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Batla House convict Ariz Khan gets death penalty

Tue, 16 Mar 2021 04:33:02 +0000

A Delhi court has awarded death penalty to Batla house convict Ariz Khan, stating there can be no leniency. While Khan was deemed a convict by the Additional Sessions Judge (Saket Courts) Sandeep Yadav on March 8, the sentencing judgment was reserved for March 15. Khan, allegedly associated with terror outfit Indian Mujahideen, has been held guilty for murder of Delhi Police inspector Mohan Chand Sharma. The court also imposed a penalty of Rs. 11 lakh and directed that out of this Rs. 10 lakh be released as compensation to Inspector Sharma’s wife.

Background

Serial blasts rocked New Delhi on September 13, 2008, resulting in the death of 39 persons and leaving 159 persons injured. Specific information was received by Inspector Mohan Chand Sharma that one Atif was involved in serial blasts and is residing in Batla House, Jamia Nagar, New Delhi along with his associates. On September 19, 2008 police conducted the raid and as police tried to enter the flat, a gunfight ensued injuring Inspector Sharma and Head Constable Balwant Singh. In the encounter, alleged IM operatives Mohd Atif Ameen and Mohd Sajid died while Shahzad and Arif Khan escaped and Mohd Saif surrendered to the police.

The Sentence Hearing

During the arguments for deciding the sentence, the prosecution had argued the Khan was a “menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence”. The question before the court was to decide whether to impose life imprisonment or a death penalty and if the latter is chosen, a justification of it being a rarest of rare cases has to be made.

The justification was given by the court stating, “It is the level of magnitude, degree of brutality, attitude and mindset of wrong doer behind the crime along with other factors which makes it a rarest of the rare case… The most appropriate sentence for a convict like Ariz Khan will be death penalty. Interest of justice will be met if convict is awarded death penalty.”

The court also considered the possibility that Khan could be reformed, and considered that Khan had escaped after the shoot-out and remained absconding for a decade and held that “There is no evidence on record that convict during investigation or trial showed any signs of reformation or repentance. Thus, the natural and inescapable conclusion is that there is no chance of reformation of convict.”

The court also deemed Khan to be a threat to the society and said, “The abhorrent and brutal act of convict in firing on police party without any provocation itself shows that convict is not only the threat to the society but is also an enemy of the state.” The court also took into consideration the pending cases against Khan arising out of his alleged involvement in blasts cases in Jaipur, Ahmedabad and Uttar Pradesh.

Khan can appeal against the judgement within 30 days, while the death penalty reference has been sent to Delhi High Court for confirmation, before the sentence can be executed. Khan has 6 other cases pending against him in Delhi, his lawyer told The Indian Express that these cases are related to the Delhi bomb blasts; besides, there is an NIA case on the larger conspiracy. Several other cases have been filed against him in multiple states, for which he is yet to be arrested.

The complete order may be read here

Director of play based on Batla House encounter, allegedly detained for few hours

9 years of the Batla House ‘Encounter’: Questions remain unanswered

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Batla House encounter: Delhi court convicts Ariz Khan for Inspector’s murder

Fri, 12 Mar 2021 06:18:33 +0000

A Delhi court has convicted Ariz Khan for the murder of Inspector Mohan Chand Sharma in the Batla House encounter case. He was also convicted of assault, using criminal force and causing voluntary obstruction to Sharma and his team who were in discharge of their public functions on September 19, 2008.

Additional Sessions Judge Sandeep Yadav said, “The evidence adduced on record by prosecution including ocular evidence, documentary evidence and scientific evidence leaves no manner of doubt that prosecution in the instance case has successfully proved the charges framed against the accused beyond any reasonable doubt.”

Accordingly, the accused Ariz Khan was held guilty and convicted under sections 186 (Obstructing public servant in discharge of public functions), 333 (Voluntarily causing grievous hurt to deter public servant from his duty), 353 (Assault or criminal force to deter public servant from discharge of his duty), 302 (Murder), 307 (attempt to murder), 34 (common intention) and 174A (Non-appearance in response to a proclamation) of the Indian Penal Code.

In addition to this, he was also held guilty under section 27 of the Arms Act that provides punishment for using arms. The court said, “Let the convict be heard on the point of sentence on 15.03.2021 at 12 o’clock.”

What is the case?

