm, 8 of .30mm and 3 of

A.K. Series rifle. Again 13 fired bullets were found lying in that flat.

IO also stated about seizure of other articles i.e. floor sample, earth

control, blood soaked wearing clothes of Inspector M.C. Sharma having

SC No. 42/10 17 of 46

been handed over to him by ASI Sant Pal, wearing shirt of HC Balwant

Singh, which was blood stained. PW66

also mentioned about HC

Rajbir Singh, having been handed over to him one bullet proof jacket,

which he i.e. HC Rajbir Singh was wearing. He noticed two holes

caused by bullets in that jacket and also two bullets entangled inside it.

He got postmortem conducted on the dead body of deceased. Ct. R.P.

Meena (PW38)

stated to have reached at spot with IO Inspector J.S.

Joon. IO gave him rukka, which he took to PS and got FIR registered.

SI Praveen Vats (PW35)

deposed on oath that on

19.09.2008 at about 11.30 am, he was patrolling in the area. Duty

Officer told him about firing, having taken place near KhalilUlLah

Masjid, Batla House, New Delhi. He went there and reached at about

11.45 am. IO Inspector J.S. Joon met him. A large crowd of people

gathered at spot. PW35

witnessed the recovery of arms and

ammunition from spot, seized by the IO.

ASI Sant Pal Singh (PW41)

stated to have reached at

spot alongwith SHO Inspector Mohd. Iqbal after receipt of a call from

police control room at about 9.00 am. At spot, he was informed about

Inspector M.C. Sharma having been injured in that incident and referred

to Holy Family Hospital. PW41

went said hospital and found Inspector

M.C. Sharma admitted there. He again went to AIIMS Hospital, where

HC Balwant was admitted alongwith two unknown militants. Both of

SC No. 42/10 18 of 46

said militants were declared as brought dead. He procured MLC of all

injured. Doctor concerned handed over him wearing clothes of injured

HC Balwant and both of deceased militants. He returned to Holy

Family Hospital. Inspector M.C. Sharma had already expired. He

procured MLC of him. Doctor concerned handed over him wearing

clothes of Inspector M.C. Sharma. He handed over all these articles to

IO Inspector J.S. Joon. IO recorded his statement.

Inspector Satish Sharma (PW68)

is another IO of the

case, who stated about visit of CFSL officials at spot on 01.10.2008. As

per him, the team picked up 10 blood samples from different places, one

lead (used bullet) recovered from front side of kitchen and other from

drawing room. One book, which was blood stained, one piece of

blanket and one bed sheet, which were lying in the drawing room. This

witness also stated that on 18.10.2008, he seized weapons used by police

team comprising SI Rahul, ACP Sanjeev Kumar Yadav, SI Ravinder

Tyagi, SI Dharmender and HC Rajbir on being produced by them. He

(PW68)

received information about accused Shahzad Ahmad on

02.02.2010, having been arrested by ATS (Lucknow). He went there

alongwith HC Azad. Said accused was arrested by him in this case vide

arrest memo Ex. PW33/

B. On his application, said accused was given

transit remand by the court concerned. Accused was brought to Delhi

and produced in the court on 03.02.2010 in muffled face. He filed an

SC No. 42/10 19 of 46

application before the court, seeking TIP of accused, which could not be

conducted due to refusal by him. This witness also stated about

accused, having given disclosure statement (Ex. PW33/

D) and again

that accused Shahzad Ahmad led them to Gang Nehar, Bulandsehar

(U.P) and pointed out a place, but despite their efforts, no weapon could

be recovered from that canal due to heavy flow of water. Pointing out

memo prepared by him is Ex. PW33/

F.

ASI Saroj Bala (PW50)

was Duty Officer in PS Jamia

Nagar on 19.09.2008. She verified registration of FIR in this case on a

rukka sent by Inspector J.S. Joon through Ct. Ramphal, copy of which is

Ex. PW50/

A.

Dr. Rajiv Sethi (PW18),

a Senior Consultant in Holy

Family Hospital, New Delhi stated on oath that on 19.09.2008, he was

working as Surgical Consultant (on call) in Holy Family Hospital. On

that day at 11.17 am, Inspector M.C. Sharma was brought to casualty of

that hospital with alleged history of gunshot injury. He had been

collapsed. He prepared death summary of him alongwith Dr. P.

