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

th Floor,     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 case SC

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

th floor,     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 rieus ensued     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

th July     2013 Addl. Sessions Judge02:

South East

Saket Court: New Delhi

SC No. 42/10 46 of 46