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IN THE COURT OF Sh. J.R. ARYAN : DISTRICT & SESSIONS JUDGE : NORTH EAST DISTRICT (INCHARGE) : KARKARDOOMA COURTS : DELHI : S.C. No. 26/10 Unique Case ID No. 02402R0030202010 CBI Vs. 1) Sajjan Kumar S/o Raghunath Singh, R/o A-713, Janta Quarters, Pocket-2, Paschimpuri, Delhi. 2) 3) 4) 5) 6) Balwan Khokar S/o Puran Singh, R/o WZ-70, Raj Nagar-II, Palam Colony, Delhi. Mahender Yadav S/o Late Tej Ram Yadav, R/o House No.114, Village Bagdola, PS Palam, Delhi. Capt. Bhagmal (Retd.) S/o Late Mangal Singh, R/o Deer Wood 320, Sector 50, Nirvana Country, Gurgaon. Girdhari Lal S/o Prabhu Dayal Mistri, R/o RZ-F-29, Gali No.23, Sadh Nagar, Palam Colony, Delhi. Krishan Khokar S/o Puran Singh, R/o WZ-245, Raj Nagar, Part-II, Near Rashan Office, Palam Colony, Delhi.

FIR No. RC- SI1 2005 S0024 PS: Delhi Cantt. Name of the Investigating Branch : CBI U/s 109 r/w 147/148/149/153-A/295/302/396/427/436/449/505/201/395/120B IPC Chargesheet No. 1/2010 dated 13.01.2001 Date of Institution :- 03.04.2010 Date of reserving for Order :- 16.04.2013 Date of Pronouncement :- 30.04.2013
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J U D G E M E N T :A charge of conspiracy to commit offences of rioting, rioting while armed with deadly weapon, murder, mischief causing damage, mischief by fire with intent to destroy houses, house trespass in order to commit offence punishable with death, dacoity, promoting enmity between different groups on the ground of religion and doing acts prejudicial to maintenance of harmony, defiling places of worship with intent to insult the religion of Sikh community. And a further charge for abetting said offences and charge of creating communal disharmony has been set for trial against Sajjan Kumar S/o Sh. Raghunath Singh. Charge framed was that: That on 31.10.1984 in and around area of Rajnagar Extension, Part-I and Part-II within the jurisdiction of PS Delhi Cantt.. Accused Sh. Sajjan Kumar with co-accused Balwan Khokhar, Mahender Yadav, Captain Bhagmal (retd.), Girdhari Lal, Krishan Khokar and other accused (since dead) namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram as a criminal conspiracy along with other unknown persons including police personnels accused committed offences referred to in para 1 of the charge and thereby committed offence punishable u/S 120-B IPC read with Section 147/148/302/395/427/436/449/153A/295 and 505 IPC . Said offences were also alleged to have been instigated and
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abetted by accused Sajjan Kumar and thereby accused Sajjan Kumar committed offence punishable u/S 109 r/w Section 147/148/302/395/427/ 436/449/153A/295 and 505 IPC. Accused Sajjan Kumar then on 1st and 2nd November 1984 in Rajnagar Palam Colony area delivered fiery / provocative speeches and instigated and promoted violent enmity against Sikh community and thereby disturbed harmony between two religious groups/ communities in wake of assassination of Smt. Indira Gandhi, the then Prime Minister of India and thereby accused promoted feeling of enmity between members of Non-Sikh and Sikh community and that act of accused was prejudicial to the maintenance of harmony and it created feeling of enmity, hatred between different groups and thereby accused committed offence punishable u/S 153A IPC. Finally charge u/S 505 IPC against this accused is that on 1st and 2nd November 1984 in Rajnagar Palam colony area accused made a statement in public asking Jats to not to leave any Sikh alive and even those people who gave shelter to Sikhs and thereby incited and delivered provocative speeches to the mob with intent to commit offence against Sikh community. Accused claimed trial by pleading not guilty. Other accused namely 1) Balwan Khokhar S/o Puran Singh, 2) Mahender Yadav S/o Late Tej Ram Yadav, 3) Captain Bhagmal (Retd.) S/o Late Mangal Singh, 4) Girdhari Lal S/o Prabhu Dayal Mistry and 5) Krishan Khokar S/o Puran Singh have also been tried for offences
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punishable

u/S

120-B

IPC

r/w

Section

147/148/302/395/427/

436/449/153A/295 and 505 IPC committed pursuant to conspiracy with co-accused Sajjan Kumar as well other accused (since deceased) namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram along with other unknown persons including police personnels. These five accused persons are charged with offences of rioting, rioting committed while accused were armed with deadly weapons and these accused persons in prosecution of common object of unlawful assembly, committed murders and committed offence of mischief by causing loss and damage to the properties including residential houses and committed offence of mischief by setting residential houses on fire and committed offence of criminal house trespass and while armed with deadly weapons in prosecution of common object they also committed offence of dacoity and defiled places of worship committed on 1st and 2nd November 1984 by these accused with other accused (since deceased) namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram as a criminal conspiracy along with other unknown persons including police personnels when they formed themselves into an unlawful assembly with a common object to loot, damage, burn properties of Sikhs and to kill members of Sikh community
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residing in the are in wake of assassination of Smt. Indira Gandhi, the then Prime Minister of India and they used criminal force and violence and were armed with deadly weapons like guns, jellies, iron rods, pipes, lathis, kerosene oil etc. Charge of murder committed in prosecution of common object of unlawful assembly is that on 1st and 2nd November 1984 in Rajnagar Palam area within the jurisdiction of PS Delhi Cantt. these five accused persons with other accused since deceased namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram as a criminal conspiracy along with other unknown persons including police personnels while forming an unlawful assembly and armed with deadly weapons in prosecution of common object and in conspiracy with accused Sajjan Kumar committed murder of 1) Kehar Singh S/o Late Dhyan Singh, 2) Gurpreet Singh S/o Kehar Singh, 3) Raghuvinder Singh S/o Gurcharan Singh, 4) Narender Pal Singh S/o Gurcharan Singh and Kuldeep Singh S/o Hardas Singh and thereby these accused committed offence punishable u/S 302/149 r/w 120-B IPC. The charge of criminal mischief against these accused is that on 1st and 2nd November 1984 these accused along with other accused since deceased namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram as a criminal conspiracy along
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with other unknown persons including police personnels being members of unlawful assembly caused loss and damage to the properties of Sikhs amounting to Rs.3,30,000/- approximately and thereby committed offence punishable u/S 427/149 IPC. Likewise offence of mischief by fire tried against these accused is that on 1st and 2nd November 1984 they with other accused since deceased namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram as a criminal conspiracy along with other unknown persons including police personnels in prosecution of common object of unlawful assembly set place of worship i.e. Gurudwara Rajnagar as well dwelling units house nos. RZ-1/129 and RZ-15, Shiv Mandir Marg, Rajnagar, Palam Colony, New Delhi on fire and thereby committed offence punishable u/S 436 r/w 149 IPC. Offence of criminal trespass by accused is by entering into house no. RZ-1/129 and RZ-15, Rajnagar, Delhi houses which were the dwelling units of deceased Kehar Singh, Gurcharan Singh, Raghuvinder Singh, Narender Pal Singh and Kuldeep Singh and trespass by accused was in order to commit offence punishable with death i.e. to commit murder of said persons. All these five accused with other accused since deceased namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram as a criminal conspiracy along with other unknown
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persons including police personnels as a part of unlawful assembly and while armed with deadly weapons in prosecution of common object committed dacoity into house RZ-1/129 and RZ-15 which belonged to deceased persons and thereby accused committed offence punishable u/S 395/149 IPC. And finally these accused persons charged for offence u/S 295/149 IPC is that on 1st and 2nd November 1984 these accused with other accused since deceased namely Maha Singh, Smt. Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh and Rajkumar @ Rajaram as a criminal conspiracy along with other unknown persons including police personnels in furtherance of common object to unlawful assembly defiled the place of worship i.e. Gurudwara situated in Rajnagar area, Delhi which was sacred place of Sikh community and defiling of said place was with an intention to insult the Sikh community religion. These accused persons also claimed trial by pleading not guilty. Charge-sheet submitted by CBI, the prosecuting agency, reveals a peculiar situation wherein offences committed in the year 1984 are sought to be prosecuted in this charge-sheet which was filed in January 2010. It has been a serious contentious point that delay in registration of the case and launching of the prosecution having remained completely unexplained should be a ground by itself to cast a serious doubt in the veracity of the prosecution case, it is the say of the prosecution that
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offences charged against accused was a peculiar situation where entire State machinery came to standstill during the period following the assassination of the then Prime Minister of India on 31.10.1984 and a particular group i.e. Sikhs was targeted for attack and brutalities and those attacks including murders were so widespread indiscriminate that the moment a Sikh was noticed by rioting mob he would be captured and killed and in the capital itself there were around 2000 plus deaths of Sikhs as has been now revealed in the report of Justice Nanawati Commission and the State machinery came to almost complete standstill during those killings of Sikhs was reflected from the fact that only a few killings came to be investigated at a very late stage. Various inquiry commissions came to be constituted by the Central Government of India and rather most of victims of offences of these brutalities it appears had to set themselves to rest with their fate. This kind of a situation stands reflected from the charge-sheet. It is stated in the charge-sheet that FIR 416/84 was registered at PS Delhi Cantt. on 04.11.1984 u/S 147/148/329/436/480/302/201 IPC against unknown persons on a complaint which was lodged by Smt. Daljit Kaur D/o Sh. Avtar Singh resident of WZ-108, Rajnagar Palam Colony, Delhi. FIR allegations were of unlawful assembly, rioting, attack on the house of informant by mob of around 400-500 people on 01.11.1984 resulting in injuries to her parents and another attack on her house on 02.11.1984 wherein her father was set on fire by mob upon the instigation of her
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neighbour Mahender Sharabi. It is further reported that during that period further complaints were received of similar incidents from that locality and those complaints were clubbed with that FIR. To what extent the police of this country could justify clubbing of other instances of murder and brutalities with the same FIR is to be answered by police itself. Charge-sheet however, further mentions that on investigation of those cases five charge-sheets implicating 10 accused persons were filed in the court. Details of those charge-sheets are: 1) Special case no.10/86 State vs. Balwan Khokhar wherein complainant-informant is Smt. Daljit Kaur and it concerns death of Sh. Avtar Singh. Status of the case is mentioned as judgement of acquittal on 15.07.1986, 2) Special case no. 11/86 which concerns death of Sh. Harbhajan Singh and informant is Smt. Swaran Kaur. Accused chargesheeted were i) Dhanraj, ii) Ved Prakash, iii) Shiv Charan, iv) Ramji Lal Sharma and status of the case is judgement of acquittal dated 28.05.1986. 3) Special case no. 31/86 wherein deceased is Joga Singh and the informant is Smt. Jagir Kaur and accused tried in that case were i) Vidyanand, ii) Balwan Khokhar and iii) Mahender Yadav and the status shown is acquittal dated 29.04.1986. 4)
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Special case no. 32/86 wherein deceased is Nirmal Singh