Chadha, which is Ex. PW18/

A. Dr. Arvind Kumar (PW19)

stated

about postmortem conducted by him alongwith Dr. Adarsh Kumar and

Dr. Bharat Verma on the dead body of Mohd. Atif Ameen. Their

reports in this regard are Ex. PW19/

A and Ex. PW19/

B respectively.

This witness further stated about postmortem conducted by him

SC No. 42/10 20 of 46

alongwith Dr. Sanjeev Lalwani and Dr. Sushil Sharma upon the dead

body of deceased M.C. Sharma on 20.09.2008. Postmortem report in

this regard is Ex. PW19/

C. As per this witness, on 15.05.2009, he gave

subsequent opinion on the MLC of injured Balwant, on a request of IO.

As per him, the injuries suffered by said HC Balwant were grievous in

nature. These could have been caused by gunshots. His report in this

regard is Ex. PW19/

E.

Sh. K.N. Masiwal (PW1)

identified dead body of

Inspector M.C. Sharma on 20.09.2008 in Trauma Centre, AIIMS. Sh.

Abu Talib Akhtar (PW2)

is stated to be a cousin of deceased Mohd.

Atif Ameen and identified dead body of latter on 22.09.2008 in the

mortuary of Trauma Centre, AIIMS. Sh. Syed Ahmad (PW3)

is cousin

of deceased Sajid, who deposed to have identified dead body of said

Sajid on 22.09.2008 in mortuary of Jai Prakash Narayan Trauma Centre,

AIIMS. Inspector Sanjay Dutt (PW12)

told to have reached at spot on

being called by Inspector M.C. Sharma telephonically. He alongwith

HC Hansraj and Ct. Gurmeet reached Abbasi Chowk at 11.15 am. He

came to know about firing between police and militants at Flat No. 108,

L18,

Batla House. Inspector M.C. Sharma and HC Balwant suffered

bullet injuries. He rushed to Holy Family Hospital, where Inspector

M.C. Sharma was admitted in OPD of that hospital. He signed

documents for the admission of said injured i.e. M.C. Sharma.

SC No. 42/10 21 of 46

Inspector Tej Bahadur Singh of UPATS (PW55)

stated

on oath that on 01.01.2009, a list of 10 militants belonging to Indian

Mujaheddin was handed over to their office, by the office of

Commissioner of Police, Delhi. After getting said information, a team

comprising himself i.e. PW55

and Deputy S.P. Sh. Ravinder Kumar

Singh was constituted. On 17.01.2010, the members of said team

alongwith SI Anil Yadav, Ct. Praveen Kumar, commando Ct. Shiv

Kumar went in the area of District Ajamgarh. On 01.02.2010, all of

them reached Village Khalispur, in search of a terrorist namely Shahzad

Ahmad. A secret information was received about said person by

Deputy S.P. Sh. Ravinder Kumar Singh. One team of ATS from

Banaras as well as ATS unit Ajamgarh also joined them. Thus, a bigger

raiding team was prepared. All of them were divided in three subteams.

At 15.30 hours, they went to the house of Shahzad Ahmad

situated at Village Khalispur. The accused was found present there. He

tried to flee away after jumping down from roof of his house. He i.e.

(PW55)

with the help of SI Anil Yadav and Ct. Om Prakash

overpowered him. He i.e. Shahzad Ahmad was arrested. Arrest

documents are Ex. PW55/

A. Apart from said witness i.e. PW55

and

IO/ Inspector Satish Sharma, HC Azad Singh (PW33),

Inspector

Manjeet Tomar (PW53)

also stated about arrest of said accused. Sh.

Ravinder Kumar Singh, Additional S.P, UPATS (PW64)

stated about

SC No. 42/10 22 of 46

arrest of accused Shahzad @ Pappu. As per him, on 01.01.2009, he was

posted as Deputy S.P. in UPATS. He received a letter from

Commissioner of Police, Delhi, where names of 10 terrorists were

mentioned. He also received appropriate directions from DIG of his

department to take appropriate action against those persons. On

17.01.2010, he got information about Shahzad Ahmad, who was living in

the area of Ajamgarh District. He alongwith Inspector T.B. Singh went

there in search of said accused. On 01.02.2010, he got information

about accused Shahzad Ahmad, who was living in the house of his

grandfather at Khalispur, PS Bilariya Ganj, Ajamgarh. He joined SI

Ashwani Kumar of Varanasi Unit, Inspector Ram Sewak Yadav of

Ajamgarh Unit to see the sensitivity of matter. They reached house of

grandfather of accused Shahzad Ahmad, where the latter was found and

was arrested in this case. He submitted a report, which is Ex. PW55/

A.