Serial blasts rocked New Delhi on September 13, 2008, resulting in the death of 39 persons and leaving 159 persons injured. Seeing the magnitude of the attacks, the Special Cell of Delhi Police was assigned the task of investigation and tracing the culprits.

On deployment of informants and setting up technical surveillance, on September 19, specific information was received by Inspector Mohan Chand Sharma that one Atif @ Bashir was involved in serial blasts and is residing in Batla House, Jamia Nagar, New Delhi along with his associates.

The Police decided to raid the house and asked the occupants of the flat to open the door. As none of them responded to the Police calls, the prosecution claimed that the Police team immediately entered the flat through a door that was shut but not bolted and as soon as the officials entered the flat, the occupants started firing on the police party from all sides trapping them. Inspector Mohan Chand Sharma and Head Constable Balwant sustained bullet injuries and were rushed to the hospital.

While one of the terrorists present in the drawing-room also sustained bullet injuries, two of them including Ariz managed to escape from the flat through the main door. Soon after, Ariz and co accused Shahzad Ahmad were declared proclaimed offenders by the Court in 2009 with Shahzad being nabbed by the Police in 2010 and Ariz in 2018.

The defense argued that the story of the prosecution was “concocted by police officials to cover up accidental firing by police causing injuries to Inspector Mohan Chand Sharma and HC Balwant.”

Court’s observations

The court of ASJ Yadav was not satisfied with the arguments and submissions of the defense. He believed that defense could not “create any dent in otherwise most reliable, credible and truth worthy testimony of said witnesses by way of their lengthy cross examination.”

“It is observed that all police officials who were part of raiding team and who deposed in the Court have fully and completely corroborated each other in material particulars and therefore, it is an open and shut case….learned defence counsel could not point out any contradiction in the depositions of police officials as regards the time of occurrence, place of occurrence, number of police officials involved and injured in the incident, number of persons involved from the side of accused and other material particulars,” he said.

On the charge of common intention of all accused persons and murder, the court remarked, “In any case, it has been proved on record that accused Ariz Khan along with his associates resorted to fire on police party in furtherance of their common intention and in the process Inspector Mohan Chand Sharma and HC Balwant were injured. Therefore, the accused can be said to have entertained common intention of killing and injuring police officials with the said of Section 34 IPC.”

The court also perused the post mortem report of Inspector Mohan Chand which stated that he received two injuries, one on the shoulder and another in abdomen. The court noted that he was the first police officer to enter the flat and so, “None of these injuries could have been caused by police officials who were behind Inspector Mohan Chand Sharma as these injuries were found on the front portion of the body of Inspector Mohan Chand Sharma and they were caused by militants occupying the flat.”

ASJ Sandeep Yadav further observed that Ariz was identified through revelation of his name by one Md. Saif (co accused) to police officials/eye witnesses/members of raiding party immediately after occurrence.

Finally, the court also noted that Ariz was present at the place of occurrence at the time of the incident in 2008. ASJ Yadav said, “As per rightly submitted by Mr. A.T. Ansari, ld. Addl. Public Prosecutor that all bullets/empty cartridges recovered from the place of occurrence were found matching with weapons used by militants and police officials.” Voice sample reports and call detail records also confirmed Ariz’s presence in Batla House.

The arguments on sentencing would now be heard on March 15.

The judgment may be read here:

9 years of the Batla House ‘Encounter’: Questions remain unanswered

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Director of play based on Batla House encounter, allegedly detained for few hours

Thu, 14 Nov 2019 05:34:47 +0000

In the wee hours of the morning of November 12, Shahid Kabeer, a theatre artist and founder of Kabeera Foundation located in Andheri area of Mumbai was allegedly forcefully taken to the D.N. Nagar Police station on a false complaint. Shahid Kabeer was conducting rehearsals for a play named “Tafteesh” which is based on the story of the much controversial Batla House encounter of 2008.

The infamous Batla House encounter case was touted to be fake by many human rights activists back then, when the incident took place, which ended up in the death of two alleged terrorists and one encounter specialist police inspector. For many years, questions have been raised on whether this was a real encounter or a fake one. Such questions have been humiliating for the police force and have raised questions on their credibility, even though it was a case of the Delhi police.

Once taken to the police station, the police allegedly demanded from Shahid Kabeer his identity documents and questioned him why he was showing a play on Batla House encounter case which is against the police. The police even advised him to refrain from going ahead with showcasing of the said play. The police did not provide Mr. Kabeer any written complaint or order which warranted his detention for even a brief period. He was allowed to go in the afternoon, the same day. This could have been an attempt of the police to intimidate Mr. Kabeer who is the Director of the play. The play is scheduled to be showcased in Andheri West on November 14.