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and informant- complainant is Smt. Sampuran Kaur and accused tried in that case were i) Dhanraj, ii) Mahender Singh, iii) Balwan Khokar, iv) Mahender Yadav and all these accused are shown acquitted vide order dated 17.05.1986. 5) Special case no. 33/86 and deceased is Avtar Singh wherein informant-complainant is Ms. Baljit Kaur and accused tried were Mahender Singh and Ram Kumar and status is acquittal on 04.10.1986. It has been submitted from prosecution side that all these five murder offences were chargesheeted in the year 1986 and acquittal judgements passed in 1986 also appeared to be an eyewash manipulated by police and the prosecution. It is further stated in the charge-sheet that in the year 1992-93 on the recommendation of Justice Jain Aggarwal Committee further investigation into the incidents of attack on the house of Jasbir Singh incident involving deaths of husband, son and cousins of the complainant of this case Smt. Jagdish Kaur w/o Kehar Singh was taken up by Riot cell of Delhi police and then supplementary charge-sheet was filed on 26.02.1993 against four accused persons namely Sunil Tiwari @ Raju, Hukum Chand, Mangat Ram and Balwan Khokar in the matter of attack on the house of Jasbir Singh. That case was tried as a special case 28/93 and it also ended in acquittal vide acquittal judgement dated 30.04.1994.
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Government of India constituted various commissions for inquiry regarding 1984 Anti-Sikh riots and Justice Nanawati Commission in that direction was constituted in May 2000 and commission submitted its report on 09.02.2005. During its proceedings commission took note of affidavits filed by various victims including Smt. Jagidish Kaur, Jasbir Singh etc. and these witnesses were found to have disclosed involvement of Sajjan Kumar and statement of these witnesses further disclosed participation of Sajjan Kumar and Balwan Khokar in the riots in the area of these witnesses. Smt. Jagdish Kaur claimed to have heard Sh. Sajjan Kumar addressing persons: Sardar saala koi nahi bachna chahiye . Witness Jasbir Singh also narrated involvement of Sajjan Kumar and Balwan Khokhar, the material brought before commission indicated that despite these victims having approached police with a complaint naming assailants but police did not take action. Commission then concluded that credible material against Sajjan Kumar and Balwan Khokar was there indicating their involvement and commission then recommended to government to examine further investigation. After considering findings of Nanawati Commission the government of India vide its order of Department of Home Affairs dated 24.10.2005 directed CBI to investigate/ re-investigate cases against Sajjan Kumar including FIR 416/84 and accordingly that FIR was reregistered by CBI as RC-24(S)/2005-SCU.I/SCR.I on 02.11.2005 and investigation then proceeded.
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Investigation then conducted by CBI revealed that since Smt. Indira Gandhi, the then Prime Minister of India had been assassinated by her Sikh bodyguards on 31.10.1984 that large scale riots broke out in Delhi and Rajnagar Palam was one such area and these riots continued till 04.11.1984. Statement of witness Joginder Singh revealed that on 01.11.1984 at around 7.00am an unlawful assembly of around 2000 persons in Rajnagar Palam area with a common object to loot, damage and burn properties of Sikhs and to kill Sikhs was seen by the witnesses. Said unlawful assembly included Balwan Khokhar (A2), Krishan Khokhar (A8), Mahender Yadav (A3), Rajaram since expired and Captain Bhagmal (A5) with other persons armed with weapons like guns, jellies, rods, lathis attacked Rajnagar Gurudwara and set it on fire. Vehicles belonging to Sikhs were also set on fire. Sardar Nirmal Singh resident of RZ-241, Rajnagar-II, was caught hold by Balwan Khokhar, Mahender Yadav and Krishan Khokhar and was taken to a spot near shop of Dhanraj and there the mob including Balwan Khokhar, Mahender Yadav, Dhanraj @ Chand Sharabi and Captain Bhagmal assaulted Nirmal Singh and burnt him alive by putting kerosene oil. Investigation further revealed that on 01.11.1984 accused Balwan Khokhar, Maha Singh, Santosh Rani, Chand Sharabi and Dharamvir Singh with 100-200 persons as a part of unlawful assembly attacked the house of Smt. Jagdish Kaur and the mob assaulted her husband Kehar Singh and son Gurpreet Singh with iron rods and sticks causing death of
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Kehar Singh on spot. Gurpreet tried to escape but was caught by the mob and burnt alive. It is further reported in the charge-sheet that on the intervening night of 1st and 2nd November 1984 Sajjan Kumar (A1), the then Member of Parliament of that area arrived in Rajnagar Palam in an Ambassador car and it was around 10-11.00 pm. Witness Jagsher PW-6 saw and heard accused Sajjan Kumar taking a round of the area and berated the mob for carrying a minimal destruction of properties of Sikhs. Accused promoted enmity between Hindus and Sikhs and prompted mob to not to leave any Sikh alive and not to spare any Hindu who provided shelter to Sikh. Pursuant to that instigation given by accused Sajjan Kumar (A1) and in pursuance of the common object, the mob forming unlawful assembly looted the house of Jagsher and set it on fire and other houses of Sikhs were also looted. They also attacked house of Smt. Rajni where deceased Raghuvinder, Narender Pal Singh and Kuldeep Singh had taken shelter. It is further reported in charge-sheet that pursuant to instigation made by accused Sajjan Kumar and to achieve the common object of unlawful assembly the mob comprising accused Girdhari Lal (A7), Dharamvir, Balidan Singh (since expired) and Captain Bhagmal (A5) burnt alive Raghuvinder Singh, Narender Pal Singh and Kuldeep Singh in the morning in 02.11.1984 in Rajnagar and this murder was witnessed by Smt. Jagdish Kaur (PW-1). Jagdish Kaur PW-1 also claimed to have seen accused Sajjan
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Kumar on 02.11.1984 morning addressing the meeting of his followers near Manglapuri police post and he instigated those persons not to leave any Sikh alive and even to kill those who gave shelter to Sikhs. This statement of Jagdish Kaur was corroborated by another witness Nirpreet Kaur (PW10). It is further alleged in the charge-sheet that pursuant to provocative speeches given by Sajjan Kumar (A1) that mob gathered in Rajnagar area and indulged in violence and harmony between two religious groups was disturbed and it resulted in killings of Sikhs and burning of their properties. The mob included accused Balwan Khokhar, Mahender Yadav, Maha Singh, Captain Bhagmal, Santosh Rani, Girdhari Lal, Krishan Khokar, Ishwar Chand, Balidan Singh, Dharamvir Singh who were armed and other unknown persons also armed with deadly weapons. Accordingly, accused were sought to be summoned, tried and punished for said offences. Requisite sanction for offence u/S 153 IPC in terms of Section 196 CrPC had also been obtained from Government of NCT of Delhi which was submitted with the charge-sheet. Ld. Magistrate took cognizance, summoned accused persons and after complying section 207 CrPC the case was committed to sessions court. As seen above after hearing both sides that charge was framed against six accused persons for offences set out in the charge. Accused had challenged the order on charge but their challenge failed in the Hon'ble High Court of Delhi and then finally before the Apex court.
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Prosecution has examined its evidence consisting 17 witnesses. A brief account of this evidence is: PW-1 Smt. Jagdish Kaur is a witness then residing in a house RZ-1/129, Shiv Mandir Marg, Rajnagar Palam Colony, Delhi when the incidents of this case occurred and she claims to be witness of killing of her husband Kehar Singh and her young son Gurpreet aged around 18 years. Both these victims were attacked by a mob when the mob entered inside her house. According to this witness, her husband and her son Gurpreet were present in the rear side of the house and they were attacked by the mob armed with iron rods, lathis and other weapons. She claims in her evidence that in that assault head of her husband was virtually crushed and victim fell dead there. Her son ran to escape the fury of mob but was caught in the street and was set on fire. Witness has then deposed that she reached to her son and found him with some life but on the brink of his last breath. She blessed him by offering prayer to god and son Gurpreet breathed his last. She has named some of the accused who were part of the mob in this assault. In her evidence she identified and named accused Balwan Khokhar (accused facing charge) and also named other accused as Dharamvir, Chand Sharabi, Maha Singh and Saroj Devi (now since deceased). Witness also claims to have seen killings of her cousins Narender Pal Singh, Raghuvinder Singh, both brothers and another cousin Kuldeep Singh and these killings by mob was witnessed by her on 02.11.1984
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when that incident of 02.11.1984 had occurred somewhere between 6.30 am to 7.00 am. According to this witness victim-deceased Narender Pal Singh hiding on the roof of his house jumped from the roof in a hope that he would escape or would be given some kind of help for his rescue by his neighbouring persons but then Dharamvir (since deceased) part of the mob noticed victim Narender Pal Singh and shouted. Accused Girdhari Lal came running armed with lathi, accused Balidan Singh (Retd.) Subedar (since deceased) and accused Capt. Bhagmal (Retd.) (A5) came and the mob surrounded Narender Pal Singh who was given lathi blow injuries and then burnt near the house of this witness. Witness further claims that she saw her other two cousins Raghuvinder and Kuldeep Singh being attacked and taken away by the mob. Evidence of other witness then showed that Raghuvinder and Kuldeep Singh were also found killed. Analysis of evidence of this witness shall be taken up at a later stage when arguments of defence counsel is referred to at subsequent stage. PW-2 Lal Chand Khimani is a witness who purchased house no. RZ-1/129 somewhere in October 1993 but the witness denies to be aware of any such fact that in the year 1984 this house was in occupation of Smt. Jagdish Kaur with her family. Witness, however, states that plot of this house property was in two parts, one part belonging to Jagdish Kaur and the other part was in the name of Narender Pal Singh and Raghuvinder Singh and these facts stood reflected from the documents.
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Witness reiterates in his cross examination that he did not have any personal knowledge if Narender Pal Singh and Raghuvinder Singh were residing in Village Palam. PW-3 Sh. Ram Avtar Sharma is a witness residing in close vicinity and neighbourhood of PW1 Jagdish Kaur. He is resident of house no. RZ-110, Rajnagar, Palam colony, Delhi. Witness deposes position of house of PW1 as situated on the corner of the street in which house of this witness was situated in 1984. He further deposed that said house of Sh. Kehar Singh i.e. husband of PW1 was in occupation of persons who were Sikhs and they were MES contractors and used to be addressed thekedars . Witness deposed that he had constructed his house in 1976. Witness states in his deposition that on 01.11.1984, as he reached his house he came to know that some crowd had killed Kehar Singh and his son who was aged around 15-16 years. He further states that wife of Kehar Singh and her children came to his house to take shelter and he provided them shelter. Other thekedars, witness came to know, were taking shelter in the house of one Mr. Srivastav. Witness further states in evidence that on next date i.e. 02.11.1984 at around 8.30 am morning as he left his house for his work he noticed two thekedars with one more person jumping from the wall. Witness corrected himself and deposed that he saw one thekedar with one more person jumping from the roof. He did not go for work on that date and after 30-40 minutes he came to know that both those persons had been killed at Manglapuri chowk.
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PW4 is the real brother of victim/deceased Narender Pal Singh and Raghuvinder Singh. He was employed and posted at Airforce Station Kanpur and he reached Delhi on 08.11.1984 on being informed about death of his brothers. He found the house of his brothers RZ-15, Shiv Mandir Marg, Rajnagar, Palam Colony, Delhi, completely burnt and he could not trace or locate dead bodies of his brothers. He went to Gurudwara Airforce Station and there he met his sister-in-laws Harbhajan Kaur, Daljit Kaur and he met there his younger brother Jagsher and sister Jagdish Kaur and they all narrated to this witness the incidents of killings of brothers of this witness and husband and son of Jagdish Kaur. Witness states that he then gave complaints regarding killing of his brother Narender pal Singh and Raghuvinder Singh and another complaint concerning death of his cousin Kuldeep Singh and he identified that complaint as Ex.PW4/A and Ex.PW4/B. He also identified a complaint given by his sister-in-law Daljit Kaur as Ex.PW4/C. PW5 is an official witness from MCD Green Park, South Zone, Delhi and witness exhibited death certificates Ex.PW5/A to Ex.PW5/E. Witness then proved deaths of Narender Pal Singh, Raghuvinder Singh, Kuldeep Singh, Kehar Singh and Gurpreet Singh entered and recorded in the relevant register and those entries were further proved by him as Ex.PW5/K to Ex.PW5/L. There was not much dispute or controversy on this witness. PW-6 is another material witness and according to his evidence in October/November 1984 he was residing with Narender Pal Singh,
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Raghuvinder Singh and their wives Harbhajan Kaur, Daljit Kaur and their children in house RZ-15, Shiv Mandir Marg, Rajnagar, Delhi. He was then 17-18 years of age. Adjoining house on the left side was of Sh. Ramavtar Sharma and across street was the house of Jagdish Kaur. Witness states that they all were working as MES contractors and Kuldeep Singh also used to help them whenever there was heavy workload. On 31.10.1984, witness left his house for work and during day time he heard about Smt. Indira Gandhi shot and he reached his house as usual by around 9.00 pm. On 01.11.1984, while this witness and his brother were present on breakfast table someone came and informed Narender Pal Singh that Sikhs were being killed and thus they should not go out. Smt. Rajni residing in a nearby house also came and informed this witness and his brother that situation was not congenial and they should not go out of their house and accordingly this witness and other family members went to the house of Rajni. Witness came out after sometime to park his motorbike inside the house and he did park bike inside his house but then saw a mob coming. Instead of crossing street to reach house of Rajni, witness entered into adjoining house of Ramavtar Sharma. Witness heard mob raising slogans in sikho ko maro, in gadaro ko maro, hindustan me ek sikh be zinda nahi bachna chahiye . Witness then claims that after about 10 minutes he heard shrieks and noise from outside and from the window above the bed of a room he peeped and saw that mob armed with lathis and sarias entered into the house of his
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sister Jagdish Kaur. The mob dragged Kehar Singh and Gurpreet Singh and in that assault Kehar Singh fell down inside the house and he was attacked with iron rods. Gurpreet in order to rescue himself ran into the street but mob caught hold of him and assaulted him with iron rods and killed him and then mob disbursed. Witness further states that he then came out of the house of Ramavtar and went to his sister Jagdish Kaur who was weeping. This witness took a cot and went to the place where Gupreet was lying. This witness, Jagdish Kaur and one more person then brought Gurpreet on that cot to the house of Jagdish Kaur. Witness saw Kehar Singh lying on the floor with huge amount of blood on the floor. Witness then again took shelter in the house of Ramavtar Sharma and took Gurdeep younger son of Jagdish Kaur with him inside the house of Ramavtar Sharma. Witness there cut the hair of Gurdeep with scissors. Witness remained in the house of Ramavtar Sharma till about 10.00 pm and then he came out of the house and he being mona (without long hair) he could not be identified by anybody to be a Sikh. Witness claims that somewhere between 10.00 pm to 11.00 pm that he saw a vehicle arrived and stopped near turning of the gali at Shiv Mandir Marg. It was Ambassador car, around 30 to 40 persons collected there. Accused Sajjan Kumar, Member of Parliament, came out and inquired from persons whether they had completed the work which had been assigned to them and accused with those persons went towards the house of this witness and again came back near his car. Accused Sajjan Kumar then
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asked persons that they had not executed the work properly. One of the persons then told Sajjan Kumar that thekedars were being saved by Hindus and then Sajjan Kumar urged that those Hindus who were giving shelter to Sikhs be killed and their houses be burnt and then accused Sajjan Kumar left with his car. Accordingly, PW6 claims to be a witness of the incident where mob attacked and killed Kehar Singh and Gurpreet Singh in their house and then he is a witness to the incident where accused Sajjan Kumar addressed mob exhorting them to execute their work assigned to them and his utterance to the mob that even those Hindus who provided shelter to Sikhs be killed and their houses be burnt. Testimony of this witness thus is also on the role of accused Sajjan Kumar to consider and adjudicate the charge of conspiracy and charge of abetment. An exhaustive and lengthy cross examination proceeds on this witness by defence counsels which continued on several dates and analysis of his evidence shall be taken up when arguments made by defence counsel questioning veracity of the witness is referred to. PW-7 Joginder Singh claims to be resident of house WZ-54, Rajnagar, Palam Colony, Delhi, at the time of the incident of this case. This witness was got married in January 1984 and he claims that his inlaws were staying and residing at Rajnagar, near Gurudwara in a house WZ-241. Witness claims that on 31.10.1984, the then prime minister of India Smt. Indira Gandhi was killed by security guards, there were small incidents of beatings to Sikhs. On 01.11.1984, at around 7.30 am, this
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witness with his wife came out of Gurudwara and saw a huge mob coming from Mehrauli road side. Witness could identify accused Balwan Khokhar, Krishan Khokar, Mahender Yadav and Capt. Bhagmal, Rajaram and Gulati from amongst the mob. Mob was with lathis, rods, jellies etc. and that mob comprised people from nearby villages and colonies. The mob went to the house of this witness. Witness heard Sikhs shouting that Gurudwara had been attacked. Around 20 to 25 Sikhs including this witness assembled in front of Gurudwara but then mob had set Gurudwara on fire and looted the house of Jasbir Kaur and then mob burnt truck of Harbans Singh. Mob led by Balwan Khokar, Krishan Khokar, Mahender Yadav again arrived. Accused Mahender Yadav and Balwan Khokar were on a scooter whereas Krishan Khokar was on foot. Balwan Khokar and Mahender Yadav caught hold of Sardar Nirmal Singh who was there standing near Gurudwara and they asked Nirmal Singh to accompany them as they wanted to talk to him. They took him with them and witness then came back to his house. He further deposed that police arrived after about two hours and police officials took the swords from the Sikhs. Witness further states in evidence that on 02.11.1984, he was hiding in the house of his father-in-law and watched from the window that police then whenever came Sikhs used to come outside in a hope that they would get any help but police then would go away and then mob would come and would burn those houses where Sikhs used to come
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out. Witness says that he cut the hair of his father in law and in return father in law cut his hair. Witness then went to the house of his uncle Baldev Raj Khanna residing at WZ-253 and there other Sikh person namely Joginder Singh Ct. in Delhi police was also taking shelter. This witness is also then subjected to a very lengthy and exhaustive cross examination spreading over several dates. PW-8 is the official who had produced proceedings and records of Justice Nanawati Commission of Inquiry to CBI pursuant to a letter written and issued by Special Secretary, Home dated 24.10.2005. Witness proved the extract of the report along with list of the record comprising six pages as annexed with the letter as Ex.PW8/B. PW-9 is witness Smt. Jasbir Kaur. In the year 1984, she was stenographer posted in Delhi Secretariat and she was residing in house WZ-124, Rajnagar, Palam Colony, Delhi and her family comprised her husband Kamaljeet Singh, father in law Makhan Singh and mother in law Baldeep Kaur. She states that on 02.11.1984, at around 10.45/ 11.00 am, a mob of rioters attacked their house but prior to that she and her children had been brought to the house of a neighborer by her husband. Witness there heard noises maro maro pakdo pakdo and that process continued till 4.00 pm. Witness spent night in that house where she was taking shelter. She further states that in the incident of 02.11.1984 her husband, her mother in law and her father in law were killed and their house was damaged completely but then she had not witnessed the occurrence
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herself and had not seen persons who were part of the mob. She claims to have lodged a complaint addressed to the SHO PS Delhi Cantt. and she proved it as Ex.PW9/A. She further claims that police never contacted her after filing of her complaint Ex.PW9/A and police never recorded her statement and she was also never summoned by any committee or commission. In cross examination by Counsel Sh. I.U. Khan for accused Sajjan Kumar witness admitted that she had not seen Sajjan Kumar, Member of Parliament involved in the riots in the area. In cross examination witness further states that she did not know if Jagdish Kaur used to reside in the same area at a distance of around 3-4 houses from her house. She further states to clarify that since she used to go to her office, there was hardly any time for knowing anybody. She also did not know Jagdish Kaur. PW10 is again a material witness who was a young girl aged around 15 years in the year 1984 and she was residing in a house RZ/WZ-241, Rajnagar, Palam Colony, Delhi, and her family comprised her father Nirmal Singh and two brothers namely Nirpal Singh and Nirmolak Singh. Her father was a transporter by profession who used to run a taxi stand in Anand Niketan. Entire family was Sikh by religion. Witness claims that on 31.10.1984 as it was assassination of the then prime minister of India Smt. Indira Gandhi by her security guards there were some stray incident and her father reached home early. At around 6.30pm on that day Balwan Khokar who used to speak himself as
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nephew of Sajjan Kumar come along with his brother Kirshan Khokar to the house of this witness and asked her father to employ/ keep Krishan Khokar as a driver. Her father Nirmal Singh told Balwan Khokar that there was no vacancy and if there was any requirement he would inform accordingly in 3-4 days. Witness identified accused Balwan Khokar, Krishan Khokar. Witness claims that her father asked Balwan Khokar that Sikhs were being attacked and Balwan Khokar then told that since Sajjan Kumar was his maternal uncle he would ensure that no attack take place in their colony. Witness states that her father was President of Gurudwara and on that intervening night of 31.10.1984 'Granthi' of Gurudwara came to her house and informed her father that some police personnel had come in Gurudwara and accordingly her father and mother then went to Gurudwara and they had a talk with police personnels and those personnels informed that they were deployed to safeguard Gurudwara. This witness went to Gurudwara in the morning at around 5.00 or 5.30 am and police was present but during the midst of prayer police disappeared. Witness then heard slogans and she rushed to her house and saw a mob coming which was headed by Balwan Khokar, Mahender Yadav and the owner of Mamta Bakery. They all were armed with rods, sarias, jellies etc. and they were raising slogans Indira Gandhi amar rahe , in sardaron ko maro, inhone hamari maa ko mara hai . Witness became scared and apprehensive that mob may not dishonour Guru
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Granth Saheb and she rushed back to Gurudwara to pick up Guru Granth Saheb and her younger brother Nirmolak Singh aged around 9 years also accompanied her. Mob attacked them but she could save herself but Nirmolak fell to the custody of mob but being a child he managed to come out of their clutches. Accused Mahender Yadav and owner of Mamta bakery then exhorted mob ise maro, ye saap ka bacha hai . Witness then picked up Guru Granth Saheb and came back to her house. Mob had already arrived there and they had damaged the wall and gate of the house. Father of this witness then came out of the house and tried to convince mob that they were not responsible for killing of Indira Gandhi. Some part of the mob went away and other part of the mob set a truck on fire which belonged to Harbans Singh. Sikhs collected and resolved to save themselves but meanwhile police arrived. Balwan Khokar, Mahender Yadav and Krishan Khokar also arrived and Mahender Yadav bowed down to the feet of the father of this witness and offered to compromise the situation and he offered to pay compensation for the loss and damages. Father of this witness and other Sikhs declined to compromise the matter. Police personnels then took kirpans from Sikhs and went away. Nirmal Singh, father of this witness was then taken by Balwan Khokar and Mahender Yadav on their scooter and witness then rushed towards direction where her father had been taken away and she then saw scooter stopped near the shop of Dhanraj where mob was already present. Balwan Khokar there declared that Sikh had been
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brought by him. Mob caught hold of father of this witness, Ishwar Sharabi sprinkled kerosene oil on Nirmal Singh but then match box was not available with anybody and on that occasion a police officer Inspector Kaushik demeaned the crowd for even not keeping a match box and Inspector Kaushik then gave a match box to Krishan Khokar and Krishan Khokar set father of this witness on fire. Mob then left that site. Father of this witness tried to save himself by putting himself in a naala nearby. On that occasion, Captain Bhagmal then tied victim, father of this witness, with a rope provided by Dhanraj. Wife of Mr. Dua provided kerosene oil and father of this witness was again set on fire. Victim again jumped into the naala and a pujari of nearby temple then again called the mob. Mob arrived again. Balwan Khokar then hit victim with rod and Mahender Yadav sprinkled some white powder whereby the victim was burnt. Witness then came back to her house and found her mother lying unconscious and her house was burning. Police personnels were present but nobody helped. One Santok Singh Sandhu serving in Airforce and residing in their neighbourhood managed Airforce vehicle and this witness and her family were taken to Airforce Station Palam. Witness further states in her evidence that on 02.11.1984 she proceeded in an Airforce vehicle got arranged and provided by Wing Commander L.S. Pannu and some jawans also accompanied her in order to rescue Sikhs from that area and near Manglapuri witness saw a mob raising slogans. She claims that she saw a police vehicle wherein
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accused Sajjan Kumar was standing and addressing the mob ek bhi Sardar jinda nahi bachna chahiye , jo ghar Sardaron ka bacha hai, use bhi jala do , in Sardaron ko maro inhone hamari maa ko mara hai , ye saap ke bachche hai . As advised by jawans, witness could not proceed further and took their vehicle back to Airforce Gurudwara. She further states that on 05.11.1984, Balwan Khokar came to Airforce Gurudwara with milk and biscuits and accused tried to inquire about this witness and her family members but then someone identified him and said that person was responsible for riots and Balwan Khokar then managed to escape. Witness further states that police came to her as well her mother in Airforce Gurudwara and only inquired about loss or damage suffered by them and on 11.11.1984 her mother submitted the application claiming compensation. Witness further deposed that she was 16 years of age in 1984 and was a student and thereafter she joined Sikh Student Federation and she was then implicated in false cases of TADA and she remained in jail for many years but then in one case she was acquitted and in another case she was discharged. She further states that her statement was recorded by Magistrate in January 2009 and she proved that statement Ex.PW10/A which had been got recorded by her before a Magistrate u/S 164 Cr.PC. PW-11 is the Joint Secretary-Home, NCT of Delhi and this witness had issued an order providing sanction for prosecution u/S 153-A IPC in this case and he proved that order dated 01.01.2010 as Ex.PW11/A.
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PW-12 Manjit Singh is again a witness residing in Rajnagar, Part-II, Palam Colony, Delhi when these riots took place. He says that he was having long hair (keshdhari) when the incident occurred. His entire family was followers of Sikh religion. He says that his brother Kulwant Singh left the house on 01.11.1984 at around 7.30/ 8.00 am and their house was no. H-111, Gali no.8, Rajnagar Part-II, Palam Colony, Delhi. As soon brother of this witness left the house, witness heard slogans Indira Gandhi jindabad, Hindu ekta jindabad and then Gurudwara was attacked and that Gurudwara was a two minutes walk distance from his house. After sometime a mob came raising slogans and again attacked Gurudwara. Witness says that somewhere in the evening his friend a boy 'Kala' came and cut the hair of this witness telling that witness could save himself only by that way. Witness along with Kala took a round of the area and witness saw dead bodies and some of them in a burnt condition. On 02.11.1984, at around 7.00 am, witness again heard the mob raising slogans and announcing that if Hindu had given any shelter to Sikh he should outs him. Witness with his father was taking shelter in the house of one Omparkash Kapoor and on being asked both of them came out of the house and reached their home. Mob knocked the door of their house and inquired if any Sikh was residing in that house and witness succeeded in convincing the mob that it was not a house of Sikhs. Father of this witness in that process was concealing himself in a store room above kitchen. Mob left and then friend of this witness Kala arrived and cut the
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hair of father of this witness. In cross examination witness admitted that in a statement given to CBI in the year 2006 he had stated that he had not seen Sajjan Kumar the then Member of Parliament in the mob and he stuck to the correctness of that statement. PW-13 is the Metropolitan Magistrate Sh. R.L. Meena who had recorded some statements u/S 164 Cr.PC. PW-14 is a Judicial Magistrate from Punjab and in the year 2008 while posted as Judicial Magistrate, First Class in Amritsar had recorded statement of Smt. Jagdish Kaur u/S 164 CrPC and he identified that statement as Ex.PW1/E. This witness had also recorded statement of Jagsher Singh which he identified as Ex.PW6/A. Witness stated that statements were made voluntarily free from any pressure or concoction. PW-15 Manoj Pangarkar is the Investigating Officer who was SP, CBI and investigation of the present case was taken over by him on 22.11.2005 and then he was deputy Superintendent of Police, CBI. Examination in chief of this witness in a little above two pages then proceeds for a very lengthy and exhaustive cross examination and completed after several dates. PW-16 is a police official Head Constable who in the year 1984 was posted in Police Post Palam Colony, PS Delhi Cantt. and during October/ November 1984 he was daily diary writer. He exhibited the daily diary register beginning with a date 25.09.1984 and ending with a date 07.11.1984 and he proved that register as Ex.PW16/A. He further proved true extract dated 31.10.1984 / 01.11.1984 and upto 5th SC No.26/2010 30/129