According to prosecution, accused Shahzad Ahmad

talked to his father by using mobile phone of coaccused

Atif Ameen.

Moreover, he had already booked a train ticket for himself to travel

Ajamgarh from New Delhi on 24.09.2008, in Kafiyat Express.

Sh. Vishal Gaurav, a Nodal Officer from Bharti Airtel

Limited (PW24)

brought customer application form of mobile phone

No. 9793066723, which was in the name of one Siraj Ahmad (Ex.

PW24/

A). Sh. Deepak, an alternate Nodal Officer from Vodafone

SC No. 42/10 23 of 46

Mobile Services (PW25)

proved call details of mobile phone No.

9811004309 from 01.08.2008 to 29.09.2008 i.e. Ex. PW25/

A. This

witness also brought customer application form of aforesaid phone

number, which was in the name of Mohd. Atif Ameen, resident of L18

Top Floor, Room No. 108, Batla House, Jamia Nagar, New Delhi. The

customer had filed copy of his driving licence and passport size

photograph alongwith application. Copy of customer application form

is Ex. PW25/

B and copy of driving licence of that customer is Ex.

PW25/

C. Certificate U/s 65B of Indian Evidence Act issued in this

regard is Ex. PW25/

I. This witness also verified document Ex.

PW23/

G i.e. call details of aforementioned phone.

As per Sh. Bhisham Singh, Additional DCP Crime

Branch (PW26),

in September 2008 after interrogation of accused

Shahzad Ahmad and from analyzing call details of phone, it was

revealed to him that accused Shahzad Ahmad was using a mobile No.

9811004309 to speak to his mother and father, while he was staying at

Batla House and said phone was in the name of Atif Ameen. He handed

over ownership detail, CDR of said mobile phone to the IO of this case.

Further, said witness i.e. PW26

handed over reservation chart of

Kafiyat Express Train for reservation done by accused Shahzad Ahmad

for 24.09.2008 for going to his hometown. IO seized these documents

vide seizure memo Ex. PW26/

A. Ms. Shanti Devi, Chief Reservation

SC No. 42/10 24 of 46

Supervisor, Northern Railway, New Delhi (PW28)

verified letter No.

NDCR/E36/

LTC/Misc./36/2010 dated 22.02.2010 sent to ACP Bhisham

Singh, copy of which is Ex. PW28/

A. This witness also verified

document Ex. PW23/

J, which is copy of chart of passengers dated

24.09.2008, Class 3 tier AC, seat No. B125,

B126

and B127

of train

No. 2226. As per her, said document i.e. Ex. PW23/

J was true copy of

original brought by her in the court. Sh. Mohan Singh (PW23)

was

assistant ahlmad in the Court of Sh. Narender Kumar, Special Judge,

NDPS Court, Tis Hazari, Delhi. This witness brought in the court case

file of case

SC No. 78/08, FIR No. 166/08, PS Karol Bagh (Special

Cell) titled as State vs. Mohd. Shakil

as well as case file of caseSC

No. 75/08, FIR No. 293/08, PS Tilak Marg titled as State vs.

Shahzad Ahmad & Ors

. PW23

verified copies of several documents

including Ex. PW23/

H (copy of customer application form in respect of

mobile phone No. 9793066723), Ex. PW23/

I (copy of reservation chart

of railway) as true copies from the case file brought by him.

If Ex. PW23/

J is taken as true, three railway tickets in

the name of Siraj, Afzal and Shahzad were booked on aforesaid train for

24.09.2008.

Sh. Naveen Arora, Senior Civil JudgecumRC,

South

West, Delhi (PW57)

stated about filing a complaint by him U/s 195

Cr.P.C to initiate proceedings against accused Shahzad for offence

SC No. 42/10 25 of 46

punishable U/s 174 IPC. Said complaint is Ex. PW57/

A. Sh. Saurav

Kulshrestra, ARCcumCivil

Judge, District Courts Karkardooma

(PW58)

stated that on 02.02.2010 when he was posted as MM02

(SE),

New Delhi, an application seeking TIP of accused Shahzad was marked

to him by ACMM (SE). Accused was in muffled face. He asked

accused, as to whether he wanted to participate in TIP or not. Accused

refused to participate in the TIP. He recorded statement of accused in

that regard. Sh. Alok Kumar, Principal PTC, Ita Nagar, Arunachal

Pradesh (PW60)

stated about a complaint filed by him U/s 195 Cr.P.C

on 16.04.2010, copy of which is Ex. PW60/

A.

