Allahabad High Court Acquits Four Death Row Convicts In 2007 CRPF Camp Terror Attack Case, Blames 'Defective Probe'

The Allahabad High Court on Wednesday (October 29) set aside a 2019 death sentence awarded to four men–Mohd Sharif, Imran Shahjad, Mohd. Farooq and Sabauddin–convicted by the trial court for carrying out a terror attack at a CRPF camp in Rampur in 2007, in which eight personnel lost their lives. 

The court also set aside the life term of another Jang Bahadur Khan @ Baba convicted under Section 302 IPC. 

While the four men were convicted for offences under Sections 302(murder) and 149(unlawful assembly) and sentenced to death, they along with accused Jang Bahadur Khan were also convicted under Sections 16(punishment for committing a terrorist act) and 20(Punishment for being member of terrorist gang or organisation) of Unlawful Activities (Prevention) Act and were sentenced to life imprisonment. The court was considering the convicts appeal as well as death sentence referral by the trial court. 

The incident took place on the night of December 31, 2007, when the first informants on the ground heard of incessant firing taking place near the CRPF Group Centre Gate No.1. 

A division bench of Justice Siddhartha Varma and Justice Ram Manohar Narayan Mishra in its 185-page order, while questioning the manner of investigation, observed:

"...this case would have met a different result had the investigation and the prosecution been conducted by a more trained police. When the eyewitnesses were not knowing the accused persons from before and when the incident had occurred in the darkness of the night then it was imperative for the investigating agencies to have kept the arrested persons incognito...the prosecution should have, in the circumstances narrated above, prayed for Test Identification Parade. When the FIR and the statements under section 161 Cr.P.C. were silent with regard to the recognition of the appellants by facial expression or by name then it was imperative that the accused ought to have been kept BAPARDA (unveiled/uncovered) and they should have been made to get recognized by the method of Test Identification Parade alone".

It also observed that when the case pertained to circumstantial evidence then the finger prints which were allegedly lifted from the glass-panes of the CRPF Camp on 1.1.2008, ought to have been "kept in extreme safe custody".

The bench also said that the "empty cartridges, firearms etc. which were recovered from the place of incident", ought to have been kept in the police Malkhana (storage room in police station where evidence is kept). 

It said that the State Government and the Central Government have come up  with various rules and notifications as to how a Malkhana ought to be operated; however in the instant case it was found that none of these directions have been followed by the police and investigating agencies.

"The defect in investigation went to the root of the case and ultimately culminated in the acquittal of the accused persons. We are deeply concerned with the magnitude and enormity of the offence and at the same time we are constrained to observe that the prosecution miserably failed to prove the case against the accused for the principal offence beyond reasonable doubt which is a golden rule that runs through the web of criminal jurisprudence. The State would be at liberty to deal with appropriately the lapses in investigation and proceed against the guilty police officers under law"

The court further observed that the bullets which were recovered from the CRPF camp by the CRPF personnel did not match the test bullets and thus possibility of tampering could not be ruled out. 

While the court observed that it cannot deny that the incident did take place, it however said:

"In the instant case on account of the fact that the prosecution witnesses had never known the accused-appellants from before and were never made to identify the appellants in a TIP, a doubt is raised as to whether the prosecution witnesses were ever aware that the accused-appellants had actually committed the offence. The Court from the entire reading of the records and after hearing the arguments of learned counsel for the appellants finds that the prosecution witnesses at the time of getting their statements recorded before the Investigating Officer under section 161 Cr.P.C. and at the time of lodging of the FIR, were not knowing the names of the accused persons".

The court said that there were sufficient dock recognitions conducted and the  prosecution eye-witnesses had recognized the accused by their names. However, in the cross examinations, the witnesses simply failed to inform the Court as to how and when they got to know the names of the accused persons as at the time of the lodging of the FIR and at the time of the recording of Section 161 CrPC statements, the witnesses did not know the accused's names. 

With respect to safe keeping of firearms, the empty cartridges and the grenades, the bench observed that no such safe keeping was done.

"In fact the person who had taken the firearms, bullets, empty cartridges and the grenades i.e. Constable Kallu was not even examined with regard to the fact as to where the firearms were kept, whether they were kept with any individual or in the Malkhana, nothing has been brought in the evidence," the court observed. 

The court observed that offence under UAPA could not be proved.

It said, "when it could not be proved that the accused persons had actually been there on the site then also no offence under sections 302 read with section 149 IPC could be made out. Also, for the reasons given in the submissions made by the counsel for the appellants, we are of the view that the offences under the IPC, UAPA; the Explosive Substances Act and the Arms Act were never proved".

The court thus acquitted the appellants for IPC offences of murder, unlawful assembly, attempt to murder, voluntarily causing grievous hurt to a public servant to deter from their duty and waging, attempting to wage, or abetting the waging of war against the Government of India; provisions of UAPA, Prevention of Damage to Public Property Act and Arms Act.

"Mohd. Sharif; Sabauddin; Imran Shahjad and Mohd. Farooq who were awarded capital punishment (i.e. the death sentence) and a fine of Rs. 50,000/- (each of the accused) under Section 302 read with section 149 of I.P.C. are acquitted of the charges levelled against them," the court said. 

However, since firearms, hand grenades, magazines and cartridges etc. were found from the accused persons and they were in possession of those prohibited articles without the fullfilment of the requirements of Arms Act, the court found them "guilty of having committed offence under section 25(1-A) of the Arms Act".

"Thus, having found the appellants guilty of the offences committed under section 25 (1-A) of the Arms Act, the appellants are punished for 10 years of rigorous imprisonment. We intended to impose a heavier penalty but since the statute as was prevailing in the year 2008 i.e. the year of incident, the maximum punishment was 10 years, we are restraining ourselves from giving any graver punishment. We, however, further consider it appropriate to impose a fine of Rs.1 lac on each one of the appellants namely Mohd. Sharif, Sabauddin, Imran Shahjad, Mohd. Farooq and Jang Bahadur for the offence committed by them under the Arms Act. The period of imprisonment undergone by the appellants will be adjusted towards above sentence awarded to the appellants," it said.

The court said that if appellants have already undergone the punishment of rigorous imprisonment of ten years then it shall be deemed that their punishment is complete. However, if they have not undergone the 10 year imprisonment then they shall complete it. 

Case title: Mohd. Sharif @ Suhail @ Sazid @ Anwar @ Ali v/s State of U.P and connected petitions

CAPITAL CASES No. - 7 of 2019 and connected cases

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