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6th November 1984 as Ex.PW16/B. Witness then proved and exhibited each date roznamcha entries. Prosecution argued from this evidence that no untoward incident had been recorded in any of these daily diary entries and that supported contention that entire State machinery had come to a standstill despite serious offences of killing and setting properties on fire by mob had taken place in the area. Finally PW-17 Anil Kumar Yadav is the CBI Officer who had taken over the investigation of this case in February 2009. Witness states that investigation conducted by his Predecessor had disclosed complicity of Delhi police official SI Bal Kishan the then Incharge Police Post Palam, SI Ram Niwas and Mr. Kaushik. SI Bal Kishan and SI Ram Niwas could not be joined in investigation as they had expired and identity of Mr. Kaushik could not be established in the absence of further particulars. He further deposed that a complaint from Kuldeep Singh disclosed involvement of one HC Satbir Singh of Police Post Palam but then Kuldeep Singh resident of house no. 36-37, Rajnagar, Palam, was found to have expired and investigation could not proceed against HC Satbir Singh. Witness has been then cross examined quite exhaustively by defence counsels. On conclusion of examination of prosecution witnesses, accused persons when examined to explain incriminating evidence and circumstances against them, they pleaded complete denial. Accused have then examined seventeen witnesses in defence. Arguments were heard wherein advocate Sh. I.U. Khan appearing
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for accused Sajjan Kumar, Advocate Sh. Anil Kumar Sharma argued for rest all other accused and advocate Sh. S.A. Hashmi joined Counsel Sh. Anil Kumar Sharma in further arguments on behalf of Balwan Khokar and Krishan Khokar. Advocate Sh. Jakhad then appeared on behalf of Captain Bhagmal and addressed his arguments. On behalf of the prosecution Special Public Prosecutor Sh. R.S. Cheema alongwith advocate Sh. D.P. Singh from the CBI argued the case. Both sides then submitted written arguments also. I have given a scrutiny to these arguments including written submissions and have taken analysis of the evidence and material on record in light of the contentions and arguments raised by both sides. It has been argued by Counsel Sh. Anil Kumar Sharma that present case relates to killings of five victims namely Kehar Singh, Gurpreet Singh and that incident was of 01.11.1984 and killing of three further persons namely Narender Pal Singh, Raghuvinder Singh and Kuldeep Singh murdered on 02.11.1984. It is submitted that initiation of the present criminal case was consequent upon some findings recorded by Justice Nanawati Commission and FIR of this case was re-registered by CBI on the basis of those report. It is submitted that initially FIR of this case no.416/84 had been registered with the police on 04.11.1984 by Smt. Daljit Kaur. It is argued that Daljit Kaur had been rescued by Airforce police officials and she reported the matter with the police after having remained in a camp at Airforce Station and thereby a report was an
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outcome of due deliberation. It is argued that other victims did not prefer to lodge any report though similar assistance and opportunity was available to them and any such report even if given was confined to averment as is reflected from a report Ex.PW1/D which is dated 13.11.1984. This contention is of little help in deciding the criminal charge against accused of this case as a report lodged by Smt. Daljit Kaur and registered as FIR 416/84 was separately investigated and accused concerning that report stood tried in 1986 itself. There remains no question for consideration that report lodged by Smt. Daljit Kaur was an outcome of due deliberation. It was rather unfortunate, as has been contented and argued by ld. Special Public Prosecutor that where killings were taking place by rioting mob in Rajnagar Palam area each and every incident of killing ought to have been registered as a criminal case by the police and it was completely unfair on the part of police of PS Delih Cantt. to have clubbed all subsequent complaints to be investigated as a part of FIR 416/84. Any such procedure adopted by police to club incidents of killings and other offences committed by accused persons at different places and on a different point of time was unknown in a procedure of law and it reflected inaction on the part of law enforcing agency and further reflecting upon State machinery coming to a complete standstill during that period of 2 to 3 days when the rioting mobs were taking to streets and had been indulging in acts of violence and killings and setting
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properties on fire unchecked and unresisted by law enforcing agency. As regard complaint Ex.PW1/D a perusal reveals that it was submitted to SHO PS as a cyclostyle form signed by Smt. Jagdish Kaur and is dated 13.11.1984 wherein particulars recorded were as regards loss of life and it is mentioned Kehar Singh and Gurpreet, name and age of persons injured; nil, name and age of persons; nil, loss of property column then shows loss in respect of house at Rs.45,000/- and in respect of household the loss is mentioned as Rs.1,25,000/-. As regard column any source of income it is mentioned nil and finally column any other information it is recorded nil. It appears to be as rightly argued from prosecution side that any such report given to the police rather reflected that deaths and killings of the family member of the applicant was sought to be compensated only and if applicant Jagdish Kaur was in a belief and conviction that enforcement machinery for the killing of her family members was not to act and take any cognizance of those incidents. It is argued and contended in the written submission by ld. counsel that CBI started investigation in 2005 and what happened from 1984 to 2005 had not at all been mentioned in the chargesheet. Why material available inbetween that period had been withheld by CBI. It is submitted that investigation of this case had been once taken up by Riot cell of Delhi police somewhere in the year 1992-93 and counsel referred to statement of Smt. Jagdish Kaur recorded during that process and counsel argued that all that material not brought before the court reflected unfair
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investigation and should be considered creating serious doubt in the prosecution case. Counsel then referred to statement of Smt. Jagdish Kaur as Ex.PW1/C which was recorded before Justice Nanawati Commission and advocate Mr. Gandhi representing Delhi police came up with a statement that though four chargesheets had been filed on the basis of FIR 416/84 but no chargesheet was filed concerning death of husband and son of witness Smt. Jagdish Kaur as police had not been able to trace witness and investigation was considered as closed. Counsel argued that when no witness or any material was available concerning the deaths of the victims of this case then investigation by CBI in 2005 onwards was an attempt to present a case as solved by false implication of accused persons. Counsel referred to statement of Investigating Officer PW-17 which showed that Smt. Jagdish Kaur did not co-operate despite ample opportunities and that material provided sufficient reasons and grounds for sending the case untrace. Ld. Special Public Prosecutor Sh. Cheema, on the other hand, argued that when no FIR had been registered concerning the killings of this case and no investigation was taken up and rather police official performed a role of silent spectator and in some instances, instigating the mob as is now being reflected from the evidence, there was infact no evidence or material collected by Delhi Police to chargesheet the culprits and thus, no such adverse inference was to be drawn that CBI had failed to place all that material before the court. Counsel Sh. Anil Kumar Sharma then
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referred to report of justice Nanawati Commission and referring to para 16.7 pointed out that Commission concluded that there was credible material against Sajjan Kumar and Balwan Khokar for recording a finding that they were probably involved as alleged by witnesses, it is argued that no witnesses had named Sajjan Kumar in FIR 416/84 even pertaining to killings of five persons of this case prior to Nanawati Commission. It is argued that report of Nanawati Commission cannot be taken any help or assistance by Court as it does not constitute evidence. Counsel then took up individual witnesses and argued that the witness Jagsher Singh had never lodged any complaint despite he claiming to have witnessed killings of this case. No reasons have been given by witness for not having lodged a report with the police. He further admits that he had not even submitted any affidavit before any commission of inquiry. Ld. Counsel Sh. Cheema argued that let evidence of the witness be analyzed and taken scrutiny in peculiar set of circumstances that no action was being taken by the police and none of the victim had faith in Delhi police to lodge a report for fair investigation into any of those incidents. Counsel Sh. Anil Kumar Sharma then referred to witness Nirpreet Kaur and witness states that she or her mother did not lodge any complaint with the police and only on 11.11.1984 her mother had submitted the application seeking for a compensation and provided some incident details in that application. Counsel argued that witness now claiming to be a direct witness of some facts was a attempt to create
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evidence and the law would not permit to believe such an evidence. On the other hand it has been argued from prosecution side that same reason is to be considered and examined as to why no report was lodged by this witness or by her mother with the police and the reason was complete inaction on the part of police. It is argued that where mother of this witness submitted an application claiming compensation in circumstances itself reflected that focus was to get compensated for loss and damage rather then any hope for getting justice for acts of criminality committed by mob. Witness Jagdish Kaur PW1, it is argued, had lodged a report on 03.11.1984 but takes a contradictory stand that police took her signatures on two blank papers. It has been counter argued from prosecution side that even if Jagdish Kaur had approached police to lodge her report, it was either avoided or if something was noted that was not brought in record of the police. It is argued that her complaint/ petition for compensation dated 13.11.1984 which is Ex.PW1/D would suggest the same situation that victims for getting justice for criminal acts committed by the mob were to satisfy themselves by compensation for the loss of life as well property. It is argued by ld. defence counsel that affidavit Ex.PW1/A submitted by witness Smt. Jagdish Kaur before Justice Ranganath Mishra Commission on 07.09.1985 and her statement dated 31.12.1992 Ex.PW16/A as well her statement dated 20.01.1985 Ex.PW4/B would show that Sajjan Kumar is not shown involved in any
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manner in any of the incident. Counsel submitted that witness now naming accused Sajjan Kumar and describing his role was a reflection on her veracity and she was unbelievable witness. Counsel refers to cross examination of the witness where a question is put that prior to witness submitting her affidavit in Nanawati Commission in 2000 name of Sajjan Kumar had nowhere appeared and witness answers questions in affirmative. It is submitted that in these circumstances testimony of witness Smt. Jagdish Kaur becomes doubtful and it was liable to be rejected. Ld. Counsel Sh. Cheema on the other hand submitted that it was only in the year 2002 when witness found opportunity to give her statement before Justice Nanawati Commission and if she narrated an incident mentioning involvement of accused Sajjan Kumar then her evidence was not to be rejected only by the reason that at on earlier occasion and point of time she had not named Sajjan Kumar. It is argued that infact prior to the investigation of incident of the present case taken up by CBI, Delhi police had shown and exhibited complete inaction. Counsel Sh. Sharma then argued that there was no reason or justification to reopen the case in 2005 as per the memorandum of action taken report on the report of Justice Nanawati Commission, CBI failed to point out what material appeared for CBI to take up investigation in October 2005. It is counter argued that infact Justice Nanawati Commission report had revealed involvement of accused persons when affidavits as well statement of some of the victims were examined by the
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commission

and

consequently

on

the

recommendation

of

the

Government of India that further investigation through CBI was directed. Counsel then argued that in the present case there were two sets of accused, one set of accused named from the very beginning but investigation agency had no evidence against them and second set of accused named in the year 2000. It is submitted that investigating agency earlier having concluded that it was not a fit case to be sent for trial then CBI had no justification in filing the chargesheet. Argument is misconceived. If certain names had appeared as perpetrators of serious crimes of murders and rioting in the very beginning then investigating agency taking a stand that it was not a fit case to be sent for trial was a stand which suggested in support of the argument of prosecution that State machinery was not infact directed towards prosecution of the culprits and consequently no fair and effective investigation was taken up. Counsel Sh. Sharma further argued that witness is giving a changed version as regard the role of accused persons. That point concerning the credibility of the witness will be seen when evidence of witness PW1 is analyzed. It is then argued that except witness PW1, PW4, PW7 and PW10 no other witness has named accused persons. Prosecution is heavily relying upon PW9 Jasbir Kaur, PW12 Manjit Singh on the issue of conspiracy but then both the witnesses have admitted that Sajjan Kumar was not involved in the riots in their area. It is argued that PW3 Ramavtar Sharma has been got declared hostile. It is further submitted that though
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accused persons have been named by PW4 Balvinder Singh but his evidence is only of hearsay in nature. Counsel then taking up the challenge to evidence of PW1 argued and submitted that there are three statements by this witness and these are her affidavits Ex.PW1/A and Ex.PW1/B which she had submitted before Justice Ranganath Mishra Commission and Justice Nanawati Commission and then her statement recorded before Nanawati Commission as Ex.PW1/C. It is submitted that whatever the witness Smt. Jagdish Kaur wanted to say without assistance of any investigating agency, she stated in those documents. Counsel then referred to testimony of the witness where she states that in the year 1985 she came to know that Ranganath Mishra Commission has been instituted. She was working in a Stitching center run by government for riot victims and she was not under any threat or pressure from any corner and she narrated all facts in her affidavit. Witness deposed that she had named Sajjan Kumar in that affidavit but she was confronted on that point. It is argued that where the witness has deposed that affidavit was sworn and submitted before Commission which suggested a voluntary act on her part no ambiguity was left. Counsel then referred to second affidavit Ex.PW1/B which was submitted by witness before Nanawati Commission. Witness was confronted with that affidavit when it did not bear date, month or year. Counsel pointed out contradictions in two affidavits and submitted that version of the witness was not to be believed in view of
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variance in two statements. Counsel further submitted that complaint/ report Ex.PW1/D given by this witness Smt. Jagdish Kaur and then her statement dated 31.12.1992 Ex.PW16/A and finally her 161 CrPC recorded by CBI in the present case, all these statement of witness were irreconcilable version of the incident and witness accordingly was unbelievable and unacceptable. It has been counter argued by prosecution side that witness PW1 Jagdish Kaur is a truthful and wholly reliable witness. Her testimony is natural and convincing and can be accepted without corroboration. It is argued that she is a witness of extraordinary courage as despite large number of killings in the area around her residential house including the killings of her husband and son and when it was virtually a breakdown of State and administrative machinery which could be seen from the circumstance and situation that not a single victim had been removed to hospital and dead bodies were lying rotting for days, witness made repeated attempts to visit police station and lodge a report. She herself performed funeral of her husband and son by creating funeral pyre made of broken household articles by herself. When she claims to be a direct witness of all the happenings, there was no reason to not to believe her. It is further argued that a desperate attempt on the part of this witness to seek justice further suggests some truth in her version. Despite being left in a pitiable condition and homeless and with a burden of surviving children she took all pains to file an affidavit before Justice
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Ranganath Mishra Commission. Her deposition in the present trial that she had lost faith in Delhi police and thus she considered no point in pursuing for justice with Delhi police stands supported from the circumstances that police lodged a single FIR and kept on clubbing complaints in that FIR. Only 5 charge sheets were filed in court whereas there were killings beyond those small number of cases sent for trial in court. It is argued that witness having stood firm in her cross examination wherein she was subjected to a very long cross examination spreading over dates, her testimony provides a basis to believe her and no circumstance or fact appeared from her cross examination to hold or describe the witness unreliable or untruthful. She is a truthful witness as she did not add any name as the participant in the killings of her husband and son beyond the names she had given in her 161 CrPC statement. It is submitted that she has named only accused Balwan Khokar in the incident of killing of her husband and son. She did not deviate to assign any specific or grave role to persons so named. In the incident of killing of her cousins on 02.11.1984 she has named only accused Girdhari Lal and Capt. Bhagmal as part of the mob who attacked the victims. It is submitted that improvement or contradiction though was essentially a test of the credibility but then underlying search was to know any motive behind any such improvement or deviation. If testimony of witness in its entirety appeared true then contradictions were to be seen
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in that perspective. It is argued that some deviations pointed out from the testimony of this witness were concerning matter of details like a witness being clean shaven at a particular point of time or her different residential address at different period of time and accordingly such deviations would not have any adverse effect on her veracity. It is further argued that no motive has been attributed to witness for false implication. It is submitted that in the cross examination as many 233 suggestions have been given and there were overlapping suggestions like influence of Delhi Gurudwara prabhandak committee, Akali Dal or even CBI but witness emerged without any dent on her veracity. No material has come to suggest if the witness named accused in her deposition for any extraneous influence or pressure. Evidence of the witness suggested that there was no possibility of any mistaken identity. There was no serious or effective challenge to her status as eye witness of this case. A reference has been made to a suggestion put to the witness (page 63 of deposition of witness in cross examination) and the question is that was it correct that she did not want to leave her children alone because of the incident seen by her . It appears question was put when witness deposed that she did come out of her house and she did try to reach police to lodge her report. Witness has answered that since she had to do the cremation of her husband and son and had to report the matter to the police, she did take up all that exercise.
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Defence counsel Sh. Sharma then argued that Smt. Jagdish Kaur had taken different stands on her alleged report dated 03.11.1984. He referred to her statement that on 03.11.1984 witness when visited her house she saw attackers looting her house. They had thrown out dead bodies of her husband and son. She further deposed that she offered prayer and then cremated her husband and son and then she went to house of Mr. Omparkash and then at around 2 'O' clock on the same day police van took her to Palamnagar Police station where they entered her report. Counsel has then referred to Ex.PW1/B which is the affidavit submitted by this witness Jagdish Kaur before Justice Nanawati Commission in the year 2000. This affidavit mentioned that on 03.11.1984, she went to police station and they entered her report but no action was taken by the police. Counsel also referred to complaint Ex.PW1/D. Witness has then been confronted and shown her present case 161 CrPC statement Ex.PW1/DA and it is stated by her in that statement that on 03.11.1984 police took her and then she lodged complaint. While lodging complaint she was threatened by police officials not to name any big person else they would kill her remaining children. It is argued that in her deposition before court in this case witness states that when she reached police post Incharge police post was there present. Airforce personnel were also present nearby. Incharge police post recorded her report on a plain paper by writing few lines and got it signed from her and he also obtained her signature on two blank papers
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and told her that he would prepare report after sometime. She was not given copy of any such report though she had asked for the copy. Counsel then referred to cross examination of the witness appearing at page 105 where witness stated that she could not say if on 03.11.1984 police officials were not against her. She admits that behaviour of police officials who took her to the police post was not bad. It is argued that prosecution contention that Smt. Jagdish Kaur made a statement to the police on 03.11.1984 and that statement was removed and not available on record was unacceptable and unbelievable. It is argued that adverse inference is to be drawn against the prosecution when CBI did not take up any inquiry on that aspect. It is submitted that no statement regarding contents of that complaint has been recorded. Witness could have narrated contents of that complaint. Counsel then referred to evidence of investigating officer Manoj Pangarkar PW15 where he admitted that despite making best of his efforts he could not locate any such statement of Smt. Jagdish Kaur dated 03.11.1984 in the police record. As regard statement of this witness Jagdish Kaur dated 03.11.1984 it is the argument and contention of the prosecution that PW1 has consistently maintained that she had eventually succeeded in getting her statement recorded by police officials of Police post Palam on 03.11.1984. In this regard testimony of witness in court in this case dated 02.07.2010 appearing at page 25 is referred to. It is argued that subsequent circumstances duly established that statement of this witness
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had infact been recorded on 03.11.1984 but the same might have been removed from record for extraneous reasons. It is submitted that witness makes a reference to her statement dated 03.11.1984 in her affidavit Ex.PW1/A filed before Justice Ranganath Mishra Commission. She also makes a reference to this statement in her affidavit Ex.PW1/B submitted before Justice Nanawati Commission and then in her statement recorded before Justice Nanawati Commission. It is submitted that even in the disputed statement Ex.PW16/A allegedly recorded by Riot cell Inspector B.D. Tyagi on 31.11.1992 there is a reference to a statement dated 02.11.1984 made by this witness to police post Incharge SI Balkishan. It is submitted that all these subsequent circumstances would suggest that infact statement of this witness had been recorded, whether on 02.11.1984 or on 03.11.1984. Ld. Prosecutor then referred to a suggestion put to the witness (page 105 in cross examination) and the suggestion refuted by witness is that on 03.11.1984 since police officials were concerned about her safety that police officials themselves had taken her to the police post. It is argued that though in suggestion a distorted fact has been put to the witness but it is the case of defence itself that witness did go to police station on 03.11.1984. It is submitted that adverse inference is to be drawn to the effect that entire State machinery not only came to a standstill but was averse to the cry for justice and a possibility of an influential person getting that report removed was not to be ruled out and on that score justice cannot be
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sacrificed by drawing adverse inference against the veracity of the witness. Counsel Sh. Sharma then argued that witness has changed entire prosecution story regarding incidents of 01.11.1984 and 02.11.1984. It is submitted that there was no reason to discard her statement dated 20.01.1985 Ex.DW4/B and her statement dated 31.12.1992 Ex.DW16/A. PW15 Investigating Officer has confirmed the availability of these statements on the judicial record. The stand of the prosecution is that there is a serious doubt about statement dated 20.01.1985. It is submitted that witness Smt. Jagdish Kaur very vehemently and consistently denied to have given any such statement. Reasons in the support are i) that Smt. Jagdish Kaur was not in Delhi at all as she had left Delhi for Amritsar on 12.12.1984 and her testimony of that fact appears at page 25/ 27. She asserts that she was not in Delhi on 20.01.1985. ii) In her statement before Nanawati Commission recorded on 08.01.2002 she has specifically stated that she had shifted to Amritsar on 12.12.1984. iii) DW4 who proved this statement admits that he did not know Urdu at all either to read or to write. iv) PW17 DSP Anil Kumar Yadav has specifically deposed that despite efforts SI Arjan Singh could not be traced but then investigation revealed that witness Smt. Jagdish Kaur was correctly disowning any such statement. v) Statement appeared to have been doctored to destroy the case and to give a clean chit to the perpetrators of crime.
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Similarly statement dated 31.12.1992 Ex.DW16/A shows and appears as if Smt. Jagdish Kaur appeared before Inspector B.D. Tyagi and volunteered a statement. Witness has very strongly denied to have given any such statement. Her consistent stand is that she had no faith in Delhi Police and she never appeared before Delhi Police after 03.11.1984. It is submitted that only in November 1988 that PW1 had managed to have a roof of her own and had moved to her present address Danga Pidit Colony. Address appearing in her alleged statement Ex.DW16/A as 1713, Gurunanakpura, Amritsar, appeared to have been lifted from her affidavit filed in 1985 before Justice Ranganath Mishra Commission. A reference is made to testimony of PW17 DSP Anil Kumar Yadav who states that on 28.12.1992 a notice for procuring presence of Smt. Jagdish Kaur in Delhi was sent and notice reached Office of SSP Amritsar on 31.12.1992 but it could not be served for want of her address. Even otherwise there appeared no reason that PW1 would appear voluntarily before Riot cell Officer. It is submitted that Inspector Mam Chand DW16 who proved that statement purported to have been recorded by Inspector B.D. Tyagi admitted that he knew nothing about whether and how this statement came into existence. He further admitted that as a matter of practice statement of female witness would be recorded at her place of residence instead of calling her to police station. It is further submitted by ld. prosecutor that daily diary report of Riot cell for the relevant dates were got produced as Ex.DW16/PA and none of
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those entries mentioned arrival or departure of PW1 in Riot cell on 31.12.1992. It is further submitted that statement Ex.DW16/B recorded by SI Ghanshyam Das under section 161 CrPC also falsified the alleged recording of Ex.DW16/A. It is further argued that purported statement Ex.DW16/A is a design to screen the offenders when the occurrence of 01.11.1984 is tried to have been shifted to 6.00 am in the morning. Maker of this statement maintained that she did not identify any member of the mob. Omparkash though a close neighbour is shown to have been living at some distance. PW1 is shown to have stayed in her house with her children on the night of 02.11.1984. Date of statement of witness before police post Palam on 03.11.1984 is changed to 02.11.1984. Witness is shown ignorant of any fact regarding her three cousins killed on 02.11.1984. It is argued that falsehood of statement can be seen writ large when tested on touchstone of probability. Why would Jagdish Kaur travel from Amritsar to Delhi to tell the Riot cell that she knew nothing about identity of the killers of her husband and son and she had not witnessed killings of her cousins on the following day. She had already submitted a detailed affidavit Ex.PW1/A in September 1985 before Justice Ranganath Mishra Commission. Only an insane person would take up any such exercise to travel to narrate facts appearing in the purported statement. Defence Counsel Sh. Sharma then argued that name of Balwan Khokar figures for first time in affidavit Ex.PW1/A. Averment in affidavit
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suggested that deponent Smt. Jagdish Kaur was not at home and met the mobsters prior to occurrence. A reference is made to statement when the attack on Sikhs was going on I requested persons listed above to help us it suggests if she met mobsters and was not at home. It is argued that witness has completely changed her version in her affidavit Ex.PW1/B. She gives entirely a different picture in para 3 and 4 regarding the alleged incident of 01.11.1984. In this affidavit neither name of Balwan Khokar is given nor any role is assigned to him and rather witness has named Sajjan Kumar alleging him as leading the mob. Counsel again refers to this affidavit where witness states that her husband was at home with his family. MP Sajjan Kumar was leading mob. As regards killings she states in the affidavit that persons entered in her house and started beating my son Gurpreet Singh. He ran and was burned with powder to death and they injured my husband which cause death of my son and husband on the spot . It is further submitted that a detailed statement was given by PW1 before Justice Nanawati Commission which is Ex.PW1/C but then there is complete silence regarding incident of 01.11.1984. It is submitted that in statement Ex.PW1/E witness refers to her children and presence of Jagsher for the first time. Her evidence in this trial then gives a new story and a fresh case. She gives a role to her deceased son Gurpreet deposing that her son went to the roof and noticed burning of the houses of Sikhs and he accordingly, advised PW1 to leave the children at some safe place. Accordingly, witness deposes, she took her children to house
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of Ramavtar Sharma and there Jagsher was already present taking shelter. It is submitted that witness has given a changed version regarding killings also. It is referred from her evidence where she names accused Balwan Khokar as part of the mob who killed her husband and son. No role has been assigned to accused Sajjan Kumar whereas affidavit Ex.PW1/B had specifically mentioned that Sajjan Kumar was leading the mob in these incidents. It is argued that witness renders herself doubtful and unbelievable when she has changed the role of accused, the place of occurrence and timings. It is argued that whereas in earlier statements the role attributed to Sajjan Kumar was that of leading the mob but she has deposed completely a different role of Sajjan Kumar addressing the mob. Counsel attacking veracity of witness referred to evidence of PW1 where she claim that she had been giving name of Jagsher in her earlier statements and affidavits before mentioning his name in her CBI statement and that is contrary to record and has been confronted to her. She has been confronted with her previous statement if Jagsher younger brother of Narender Pal Singh was also residing with them or that Jagsher was clean shaven since childhood. On the point of Jagsher being clean shaven the testimony of PW1 is referred to where at page 73 a question is shown put to the witness that in her statement Ex.PW1/DA dated 23.05.2006 she claims that she saw her younger cousin Jagsher
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already hiding in the house of pandit Ramavtar Sharma and he had already got his hair cut whereas in her deposition before court on 01.07.2010 she stated that Jagsher was clean shaven since childhood, witness answers that her statement in court was correct. Ld. Prosecutor counter argued that statement of witness that Jagsher had already got his hair cut should not imply hair got cut a few time before and witness cannot be said to have been confronted if she said that Jagsher was clean shaven since childhood. Counsel Sh. Sharma then referred to another contradictory statement of PW1 and she had been confronted with her previous statement and that statement at page 87 referred to by counsel is that she had caught from one side and the other side was held by her neighbour Shri and Jagsher her cousin when the body of her son was lifted and put on a cot and brought inside the house. She was confronted with her earlier affidavit / statement Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW1/DA and Ex.PW1/E where the fact of putting the body on cot with the help of Shri and Jagsher is not mentioned. It has been counter argued from prosecution side that those earlier affidavits and statements were not submitted with elaboration of incident of that particular moment and thus confronted part of those statements should not be held rendering witness unbelievable. It is submitted that emphatic fact given by witness is that body of her son lying in street nearby her house was infact brought to her house by her by lifting it on a cot. I do agree with the
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contention and argument of ld. Prosecutor that such minor details deposed in evidence and then sought to be confronted by omission of those facts in previous statements and affidavits should not have the consequence matter. Counsel Sh. Sharma then referred to site plan Ex.PW15/A and argued that it did not show the place of occurrence i.e. the site where victims were killed and the position of assailants. It does not show where the meeting was held either on 01.11.1984 or 02.11.1984. It is further argued that whereas meeting is shown held on 01.11.1984 in her affidavit given before Justice Ranganath Mishra Commission but this meeting is shown held on 02.11.1984 in the affidavit and statement given before Justice Nanawati Commission. Counsel then referred to site plan where point A mentioned house of Ramavtar and point K referred to house of Jagdish Kaur and those houses were shown at adjacent. It is argued how Jagsher could have seen something happening in the house of Smt. Jagdish Kaur from the house of Ramavtar. Another contradiction in the evidence of two witnesses is then referred to where Smt. Jagdish Kaur deposed at page 45 that all doors of her house were broken except iron gate (she has stated the said fact in a suggestion put to her by defence counsel). Jagsher has deposed on the fact that side windows were completely demolished and iron gate was also dismantled. It is argued
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and