It is submitted by Ld. Addl. PP that from the depositions

of PWs as discussed above, 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. Similarly, said

occupants tried to kill HC Rajbir by showering bullets upon him, but

due to bullet proof jacket, which he was wearing, the bullets could not

pierce his body. All of eye witnesses mentioned above stated to have

seen accused Shahzad Ahmad fleeing from said flat, while firing at

police party. 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. The accused had well planned to

SC No. 42/10 26 of 46

leave Delhi after that operation. Same had reserved his seat in Kafiyat

Express. He was scheduled to leave Delhi on 24.09.2008 and this

reservation has been well established from the statement of PW28.

Again from the call details of phone numbers 9811004309 and

9793066723, it is well proved that father of accused talked to person on

phone belonging to Atif. The latter found died in said flat. It is not plea

of accused even that Atif had any relationship or intimacy with the

father of accused Shahzad Ahmad. 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. From call

details and location of cell tower, it is proved that said phone call was

made from flat No. 108, L18

or immediately near to that place.

It is also the contention of Ld. Addl. PP that as accused

Shahzad Ahmad fired at police party alongwith coaccused,

all it shows

that he was sharing common intention with cooffenders.

Referring one of occupants namely Mohd. Saif, who

was apprehended from same flat unhurt, Ld. Addl. PP claims that police

had no intention to kill the suspects and fired only in self defence,

otherwise there was no reason to spare one of those occupants i.e.

Mohd. Saif. According to her, it shows bonafides of police act.

In his try to demolish the case of prosecution, Sh. Satish

Tamta Advocate reminded the court that as per criminal jurisprudence,

SC No. 42/10 27 of 46

it is for the prosecution to prove its case and that beyond reasonable

doubt.

According to him, it is not proved on file:(

a)

That accused Shahzad was present at spot at the

time of incident or participated with occupants of that flat in firing

at police party

.

Ld. Defence Counsel expatiated as that none from eyewitnesses

i.e. PW7,

8, 11, 14, 15 and 22 gave description in their

statement recorded under Section 161 Cr.P.C. of two alleged terrorists

who fled away from that flat.

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. 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

SC No. 42/10 28 of 46

steps of L18,

Batla House. Insp. Rahul Kumar (PW8)

searched the

adjoining flat i.e. Flat No. 107 as well as roof of that building but could

not get any clue as how said two persons escaped. As per him, there

were two sets of doors, one wooden and other made of iron grills and it

was necessary for a person in coming out of the flat, that both of these

doors were open. PW8,

who admitted in his crossexamination

that it

must have taken some time to open the main doors before two occupants

went out from there and again that to escape from the main doors, the

occupants had to open two doors, one wooden and other iron grill doors.

One from the occupants of flat namely Md. Saif was

apprehended alive. Even as per case of prosecution, he remained inside

the flat during entire operation. In this way, said Mohd. Saif was an eye

witness of incident but prosecution did not opt to examine him as a

witness. Accused 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.

It is conceded by Ld. Addl. PP that none from eye

witnesses gave description of any of said two persons, who fled away

from flat No. 108 when their statements were recorded U/s 161 Cr.P.C.

SC No. 42/10 29 of 46

According to her, even if no such description was given by said

witnesses, six eye witnesses i.e. HC Satender (PW7),

Inspector Rahul

Kumar (PW8),

ASI Udaivir Singh (PW11),

HC Balwant (PW14),

SI

Ravinder Kumar Tyagi (PW15)

and Inspector Dharmender (PW22)

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. 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.

Apart from depositions of said witnesses, there are other

circumstances which favour the prosecution i.e. recovery of passport of

accused Shahzad Ahmad from same flat, talk from phone registered in

the name of cooccupant

i.e. Atif Ameen from said flat with father of

accused Shahzad Ahmad at latter’s phone and again the reservation of

railway ticket in the name of accused Shahzad Ahmad, showing him to

leave Delhi on 24.09.2008 from New Delhi Railway Station in a train

namely Kafiyat Express. When it is established on record that a

reservation was done about travelling in the name of Shahzad Ahmad

from New Delhi Railway Station on 24.09.2008 shows that said person

i.e. Shahzad Ahmad was in Delhi at least on that day i.e. 24.09.2008.

I agree with Ld. Counsel alleging that even if it is

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.

