FOR the criminal justice system in India, December 17 may indeed mark a rare moment. That day, a Delhi High Court bench consisting of Justices S. Muralidhar and Vinod Goel convicted and sentenced Congress leader Sajjan Kumar to imprisonment for the rest of his life for his role in the anti-Sikh violence in Delhi following the assassination of Prime Minister Indira Gandhi on October 31, 1984, by her two Sikh bodyguards. The communal frenzy organised with political patronage claimed the lives of 2,733 Sikhs in four days in the national capital; nearly 2,000 other Sikhs lost their lives in the rest of the country.
The December 17 verdict is a reminder that justice may be delayed but cannot be denied if the prosecution and the victims remain steadfast in the face of threats and intimidation from the accused. That it took 38 years to secure the conviction of a politically influential person for a mass crime is indeed a sad commentary on the criminal justice system.
It took as many as 10 committees and commissions before the investigation into the role of some of the accused was entrusted to the Central Bureau of Investigation (CBI) in 2005. The case before the Delhi High Court arose as a result of CBI investigation into the killing of five Sikhs in Raj Nagar Part I in Palam Colony in south-west Delhi on November 1 and 2, 1984, and the burning down of a gurdwara in Raj Nagar Part II. Six accused, including Sajjan Kumar (A-1), a Congress Member of Parliament at the time, faced trial in 2010. Three years later, the trial court acquitted Sajjan Kumar (A-1) of all offences while convicting five of the accused: Balwan Khokhar (A-2), Mahendra Yadav (A-3), Captain Bhagmal (A-4), Girdhari Lal (A-5) and Krishan Khokhar (A-6). Three of them were convicted for the offences of armed rioting and murder, and two of them for armed rioting. Balwan Khokhar, Captain Bhagmal and Girdhari Lal were sentenced to imprisonment for life. The other two were sentenced to three years’ rigorous imprisonment. Balwan Khokhar, Captain Bhagmal and Girdhari Lal are already in custody. Sajjan Kumar, Mahendra Yadav and Krishan Khokhar were directed to surrender before December 31 to serve their sentence.
Sajjan Kumar was charged with being a principal offender who abetted and instigated the five co-accused to commit the offences. He was charged with having delivered fiery/provocative speeches to the mob gathered at Raj Nagar on November 1 and 2, 1984, and having instigated and promoted violent enmity against the Sikh community. He was accused of disturbing harmony between the two religious groups/communities of the locality, thereby committing the offence punishable under Sections 500 and 153A of the Indian Penal Code (IPC).
The accused were brought to justice primarily on account of the courage and perseverance of three eyewitnesses. Jagdish Kaur (prosecution witness-1), whose husband, son and three cousins were among the killed; her cousin Jagsher Singh (PW-6); and Nirpreet Kaur (PW-10), who was only 16 years old when she saw the gurdwara being burnt down and her father being burnt alive by the raging mob.
Reasons for delay
Jagdish Kaur submitted an affidavit on September 7, 1985, before the Justice Ranganath Misra Commission, the first inquiry commission set up to probe the anti-Sikh riots, stating that her son and husband were killed by a mob on November 1, 1984. She described the mob as being well-organised and named Balwan Khokhar as being involved in the violence. She also named Captain Bhagmal and Girdhari Lal as being part of the mob that was involved in the murders of her three cousins.
The charge sheets in the case ended in acquittals of the accused in 1986 itself. In 1992, a committee comprising Justice J.D. Jain and D.K. Aggarwal, which was set up in 1990, recommended further investigations into the cases. A supplementary charge sheet filed on February 26, 1993, against four accused also resulted in acquittals in 1994.
In May 2000, the Justice Nanavati Commission was constituted to make a fresh inquiry into the riots. Its report had this to say about Sajjan Kumar’s role: “Many witnesses have stated about the involvement of Sajjan Kumar, Balwan Khokhar, Pratap Singh, Maha Singh and Mohinder Singh in the riots in areas like Palam Colony, Tilak Vihar, Raj Nagar, etc. It was alleged that the mobs indulging in riots were led by Sajjan Kumar and Balwan Khokhar and other Congress leaders. Police did not even record the complaints of the victims/witnesses against them…. The Commission is, therefore, inclined to take the view that there is credible material against Sajjan Kumar and Balwan Khokhar, and they were probably involved [in the violence] as alleged by the witnesses.”