effect

of

rendering

the

witness

completely

unbelievable. Those are the minor details not going to the root of the

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that presence of both the witnesses on that occasion becomes then doubtful. Ld. Public Prosecutor argued that such a minor contradiction if iron gate had been dismantled or remained unaffected is to be examined in a situation that a mob had been indulging in indiscriminate damage and destruction of properties of Sikhs where the houses were completely destroyed and looted and such a insignificant contradictions should not be accepted as a ground to disbelieve the witness. Counsel Sh. Sharma argued that Jagsher does not speak if he did saw daughter of Jagdish Kaur at any point of time. Claim of Jagdish Kaur is that her son was turned out along with her other children by Ramavtar Sharma at around 6.15 pm and contrary to it Jagsher claims that Gurdeep minor son of Smt. Jagdish Kaur had spent the night with him at Ramavtar Sharma's house. Prosecution argued that such contradictions are to be examined in the perspective that killings and destruction of the properties of victims were taking place on those two dates i.e. 01.11.1984 and 02.11.1984 and victims who survived were taking all possible steps to find a shelter, any particular person taking shelter in a particular place on a particular moment if found given a little different version in the evidence of two persons then it should not go to root of the case to render the witness completely unacceptable. I do agree with this submission of ld. Prosecutor. Ld. Counsel Sh. Sharma has referred to evidence of PW1 on the fact of killing of her husband and son and then counsel referred to
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statement of PW6 Jagsher to point out contradiction in two statements. Evidence of PW1 Smt. Jagdish Kaur at page 7 referred to by ld. counsel as quoted is at 11.00 am we could hear slogans maro maro Sikho ko maro, gaddaro ko maro, atankwadiyo ko maro. This noise was reaching us from streets at a distance from my house. Then on the suggestion of my elder son Gurpreet Singh, I sent my three daughters and younger son Gurdeep nickname Goldee, in the neighbouring house of Sh. Ramavtar Sharma for safety at around 12.00 noon. Ramavtar Sharma's house was just across 8 feet lane near my house. When I left my younger son at Sharma's house I found my brother Jagsher also taking shelter at that very place. At about 1.30 / 2.00 pm a huge mob entered my house from all sides. My husband and my son Gurpreet were present towards rear side of my house. The mob first pounced upon my son causing injuries to him and then upon my husband virtually crushing his head while dragging him to the room where he dropped dead. My son ran for some distance in the street where he was attacked by the mob again, caused injuries and set on fire. Statement of Jagsher on these facts referred to by ld. counsel appearing at page 259 is as quoted after locking the house, when I was going to the house of Rajni and reached Shiv Mandir Marg, I saw mob coming from Palam village side leading to Shiv Mandir Marg and raising slogan......................... I saw the door of the house of Rajni closed........ I did not deem it appropriate to cross the road and knock at the door of
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Rajni. Gate of Ramavtar was open and therefore I entered his house....... Hardly 10 minutes had passed when I heard shrieks and loud voices from outside........... The mob was dragging Kehar Singh and Gurpreet. Kehar Singh fell down inside the house itself. He was being hit with iron rods...... Gurpreet Singh rescued himself and ran towards small street in front of the house. Some persons of the mob caught hold of him from the other side and they gave beating with iron rods and they killed him after hitting with iron rods. It is submitted that according to Jagsher this incident occurred quite prior to 12 'O' clock whereas according to Jagdish Kaur incident occurred somewhere around 1.30 to 2.00 noon because Jagdish Kaur stated specifically that she had left her children at around 12.00 in the house of Ramavtar and according to Jagsher incident occurred hardly in ten minutes after he entered the house of Ramavtar. Witness Jagsher does not speak presence of children of Jagdish Kaur in the house of Ramavtar. He claims only to have seen Gurdeep minor son of Jagdish Kaur only after the occurrence and he then cut his hair. Contradiction in evidence of two witnesses, it is argued, must suggest witnesses unbelievable. Ld. prosecutor argued that where ghastly incident were being witnessed by the victims it would really amount to testing memory of witnesses when questions were put in the cross examination as to exactly at what time they were at what particular place and such a minor variation in time could not be a ground to reflect their evidence. It is submitted that
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testimony of PW6 rather carries a ring of truth when witness did not exaggerate by naming any of the assailants. He only having witnessed mob entering inside the house of Smt. Jagdish Kaur and then assaulting her son and her husband, evidence is rather in a more natural form instead of any attempt on the part of witness to give any concocted version. Counsel Sh. Sharma then argued that witness Jagsher for the first time in his 161 CrPC statement dated 07.11.2007 Ex.PW1/DA has introduced the story of presence of Sajjan Kumar. It is argued that it was completely an unnatural conduct that witness Jagsher would come out of the house of Sh. Ramavtar Sharma at around 10.00 pm on 01.11.1984 and would happen to see Sh. Sajjan Kumar arriving in an ambassador car and after getting down from vehicle taking a round of the area and inquiring from mobsters about the job done by them and then scolding mob for not doing the job properly. Counsel then referred to 164 CrPC statement of witness Jagsher where the fact concerning accused Sh. Sajjan Kumar is restricted and contained that at around 10.00/11.00 in one ambassador car MP Sajjan Kumar came there and he saw whether rioters were doing their work or not. Counsel then referred to deposition of witness in this trial and pointed out contradictions and variations. It is argued that CBI purposely brought Jagsher as a clean shaven person only to seek justification for his appearance outside where the mob was present. It is argued that where witness Jagsher was known to the
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persons residing in the locality then witness being cut hair or long hair would not have made any difference and attempt to introduce him as a hair cut person is only to provide acceptability to his false evidence that he saw Sajjan Kumar addressing the mob. It is argued that witness taking shelter inside the house of Ramavtar was a contradictory stand if witness attempts to show his presence outside in the open where mob is present only by the fact that he being his hair cut was unidentifiable. It is submitted that in that context the earlier contradictory stand of witness Jagsher whether he was mona (hair cut and clean shaven) since his childhood or had got his hair cut just sometime before gains importance to watch the veracity of witness. It is argued that had Jagsher witnessed any such important happening that accused Sajjan Kumar arrived in an ambassador car and addressed the mob or gave any provocative utterance then the said important fact must have been noticed by Jagdish Kaur also. Witness Jagdish Kaur has not spoken a word concerning that fact though she was in her house adjacent just 8 feet lane away. Witness Jagsher was completely unreliable and unbelievable witness on that fact. It is submitted that witness Smt. Jagdish Kaur has deposed and counsel referred to her testimony at page 11 by quote at about 11.00 pm a teacher living in the second street from my house came hiding himself, brought milk for my children saying that children must be hungry since morning contrary to it witness Jagsher claims that accused Sajjan Kumar was in the area. It is submitted that Jagdish Kaur must have come to be
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aware of any such situation and she having not deposed a word on that fact, PW6 was completely unacceptable. This argument of ld. counsel will be taken scrutiny when the role of accused Sajjan Kumar is examined vis-a-vis the evidence deposed by witnesses against that accused. As regard incident of 02.11.1984 witness Jagdish Kaur, it is argued by counsel Sh. Sharma, whereas deposed that her cousins jumped from their hiding place in a hope that people of their locality and neighbours would protect them but instead they attacked them and burnt them alive. Witness Jagsher describes that mob as outsiders. It is submitted that witness Jagdish Kaur names accused persons as Maha Singh, Capt Bhagmal, Saroj Devi, Girdhari Lal, Krishan Khokar, Ishwar Chand, Dharamvir Solanki, Balidan and Raj Kumar in her earlier affidavit/ statements. It is submitted that Jagsher could have identified the mob which comprised many of the locality people who were known to Smt. Jagdish Kaur. It is argued that Jagsher is unbelievable witness qua his deposition that he saw accused Sajjan Kumar addressing the mob. Jagsher would have disclosed this fact to Jagdish Kaur and his other family members and this fact would have come in any form in their earlier affidavit or statement. Non mentioning of the fact concerning accused Sajjan Kumar in any of the earlier statement and affidavits would suggest that witness Jagsher had not seen any such incident. It is argued that witness Jagsher has been introduced only to create an evidence against accused Sajjan Kumar.
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It is further argued that Smt. Jagdish Kaur and Jagsher are giving a contrary version of the incident of killing of Narender Pal Singh on 02.11.1984. Smt. Jagdish Kaur claims to have witnessed the incident from inside her house and she has named some of the culprits as part of the mob and she says that victim Narender pal was burnt close to her house. Witness Jagsher whereas says that he saw this incident while he was in the street and states that all that mob were outsiders and his brother was killed near the house of Manjit Singh Kavi. Counsel also referred to the affidavit Ex.PW1/B sworn by Jagdish Kaur before Justice Nanawati Commission where the witness claims that on 02.11.1984 mob entered the residence of her brothers and all her three brothers were burnt after putting kerosene oil on them and causing their death. A contrary version is then given by the witness in her deposition in this trial to the effect that at around 6.30 in the morning atmosphere had become normal. At around 6.30 or 7.00 am, one of her brothers Narender Pal Singh jumped into street adjoining her house. Soon thereafter, her other two cousins Raghuvinder and Kuldeep Singh followed him. When Narender Pal Singh jumped, Dharamvir noticed him and shouted that thekedar was running away and called upon others to come. House of Girdhari Lal was closeby, he came running armed with lathi. Balidan Singh retired Subedar also rushed. Captain Bhagmal came along with with mob. Narender Pal Singh was caused lathi injury and burnt close to the house of this witness. Witness further states that she saw her two other brother Raghuvinder
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and Kuldeep being attacked and taken away by mob to some distance. Witness then closed door of her house as she was concerned about her own safety. It is argued and submitted by ld. counsel that accused Girdhari and Captain Bhagmal have been named for the first time. Ld. Prosecutor submitted that arguments is contrary to record. Witness had specifically named these two accused persons in her affidavit Ex.PW1/A which was sworn on 12.09.1985 before Justice Ranganath Mishra Commission. It is submitted that though specific elaborate role had not been mentioned in that affidavit but then these two accused as well other accused had been named and mentioned as the persons involved in the killing of Narender pal Singh. Ld. defence counsel argued that witness Jagsher was giving version of this incident which was contradictory to version given by Jagdish Kaur. Witness Jagsher says in his evidence that as soon he entered that gali where earlier son of Jagdish Kaur had been killed, he saw a Sikh wrapped in woolen shawl running followed by persons. Witness stopped there. Mob caught that Sikh gentleman near the house of one Manjit Singh Kavi. Mob started beating him with rods and set him on fire. Ld. prosecutor on the contrary argued that had Jagsher been motivated to depose against accused persons he would have named the culprits as part of the mob. Evidence of Jagsher rather provided a corroboration to testimony of Jagdish Kaur that Narender Pal Singh was killed by mob in the manner described by witnesses. Counsel Sh.
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Sharma argued that how Jagdish Kaur having witnessed the incident while she being inside her house was able to identify the assailants as part of the mob named by her whereas Jagsher claiming to have seen the incident while he was in street has not been able to identify any of the assailants should be a circumstance to consider a serious doubt in the evidence. Ld. Prosecutor reiterated that atmosphere was charged and there were indiscriminate killings then if Jagsher was unable to identify the assailants or anyone of them, that by itself should not be a ground to disbelieve the testimony of Smt. Jagdish Kaur. Counsel Sh. Sharma argued further that Jagdish Kaur has named accused Sajjan Kumar for the first time in her affidavit Ex.PW1/B sworn before Justice Nanawati Commission in the year 2000. According to that affidavit statement, on 02.11.1984 morning when she approached police station, on the way near mandir Manglapuri said MP Sh. Sajjan Kumar was organizing a meeting and addressed Sardar saala koi bachna nahi chahiye . Any Hindu if found giving shelter to them should also be burnt. Counsel then referred to deposition of Jagdish Kaur in cross examination where at page 189 she states that police post less than a half kilometer from the place where she returned back to her house. Her 161 CrPC statement Ex.PW1/DA is referred to that before going to police post she learnt that Sajjan Kumar was conducting a meeting. Counsel then referred to statement of this witness Ex.PW1/C given before Justice Nanawati Commission. In that statement, she nowhere mentions any
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such meeting held, supervised or addressed by Sajjan Kumar. It is argued that entire statement of witness on that point is a lie. It is argued that how unnatural conduct would be if witness gives in her deposition that she came to know that MP of the area had come and was holding a meeting and she nurtured hope for asking some help from MP and would be able to cremate her husband, son and brothers and then she heard and saw MP Sajjan Kumar standing in a zeep giving an address which is being alleged as instigative speech and forming a conspiracy showing involvement of Sajjan Kumar in the entire episodes of killings. Witness has been confronted with her previous statements / affidavits Ex.PW1/A, B, C, E and Ex.PW1/DA on that fact. It is further argued that witness Nirpreet Kaur was introduced also as a false witness. She gives a different version concerning accused Sajjan Kumar when she states in her evidence that she reached near Manglapuri and there saw a mob and heard slogans. She was in an Airforce vehicle and she got the vehicle stopped. She then claims that she saw a police vehicle wherein Sajjan Kumar was standing and addressing the mob. Counsel argued that where no whisper of any such meeting or address made by Sajjan Kumar was made in any earlier statement by any witness then entire prosecution story appear to have been introduced through false witnesses. It is argued further that claim of witness Jagdish Kaur having witnessed any such meeting held by Sh. Sajjan Kumar is falsified and demolished by DW1 Sh. Dhanraj.
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It is argued that statement of Smt. Jagdish Kaur dated 20.01.1985 and further statement recorded by Riot cell in the year 1992 are being denied by prosecution on a false and weak plea that Smt. Jagdish Kaur had left Delhi on 12.12.1984 and had shifted to Amritsar, Punjab there was no occasion for recording her statement by the police. It is submitted that Smt. Jagdish Kaur herself admits in cross examination she had been present in Delhi though she had shifted to Punjab on 12.12.1984. She used to come in connection with her pension or other government work and she asserted that she never stayed at Delhi during those occasions. This argument of ld. defence counsel could not then proceed further. As regard evidence of PW10 Smt. Nirpreet Kaur ld. counsel referred to testimony of the investigating officer where IO admitted that case pertaining to death of Sh. Nirmal Singh who was the father of Smt. Nirpreet Kaur had already been investigated and sent for trial. IO further admitted that accused chargesheeted in that trial were Mahender Yadav and Balwan Khokar besides other accused. That case was registered on a complaint given by Smt. Sampuran kaur wife of Sh. Nirmal Singh. IO admitted that name of accused Sajjan Kumar did not figure in that trial. IO admitted that Smt. Sampuran Kaur had not said anything against Sh. Sajjan Kumar. IO further admitted that Smt. Sampuran Kaur cited witness at serial no.19 in the charge sheet had stated that Sajjan Kumar had not been seen as a part of the mob. It is argued by counsel Sh. Sharma that Smt. Sampuran Kaur had been joined as a witness in the present case
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when her 161 CrPC statement was recorded on 17.09.2008 but then she has not been produced for evidence. Counsel argued that in what circumstance Smt. Nirpreet Kaur was also joined a witness and her 161 CrPC statement was recorded on 05.12.2008. Counsel submitted that in given circumstances evidence of Nirpreet Kaur was completely unreliable and her evidence concerning death of her father Nirmal Singh is of no assistance and value to the prosecution when the trial concerning death of Sh. Nirmal Singh already stood concluded with a judgement passed by competent court. Counsel also referred to testimony of Smt. Nirpreet Kaur wherein witness admitted that she had been arrested in several criminal cases under terrorist law and she had also been arrested in operation black thunder. It is argued that witness Nirpreet Kaur has deposed on the fact of attack on Gurudwara but then said incident is not the subject matter of the present case. Witness however, has not stated a word regarding burning of Gurudwara. Attack on Gurudwara and killing of Nirmal Singh charge stands already decided by competent court. It is submitted that Nirpreet Kaur herself admits that she was under an impression that present case related to killing of her father. She further states that before giving a statement to CBI she was not aware that proceedings pertaining to killing of her father had already taken place. Witness further admitted in her cross examination that prior to giving statement before CBI she had not taken any step concerning role of Sajjan Kumar in the incident. It is further argued that witness Nirpreet
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Kaur according to her deposition had been provided Airforce vehicle by Wing commander L.S. Pannu for rescuing Sikh victims and in that process she claims to have gone towards Manglapuri and there she noticed Sajjan Kumar addressing the mob. In that situation she would have brought that fact to the notice of at least Wing commander Pannu and other senior persons in Gurudwara and that fact ought to have come in any form in any earlier statement. It is submitted that her evidence concerning role of accused Sajjan Kumar cannot be accepted and believed. Witness Joginder Singh had also never lodged any report before and after filing his affidavit though he had ample opportunity. This witness exhibited his affidavit Ex.PW7/A. This affidavit had been sworn at Amritsar and deponent had been attested by the same Oath Commissioner who had attested the sworn statement of Smt. Jagdish Kaur in her affidavit Ex.PW1/A and both the attestations were on the same date. It is submitted that circumstance would reveal that everything known to the witnesses was disclosed and revealed. As per affidavit Ex.PW7/A Joginder Singh did not witness any killing and whatever he saw was from inside the house of his in laws, house no. WZ-241, Rajnagar, Palam Colony. It is submitted that Joginder Singh has changed his statement when examined u/S 161 CrPC. His stand as per 161 CrPC statement is that he went to Gurudwara for regular prayer, Gurudwara situated at Rajnagar part-II where other Sikhs were present. Incident