So far as the fact that there was no scope of escape by

any person from flat No. 108 at the time of incident is concerned, it is

not in dispute that L18,

Batla House is a four storied building, having

two flats (in front of each other) on each floor. Flat No. 108, in which

incident in question took place, is situated at 4

thfloor, which is top floor

of the building. In this way, there are seven other flats apart from flat

No. 108. Inspector Rahul Kumar (PW8)

stated to have checked flat No.

107 i.e. flat adjoining flat No. 108. Even if it is presumed that Shahzad

Ahmad did not take shelter in that flat, there remained six other flats,

where shelter could be taken by any fugitive. A minutia of deposition

given by PW8

makes it clear that when he started tracing two offenders

who fled away, ACP Sanjeev Kumar Yadav came at spot and he i.e.

PW8

joined ACP Sanjeev Kumar Yadav in further operation. All this

makes it clear that Inspector Rahul Kumar (PW8)

did not search said

building thoroughly. Needless to say that as per case of prosecution,

said two offenders skipped using the stairs, posing themselves as local

SC No. 42/10 31 of 46

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.

(b)

Prosecution could not explain delay in lodging the

FIR.

Information about the incident was received in PS Jamia

Nagar at 11.13 am through DD No. 10A, but rukka was sent at 4.00 pm

and the FIR in this case was registered at 4.15 pm. DD No. 19A was

recorded in that respect. In this way, there was delay of about five

hours. PS Jamia Nagar is at a distance of about 1 km from the spot.

According to Ld. defence counsel, five hour’s delay was fatal to the case

of prosecution, Ld. Counsel relied upon following cases in this regard;

Arpan Joseph @ Current Kunjukunju & Ors. vs. State of Kerala

(1973) 3 SCC 114, Saheb Rao & Anr. vs. State of Maharashtra

(2006) 9 SCC 794, State of Himachal Pradesh vs. Gyan Chand

(2001) 6 SCC 171, Thulia Kali vs. State of Tamil Nadu (1972) 3 SCC

393 and Ravinder Kumar & Anr. vs. State of Punjab (2001) 7 SCC

SC No. 42/10 32 of 46

690

.

On the other hand, as per Ld. Addl. PP, FIR was

registered without much delay. In

Arpan Joseph @ Current

Kunjukunju & Ors. (Supra)

, it was held by the Apex Court that undue

and unreasonable delay in lodging the FIR, therefore inevitably gives

rise to suspicion, which puts the court on guard to look for the possible

motive and the explanation for the delay and consider it a fact on the

truthworthiness

or otherwise of the prosecution version. In the same

breath, their lordships observed that in their opinion, no duration of

time in the abstract could be fixed as reasonable for giving information

of a crime to the police. The question of reasonable time is matter for

determination by the court in each case.

In Saheb Rao & Anr. Case

(Supra)

, the court was satisfied with the explanation given by the

complainant that he was shocked and mentally unfit to lodge the

complaint. The complainant was father of victim, who was a newly

wedded wife. Dead body of that girl was recovered from her

matrimonial home, where the complainant had left her just a day before.

In these circumstances, it was observed by the Apex Court that it was

very natural for the father to loose his tranquility of mind. It was not

unnatural or unusual for such grief stricken father to tell to the police

that he will give complaint afterwards.

Coming to case in hands, even if police station Jamia

SC No. 42/10 33 of 46

Nagar was at a distance of about 1 km from the spot, it is explained by

the IO that he went to Holy Family Hospital, where Inspector M.C.

Sharma was admitted and to AIIMS Hospital, where other injured/

deceased were taken. 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.

(c)

The police did not join any independent witness

despite the fact that there were commercial shops near Abbasi Chowk,

where two raiding teams met together or any witness from KhalilUlLal

Mosque which fell on the way or even any resident from or near

building L18,

Batla House, in which flat No. 108 is situated.

Ld. Addl. PP explained that the raiding party was in

hurry to nab the suspects of serial blast. 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. As per her, citing problem of law and order,

District Administration, Ajamgarh (UP) did not grant permission to a

raiding party, to visit house of accused Shahzad Ahmad, situated at

Village Khalispur, Ajamgarh (UP).

No religion professes crimes as its tradition, then why

the police fostered a belief that it will stir communal violence if they

SC No. 42/10 34 of 46

invited local residents to join a raid, to arrest an offender, who was

belonging to their religion. It is equally true that having witnessed

incidents of clashes between different religions, way as apprehended by

Ld. Addl. PP, the fear of police being targeted, cannot be abnegated

outrightly. 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.