From the Nanavati Commission report, the trial court concluded that there were as many as 341 killings in the Delhi Cantonment area and that five of them formed the subject matter of the present case. It also concluded that the police had not recorded a single incident of any killing or any property having been destroyed. The police appeared to be privy to the incident of rioting and remained a silent spectator, it held.
The police arrived at the Raj Nagar gurdwara and disarmed the Sikhs of their kirpans (knives carried by Sikhs as part of their religious practice) and soon thereafter the mob arrived. This reflected a serious lapse on the part of the police entrusted with the law enforcement duty, the trial court held.
The trial court concluded that Jagdish Kaur’s evidence had proved that Balwan Khokhar was part of the rioting mob and had murdered her husband, Kehar Singh, and son Gurpreet Singh. The court also found as believable her eyewitness account of the murder of her cousins, Narender Pal Singh, Raghuvinder Singh and Kuldeep Singh. She named Captain Bhagmal and Girdhari Lal, along with others, as being members of the mob that killed them. Her evidence that Narender Pal Singh was assaulted and killed by the mob was corroborated by another prosecution witness.
However, the trial court held that the information concerning the role of Sajjan Kumar was based on hearsay. The court took note of the fact that PW-6, Jagsher Singh, had named A-1, Sajjan Kumar, for the first time, after 23 years. “Therefore, there was a serious doubt as to the veracity of PW-6 as regards A-1’s role,” the court held.
Nirpreet Kaur, too, named Sajjan Kumar in her statement under Section 161 of the Code of Criminal Procedure (CrPC), which was recorded sometime in 2007. When her statement initially was recorded in 1985, she had not named Sajjan Kumar at all, the trial court noted. The trial court also noted that Jagdish Kaur had not mentioned Sajjan Kumar in any manner in her affidavit before the Justice Ranganath Misra Commission. “In the circumstances, her testimony that she had heard and seen A-1 addressing a gathering with provocative and instigating utterances was not acceptable and believable,” the trial court concluded.
Separate cases were not registered for each of the murders. Under Section 157 of the CrPC, even if no person comes forward to give a complaint, the Station House Officer in charge of the police station will have to register a complaint himself. Section157 (1) of the CrPC begins thus: “If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence….” There is a further obligation upon that officer to send a report to a jurisdictional magistrate.
Jagdish Kaur had no motive to make a false implication and there was no possibility of any mistaken identity, her counsel told the High Court. There was no effective challenge to her status as an eyewitness.
Assault on the CBI
In 1990, when the CBI reached Sajjan Kumar’s residence to arrest him, the organisation’s jeeps were burnt and its officers held hostage in his house. The Delhi High Court’s judgment in 1991 threw light on the immense influence, political clout and criminal mindset of Sajjan Kumar not only in masterminding the brutal killings of 1984 but even in threatening and assaulting law enforcement officers years thereafter.
In such circumstances, Jagdish Kaur’s counsel, H.S. Phoolka, argued that it was unfair to place the onus on the witnesses and victims to come forward to speak against Sajjan Kumar without affording them any protection. At that time, the Congress was not in power, but Sajjan Kumar was so influential that no one dared to take him into custody for questioning.
In 2005, when the Justice Nanavati Commission recommended registration of cases against Sajjan Kumar and Jagdish Tytler, another Congress leader, the Centre informed Parliament that it had rejected the proposal. However, after protests by the opposition parties, the Centre agreed to register a case.
When the witnesses were approached for the first time in 2006, they confidently named Sajjan Kumar.
It was submitted before the High Court, on the basis of a Supreme Court judgment, that in such instances of crimes against humanity, where thousands were brutally murdered and where there was a complete breakdown of the civil administration, the onus of prosecuting an accused had to be entirely on the state and not on the victim ( Dinubhai Bhoghabhai Solanki vs State of Gujarat (2018)).
Phoolka referred to the decisions of courts and tribunals in other countries where statements made by witnesses had been believed notwithstanding their failure to name the perpetrators of such atrocities in earlier statements. He said that not a single non-victim had come forward to speak even though the killings had taken place in broad daylight as they feared that by speaking the truth, they would put the lives of their family members and themselves in imminent danger.
Witnesses turning hostile
At least five persons who sheltered and rescued the victims during the violence later turned hostile and were non-supportive of the prosecution’s case. Four of them deposed as witnesses for the defence, illustrating the magnitude of the influence and power exercised by the accused. Baldev Khanna (DW-8) appeared to be a saviour but then appeared for the accused as a witness. Even Chajju Ram (DW-9), a former constable of the Delhi Police, apparently deposed in the manner tutored by the defence.