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witnessed by him was that at around 7.00/7.30 am mob came and burned Gurudwara and started killing Sikhs. Joginder Singh has named Nirmal Singh for first time and also named accused persons namely Balwan Khokar, Krishan Khokar and Mahender Yadav first time with their role of catching hold of sardar Nirmal Singh. Contrary to it all, ld. counsel submitted that, 164 CrPC statement of this witness showed that Baldev Raj Khanna having gone to the house of father in law of this witness at around 6.00 am came back and informed witness that his father in law had been killed outside his house. Counsel argued that witness was completely unreliable because of his inconsistent statement and contradictory version at different points of time. Counsel then assailed the sanction order granted by government of NCT of Delhi for the prosecution of accused persons for offence u/S 153A and in this regard ld. counsel assailed evidence of PW11. It is argued that sanction order was an illegality where all material had not been placed before competent authority. Finally ld. counsel submitted that where witnesses in this case had ample opportunity and no report was lodged ever the reason would be that none of the witness had seen any such incident as is being claimed. Delay in recording statement of these witnesses is not only of days but of decades. Whatever complaints had been received by the police those were investigated and accused were charge-sheeted. Ld. counsel then also challenged the prosecution case when some of the material
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witnesses were dropped. Counsel argued that evidence of witnesses did not have any ring of truth. Credibility of witness was to be tested on the touchstone of truthfulness and trustworthyness and question of credibility was to be decided by referring evidence of the witness. It is argued that witnesses having seen the incident was evidence completely improbable and untruthful. Entire evidence was inconsistent and witnesses were interested and their testimony was exaggeration. Their evidence could not be said to be inspiring confidence and conviction could not be based on such evidence. Counsel Sh. S.A. Hashmi submitted further written arguments on behalf of accused Balwan Khokar and Krishan Khokar. It is submitted in these arguments that right from the beginning the present case involved the principle of two views. Judgement passed by Hon'ble Supreme Court in SLP no. 6374/2010 which was an appeal against an order on charge in the present case also mentioned that two views were possible. It is submitted that theory of two views available in this case still exists and conviction cannot be based on such an evidence. Evidence of investigating officer PW17 is being referred to where witness admits that statement of PW1 dated 20.01.1985 and another statement dated 31.12.1992 of PW1 recorded by Riot cell of Delhi Police were there on the record but witness stated that those statements were false and this assertion by witness was without basis. It is argued that CBI itself treated those statements as doubtful and thus situation suggested two views
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possible and accused were entitled to benefit of a doubt on that score. Prosecution whereas argued that not only those previous statements were doubtful about their existence, witness herself had strongly denied and refuted to have given any such statement to the police and there were no reason to not to believe her. It is further submitted by defence counsel in these arguments that witness had given a contradictory evidence as compared to her previous affidavit statements. In her affidavit Ex.PW1/A when the witness narrated the incident of killing of her husband and son, except mentioning that mob broke into their house no specific name of the assailant as part of that mob has been mentioned. Evidence of the witness then naming the assailant was an improvement and such an evidence was liable to be disbelieved. As regard incident of 02.11.1984 witness had not named assailants in her previous affidavit statements. It is further argued that in affidavit Ex.PW1/B Smt. Jagdish Kaur had not stated accused Balwan Khokar as the assailant responsible for the incident of 01.11.1984 as well of 02.11.1984. Similarly in statement of witness Ex.PW1/C given before Justice Nanawati commission name of accused Balwan Khokar does not appear. Ld. public prosecutor counter argued these contentions and submitted that in her affidavit Ex.PW1/A she specifically named assailants as part of the mob who were responsible for killing of three cousins of this witness. It is submitted that as regard killing of her husband and son witness has mentioned three names and Balwan Khokar is one of those three culprits and reasonable
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inference is to be drawn that they were named as the culprits of this incident. It is further argued that infact this affidavit Ex.PW1/A was English translated version of Gurmukhi affidavit originally sworn by the witness and this English translated version appearing with apparent faults and gaps suggested that something remained missing while submitting the English translated version of the sworn statement of the witness. It is further argued that summons had been sent to PW1 on her Amritsar residential address and reports on those summons Ex.PW1/DX and Ex.PW1/DY specifically mentioned that Smt. Jagdish Kaur got recorded under her signatures from her daughter Gurjeet Kaur vide endorsement dated 30.01.2003 and from her son Gurdeep Singh vide endorsement dated 12.10.2004 that she being not aware of names of the assailants she was not willing to come and join investigation. It is argued that witness has admitted her signatures on those reports and her testimony in the present case is to be analyzed in light of these reports that she was not aware of the identity of the culprits. It is argued that if now witness Jagdish Kaur was disputing correctness of these reports on the summons then prosecution ought to have produced Gurjeet kaur and Gurdeep Singh to specifically deny those writings. It is submitted and argued that evidence of Smt. Jagdish Kaur is full of contradictions and she has taken different stands at different points of time before different authorities. There are material improvements in her evidence when her testimony is compared to her previous affidavit statements. There is no
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other evidence to support and corroborate her. PW10 Smt. Nirpreet Kaur and PW7 Sh. Joginder Singh are witnesses concerning death of Sh. Nirmal Singh but then trial of the death of Sh. Nirmal Singh stands already held and concluded. PW6 Jagsher Singh has not named any of the accused as part of the mob involved in the incidents of 01.11.1984 as well 02.11.1984. It is submitted that there is no evidence to connect accused Balwan Khokar as well his brother Krishan Khokar and they are entitled to be acquitted of charge. Counsel Sh. I.U. Khan defending accused Sh. Sajjan Kumar then began his arguments and placed on record his written arguments and submissions. Giving a little background of the present case it is submitted that present case concerns killings of husband and son and three cousins namely Narender Pal Singh, Raghuvinder Singh and Kuldeep Singh of PW1 and these killings took place on 01.11.1984 and 02.11.1984 respectively. Most material witnesses to prove charge of killing/ murder of those victims are PW1 Smt. Jagdish Kaur, PW6 Jagsher Singh and PW10 Nirpreeet Kaur. It is submitted that witness Nirpreet Kaur has been introduced in the present case at a very late stage when CBI recorded her 161 CrPC statement on 05.12.2008. It is submitted that she had been cited an eye witness in the case of killing of her father Sh. Nirmal Singh and that case FIR 416/84 stands already tried and disposed of by court wherein Balwan Khokar and Mahender Yadav had been chargesheeted by the police. Case ended in acquittal. It is further submitted that PW1
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Smt. Jagdish Kaur had filed an affidavit Ex.PW1/A before Justice Ranganath Mishra Commission on 12.09.1985 i.e. after a long delay of the date of incident of this case. It is submitted that various inquiry commissions were constituted and PW1 had again filed her affidavit Ex.PW1/B before Justice Nanawati commission in the year 2000. In none of these two affidavits name of accused Sajjan Kumar was ever mentioned or referred to in any context. It is submitted that investigation of the case at one stage had also been taken up by Riot cell during 1992-93 and statement of Jagdish Kaur was recorded u/S 161 CrPC on 31.12.1992 which is Ex.DW16/A and in that statement too name of Sajjan Kumar did not appear in any context. It is submitted that on one occasion summons when sent to Smt. Jagdish Kaur, a report Ex.PW1/DY got recorded by Jagdish Kaur through her son Gurdeep was to the fact that she being not aware of the identity of perpetrators of the crime she declined to follow the summons. Finally it is submitted that investigating officer Anil Yadav PW17 admitted that when investigation of the present case was taken over by him as an officer of CBI, there were 23 complaints concerning 30 persons killed in Rajnagar area and none of the complaint however alleged involvement of Sajjan Kumar in any context. It is submitted that Smt. Jagdish Kaur appeared before Justice Nanawati Commission and statement Ex.PW1/C was recorded on 08.01.2002. In that statement too she did not assign any role to Sajjan Kumar except one sentence mentioning name of Sajjan Kumar and that
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appear to be of hearsay nature. It is only in her statement u/S 161 CrPC recorded by CBI on 23.05.2006 which is Ex.PW1/DA that allegations were made against Sajjan Kumar by her. It is submitted that in such a situation that testimony of PW1 in the present trial is to be appreciated for its credibility and acceptability as regard involvement of accused Sajjan Kumar in the offences charged against him. It is argued that court has to consider whether witnesses are reliable and their evidence is unimpeachable. Before a charge is found proved and established, evidence must inspire confidence and should be of fool proof nature suggesting in all probability that crime was committed by the person charged with (2011 (3) SCC 111). Burden lies upon prosecution to prove its charge beyond any reasonable doubt. All witnesses examined in the present case are alleged to be highly interested, partisan and biased witnesses. They are all close relations of Smt. Jagdish Kaur. Court has to be extra cautious while examining such evidence. It is submitted that Jagsher Singh PW6 whose two real brothers Narender Pal Singh and Raghuvinder Singh were killed besides his cousin Kuldeep Singh and witness is cousin of Smt. Jagdish Kaur, in all probability he would have been very much concerned about process of law in respect of investigations conducted by various agencies and he being quite an active person as he admits to have gone to the local police on 05.11.1984 to get PW3 Ramavtar Sharma released from the police custody, witness maintaining complete silence till his statement was
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recorded by CBI in the year 2007 was a conduct abnormal to cast a serious doubt on his veracity. Infact name of Jagsher Singh surfaced for the first time in the statement of Smt. Jagdish Kaur recorded by CBI on 23.05.2006. Delay in giving an account of the incident to the police / investigating agency has always been found to be fatal to prosecution case until delay was explained properly. Evidence of such a witness has to be held unnatural and improbable and no reliance can be placed on his testimony (AIR 1999 SC 3537). It is argued that testimony of Nirpreet Kaur PW10 cannot be relied upon for the reasons that she admits in her evidence that she had been visiting CBI office to ascertain progress of the case which suggested that she was an extraordinary lady. Her silence for a long period renders her evidence unreliable. She had been cited as eye witness in the murder of her father but that case ended in acquittal. It is submitted that neither Jagdish Kaur nor Jagsher ever mentioned name of Nirpreet Kaur in their police statement. Sudden appearance of this witness after a long period was a serious doubt in the very evidence of this witness when her statement has been recorded by CBI on 05.12.2008. This witness Nirpreet Kaur was introduced in an attempt to corroborate witness Smt. Jagdish Kaur but then PW10 contradicts Smt. Jagdish Kaur as the place described by witness Nirpreet Kaur where accused Sajjan Kumar is alleged to have given a provocative speech is entirely different from the
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place mentioned by Smt. Jagdish Kaur where she heard accused Sajjan Kumar addressing a gathering. It is submitted that in none of earlier statement given by Nirpreet Kaur there is mention of police Jeep wherefrom accused Sajjan Kumar made provocative speech. Words of speech attributed to Sajjan Kumar are different in the statement of PW1 and PW10. It is submitted that witness Nirpreet Kaur having remained silent for 24 years was a grave circumstance which should demolish her testimony. It is argued that prosecution made all possible efforts to suppress the truth. It avoided to produce Major Yadav. Ever since investigation in the present case proceeded and as it appears from the evidence of witnesses examined in this case, Major Yadav was an important and material witness. He is a retired Colonel of Army but then CBI found this witness not traceable and such an evasive conduct of CBI is to be condemned and ld. counsel relied upon Supreme Court judgement on this point reported as AIR 2011 SC 2303 . Unfair investigation is reflected from the fact that CBI had approached witness Baldev Raj Khanna and when Mr. Khanna declined to toe the line as asked by CBI he was not produced as a witness. Name of this witness appears in the testimony of PW7 Joginder Singh. Witness Baldev Raj Khanna has then appeared in defence as DW8 and deposed true facts that he had been pressurized so that he could name Sajjan Kumar as an accused. Role of prosecuting agency was unfair when they
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adopted policy of pick and choose. It is argued that unfair approach of prosecuting agency is reflected from the circumstance that witness Smt. Sampuran Kaur whose 161 CrPC statement was recorded has been dropped. It has come on record that Smt. Sampuran Kaur in her statement given to CBI had not named Sajjan Kumar in any context. It is submitted that complaints of Smt. Daljit Kaur widow of Raghuvinder Singh as Ex.PW4/A and complaint of Smt. Harbhajan Kaur widow of Narender Pal Singh as Ex.PW4/B have been proved and exhibited but then adverse inference is to be drawn for withholding those witnesses. It is submitted that Daljit Kaur in her 161 CrPC statement dated 06.12.2006 had not named Sajjan Kumar. Another witness Smt. Harjit Kaur wife of PW7 whose 161 CrPC statement was recorded on 23.10.2007 had also not named Sajjan Kumar and both the witnesses were dropped. Gurdeep Singh son of Smt. Jagdish Kaur was also cited as a witness in this case but then he too had not named Sajjan Kumar and he has not been examined. This witness Gurdeep Singh in his writing had recorded a report on summons which were sent to Smt. Jagdish Kaur and witness would have been important on that point also. To suppress the context of that report witness has been withheld. It is argued that PW12 Manjit Singh also admits that he had not seen Sajjan Kumar in the area. This witness had described the incidents of days of the incidents very meticulously. PW9 Smt. Jasbir Kaur who had lost her father in law and mother in law in the incidents of those two dates
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also admits that Sajjan Kumar had not been seen in area by her during that relevant period. PW7 Joginder Singh has also not stated anything against Sajjan Kumar. It is argued that Smt. Jagdish Kaur claims to have lodged a report on 03.11.1984 at Police Post Palam but that report has not been brought on record. There are inconsistent and contradictory pleas by CBI on that report. A reference is then made to a report Ex.PW4/B which had been submitted by Smt. Jagdish Kaur with local police on 20.01.1985. This report makes no mention of any such earlier report lodged on 03.11.1984. Finally it is submitted that though complaints and reports were being filed from Gurudwaras through SGPC but none of those complaints/ statements mentioned name of Sajjan Kumar and this fact has been deposed by PW17 (at page 833). It is submitted that it was malafide intention of CBI to maline Delhi police and referring to alleged connivance between Sajjan Kumar and Delhi police. Story of police Jeep has been introduced for the first time with a view to create evidence of connivance between Sajjan Kumar and Delhi police. It is submitted that Major Yadav rescued Smt. Jagdish Kaur and her children from the house of Ramavtar Sharma PW3 in Military vehicle in the morning of 02.11.1984. Major Yadav was an important witness. CBI tried to introduce a story that Jagdish Kaur was removed by Colonel Yadav at 10.00 am and prior to that Smt. Jagdish Kaur had gone to police station at 9.00 am and there she happened to see and find Sajjan Kumar addressing a gathering. It is argued that infact Smt. Jagdish Kaur had
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been picked up from the house of Ramavtar Sharma at about 7.30 am on 02.11.1984 and she remained in the company of Colonel Yadav till she had been taken to Military compound. Evidence of Major Yadav is corroborated by PW3 on that point. Only a suggestion has been put to Colonel Yadav in cross examination by the prosecution that Smt. Jagdish Kaur was rescued by Major Yadav in a Military vehicle at 10.00 am and even that suggestion is nullified by PW3. It is argued that Major Yadav is responsible person and his name figures in evidence of material witnesses. Value of a defence witness is not less than value of prosecution witness and both are to be treated at par. It is argued that Smt. Jagdish Kaur PW1 has raised accusing finger against Sajjan Kumar for the first time in her statement recorded by CBI. She has not given any reason as to why she had not named Sajjan Kumar in earlier occasions when she had submitted report dated 20.01.1985 Ex.PW4/B and once again on 31.12.1992 when her statement Ex.PW16/A was recorded by Riot cell. She had submitted affidavit Ex.PW1/A sworn before Justice Ranganath Mishra Commission. That affidavit was sworn when witness was in Amritsar and witness had made allegations against certain persons responsible for killing of her husband and son but she did not name Sajjan Kumar in any context and now no reason has been mentioned for omitting name and role of Sajjan Kumar. If really witness had found Sajjan Kumar involved and responsible for the incidents of this case she would have named him. It is submitted that
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affidavit Ex.PW1/A is quite elaborate running in 4 pages. It must reflect that CBI had not proceeded with investigation in a fair and impartial manner. On the contrary in 161 CrPC statement Ex.PW1/DA dated 23.05.2006 witness reiterated that her affidavit Ex.PW1/A had been read over to her and she had accepted contents of that document as correct and true. Her statement got recorded before Justice Nanawati Commission on 08.01.2002 further indicated that she had nothing in her mind against Sajjan Kumar. At no stage, she came out with any such explanation if she had forgotten to name Sajjan Kumar. There is no explanation regarding omission to name Sajjan Kumar in her earlier affidavits and statements even in her supplementary statements recorded by CBI as Ex.PW1/DC and DB which were recorded in September 2009. It is argued that if name of Sajjan Kumar did not figure at any point of time despite ample opportunity with the witness to name him then her evidence is to be treated unreliable when she attributes a role of conspiracy to Sajjan Kumar. It is a matter of fact that witness knew Sajjan Kumar quite prior to incidents and she could have given his name if she found him really involved. It is argued by ld. counsel that Colonel Yadav was a material witness but CBI purposely avoided to bring his evidence on record in order to suppress the truth. A false and baseless plea has been taken by CBI that Colonel Yadav was not traceable. He being retired military colonel, plea of CBI was a lame excuse. Duty is cast upon prosecution to
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produce its material witnesses and counsel relied upon a judgement AIR 1973 SC 501 relevant. It is argued that some undisputed facts on record are no.1) that Colonel Yadav did come to the house of Ramavtar Sharma PW3 to save family of Jagdish Kaur and her children, 2) Colonel Yadav came in a military vehicle, 3) he did take family of Jagdish Kaur and her children and two sisters in law of Jagdish Kaur from the house of Ramavtar Sharma. Whereas CBI has tried to put up a case that Jagdish Kaur was taken away from Riot affected area at around 10.00 am and not somewhere between 7.30 to 8.00 am as is being claimed by defence witnesses and even supported by prosecution witness Ramavtar. It is argued that in view of two statements one by PW3 and DW1 Colonel Yadav and other by Smt. Jagdish Kaur not corroborated by any other independent source, the court should not give any preference or credits to PW1. Evidence of Jagdish Kaur that she when was on her way to Police chowki on 02.11.1984 between 9.00 to 9.30 am that she saw and found Sajjan Kumar is belied by the fact that infact she had been taken to parade ground by 7.30 am. It is argued that evidence of Jagsher is falsified by defence witness DW2. DW2 Rajni and DW3 her husband have specifically stated that Jagsher or no other person had taken shelter in their house in those
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the Evidence Act on the point that how evidence of Colonel Yadav was