Using intimidation tactics like this is not a new practice and it is usually done by police when they receive a complaint or information in apprehension of commission of a crime. The police seemed to have abused their position by allegedly detaining a theatre person, questioning him for a few hours merely because he was using his freedom of expression to showcase a controversial and humiliating encounter case.

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9 years of the Batla House ‘Encounter’: Questions remain unanswered

Wed, 20 Sep 2017 08:20:05 +0000

Why have the deaths of Atif and Sajid been allowed to fall into a legal black hole, with no enquiry worth its name?

Photo credit: The Truth of the Khakee

It will be nine years today since the Special Cell of Delhi Police claimed to have unravelled the conspiracy of the serial blasts that had struck the capital city the previous week, and the ‘encounter’ that resulted in the death of Inspector Sharma, a veteran of dozens of encounters and two young men, Atif Ameen and Sajid.

NHRC and the post mortem reports

Atif Ameen had only recently enrolled in M.A. programme of Human Right, while Sajid was a minor at the time of his death. The NHRC guidelines on encounter killings were trampled upon with impunity – not the least by the NHRC itself. Its enquiry report – which is often thrown at us as proof the genuineness of the ‘encounter’ – was based only on the testimony of senior officers of the Delhi Police.

The NHRC had access to the post mortem reports of the three deceased and referred to these reports in its enquiry to endorse its clean chit. While it spent about 630 words on the one and a half page of Inspector Sharma’s post mortem; it expended merely 73 and 17 words on Atif and Saji’s postmortem respectively, which were four pages each. It was as if the NHRC shrank away from explaining the deaths of the two boys.

Months later, when the NHRC released copies of post mortem reports of the deceased in response to RTI application, whether advertently or otherwise – both the police version and the NHRC’s own enquiry report came under a cloud. The reports of the two boys showed the presence of non firearm injuries on their bodies, including injuries on knee cap and grazing effects in the back region of Atif; Sajid also displayed at least two injuries, “which had been caused by blunt force impact by object or surface”. Furthermore the gun shot wounds clearly suggested foul play. Almost all the entry wounds on the body of Atif Ameen are on the back region, below the shoulders and at the back of the chest, which point to the fact that he was repeatedly shot from behind.

Sajid sustained gun shot wounds in the head, neck and shoulder region. The entry points and trajectories of gun shots in his case suggest that he was held down by force while bullets were pumped down his forehead, back and head.

The injuries seriously call into question the police story that the duo was killed in cross fire (in which case, there should have been frontal injuries.

Why did the NHRC ignore these startling facts? Why has there been no enquiry to establish how precisely Atif and Sajid died? Why have their deaths been allowed to fall into a legal blackhole, with no enquiry worth its name?

State vs Shahzad: The Trial of Inspector Sharma’s death

What is often called the Batla House trial was really a trial of the death of Inspector Sharma. Repeated pleas by the defence that the prosecution also explain the deaths and injuries on the bodies of Atif and Sajid (deceased accused), were brushed aside by flippant explanations such as the conjecture that injuries may have resulted from a fall.

The key accused, apart from the deceased, was Shahzad Ahmad who was arrestedin February 2010 though his name had not even appeared in any police complaint or communication to the NHRC. The trial lasted three years, and over 70 witnesses were examined. In July 2013, the Additional Sessions Judge in Saket Court in Delhi pronounced Shahzad Ahmad guilty of the murder of Inspector Sharma, of attempting to murder, assaulting police officers and destruction of evidence. The Court upheld the prosecution story that Shahzad had fired upon Inspector Sharma on 19 September 2008, when he had entered the flat in Batla House to apprehend ‘terrorists’.

However, the court relied only on circumstantial evidence, with no direct proof of Shahzad’spresence in the house on that day. His fingerprints were not found in the flat, nor were any other items belonging to him – save an expired passport. In fact, the court goes well beyond even the prosecution’s case in order to explain how Shahzad might have escaped. While the prosecution had alleged that Shahzad escaped in the melee caused by the cross fire, the court invents the possibility of Shahzad hiding or taking shelter in other flats of the building, forgetting even the legal maxim that the prosecution is obliged to prove the case in the manner it has been alleged.