Keeping in mind all this trend of general public, in my opinion, if the

police could not join any public person on the way to spot, same is not

fatal to the case of prosecution. Although Inspector Rahul Kumar

(PW8)

told to court that he asked 67

passerby persons to join the

raiding party, after apprising them about the raid, but all of them left

away after telling their genuine excuses and without disclosing their

names and addresses. This assertion did not appeal to Ld. Addl. PP

even.

(d) Ld. Defence counsel took me through the

postmortem reports of Md. Atif Ameen and Mohd. Sajid stated to have

died in that operation. As per Ld. Counsel although he does not

represent said persons but as both of them died in the same incident, it

was for the prosecution to explain injuries on the bodies of said

deceased. As per postmortem report Ex. PW19/A (belonging to Mohd.

Atif Ameen) it has been opined that ‘all of injuries found on the person

SC No. 42/10 35 of 46

of said deceased were produced by fire arm/ ammunition except injury

no. 7, which was produced by blunt force impact, by object or surface.

At serial no. 7, one reddish brown abrasion of size 1.5 X 1 cm over outer

and anterior aspect of right knee cap has been mentioned. Similarly, in

postmortem report Ex. PW19/B (belonging to Md. Sajid) it is opined by

the doctor, who conducted postmortem that injuries mentioned at serial

no. 13 and 14 were produced by blunt force impact on surface or by

object. These injuries are mentioned as an abrasion 4 X 2 cm, red in

colour, over back of chest ……. and laceration of size 3.5 X 2 cm muscle

deep present horizontally over front or right leg in the middle. As per

Ld. Counsel, there was no other way to receive injury by these persons

except in cross firing by the police. Prosecution led no evidence to

explain how aforesaid injuries were caused to deceased Mohd. Atif

Ameen and Mohd. Sajid. About injuries other than bullet injuries found

on the person of deceased Mohd. Atif Ameen and Mohd. Sajid.

It is explained by Ld. Addl. PP that it has come on

record from the statements of eyewitnesses

mentioned above that both

of said Atif Ameen and Mohd. Sajid fell down on the ground after being

hit by bullets, fired by police in self defence. In this way these injuries

were caused, when said persons fell down on the floor. I find weight in

the explanation given by Ld. Addl. PP.

(e) Injury on the person of Md. Atif Ameen mentioned at

SC No. 42/10 36 of 46

Sr. No. 7 of his post mortem report (Ex.PW19/A) is an abrasion at his

knee cap. Similarly, injuries No. 13 and 14 (as per postmortem report

Ex.PW19/B) are an abrasion over back of chest and a laceration over

front of right leg. 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.

(f) It is contended by Ld. Defence counsel that prosecution

failed to prove that accused Shahzad was sharing common intention

with coaccused.

Even as per case of prosecution when firing was still

going on, two of occupants including accused Shahzad fled away. In this

way, even if it is presumed that Shahzad was there he left the spot mid

stream and hence cannot be held responsible for the act done by others

in his absence.

As per Ld. Addl. PP accused shared intention with cooffenders

in attacking the police party, who reached there in order to

investigate case of serial blasts. It was not of much importance that

accused went away in between and his accomplices carried further the

intended act. Ld. Addl. PP relied upon following cases to substantiate

her plea :a.

Surendra Chauhan Vs. State of Madhya Pradesh, (2000) 4 SCC 110

b. Jaikrishnadas Manohardas Desai & Another Vs. The State of

Bombay, AIR 1960 SC 889

SC No. 42/10 37 of 46

c. Krishnan and Anr. Vs. State (represented by Inspector of Police) & O.

Ayyar Thavar and Another Vs. State (Represented by Inspector of

Police), (2003) 7 SCC 56.

True, as it was held by the Apex Court in

Surendra

Chauhan’s case (Supra)

the essence of Section 34 is simultaneously

consensus of the minds of persons participating in the criminal action

to bring about a particular result.

To my mind, common intention continues till the intended

act is accomplished. All of persons who hobnobbed to hatch a

conspiracy, will be held liable for the acts done by each of them, even if

anyone or some of them left the scene of occurrence in between, unless

it is established that the

actus rieusensued in their absence was never

conceived together. If accused Shahzad joined coaccused

in attacking

the police party, it was not of much significance that he fled away in

between and his accomplices continued the act, designed by them

together. It is not plea of anyone that cooffenders

did act which was not

intended by them.