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days. Witness Jagsher was introduced by CBI who had taken shelter in the house of Rajni but CBI failed to examine and produce Rajni or her husband which reflected unfair and bias approach. It is argued that Smt. Jagdish Kaur was in a protected atmosphere and there was no pressure or any confusion when she got prepared her affidavit Ex.PW1/A in Amritsar. She was also confronted with her earlier statement Ex.PW4/B dated 20.01.1985. CBI ought to have examined person who had recorded that statement Ex.PW4/B. It has been argued that if Sajjan Kumar being MP of that area had addressed a crowd then that important fact would not have escaped notice of witness or any other person and his name must have figured whenever any reference was made about any complaint or representation to authorities concerned. Absence of his name for a long period despite opportunity and various authorities taking up the incidents for inquiry and investigation, claim of the PW1 would become entirely doubtful. DW9 also falsifies the prosecution case when he deposed that being posted in police post Palam on the relevant date there was no police vehicle in the police post and thereby there could not have been any occasion for accused Sajjan Kumar to occupy police vehicle and address the gathering. It is argued that no site plan of the alleged place of incident has been prepared and that should be considered fatal to the case of the prosecution. Preparation of site plan and its marginal notes provides a clear and complete picture about the scene of the occurrence at relevant
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time and absence of any such document would create serious doubt. It is submitted that Jagsher has been introduced as a false witness. He had lost three brothers and his presence was well within the notice and knowledge of Jagdish Kaur as she had been in constant touch with the witness but then name of Jagsher nowhere appears in any of the earlier affidavits or statements made by Jagdish Kaur. He has been named by Jagdish Kaur for the first time in her 161 CrPC statement. It is submitted that purpose for introducing Jagsher was to fill up gaps and lacunae. CBI became apprehensive that if provocative speech attributed to Sajjan Kumar was found delivered on 02.11.1984 somewhere between 9.30 to 10.00 am as claimed by PW1 and no untoward incident took place thereafter and all killings subject matter of this case had already taken place then speech of Sajjan Kumar would have put CBI in a difficulty to hold him liable for the killing of five persons of this case as a conspiracy and with a view to meet that situation witness Jagsher was introduced who then claimed to have seen Sajjan Kumar on the intervening night of 1st and 2nd November 1984 addressing mob with a provocative utterances. Witness Jagsher has been brought in picture after 23 years of the date of incident. Unexplained abnormal long delay must create doubt in reliability and authenticity of statement of this witness 2012 CCR (SC) 777 . Ld. Counsel then referred to evidence of PW1 in her examination in chief (Page 13) where witness states that she proceeded to police post but could not reach there and that when she was less than half a mile
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from police post then she noticed Sajjan Kumar standing on a police Jeep and she heard Sajjan Kumar addressing the gathering. Statement of this witness Ex.PW1/E got recorded u/S 164 CrPC shows that witness had reached police post in the morning of 02.11.1984. Another inconsistent stand of witness appears from her 161 CrPC statement Ex.PW1/DA where witness states that before going to police post she learnt that Sajjan Kumar MP was conducting a meeting in the area. It is argued that such a inconsistent stand by witness would suggest that she was untrustworthy. According to her 161 CrPC statement Ex.PW1/DA she came out of her house as she felt that MP Sajjan Kumar would help her in saving lives of her children as well for getting cremation of bodies of her husband and son whereas in her earlier affidavit Ex.PW1/B given before Justice Nanawati Commission she had stated fact that Sajjan Kumar was leading mob on 01.11.1984 and it was a fact that her husband and son were killed on 01.11.1984. Such a conduct of witness PW1 that she felt some help would be provided to her by MP Sajjan Kumar was abnormal and would suggest a falsehood on the part of witness. It is argued that CBI when took over investigation then affidavit of Jagdish Kaur Ex.PW1/A, another affidavit Ex.PW1/B and her statement Ex.PW1/C were on the file of the case and there was no other material with CBI and CBI got the case registered on 22.11.2005. There was no mention of name of Nirpreet Kaur or Jagsher at any point of time. Jagsher and Nirpreet were brought witnesses only with a view to create
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corroboration to the statement of Jagdish Kaur. It is submitted that witness gives time of killing of her three brothers as 8.39 am while in her 164 CrPC statement Ex.PW1/A no time of killing of her brothers is recorded. In her deposition in court witness has given time of killing of her brothers between 6.30 am to 7.00 am. Difference of time that too of hours should suggest that witness had infact not seen killings of her brothers. It is submitted that evidence of PW3 and DW1 Colonel Yadav showed that Jagdish Kaur remained in the house of Ramavtar Sharma upto 7.30 am on 02.11.1984 and then she was taken to military ground in a army vehicle. It is submitted that Ex.PW1/B also suggests that after killing of her three brothers she was straightaway taken to military parade ground. Accordingly, there appear no occasion that she proceeded to police post in the morning hours of 02.11.1984. It is argued that a report was submitted by PW4 with the police which is Ex.PW4/A dated 12.11.1984 and the document suggests that what was narrated by Jagdish Kaur and Jagsher and widows of all three brothers of PW1 was given in that report. It is submitted that document is in the nature of FIR as it contained averments as required u/S 154 CrPC. This document provided names of the persons responsible for the riots and killings but then name of Sajjan Kumar did not appear in any context. It is submitted that PW4 who had arrived from Punjab to Delhi on 08.11.1984 had met Jagsher and when on 12.11.1984 if PW4 Balvinder Singh proceeded to police post to submit his report then Jagsher could
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have accompanied him if something else beyond what had been recorded in report Ex.PW4/A was required to be lodged with the police. Ld. Counsel submitted and argued that father of three deceased cousins of PW1 was examined by Delhi police and his statement Ex.PW4/C was recorded on 16.02.1985. Witness Gurcharan Singh in that statement name four persons as accused but he did not named Sajjan Kumar. Witness Gurcharan further confirmed that two widows of his deceased sons had claimed to be eye witnesses and they had narrated facts to Balvinder Singh and then Balvinder Singh had lodged a report with the police. Prosecution withholding those two widows who claimed to be eye witness of killings of their husband was to be drawn an adverse inference against prosecutor. It is argued that witness Jagdish Kaur could not be said to be a witness of killing of her brothers for the reason that she did not speak a word in her statement Ex.PW1/C given before Justice Nanawati Commission. Killing of her brothers described in affidavit Ex.PW1/B is completely different as to the manner and place which has been described by witness in her deposition in court. She has been confronted on all that matter. It is submitted that one set of documents showed that killing of her brothers was inside the house and her deposition in court in this case revealed that one of her brothers was caught and killed on the spot whereas other two were taken away towards street near the house of Rajni. Investigating agency at every step of investigation tried to suppress the relevant evidence as witness Rajni
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and her husband would have been material witnesses. Ld. counsel then again referred to reports recorded on the summons exhibited as PW1/DX and PW1/DY when those summons had been sent to PW1 in the year 2003. It is submitted that endorsement on summons was recorded by Smt. Gurjit Kaur daughter of Jagdish Kaur but Gurjit Kaur was not examined. Jagdish Kaur has admitted her signatures on summons Ex.PW1/DX. DW15 who had taken summons for service has testified that Gurjit Kaur made an endorsement on summons on behest of Jagdish Kaur in his presence. CBI did not take up any investigation on that point and issue and that reflected unfair conduct on its part. It is submitted that while taking summons to PW1 the police official from Delhi had taken assistance of local police from Amritsar and accordingly reached the place of Jagdish Kaur. It is argued that where Jagdish Kaur was then free from any kind of pressure or any kind of fear or misconception then she had had an opportunity to give her statement but then she declined to appear and give any such statement suggested if she was not aware of any role which is now sought to be attributed to Sajjan Kumar in her deposition. It is argued that witnesses were essential to unfold all these aspects were required to be examined before the court as it was the duty of prosecution to produce best evidence in court and ld. counsel relied upon Supreme Court judgment on that point reported as AIR 1971 SC 1586 . It is further argued by Counsel Mr. Khan that Court made all
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possible efforts before acceptance of cancellation report to summon Smt. Jagdish Kaur, if she wanted to file any protest petition. Counsel referred to reports on those processes as Ex.PW15/D and another report Ex.PW15/DA and another report Ex.PW1/DD which suggested action taken by Delhi Police was positive, clear and transparent and no protest petition came to be submitted. Prosecution of Sajjan Kumar in the given set of circumstances was gross in justice. Counsel argued that it was duty of the Public Prosecutor while conducting case on behalf of State to act independently and as an impartial prosecutor. It is further argued that back bone of entire case of CBI was the affidavit Ex.PW1/B but then contents of the said affidavit suggested as if second page of affidavit had in fact been replaced. Contents of the second page of the affidavit appeared to have been subsequently created and attached. Another circumstance supporting that point was the statement got recorded by Smt. Jagdish Kaur before Justice Nanawati Commission. In that statement, role attributed to accused Sajjan Kumar is the one which role has been suggested to this accused in the first page of the affidavit Ex.PW1/B. Veracity of evidence of Jagdish Kaur is to be examined in the given set of facts and circumstances. It is submitted that witnesses examined in defence were those whom investigating officers admitted that they were relevant, concerned and material witnesses and thus, their evidence was not to be ignored. It is argued that solitary statement of PW1 which is found contradictory on material points cannot
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be a basis to hold the charge proved. Investigating Officer PW17 admitted that statements of Smt. Jagdish Kaur recorded on 20.01.1985 and on 31.12.1992 were part of the record. There was no evidence to show that Jagdish Kaur PW1, was not in Delhi on 20.01.1985 and on 31.12.1992 and only an attempt has been made to disown those statements merely on a plea that Smt. Jagdish Kaur was not in Delhi. Author of those statements were neither contacted by the CBI nor produced before the court and said statements were even not shown to PW1 during course of investigation and all that material suggested a reasonable doubt in the claim of PW1 concerning accused Sajjan Kumar. It is submitted that no site plan has been prepared by IO. Site plan if prepared, at the instance of Smt. Jagdish Kaur would have shown the place different from the one referred to by other witnesses. Witness Nirpreet Kaur has pointed out place where Sajjan Kumar was alleged to be seen by her is in front of house of Mr. Soni, a neighborer of PW10, it all created doubt in the evidence if really accused Sajjan Kumar was noticed or was found addressing people with any provocative speech. Affidavits sworn by Smt. Jagdish Kaur and got exhibited during her examination-in-chief would be considered as admission of facts. Referring to witness Jagsher Singh, it is submitted that his conduct is abnormal. This witness was introduced for the first time in the statement of Smt. Jagdish Kaur which was recorded by CBI on 23.05.2006. Still the statement of witness Jagsher Singh was recorded by
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CBI after about 1 year i.e. on 07.11.2007 and there was no explanation for this inordinate delay recorded anywhere. It is submitted that Jagsher is real brother of PW4 Balvinder Singh and they had been together alongwith their other family members before Balvinder Singh lodged reports in the police on 12.11.1984 and those reports are Ex.PW4/A and Ex.PW4/B. It is submitted that statement of Gurcharan Singh is Ex.DW4/C had also been recorded by CBI and Gurcharan Singh is the father of Jagsher as well father of two deceased of present case who were murdered. Neither in reports given by Balvinder Singh nor in statement Ex.DW4/C, there is any mention of name of accused Sajjan Kumar in any context. It is further submitted that police had recorded 161 Cr.P.C statement of Smt. Daljeet Kaur and Smt. Harbhajan Kaur on 13.11.84 and none of those statements mention any role assigned to Sajjan Kumar. It is further argued that witness Jagsher Singh was an active person when the riots had taken place and on one such occasion, he claims to have gone to Police Station to get Ram Avtar Sharma released on 05.11.1984 telling police that Ram Avtar Sharma had rather provided a help to riot victims. Had he been aware of any such fact of involvement of Sajjan Kumar in the incidence of this case then he could have got it recorded. Witness Jagsher accordingly, it is argued, was not a reliable witness and was introduced only to provide a support to false story of prosecution against Sajjan Kumar. Another circumstance casting doubt on the testimony of witness
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Jagsher is that only in his deposition before court that he has spoken story of having come out from the house of Ram Avtar Sharma at around 10 PM when he happen to see and find accused Sajjan Kumar addressing the mob, he has been confronted with his 161 Cr.P.C statement Ex.PW6/DA where the fact that witness came out of house of Ram Avtar Sharma, is not found mentioned. He was also confronted with his 164 Cr.P.C statement Ex.PW6/A on that point. It is argued that since according to CBI, witness Jagsher was taking shelter inside house of Ram Avtar Sharma, then the fact stated by witness before CBI that he saw and heard accused Sajjan Kumar taking a round of the area and then addressing the people was difficult to present as being inside the house, he could not have seen and observed the conduct and role of accused Sajjan Kumar that witness improved by stating before court that he came out of house of Ram Avtar Sharma. Such an improved and tutored version was liable to be disbelieve. It is further submitted that many complaints had been made from Gurudwara but then no complaint was given by Jagsher though, his two real brothers and one cousin had been murdered and he was an eye-witness to the murder of his brother Narender Pal Singh. Having maintained complete silence for a long period of 23 years was a serious circumstance to consider this witness untruthful, so far as, witness deposed against accused Sajjan Kumar. Counsel then challenged the testimony of Nirpreet Kaur PW10, it is submitted that witness is a person of an extraordinary courage as she
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had been a member of All India Sikh Student Federation, she admits that she had been booked under TADA. Her husband was involved in terrorist activities as he had more than 100 cases against him. This witness PW10, herself admits, had been in jail for several years. It is submitted that when father of this witness Sh. Nirmal Singh had been killed during riots and this witness as well her mother Smt. Sampuan Kaur had been cited eye-witnesses of murder of Sh. Nirmal Singh in a criminal case FIR 416/84, PS Delhi Cant., it is argued, that Nirpreet Kaur even in that criminal case was a witness confined to the fact of death of her father and nothing more. Accused persons tried for that charge of murder of Nirmal Singh were Mahender Yadav, Balwan Khokhar and others and they had been acquitted by court in the year of 1986 itself. It is submitted that 161 Cr.P.C statement of this witness in that case, was recorded by Investigating Agency on 01.03.1985 (DW4/A) and no role had been assigned either in that statement or anywhere else subsequently to Sajjan Kumar. Her testimony now attributing role to Sajjan Kumar in the present case, cannot be believed and accepted. It is argued that defence witnesses examined are independent, disinterested and better quality as compared to witnesses of the prosecution. There is no reason to not to accept evidence deposed by defence witnesses. It is submitted that accused Sajjan Kumar participated in the peace-march which had been taken up in riot affected area and people from both communities i.e. Hindu and Sikhs participated
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in the peace-march and the same was highlighted in newspaper reports. Accused Sajjan Kumar is appearing with his photograph in one such newspaper report with the then appointed Prime Minister Sh. Rajiv Gandhi and that newspaper report is of 02.11.1984 published on 03.11.1984 which is Ex.DW6/PD. It is argued that incidents of present case and other such riots in city was infact an outcome of some people of a criminal and bad character nature having taken advantage of situation and indulged in widespread crimes and it could not be termed to be a situation that these incidents were outcome of a criminal conspiracy. It appeared to be a sudden outburst of public at large. It is submitted that may be role of accused Sajjan Kumar as a political leader was suspected but then suspicion could not be a basis for proof. It is submitted that Sajjan Kumar had rather participated in the reliefs provided to the victims and one such participation by accused was even in a blood donation camp and to that effect name of Sajjan Kumar appeared as amongst persons who donated blood wherein many other persons were Sikhs. It is argued that PW1 Smt. Jagdish Kaur, PW6 Jagsher and PW10 Nirpreet kaur if had witnessed any such fact concerning accused Sajjan Kumar, they could have brought those facts to the knowledge of army officers. They having maintained complete silence for such a long period is a circumstance to doubt their testimony qua accused Sajjan Kumar. With these submissions and contentions it has been concluded by ld. counsel Sh. Khan that charge against Sajjan Kumar could not be found to
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have been proved by the prosecution and benefit of doubt deserved to be extended to this accused. Ld. Special Public Prosecutor Sh. R.S. Cheema condemned and criticized the defence arguments and contentions. It is argued that evidence given by Jagdish Kaur is very natural, consistent and no reason appears from her cross examination to doubt her veracity. It is argued that main thrust of defence is the delay and long silence on the part of witnesses and defence contention is that law and enforcement machinery was fair and transparent and rather statement of Jagdish Kaur had been recorded on two occasions, firstly on 20.01.1985 which is Ex.DW4/B and secondly on 31.12.1992 which is Ex.DW16/A. It is argued that victims of these incidents were uprooted, their house properties destroyed by fire and other damage, their male family members were killed and burnt in widespread brutalities and female victims with other victims had to leave the place and area for their safety and survival and where there was enough evidence and material to suggest that police instead of providing any protection to the survivors was participating with the rioters and where survivors had only a question for their life, if they had shifted to a distant place in Punjab and inaction of enforcement and prosecuting machinery which resulted in acquittal of all criminal cases which had been got registered in the year 1985 then delay was to be taken scrutiny and evidence was not to be rejected only on that point of delay. Referring to affidavit Ex.PW1/A sworn by Smt. Jagdish Kaur before
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Justice Ranganath Mishra Commission, testimony of witnesses referred to where she deposed that affidavits were sworn when government officials accompanied by staff had volunteered to record those affidavit statements. She has stated that she had made statement in Punjabi and contents were recorded in Punjabi but then English translation was presented and she signed the same. It is submitted that an affidavit could not be equated with statement made before investigating officer. It is submitted that thousands of affidavits were collected and processed mechanically. It is a matter of record that as many 3752 affidavits had been filed before Justice Ranganath Mishra Commission. It is submitted that a careful reading of English translated affidavit Ex.PW1/A would show that translation appeared to be defective and casual, replete with apparent errors, gaps and sequential misarrangement. PW1 in her deposition pointed out one such error where the affidavit mentioned that military burning alive Sikhs whereas according to witness military did not indulge in any rioting. Another instance referred to in the affidavit is that after name of mobsters was given, sentence speaks that deponent requested the persons listed above to help but they replied rudely our meeting is going to take place, we have no time, we will see it after the meeting . It is submitted that this part of the affidavit makes no sense. Some missing links area also referred to. It is argued that sequence of original statement in Punjabi lost its spirit in erroneous and may be motivated translation. But then contents
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of PW1/A showed that PW1 mentioned all essential details at the earliest point when she got the opportunity. In the given set of circumstances now evidence of PW1 is to be appreciated where she deposed that she did name Sajjan Kumar in that affidavit but she has been confronted on that point. Ld. counsel relied upon Supreme court judgement in Manohar Lal vs. NCT Delhi reported as 2000 (2) SCC 92 and argued that where testimony of PW1 appeared natural and there appear no strong reason to disbelieve her then defence arguments and contentions was to be rejected and witness was to be accepted and believed. Taking up affidavit Ex.PW1/B filed before Justice Nanawati Commission by Smt. Jagdish Kaur, it is submitted that affidavit could not be said to be contradictory to the version of the witness. The Punjabi version of the affidavit quoted eh ki iss hujoom di agwahi sade halka de MP Sajjan Kumar kar reya hai in real sense and spirit conveyed as accused conspiring with rioters when those brutal offences of killing and destruction of property were being indulged by mob. Ld. counsel further argued that there was no question of page 2 of this affidavit replaced at any stage and rather this affidavit PW1/B was to be read in continuation of earlier affidavit Ex.PW1/A. Referring to the nature and scale of crime it is submitted that 5 killings of the present case was a part of a large scale communal killings which took place on 1st and 2nd November 1984. As per Nanawati Commission report as many 341 persons were murdered within the
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jurisdiction of PS Delhi Cantt. Dead bodies were neither claimed nor cremated. Even in FIR 416/84 registered initially, 23 complaints by victims involving 30 murders were received. Only five chargesheets pertaining to one murder in each chargesheet was submitted and thereby 25 murders remained uninvestigated and untouched and only five murders of this case were then seriously taken up for investigation by CBI. This Nanawati Commission report is Ex.PW17/DA on the file. Killings in all these incidents were part of an outrage which took the shape of communal violence of a most brutal nature and on a scale unprecedented. Unchallenged testimony of PW12 Manjit Singh on that part of the prosecution story is clear enough to perceive the unfortunate situation. Evidence of PW9 is then referred to and this poor lady had lost her husband, father in law and mother in law, all three killed on 02.11.1984 and her house was destroyed and damaged and no specific case was ever registered. She had filed complaint Ex.PW9/A. Coming to the role of police it is pointed out that local police has been very harshly criticised by Justice Nanawati Commission. Evidence showed that local police largely remained a mute spectator and while some of them were found abettors and it appeared to be a clear conspiracy to ensure that crime went unreported. Daily dairy register of Police post Palam Colony Ex.PW16/A is referred to about entries of this record from 31.10.1984 to 06.11.1984 and this record revealed that not a whisper of riots was mentioned. Consistent entries in record were being
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maintained that there was complete normalcy in area. Reports further showed that police parties were patrolling the area but no untoward incident report was recorded by any police official. Rather one report Ex.PW16/E5 revealed that Sikhs had unleased violence against each other who had collected in a house bearing no. 4000. Another report dated 04.11.1984 mentioned that Ramavtar with some other persons were detained in apprehension of breach of peace on the allegations that they were abetting riots. It is argued that it all showed a well planned conspiracy to black out the crime. No police party intervened in large scale operations of killings and properties set ablaze. Evidence revealed that one complaint clubbed with FIR 416/84 made by one Kuldeep Singh showed involvement of HC Satbir Singh but then there was no investigation and consequently no outcome of any fair inquiry about that role of police official. Investigation conducted by local police was a farce. All the crimes were clubbed in one FIR and then isolated victims were cited witnesses in a few cases sent to the court. Addresses of those witnesses who were the surviving widows and the daughters and who had already left those addresses when their houses had been destroyed and it led to a situation that those cases ended in acquittal. Prosecution coordinated with guilty police force. Ld. Counsel then took up the evidence of defence witnesses and has dealt with each witness to point out as to in what circumstances there evidence was to be treated as doubtful. Ld. Prosecutor then again took
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up the role of Delhi Police and pointed out that it was highly condemnable where gruesome massacre methodically carried out in the capital of the country for three days remained untouched and unnoticed by the police during that period. Role of Riot cell investigation has then also been criticized and condemned by ld. Prosecutor. It is argued that careful analysis of totality of circumstances suggested that attempt was to ensure that crimes remained unexposed. It is submitted that Jasbir Singh had mentioned complicity of Sajjan Kumar in his affidavit but when he appeared before committee on 27.12.1991 he denied all those allegations appearing in his affidavit except mentioning names of Balwan Khokar and others. Earlier investigation reports submitted by police were with the sole objective to ensure that cases were closed. Ld. public prosecutor then took up evidence of the prosecution witnesses. PW3 Ramavtar Sharma admittedly had a house just opposite the house of Smt. Jagdish Kaur and this witness had given shelter to children of Jagdish Kaur and PW6 Jagsher. Though this witness was got declared hostile as he attempted to deviate a little in favour of defence but then testimony of hostile witness was not liable to be thrown out in entirety and court could take part of that deposition into consideration which was found established by probability and then corroborated by other witnesses. It is submitted that defence did not challenge his deposition. Acceptable part of testimony of this witness is: a) witness has correctly and precisely described location of house of