Shockingly, the court also endorsed the brazenly communal plea by the Addl Public Prosecutor that their case could not be corroborated by independent witnesses, as “majority of residents of that area are followers of the religion, as was of those suspects”.

Shahzad has presently appealed against his conviction in the High Court. The police has meanwhile moved an application demanding death penalty for Shahzad in a case in which they could not even prove his presence at the site on the day of the said killing.

For detailed critique of the judgement, see JTSA’s Beyond Reasonable Doubt?

The Arrests and Trial in the Delhi Blasts

Following the encounter, a number of arrests were made. Among those arrested were friends and acquaintances of Atif Ameen. Saquib Nisar, who had appeared on television shows on the night of the encounter and openly admitted that he had known Ameen was arrested for participating in the blasts conspiracy. Abdul Rehman, the caretaker of the flat in which the ‘encounter’ had taken place, and his son Zia Ur Rehman, voluntarily went to the police station to show the police a copy of the police verification report of the house in which the alleged terrorists resided. They too were arrested. Abdul Rehman on the charges of forging the rent lease deed, and his son for carrying out the blasts.

Of course, terrorists willingly submit their documents for police verification; surely they also appear on television news shows and admit acquaintance with someone who has been killed by the police in the encounter and declared a terrorist. Certainly, it would appear that guilty go to the police station on their own accord to furnish documents.

The prosecution received an early jolt to their case when in February 2011, the additional sessions Judge Ms. SantoshSnehi Mann threw out all charges against one of the key accused Md. Salman— at the point of charge—in all five cases in Delhi bomb blasts for lack of any evidence. Salman’s discharge at this early stage of charge indicated the weakness of the Delhi Police’s claims.

Earlier this year, in May 2017, the prosecution suffered another defeat as Abdul Rehman was cleared of the charge of cheating. Though the FIR against Rehman was filed under sections 420/ 468 and 471 IPC, the charges could be framed only under s. 420. But even so, the prosecution miserably failed to prove his offence, and the additional session court held that “the order for framing of charge … for offence under section 420 IPC is not sustainable in the eyes of law.”

The Delhi Police could claim today that this was merely a case of fraud and had nothing to do with the blasts case, but it should be remembered that in the September of 2008, Rehman’s arrest was linked very directly to the crackdown of the so-called IM module.

The Delayed Trial:

Section 268 CrPC

Soon after their arrest in the Delhi blast case, many of the accused were also charged with the Ahmedabad blasts. The Gujarat crime branch arrested and transferred them to Sabarmati jail. For almost four years, the Gujarat Government invoking Sec 268 of CrPC refused to allow them to travel to Delhi for their trial. Besides the delay, this also meant that the accused could not confer with their lawyers.

Though in July 2010, a Supreme Court Bench of justices V.S. Sirpurkar and T.S. Thakur, directed the State of Gujarat to produce the accused in their trials outside the state, it was only when in late 2012, the key prosecution witness, an auto driver, failed to recognize accused Shakeel on camera that the prosecution asked for the accused to be produced in Delhi!

Since February 2013, most of the accused have been shifted to Delhi.However, the trial was then shifted, at a considerably late stage, to a special court set up for all Special Cell cases in 2013,which further impeded the trial.

A delayed trial weighs negatively and heavily against the accused. We have seen by now scores of cases where the accused spend almost an entire lifetime in jail before being finally acquitted. This can hardly be called justice.

This case too has been marred by deliberate delays by the prosecution. In the past nine years, less than half of the total witnesses listed have been examined. Often, not enough advance notice is given to the Defence about the witnesses who are to appear, thus severely handicapping the defence. Protracted trial also implies frequent change of judges. In a case like this where several attempts have been made to subvert the process of law by influencing witnesses – debunked each time by the defence – it is important and reasonable to expect that it is the trial judge who has been privy to these attempts is the one who pronounces judgment.

As the wheels come off the prosecution’s wagon and as prosecution witnesses turn hostile, it is imperative that the judge who sees, hears and records the testimony should be able to adjudicate the innocence or guilt of the accused. How many times have we heard judges – who have merely seen the record rather than personally recorded the evidence – assert that a witness cannot be expected to remember everything after the passage of many years, thus granting benefit of the doubt to the prosecution, where ideally it should have been the defence’s prerogative. So a delay, which is not on account of the defence – becomes loaded against the accused in multiple ways.

Released by Jamia Teachers’ Solidarity Association on 19th September 2017.

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