(g) The members of raiding party are stated to have fired at

the occupants of flat No. 108 in their self defence. As per Ld. Defence

counsel,

plea of self defence was available only to the persons who

are facing trial as accused and not to persons, who are merely

witnesses

.

SC No. 42/10 38 of 46

I am not in consonance with Ld. Defence counsel in this

regard. I am unable to find out any provision in the entire pendact if the

plea of self defence is restricted to persons, who are made to face trial.

It depends upon the facts of each case. As per case of prosecution, on

the basis of a secret information, police party entered inside flat no. 108

to apprehend some suspects of Delhi Blasts. The occupants of that flat

started firing on the police party. The members of police party fired in

self defence. There is no surprise that in such facts the police officers,

who fired on the occupants of said flat, are not arraigned as accused.

Apparently they were acting in self defence.

(h) Ld. Defence counsel has objection as why the passport

of accused Shahzad if recovered from flat no. 108 was made case

property of some other case. As per him, that passport was not a valid

passport.

What so if validity of passport had expired. The accused

was not to show a valid passport to enter that flat. As discussed earlier,

when accused failed to give any explanation as why his passport was

lying there, it raises a presumption against the accused. Similarly, said

passport was picked by Sh. Sanjeev Kumar Yadav (ACP) who was

investigating another case. It is not of much importance that said IO

made it i.e. passport of accused, case property in his case. The recovery

of passport has been well proved from the evidence as discussed above.

SC No. 42/10 39 of 46

(i) It is deposed by Sh. Saurav Kulshrestra, the then MM,

SouthEast

(PW58)

on an application filed by IO accused Shahzad

Ahmad refused to participate in TIP and hence no TIP could be

conducted.

As per Sh. Satish Tamta, Advocate, the accused refused to

participate in TIP as his photo was already there with the police having

been affixed on his passport. Needless to say that in his statement

recorded by Ld. MM, the accused refused to participate in TIP stating

that his photographs were taken by police, when he was in the office of

ATS, Lucknow. Accused did not adduce any evidence to prove said fact.

Even if passport of accused was seized by Sanjeev Kumar Yadav, ACP,

there is no evidence to show that photo of accused was shown to the

witnesses other than ACP Sanjeev Kumar Yadav.

(J) 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.

(k) It is pointed out by Sh. Satish Tamta, Advocate that as

per case of prosecution, the occupants of flat no. 108 including accused

Shahzad were active members of Indian Muzahiddin but this fact has

not been proved on file.

True, there is no evidence on record to establish that fact.

At the same time, this court cannot be expected to endeavour in giving

any finding about said fact. For the purpose of decision of this case it

hardly matters as to whether accused was affiliated to Indian

Muzahiddin or not.

I do not find myself in agreement with Ld. Counsel for

accused contending that in the absence of independent public witnesses

accused cannot be convicted on the basis of testimony of police

officials. I find force in my opinion from a case titled as

Aher Raja

Khima Vs. State of Saurashtra AIR 1956 SC 217

where it was held

by the Apex Court that the presumption that a person acts honestly

applies as much in favour of a Police Officer as of other persons, and it

is not a judicial approach to distrust and suspect him without good

grounds therefore. Such an attitude could do neither credit to the

Magistrates nor good to the public. It only runs down the prestige of the

police administration.

SC No. 42/10 41 of 46

A case titled as

Hazari Lal Vs. State (Delhi

Administration) AIR 1983 SC 873

where it was observed by the

Supreme Court of India that evidence of a Police Officer laying trap if

found reliable can be accepted without corroboration.

A case titled as

Chandra Shekar Vs. State 1986 (2)

Crimes 419

where it was observed that in capital offences in highly

urbanized areas where it is becoming difficult to involve public

witnesses and eyewitnesses

it will be dangerous not to rely on the

relation witnesses and police witnesses provided such witnesses are

confirmed to be truthful considering the peculiar facts and

circumstances of that case.

Similar was position in case in hand. Due to exigency

police could not join any public present near the spot. Moreover

witnesses of this case were not the witnesses of investigation rather

victims and hence eyewitnesses

of incident. I find no reason to discard

their testimony, as a waif.

Although it is not claimed by Ld. Defence Counsel that

Inspector M.C. Sharma died on being fired by police party, it is

explained by Ld. Addl. PP that all six members of police party were

together when they entered inside Flat No. 108 and they were together

when faced firing from occupants of that flat. It was Inspector M.C.