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this witness, house of Jagdish Kaur, house of Jagsher. b) his testimony provides corroboration to the murders of Kehar Singh and Gurpreet on 01.11.1984 though according to witness those deaths took place in his absence. c) he provides corroboration to murder of two contractor brothers. He specifically deposed that they were hiding opposite the house of D.N. Srivastav. d) He provides corroboration to the fact that PW6 Jagsher had been residing in his neighborhood and Jagsher was known by nickname Golu. e) Witness makes admission that he was arrested by the police on 04.11.1984 and i.e. corroborated by DDR entry Ex.PW16/G24. Brother of this witness along with Jagsher PW6 and then witness substitutes PW6 by his father who came to the police and got him released. It is submitted that witness provides a valuable corroboration to prosecution story on material particulars. A Supreme Court judgement reported as 2012 (4) SCC 327 is being relied on the proposition of acceptance of a witness even got declared hostile. PW4 Balvinder Singh is the real brother of PW6 Jagsher and his two deceased brothers Raghuvinder Singh and Narender Pal admittedly this witness came to Delhi on 08.11.1984 and he found house of his victim brothers completely destroyed and damaged and burnt. He identified complaint Ex.PW4/A submitted regarding death of his two
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brothers and another complaint Ex.PW4/B concerning murder of his cousin Kuldeep and these complaints were given on 12.11.1984. Cross examination on this witness was an attempt as to what conversation took place between him and surviving victims before those complaints were given to the police. His testimony proved that Jagsher was clean shaven since his school days and Jagsher with his two brothers and cousin Kuldeep were residing at house RZ-15, Shiv Mandir Marg, and they were all working as MES Contractors. Ld. Counsel Sh. Cheema then referred to evidence of PW6 Jagsher. This witness had initially taken shelter in the house of Rajni but later he returned to his house to park his two wheeler vehicle inside his house and while returning he found a mob coming and raising shouts and witness walked inside house of Ramavtar and took shelter there. Witness then saw attack on Kehar Singh and Gurpreet on 01.11.1984 from a window in the house of Ramavtar Sharma. He further witnessed assault on another person in the morning of 02.11.1984 and later he identified the victim as his brother Narender Pal Singh. It is submitted that witness has not named the assailants as he had not been able to see and identify them but then his testimony corroborates the place, manner and the timings of above stated two incidents. He is also a direct witness to the conduct and utterances made by accused Sh. Sajjan Kumar on the night of 01.11.1984 at 10.00 pm in the area. It is argued that witness Ramavtar has spoken residence and
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presence of Jagsher during those eventful days and presence of Jagsher is also spoken by Balvinder Singh PW4. An attempt was made to question his veracity by asking if witness had a passport from his address RZ-15, Rajnagar and witness came forward with a positive assertion and defence withdrew. During further cross examination copy of income tax assessment for the year 1982-83 of this witness was got exhibited PW6/DB which supported his stand. A suggestion has been then given without any basis to the witness that he was not present in Rajnagar area from 31.10.1984 to 03.11.1984 or that he arrived Delhi only after the incidents. It is argued that PW6 Jagsher residing and working with his deceased brothers was a natural and probable witness and his testimony is to be accepted and believed on that score. Witness confronted with some material which has been argued to be improvements, it is submitted are infact explanations of certain facts not going to the root of the matter. Cross examination is rather an attempt to confuse the factual situation. Witness infact has made no improvements in real and material sense. It is submitted that defence never confronted witness with any part of his previous statement to the effect that he had witnessed the conduct and role of Sajjan Kumar while he was inside the house of Ramavtar. The fact that witness was inside the house of Ramavtar could be a simple case of person recording that statement failing to incorporate the sequence of the event and when witness now says that he came out of the house is a fact not by way of an improvement. His testimony is completely believable and
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acceptable that: a) Sajjan Kumar arrived in an ambassador car after 10.00 pm. b) he reprimanded the members of the mob for not doing their job properly. c) he visited towards house of PW6 Jagsher and commented that hardly any damage had been caused to the house of thekedars. d) finally he reprimanded mobsters to do their job properly including a direction to burn the houses of those Hindus who were providing shelter to Sikhs. It is submitted that conduct of Jagsher is a natural conduct which any human being who on one hand was under a grave and imminent threat to his life and on the other anxious to save his dear ones would have reacted. His being a clean shaven provided some insurance from being identified as a Sikh by rioting mob. In this context of circumstances that his evidence is to be appreciated in particular when he was only a 17 year old boy. His conduct is most natural and his testimony appears truthful. Question of any delay in recording statement of this witness by CBI is to be viewed in context of totality of the circumstances. A question has been put to witness in cross examination as about his anxiety to report the matter and particularly the facts witnessed by him and his answer is that since complaints had already been made by his brother and father and nobody had come to make any inquiry and in that situation it happened that no separate report or complaint was made by him. It is
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submitted that where complaints Ex.PW4/A and B had already being submitted to the police and no action was initiated by police that situation is to be analyzed to find reasons for PW6 Jagsher having not given any complaint or report. It is argued that Jagsher is a witness of sterling honesty besides being a most natural and probable witness. He has not named the assailants when he had not been able to see or identify them. Defence has failed to show any malice or enmity on the part of this witness. Mere fact that Delhi police or any subsequent agency failed to touch this witness at any stage would not disqualify him to be an acceptable and reliable witness. PW7 Joginder Singh was living in vicinity of Gurudwara situated in Rajnagar area. His deposition concerns attack on Gurudwara on 01.11.1984 at around 7.30 am. He states on oath that Sikhs armed with kirpans assembled in about 20 -25 in number to save Gurudwara. Mob reiterated. Thereafter police came and took kirpans of Sikhs and then crowd came again and caused extensive damage to Gurudwara besides setting a truck on fire and looted the house of one Jasbir Singh and then committed murder of Nirmal Singh after taking him away by an assurance to join him for negotiations for peace. This witness then took active part in the funeral of dead bodies of Sikhs with Wing Commander L.S. Pannu wherein large number of dead bodies remained unidentified except a few like body of Kirpal Singh, Ajeet Singh and Son of Ajeet Singh and one Avtar Singh. It was another aspect of police complicity when no action
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was taken to seize those bodies. PW7 has identified some of the accused namely Balwan Khokar, Krishan Khokar, Mahender Yadav and Captain Bhagmal as part of the mob. His evidence finds corroboration from PW12 Manjit Singh and PW10 Nirpreet Kaur. This witness is shown with no malice or hostility to any accused. He is a natural witness of the events unfolded by him. 313 CrPC examination of Balwan Khokar has been referred to and accused admits that on 05.11.1984 he had gone to Airforce Gurudwara carrying milk and biscuits and inquired about Nirpreet Kaur and her family. It is further submitted that this witness PW7 had filed an affidavit which is Ex.PW7/A before Justice Ranganath Mishra Commission. A look on this affidavit shows that contents of the affidavit corroborate the testimony of the witness that on 01.11.1984 at around 7.00 am a mob comprising gurjars and jats accompanied by Congress leaders namely Balwan Khokar and Krishan Khokar of Rajnagar, Mahender Yadav of village Bagdola, Deepak Gulati and Rajaram of Rajnagar and Captain Bhagmal of Rajnagar who was also alleged carrying his own pistol. It is submitted that PW7 was never examined by Delhi police or Riot cell and in these circumstances despite witness having sworn an affidavit before Justice Ranganath Mishra Commission, any further delay in his examination in the present case is to be viewed accordingly. PW10 Nirpreet Kaur is the daughter of Nirmal Singh and she is a witness to happenings in Gurudwara in Rajnagar which facts have
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already been deposed by PW7. She is also a material witness as regard role and complicity of Sajjan Kumar as she heard accused making a hate speech on 02.11.1984 near police post. Her evidence provides corroboration to testimony of PW1 Jagdish Kaur. Attack on her veracity by the defence through alleged previous statement proved by DW4 is a false and futile attempt as that previous statement document is of dubious origin. DW4 admitted that he did not know Nirpreet Kaur till 01.03.1985. Witness further admitted that he did not know if Nirpreet Kaur was residing at Moti Bagh gurudwara or elsewhere on that occasion and as to how her statement was appearing with an address house no. WZ241, Rajnagar. It is submitted that judgement of acquittal concerning death of her father Nirmal Singh prosecuted through FIR 416/84 was in the circumstances that out of 7 prosecution witnesses cited by police only 4 that too police officials were examined. There was no charge of conspiracy or attack on Gurudwara. Material witnesses Nirpreet Kaur and her mother Sampuran Kaur had not been produced and false and fake successive reports on processes to these witnesses were submitted with the court. It is argued that story narrated by Nirpreet Kaur is of a horror and helplessness of a teenage girl whose father was brutally burnt in her presence. It should be a tribute to her innate goodness that she retained her sanity and appeared in court to speak facts on oath. Testimony of PW9 and 12 also speak of widespread riots wherein
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properties of Sikhs were burnt. Complaint Ex.PW9/A given by Jasbir Kaur PW9 was never investigated. Testimony of PW12 was a natural and spontaneous deposition unfolding the vital angles of conspiracy and a meticulous style of its execution. Ld. Public Prosecutor then referred to some confronted parts of the witnesses to point out and argue that these did not materially affect the credibility of witnesses. I have taken scrutiny of arguments and contentions from both sides. From the evidence and material available in this case it does appear to be a case set in peculiar facts and circumstances and these facts and circumstances do suggest that law supervising and enforcing machinery i.e. police maintained complete silence during those two days i.e. 1st and 2nd November 1984. Court can take judicial notice of the fact available from Justice Nanawati Commission report that there were as many 341 killings in police station Delhi Cantt. area itself and present case concerning killing of five persons was in the area of Rajnagar, Palam colony a part of police station Delhi Cantt. It has come in evidence from document Ex.PW16/A the DDR maintained at police station Palam Colony that not a single incident of any killing or any property destroyed was recorded by the police. It has been rightly argued by ld. Public Prosecutor that police appeared to be privy in the incidents of rioting may be by maintaining their status as silent spectator. Evidence rather suggested as has been deposed by PW7 that where in an instance some Sikhs had gathered to take guard of their worship place Gurudwara
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Rajnagar and succeeded in deterring mob on one instance when they were armed with kirpans, police arrived and disarmed Sikhs of their kirpans and soon thereafter mob arrived again. There appears no reason to not to believe and accept testimony of PW7 on that point and that reflects a serious lapse of law enforcement duty of the police. Another instance cited by ld. public prosecutor that initially an FIR 416/84 registered on 04.11.1984 on a complaint lodged by widow of a victim, rest other complaints were being clubbed and that procedure adopted, contrary to mandate of law that each incident of crime is to be registered by the police and then investigated, suggested a casual approach of police as if police was least bothered even if a serious crime of killing of innocent victims by the rioters was being reported. Another example of such situation is where the victims were rather made to believe and understand that the fate of killings of innocent persons of family of those victims was to bargain a monetary compensation and this stands reflected from document Ex.PW1/D. This is a cyclo-style report given to SHO Police Station on 13.11.1984 by Smt. Jagdish Kaur resident of RZ-1-129, Rajnagar, Shiv Mandir Marg, Palam Colony. The text of this cyclo-style report is that informant claims an honour to submit and then there are columns A to F required to be filled in. Column A describes loss of Life (Name and age of persons) and it is recorded by Jagdish Kaur 1) Kehar Singh, 47 years, husband of the applicant, no.2) Gurpreet Singh, 19 years, son of the applicant. Column B mentions Name and
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age of persons injured and it is recorded Nil . Column C required name and age of persons missing and it is recorded Nil . Column D required loss of property, approximate amount and applicant Jagdish Kaur mentions this assessment at Rs.45,000/- for house and Rs.1,25,000/- for household. Column E required any source of income at present and it is recorded Nil and finally column F any other information and document mentioned Nil . The present address of applicant in this document was mentioned Gurudwara Moti Bagh. It has been rightly argued that situation really disturbed conscious of civilized society as if killings of innocent persons by mobsters was to be accepted by the victims only by bargaining monetary relief. It does reflect a complete no action on the part of the police. Documents Ex.PW4/A and B show that a report dated 12.11.1984 was submitted to SHO Delhi Cantt. by PW4 Balvinder Singh and this informant Balvinder is the real brother of two deceased of this case namely Raghuvinder Singh and Narender Pal Singh. These two reports specifically mentioned killings of Raghuvinder Singh and Narender pal Singh and Kuldeep Singh in the incidents of 02.11.1984 at around 06.30 hours and names of the culprits were mentioned in these two reports and those were no. 1) Bhagmal Singh, 2) Ex-Subedar Baldan Singh, 3) Ashok C/o Ex-Subedar Baldan Singh, 4) Dharamvir Singh, 5) Gurdhari Lal, 6) Chand. Admittedly no first information report was registered concerning these deaths. Though local police claimed that such kind of complaints
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being received were being kept with FIR 416/84 no action appeared to have been taken on these reports except the claim of Delhi police to have recorded statement of Jagdish Kaur on 20.01.1985 and her statement again recorded by Riot cell in 1992 and both these statements have been strongly refuted by PW1 to have been given by her to the police. No investigation appeared to have been taken up for those killings of persons despite some of the culprits had been named. I do agree with the arguments and contentions of ld. public prosecutor that evidence of the star witness PW1 Smt. Jagdish Kaur and other two material witnesses PW6 Jagsher and PW10 Nirpreet Kaur and other relevant witnesses is to be appreciated in this peculiar background of the case. PW1 Jagdish Kaur has claimed to be the eye witness of killings of her husband and son and she also claims to be the witness of killing of her cousin Narender Pal Singh. Whether her evidence is believable and acceptable of those two incidents is the question before the court. It appears to be a fact not in controversy that Jagdish Kaur was residing with her family comprising her husband, two sons Gurpreet and Gurdeep and three daughters and eldest among children was Gurpreet aged around 18-19 years. It has sufficiently come in evidence and rather by witnesses examined in defence by accused that Jagdish Kaur with her children was rescued from the house of a neighbour PW3 Ramavtar Sharma though it has been a point in controversy as to at what time on 02.11.1984 in the morning that she was rescued from that place. PW3
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has specifically deposed that on 01.11.1984 Jagdish Kaur along with her children came to his house for shelter. Witness Jagdish Kaur has deposed in evidence that on 01.11.1984 morning as there was a news of some Sikhs were being attacked as the then Prime Minister of India Smt. Indira Gandhi had been caused bullet injuries by her guards, she in order to secure her children had taken them to the house of Ramavtar. This evidence sufficiently proves the fact that Jagdish Kaur with her family was residing in the house RZ-1-129, Rajnagar, Palam Colony. Witness has deposed further that on 01.11.1984 she along with her son Gurpreet climbed roof of her house at around 10.00 am and saw that vehicles and houses belonging to Sikhs were being burned. She heard slogans maro maro Sikho ko maro, gaddaro ko maro, atankwadiyo ko maro and accordingly she took her children to the house of Ramavtar for their safe stay at around 12.00 noon. She further deposes in evidence that at around 1.30 2.00 pm a huge mob entered her house. Her husband and her son Gurpreet were present towards rear side of the house. Mob armed with iron rods, gaitis and other lethal weapons first attacked her son causing injuries to him and then upon her husband, virtually crushing his head and he dropped dead. She further says that her son ran in street for some distance but there he was attacked by the mob and then set on fire. Witness deposed that mob included Balwan Khokar, Dharamvir, Chand Sharabi, Maha Singh, Saroj Devi. She further deposed that Balwan Khokar was the circle level leader and pradhan, well known to
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everybody. Witness further says that she ran out of her house and reached the place where her son was lying in the street and he was on last breath. She blessed him and on her request a lady from neighbourhood brought some water in a jug. Witness put a few drops and victim her son breathed his last. Witness says she brought a cot and took body of her deceased son to her house. Witness then narrates a sequence that thereafter, she was concerned with the safety of her surviving children as the children had been brought to her house on 01.11.1984 at around 6.15 pm. She had to put her children on the rooftop covered by a quilt. She further states on oath that at around 11.00 pm a teacher residing in a nearby street came hiding himself and brought milk for her children saying that children must be hungry. I have taken scrutiny of criticism pointed out by defence counsels on the testimony of this witness. I find evidence is in a most natural way without suggesting any kind of exaggeration or falsehood. She is a witness whose presence on the scene of the crime appears very natural, it being her own residential house. As seen above evidence is required to be appreciated that police had failed to take any action concerning those deaths which had taken place in the area and the rioting mob had been indulging in killings and destruction of properties. As it appears from report Ex.PW1/D that victims of these crimes were to console themselves to bargain a monetary compensation and State machinery was a
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complete failure and at halt to check those crimes and to listen the victims. Admittedly when no police action had been initiated concerning deaths of husband and son of this witness, various Inquiry Commissions came to be constituted by the government. The earliest opportunity for this witness Jagdish Kaur to submit her version was in September 1985 when Justice Ranganath Mishra Commission invited response from the victims. It is a matter of record that as many more than 3000 affidavits were submitted before Justice Ranganath Mishra Commission and affidavit Ex.PW1/A was one submitted by Jagdish kaur before that Commission. A look at this affidavit which defence also referred to and pressed to be taken into consideration reveals that Jagdish Kaur deponent had been residing at RZ-1-129, Rajnagar, Palam Colony, Delhi and her family comprised her husband, three daughters and two sons and that her husband Kehar Singh was a gun fitter with 505 EME, Army base workshop, Delhi Cantt. She further swears on oath that her locality was attacked on 01.11.1984. She states that attack was organized one. Mob had the names, addresses and particulars of Sikhs living in the locality. Leaders who were leading the mob were 1) Balwan, a youth Congress I member, 2) Maha Singh, Sharabi Roshanwala (Jat), 3) Santosh Rani known also as Janta Hawaldarni. She further states that mob used to be on foot but their leaders were using cars and motorbikes. Local persons were mixed with people from outside who constituted the
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mob. In para 5 she then gives details of the attack and then she names victims who were killed. It is stated that when mob attacked in her house, her husband and elder son Gurpreet were present in veranda on the back of her house. Mob broke open the doors and attacked them with iron rods. Her husband was killed and her son after being caused two blows on his head tried to escape but was caught by another mob coming from other direction. Mob first beat him iron rods and then burnt him alive with kerosene oil and mob went away. She went out and reached her son his clothes were burnt and blood was coming from his head. He asked for water and after taking few drops breathed his last. Deponent with the help of some persons brought body of her son to her house. There appears no inconsistency in the version of the incident narrated in this affidavit and then deposed by witness in the present trial. It had been argued by defence counsels that while describing killings of her husband and son witness had not named the assailants. It was argued from prosecution side that if earlier paragraph 3 of the affidavit wherein witness named persons who were leading the mob was read and construed in the context of subsequent para giving details of killings of husband and son of deponent then it would reasonably appear to construe that persons named as leading the mob were involved in the incident of this case. I do agree with the arguments of ld. public prosecutor. Deposition of witness before court when examined in the context of a situation that scene of the crime is the house of this witness
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and presence of witness in her house is quite natural and probable then contents of the affidavit are to be seen accordingly. In the judgement relied upon by ld. prosecutor Mr. Cheema reported as Manohar Lal @ Mannu & Another vs. State NCT of Delhi 2000 (2) SCC 92 , it has been held that where a victim widow of one of these 1984 riots had submitted an affidavit and that affidavit was found to contain a wrong information that daughter in law of deponent had also been killed, it came to be held: On the other hand that affidavit gives us an assurance that the appellants were involved in the killing of her sons as their names were particularly mentioned among the murderers. Another criticism is that she did not divulge all the details of the occurrence when she gave a statement to the police on 17.11.1984. We perused the said statement attributed to her. A reading of it makes the position clear that the police officer was not then inclined to elicit from the bereaved mother any details of the horrendous episode. He felt that she was then not in a mood to speak out the details as the interval of time was not sufficient enough for a mother like her to regain mental equanimity. He should have postponed questioning her to a further date. In the said statement he recorded just two sentences. It would be unfair and we may say uncharitable to her if we use that cryptic statement dated 17.11.1984 to discredit the valuable testimony of
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the most natural eyewitness of this horrendous crime. Hence we are not persuaded to interfere with the finding that the appellants have committed the acts alleged against them . There appears a ring of truth in the testimony of PW Jagdish Kaur that she did see assault on her husband, she did reach the place where she found her son injured and burnt and on the brink of his life and she provided a few drops of water before he breathed his last. Deposition given by the witness is a natural form of evidence which appears suffering no infirmity. Testimony of PW3 provides a support and corroboration when witness deposed that Kehar Singh and his son were killed by mob on 01.11.1984 and this fact witness came to know when he returned home on that day. Though witness was got declared hostile but even otherwise according to prosecution case he was not an eyewitness of killings of Kehar Singh and his son. PW6 Jagsher also provides support and corroboration to PW1. PW6 has deposed in evidence that while he was taking shelter inside the house of Ramavtar, from the window of a room in that house he saw, after he had heard shrieks and loud voice, that mob armed with lathis and sarias entered inside the house of his sister Jagdish Kaur. Kehar Singh was assaulted with iron rods and he fell down inside the house. Gurpreet rescued himself and ran towards small street in front of his house but he was there caught and assaulted by mob with iron rods and killed by being hit with iron rods. This witness then reached house of his sister. He accompanied his sister
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when Gurpreet was brought to the house on a cot. Ld. defence counsel argued that witness Jagsher is not talking of victim Gurpreet if had been set on fire. Whether such an omission amounts to contradiction rendering evidence unbelievable and unacceptable. The court has to appreciate the evidence where scene and situation of crime was a widespread riots in the area. Omission of a fact would rather suggest that evidence given by the witness is not a tutored testimony. It has been rightly argued by ld. public prosecutor that witness Jagsher has not named the assailants who were part of the mob since he had not been able to identify anyone of them. It rather speaks the truthfulness of the witness. To my opinion, testimony of witness provides a corroboration to evidence of Jagdish Kaur that killing of her husband and son occurred in a manner she has deposed and when she claims to be the eyewitness of incident of killing of her husband and son it appears believable and acceptable. Other contradictions pointed out by ld. defence counsel if main entry gate of the house of Jagdish Kaur had been damaged, demolished or dismantled by the mob is also not very significant fact going to the root of the issue. To my considered view, if Jagdish Kaur is present in her house where her husband and son have been assaulted by the mob there is no reason to not to believe witness Jagdish Kaur. There appears no reason at all as to why she would substitute the assailants and particularly where the assault was taken up by a mob and she identified accused Balwan Khokar besides some other culprits namely Dharamvir, Chand Sharabi,
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Maha Singh and Saroj Devi as part of that mob.

