http://twocircles.net/2013jul27/batla_house_encounter_judgment_analysis.html
By Rehan Ansari, TwoCircles.net,
The Saket Session Court of Delhi delivered a judgment on a highly politicized encounter court Batla House Encounter case. The Court found Shahzad @ Pappu guilty of killing MC Sharma a police officer in the Batla house encounter case.
The decision is being celebrated by our media ignoring the fact that it’s not the last word in the case. The Judgment is not unexpected. Police is the party or in legal term accused in the Batlahouse encounter case and they were allowed to investigate. As Adv. Ejaz Naqvis puts, “Investigation by the accused or even victim is against the principle of fair investigation and Justice.”
Historical incidents that raised the doubts in the case
1- NHRC Guidelines about the encounter that an FIR should be filed against Police and a Magisterial inquiry must be held flouted.
2- Left. Governor of Delhi stopped the Magisterial Inquiry without any reason in the Batla House encounter case.
3- NHRC took cognizance only after the direction of High Court.
4- RTI queries denied.
Here are some facts on the court case:
1- The decision is not about the encounter of Atif and Sajid. It is about the killing of Ashok Chakra and President Award recipient Mohan Chand Sharma, highly decorated Police Officer.
2- Shahazad @ Pappu convicted on the basis of six Eye Witnesses, all are Police Personals. Judgment also states the circumstantial evidence- A- Recovery of his expired Passport from L-18. B- Railway Ticket from Delhi to Azamgarh. C- Telephonic Call from Atif Mobile to Shahazad’s Father in Azamgarh. U.P. from the same flat or nearby.
3- Judgment is based on Police statements (Prosecution Witnesses- an Interested Party in the Case). Judgment says, “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.”
4- Police did not make Public Witness because they were Muslims and it might cause social unrest. Judgment says, “Ld. Addl. Public Prosecutor 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.
5- According to the Independent Eyewitness, Shahzad was not in the Flat. Only Independent Eye Witnesses in the case Mohd. Saif was not made a witness by the Police. When Defence made them Witness they deposed against the Police claim and said that Shahzad was not present there.
Judgment says “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 a witness, it can be presumed that said witness would not have deposed in favour of prosecution.”
Second person 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. Page No-29.
6- Fleeing from L-18. Assistant Sub Inspector, Anil Tyagi, Prosecution Witness no-13, who was posted on the main gate of the building deposed before the court that “he did not see any public person going in or coming out of the building.”
Judgment says, ASI Anil Tyagi (PW13) also deposed in the court that total nakabandi was done of that gali where said flat is situated. He did not see any public person going in or coming out of the building.
Similarly, ACP Sanjeev Yadav, who was examined, deposed that no occupants of flat met him while climbing the 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.
7- Seizure of Arms despite many people from public gathered there only Senior Inspector Praveen Vats (PW-35) was made a witness. Judgment said, “A large crowd of people gathered at spot. PW35 witnessed the recovery of arms and ammunition from spot, seized by the IO.”
8- Police could not prove that Shahzad is an IM Operaive.
Judgment says “ 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.”
9- Killing of MC Sharma: Referring to the Ballistic Report from the side of encounter, Defence Lawyer claimed, “All the bullets matched with the arms belonging to the police party and two arms allegedly attributed to Atif and Sajid. According to the report there was no extra bullet on the spot, which demolishes the entire police theory that Shahzad fired and fled.” Nothing is mentioned in the Judment in this regard.
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