Sharma who was ahead of all of team members, while entering inside

SC No. 42/10 42 of 46

said flat. Postmortem report of Inspector M.C. Sharma (Ex. PW19/

C)

is evident that all the injuries found on his person were either in front of

him or in insides. No injury found on his posterior, shows that he faced

the bullets from his front side and not from back side. In this way, it is

clear that Inspector M.C. Sharma suffered bullet injuries on being fired

by the occupants of the flat and not by the members of raiding party.

Section 37 of The Code of Criminal Procedure, 1973

obliges every person to assist the police in getting any offender arrested.

It speaks as:

Section 37 Every person is bound to assist a Magistrate

or police officer reasonably, demanding as aid:(

a) in the taking or preventing the escape of any other

person whom such Magistrate or police officer is authorized to arrest.

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Trite it to say that police party had gone to Flat No. 108 to

apprehend suspect of Delhi Serial Blast, FIRs in respect of which had

already been registered. From the deposition of witnesses, who were

members of raiding party particularly the eye witnesses i.e. HC

Satender (PW7),

Inspector Rahul Kumar (PW8),

ASI Udaivir Singh

(PW11),

HC Balwant (PW14),

SI Ravinder Kumar Tyagi (PW15)

and

Inspector Dharmender (PW22),

it is well proved that inspite of assisting

SC No. 42/10 43 of 46

the police in apprehending suspects if crime, the occupants of that flat

including accused Shahzad Ahmad fired at police party. It is also well

established on record that Inspector M.C. Sharma and HC Balwant,

members of raiding party suffered bullet injury on being fired by

occupants of that flat including accused Shahzad Ahmad. From the

deposition of Dr. Sanjeev Lalwani (PW27)

and postmortem report (Ex.

PW19/

C), it is clear that Inspector M.C. Sharma died due to bullet

injuries suffered in that incident. Similarly, HC Balwant also suffered

bullet injury in that incident and as per MLC (Ex. PW19/

E) injuries on

the person of HC Balwant were grievous in nature. Again, it is proved

from the deposition of witnesses discussed above that HC Rajbir was

fired at by the same occupants including accused at least twice. Two

bullets were found stuck in his bullet proof jacket. In this way, the

assailants including accused Shahzad Ahmad tried to kill said HC

Rajbir.

It did not remain in dispute that all of said victims are

officers of Delhi Police and hence public servants. They went to flat

No. 108, while investigating a case i.e. in discharge of their public duty.

During deliberations, Ld. Defence Counsel contended that

when Inspector M.C. Sharma fell down on the ground on being fired at,

it would have been the natural response of other members of raiding

party to recede from that place, but inspite of going back, the members

SC No. 42/10 44 of 46

of raiding party proceeded in their venture to confront the assailants.

As per Ld. Counsel, this behaviour was against human nature.

Apart from aforesaid fact, it agitates in my mind that the

incident in question was not a sudden confrontation between police and

the assailants. The police had already an information, receiving which,

a raiding party was formed well in advance. Despite all this, Inspector

M.C. Sharma did not wear any body protection device i.e. bullet proof

jacket. Moreover, at least two members of raiding party were having no

weapon with them, despite knowing the fact that they may face firing.

It is not clear whether it was merely a misadventure or lack of

professionalism in Delhi Police or scarcity of weapons with Delhi

police.

Whatsoever it may be, it did not give any licence to the

occupants of a flat to fire at police persons who came there to

investigate a case, merely because they were unarmed or not wearing

any bullet proof jacket. They were expected to assist the police and not

to attack them. Accused is thus convicted for offence punishable U/s

186/353/333/307/302/34 IPC.

From the statements of same witnesses as mentioned above

earlier, it is proved on record that accused Shahzad was having fire arm

in his hand, when he fled away from flat No. 108 mentioned above.

Though he is alleged to have disclosed to the police that he threw that

SC No. 42/10 45 of 46

weapon in Gang Nehar, but same could not be recovered. The accused

is thus convicted for offence punishable U/s 27/54/59 Act and again for

destruction of evidence for offence punishable U/s 201 IPC.

Accused Shahzad Ahmad was also charged for the offence

of not appearing before the police/ court despite having proclamation

issued in that regard. Prosecution failed to prove that any such

proclamation was ever issued. Accused is thus acquitted for offence

punishable U/s 174 (A) IPC.

Announced in open court (RAJENDER KUMAR SHASTRI)

today i.e 25

thJuly 2013 Addl. Sessions Judge02:

South East

Saket Court: New Delhi

SC No. 42/10 46 of 46

 

 

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