No extent of lapse of time can absolve the state and the courts of their duty towards the victims and to humanity, the High Court held.
The High Court noted that although a charge sheet had been prepared in the case in which Sajjan Kumar had been named and registered at Nangloi Police Station in Delhi, it was kept in the file and not presented to the court. In its order in 1991, the Delhi High Court made note of the extraordinary power that he wielded as a politician and as an MP. In that order the court confirmed the anticipatory bail granted to him in first information report (FIR) No.250/1984 registered at Punjabi Bagh Police Station which pertained to an incident that took place in Sultanpuri, Delhi.
The High Court noted that its optimism in granting anticipatory bail to Sajjan Kumar in 1991 on the basis of the belief that he would cooperate with the investigating agency was subsequently belied. It was the Nanavati Commission that recommended registration of cases against him. And it was only after the CBI stepped in that witnesses found the courage to come forward with their versions of the violence, which formed the basis of the charge sheet.
Until 2006, the victims of the 1984 carnage had every reason to believe that they had been abandoned. All the trials had ended in acquittals and the prospects indeed looked bleak. While in the 2002 Gujarat riots cases, the Supreme Court did set up a Special Investigation Team (SIT) as per NHRC vs State of Gujarat (2009), no such SIT was constituted to investigate the 1984 riots until 2017.
Infirmities in the trial court findings
Nothing in the deposition of Jagdish Kaur pointed to either untruthfulness or unreliability, the High Court held. The court said her evidence deserved acceptance.
Nirpreet Kaur, who was 16 years old at the time of the carnage, joined the Sikh Students Federation. She was implicated in three false cases under the Terrorist and Disruptive Activities (Prevention) Act, or TADA, and remained in jail for many years. She was discharged in two cases and acquitted in the other. The trial court found her a truthful witness as far as the involvement of Balwan Khokhar, Mahendra Yadav and Krishan Khokhar in the riots was concerned, but found her untruthful when it came to the involvement of Sajjan Kumar. The trial court faltered in its analysis of her testimony, the High Court held.
The High Court also found that the trial court had failed to properly address the charge of conspiracy despite detailed arguments submitted by the CBI in that regard. The trial court had failed to return the findings on the offences punishable under IPC Sections 436 (mischief by fire qua a place of worship), 153A (promoting enmity) and 295 (defiling a place of worship), the court said. These heads of charges stood proven against the accused comprehensively from the evidence that had come on record, the High Court stated.
Crimes against humanity
Cases of the present kind are indeed extraordinary and require courts to adopt a different approach. The term “crimes against humanity” was first used in a joint declaration by the governments of Britain, Russia and France on May 28, 1915, against the Government of Turkey following the large-scale killing of Armenians by the Kurds and Turks with the assistance and connivance of the Ottoman administration. Applying the term in the current case, the High Court recalled that the declaration had termed the killings of Armenians as “crimes against humanity and civilisation for which all the members of the Turkish government will be held responsible together with its agents implicated in the massacres”.
The High Court referred to the definition of “crimes against humanity” as adopted by the International Military Tribunal at Nuremberg, after the conclusion of the Second World War, to try Nazi criminals accused of the extermination of Jews. The court relied on the definition adopted in Article 3 of the International Criminal Tribunal for Rwanda (ICTR) Statute which called such acts inhumane as they were part of a systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds.
The High Court referred to Article 7 of the Rome Statute for the International Criminal Court which, apart from the criminal element of “murder”, “rape”, etc., includes a contextual element, that is, the perpetrator must be aware that he is contributing to a widespread or systematic attack against civilians.
The High Court placed the 1984 carnage in the series of mass crimes since Partition—Mumbai in 1993, Gujarat in 2002, Kandhamal (Odisha) in 2008 and Muzaffarnagar (Uttar Pradesh) in 2013, to name a few. Common to these mass crimes were the targeting of minorities and the attacks were spearheaded by dominant political actors facilitated by law enforcement agencies. The court noted that the criminals responsible for the mass crimes had enjoyed political patronage and managed to evade prosecution and punishment.
The High Court held that neither “crimes against humanity” nor “genocide” was part of India’s domestic law of crime. This loophole needed to be addressed urgently, it observed. Pointing to the appeals in the 1984 cases, the court said that decades had passed by before those guilty could be made answerable.
It is a moot question, however, whether the lawmakers will heed this advice in the right spirit.
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