There appears no

reason at all to disbelieve the witness when those names as culprits did appear in her earlier affidavit Ex.PW1/A. Those names did appear in the reports Ex.PW4/A and B which had been given to the police on 12.11.1984. Witness Jagdish Kaur further states in her deposition that on 03.11.1984 she performed funeral of her husband and son by preparing a funeral pyre with the help of left out furniture and household articles available in her house. There appears no reason to not to believe that part of her testimony. Witness having performed last rites of her husband and son in her house would not depose any exaggeration or false facts and her testimony to my considered view is acceptable where she claims to be eyewitness of the incident of killings of her husband and son. This evidence proves that accused Balwan Khokar as a part of rioting mob had committed murder of Kehar Singh and Gurpreet Singh and prosecution charge for offences of rioting and murder committed in prosecution of common object of that unlawful assembly of rioters stands duly proved against accused Balwan Khokar. Jagdish Kaur witness then claims to be eyewitness of the incident of killing of her cousin Narender Pal. She deposes in her evidence that house of Rajni situated in front of house of this witness was banged throughout that night of 01.11.1984 by the mob as the mob had been asking about thekedars. Witness deposed that she had doubts if her brothers were hiding there. Her brothers were contractors working in MES
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but then Rajni kept on informing the mob that she was daughter of Khajan Singh of village Nasirpur and they should not challenge her but still mob did not desist. Witness further deposed that by around 6.30 in the morning atmosphere became a little normal. Somewhere in between 6.30 7.00 am witness saw Narender pal jumping into the street adjoining the house of this witness and soon her other two brother Raghuvinder Singh and Kuldeep Singh followed Narender Pal. Witness deposed that house of Girdhari was closeby and he came running armed with lathi, captain Bhagmal also came along with mob and Balidan Singh Subedar also arrived. Narender pal was caught and caused injuries by lathi blows and was then burnt nearby house of this witness. Witness then saw mob taking away her other two brothers Raghuvinder and Kuldeep by the mob after giving assault to them. This evidence that Narender Pal was assaulted by the mob and killed is supported by witness Ramavtar PW3. PW3 has deposed that he had an idea if thekedars were taking shelter in the house of Sh. Srivastav. On next day morning, at around 8.30 am, when this witness was about to leave his house for work witness noticed that one thekedar with another person jumped from the roof. Witness states that after about 30 to 40 minutes he came to know that both those persons were killed at Manglapuri chowk. Witness Jagsher PW6 on that incident of killing of his brother has deposed that he saw a Sikh wrapped in a woolen shawl running followed by mob. Mob caught that Sikh near the house of one Manjit Singh Kavi and caused him rod blow injuries and
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set him on fire. After the mob dispersed witness found that victim was his brother Narender Pal Singh. It has been rightly argued from prosecution side that had witness been motivated he would have named the assailants, part of that mob, who had assaulted and killed victim and witness later on identified victim as his brother Narender Pal Singh. Reference has been made to earlier reports Ex.PW4/A and B and then affidavit Ex.PW1/A sworn by Smt. Jagdish Kaur before Justice Ranganath Mishra Commission. It is specifically sworn by the witness in that affidavit that on 02.11.1984 at around 6.00 am her three brothers Narender Pal Singh, Raghuvinder Singh and Kuldeep Singh jumped from their hiding places in a hope that people of locality and some neighbourers would provide them some protection. It is stated in the affidavit that they had been hiding on the roof of their house situated in front of house of this witness. Mob had been in search of their house and had visited twice that house. As soon they jumped from the roof of their house they were attacked by the mob. Deponent then gives names of persons who were part of that mob and those names are Girdhari Lal, Dharamvir, Balidan Singh, Chand, Dinesh and Bhagmal. It has been argued and to my view rightly so that testimony of Jagdish Kaur to have witnessed assault on her cousin Narender Pal by mob where accused Girdhari and captain Bhagmal besides other culprits who are not before this court in this trial were part of that mob is acceptable and believable. It finds support from PW3 that victim did met with death in an assault as
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deposed by PW1 and PW6 also provides support to that version of PW1. Earliest reports Ex.PW4/A and B also provide support and corroboration to evidence of PW1. I do accept contention of the prosecution that there appears no reason at all why PW1 would name these accused persons as the perpetrators of this crime falsely. Criticism pointed out by defence in its arguments and contentions fails to pin point any strong reason to disbelieve or doubt the testimony of PW1 on that point. Evidence of PW1 is believable and acceptable that on 02.11.1984 accused Girdhari and Bhagmal were part of the rioting mob when the mob assaulted and killed Narender Pal Singh. Prosecution charge to that extent stands proved against accused Girdhari and Bhagmal. Charge of rioting when accused Balwan Khokar, Krishan Khokar, Mahender yadav and Captain Bhagmal had formed an unlawful assembly with an object of committing offences of rioting and damage to the properties when examined on the basis of testimony of PW7 and testimony of PW10 and PW12, to my considered view charge stands proved. PW7 has deposed that on 01.11.1984 at around 7.30 am he visited Gurudwara and when he along with his wife came out of Gurudwara he saw a huge mob coming from Mehrauli road side witness identified accused Balwan Khokar, Krishan Khokar, Mahender Yadav, Captain Bhagmal, Rajaram and Gulati as part of that mob and that mob was armed with weapons like lathis, rods etc. The mob comprised persons from nearby villages and colonies. About 20 to 25 Sikhs
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including this witness then took up their kirpans to save and protect Gurudwara from any attack. Witness then deposed that he saw mob had burned Gurudwara and looted the house of Jasbir Singh and also burned truck of Harbans Singh. Witness deposed that Mahender Yadav and Balwan Khokar were on scooter and other mobsters were on foot. He further deposed that Balwan Khokar and Mahender yadav caught Sardar Nirmal Singh and asked him that they wanted to talk to him and Sardar Nirmal Singh accompanied them. They took him away. There appears no reason to not to believe this witness to the extent that on 02.11.1984 witness saw a rioting mob where accused Balwan Khokar, Krishan Khokar, Mahender Yadav and Captain Bhagmal of the present case were part of that mob and mob was armed with lathis and iron rods. It is a matter of fact that Sardar Nirmal Singh taken away by accused persons from that place was later on found murdered but then that criminal offence of murder of Nirmal Singh stood tried separately as FIR 416/84 wherein present case witness PW10 Nirpreet Kaur daughter of Nirmal Singh and Smt. Sampuran Kaur wife of Nirmal Singh had been cited as eyewitness and that trial ended by an order of acquittal and admittedly Nirpreet Kaur and Sampuran Kaur had not been examined in that trial and that acquittal judgement had been passed in 1986 itself. Testimony of PW7 is acceptable to the extent and effect of the rioting mob appeared near Gurudwara on 02.11.1984 and accused of the present case namely Bhagmal, Balwan Khokar, Krishan Khokar and Mahender Yadav were
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part of that rioting mob and mob was armed with weapons, lathis and sarias. There is a reservation in accepting and believing further testimony of this witness that Gurudwara was burnt as no evidence is available as to what extent that burning damage to that Gurudwara had occurred. Similarly there is no further evidence if truck of Harbans Singh had been set on fire by the mob on that occasion. There is no evidence as to what was that vehicle truck bearing registration number or that vehicle did belong to Harbans Singh. Evidence of PW7 finds support from PW10 when witness PW10 Nirpreet Kaur states on oath that her house RZ/WZ-241, Rajnagar Palam Colony on that point of time was situated nearby Gurudwara and her family comprised her father Nirmal Singh, mother Sampuran Kaur and her two brothers Nirpal and Nirmolak Singh. Witness deposed that on 31.10.1984 on hearing assassination of Prime Minister Smt Indira Gandhi by her security guard she heard some stray incidents but then situation was normal. Her father used to run a taxi stand and on that day he reached home a bit early in evening by around 6.30 pm. Accused Balwan Khokar came to her house and requested her father to keep his brother Krishan Khokar as a driver and her father responded that he would see if possible in next 3-7 days. Nirmal Singh then asked Balwan Khokar as to why Sikhs were being attacked and Balwan Khokar promised Nirmal Singh that he would speak to Sajjan Kumar who was his maternal uncle and assured him on that point. She further deposed that on next day
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police was deployed to save Gurudwara and she visited Gurudwara at about 5.00/5.30 am. During prayer in Gurudwara witness found that police had disappeared and in the meanwhile witness heard slogans and it was around 7.30 or 8.00 am. Witness saw a mob coming which was led by Balwan Khokar, Mahender Yadav and a person owner of Mamta Bakery, mob was shouting slogans Indira Gandhi amar rahe, in sardaron ko maro, enhone hamari ma ko mara hai . Accused Mahender Yadav and Mamta Bakery owner, according to this witness, on seeing a 9 year old child Nirmolak in the company of this witness to have been pointed out by those accused saying ise maro ye saap ka bacha hai but then witness and Nirmolak managed to save themselves and mob then set a truck belonging to Harbans Singh on fire. This testimony of witness finds support from the fact that she was residing in a nearby house near Gurudwara and there appears no reason why the witness would depose falsely restricting her testimony that rioting mob were raising slogans. Witness has further deposed concerning her father Nirmal Singh taken away by accused persons on a pretext to take up a talk with him and then Nirmal Singh was killed but then that crime is already subject matter of trial of FIR 416/84 which has already ended in judgement of acquittal in 1986 itself. Testimony of the witness provides a support and corroboration to the evidence of PW7 that there was a rioting mob and it was armed with weapons like lathis and rods and they did indulge in violence. Accordingly I find these accused persons namely Balwan
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Khokar, Krishan Khokar, Mahender Yadav and Captain Bhagmal are liable to be convicted for offences of rioting and the unlawful assembly of those rioters armed with deadly weapons and this offence committed by accused on 01.11.1984 at around 7.30 pm near Gurudwara Rajnagar stands duly proved and these four accused persons are liable to be convicted u/S 147 and 148 IPC. Then comes the charge of criminal conspiracy and abetment of commission of these offences by accused Sajjan Kumar. The contention and arguments of ld. counsel for accused Sajjan Kumar is that his implication is on a false evidence when his name appeared for the first time in the affidavit Ex.PW1/B which was sworn by Jagdish Kaur before Justice Nanawati Commission. It has been a strong argument and contention of the prosecution that Smt. Jagdish Kaur had no motive or enmity to involve and implicate Sajjan Kumar unless she had perceived his role when he addressed the mob and instigated to eliminate Sikhs and their properties. Having appreciated both sides contentions as referred to in the arguments, to my considered view, accused Sajjan Kumar deserves to be given a benefit of doubt. It is a matter of fact that ever since incidents of this case occurred and ever since initially reports were submitted to the local police, in particular in the present case as Ex.PW4/A and B and otherwise in general as admitted by investigating officer PW15 and PW17 that all complaints concerning the incidents of 1st and 2nd November 1984 in area of Rajnagar, Palam Colony and which
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were being clubbed with FIR 416/84 none of the complaint mentioned name or presence of Sajjan Kumar in any context. I do agree with the contentions and arguments of ld. counsel Mr. Khan for accused Sajjan Kumar that even affidavit Ex.PW1/B sworn by Smt. Jagdish Kaur before Justice Nanawati Commission had evasively mentioned MP Sajjan Kumar at para 4 that MP Sajjan Kumar was leading the mob. It appears to be an argument not to be brushed aside easily that para 9 of this affidavit appearing on a separate page no.2 when described a role attributed to Sajjan Kumar as observed by witness Smt. Jagdish Kaur that on 02.11.1984 in the morning when she was approaching police station, on the way near Mandir Manglapuri she saw and found MP Sajjan Kumar organizing a meeting and giving an address Sardar saala koi nahi bachna chahiye and any Hindu if found giving shelter to them should also be burned when taken a scrutiny in context of the statement of Smt. Jagdish Kaur got recorded before Justice Nanawati Commission on 08.01.2002 whereas the sworn affidavit Ex.PW1/B had been submitted to the commission somewhere in 2000 then the contention that page 2 averment in the affidavit was a kind of manipulation is not to be brushed aside. Statement of Smt. Jagdish Kaur got recorded before Justice Nanawati Commission concerning Sajjan Kumar says that when the witness found her house burning and she was unable to enter inside her house, she had to go to the house of Sh. Omparkash who was working with her husband. He (Omparkash) was also reluctant to keep her in his
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house as in the meeting held earlier in the morning Sh. Sajjan Kumar had declared that whoever kept Sikh in his house his house will also be burnt. Ld. counsel rightly argued that this statement of Smt. Jagdish Kaur suggested as if information concerning Sajjan Kumar was hearsay based. It was impressed upon this court that had it been a fact situation that witness had found and observed Sajjan Kumar addressing a gathering and giving a provocative and instigating utterances then certainly the witness would have come out in this statement before Justice Nanawati Commission to elaborate. Defence counsel had further challenged the testimony of Jagdish Kaur on this point of witness having seen and observed Sajjan Kumar making an address to persons around him as the witness deposed that on 02.11.1984 at around 9.00 am she proceeded to police station Palam Colony in a hope to lodge a report but on the way at around 9.30 am she found Sajjan Kumar present in a police Jeep addressing the persons. PW3 Ramavtar in whose house witness had been in a shelter has specifically deposed that on 02.11.1984 when he was leaving his house for his place of work which was a canteen being run by his father at airport, though he had left Jagdish kaur and her children in the house and was going to sit in his car, on that moment a military vehicle arrived and he made Jagdish Kaur and her children sit in that vehicle and he then locked his house and left that place. It has been argued that if Jagdish Kaur with her children had been taken in a military vehicle at around 9.00
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am which was the usual time for PW3 to leave his house for his work place then it was not possible for Jagdish Kaur to have proceeded to the police station and observe Sajjan Kumar on the way addressing people. It has been argued that if such an important fact concerning Sajjan Kumar was seen and observed by the witness then it should have come on record in any form and proceedings taken up before various Inquiry Commissions as well Investigating Agencies. It has been argued that witness Jagsher was brought by the prosecution concerning Sajjan Kumar only to provide a support and corroboration to Jagdish Kaur. It was submitted and to my view rightly so that Jagsher was confronted with his previous 161 CrPC statement that he came out of the house of Ramavtar at around 10.00 pm on 01.11.1984 and then found and saw Sajjan Kumar near the house of one Mr. Soni addressing the mob by instigating using provocative utterances. In his earlier 161 CrPC statement, witness had not specifically stated that he came out of the house of Ramavtar and happened to see and hear Sajjan Kumar. It was also to my view argued convincingly that Jagsher being real brother of PW4 and when reports were submitted on 12.11.1984 by PW4 then had it been a fact that Sajjan Kumar was involved in the incidents of this case then his role ought to have been mentioned in the reports in whatsoever little text. Absence of name of Sajjan Kumar in any context and then witness Jagsher describing his role for the first time after 23 years when his 161 CrPC statement was recorded somewhere in 2007 is a serious doubt in the
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veracity of witness concerning accused Sajjan Kumar. Though presence of Jagsher on the scene of the crime, he being resident of that very area has been accepted when charge against other accused was being examined, the falsehood of that part of his testimony concerning accused Sajjan Kumar may not be ruled out. Similar is the testimony of witness Nirpreet Kaur who too named Sajjan Kumar for the first time after a very long period when her 161 CrPC statement in the present case was recorded somewhere in 2007. It is a fact that she was cited as an eyewitness in the case of murder of her father Nirmal Singh. This witness in that criminal case when her 161 CrPC statement had been recorded in 1985 had not named Sajjan Kumar with any role or act. It has been rightly argued by defence counsel that if there was any doubt regarding involvement of Sajjan Kumar in these riots then doubt may not assume a basis of proof in the absence of acceptable and believable evidence proving his specific role. It is a matter of fact that Smt. Jagdish Kaur when submitted her affidavit Ex.PW1/A before Justice Ranganath Commission that affidavit did not mention Sajjan Kumar in any manner though other accused persons had been named. In all these facts and circumstances, testimony of Smt. Jagdish Kaur that she heard and saw Sajjan Kumar addressing a gathering with provocative and instigating utterances is not acceptable and believable and to that extent witness is not believable. Except a role of conspiracy or abetting no other act or role has been attributed to Sajjan Kumar by the prosecution. Accordingly, accused
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Sajjan Kumar deserving to be a benefit of doubt is acquitted of the charge. Accordingly, accused Balwan Khokar, Girdhari and Bhagmal are convicted u/S 147, 148, 302 r/w 149 IPC. Accused Balwan Khokar, Girdhari, Bhagmal, Krishan Khokar and Mahender Yadav are also convicted u/S 147 and 148 IPC. Announced in the Open Court On this 30th day of April, 2013. (J.R. Aryan) District & Sessions Judge/North-East Distt. Karkardooma Courts, Delhi.

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