Delhi District Court
Cbi vs Sajjan Kumar on 20 September, 2023
IN THE COURT OF MS. GEETANJLI GOEL,
ADDITIONAL SESSIONS JUDGE /
SPECIAL JUDGE (PC ACT OF 2008) CBI-24,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
IN THE MATTER OF:
CNR No. DLCT11-000099-2021
S.C. No. 01/2021
CIS No. 15/2021
FIR No. RC: 7(S)/05/SCB-II/DLI
RC: 8(S)/05/SCB-II/DLI
RC: 25(S)/05/SCU-I/SCR-I/DLI
Police Station SCB-II/SCU-I/SCIII/CBI/ND
Under Sections 109 IPC r/w 147, 148, 149, 153-A,
302, 436, 295 and 201 IPC
Central Bureau of Investigation
Versus
1. Sajjan Kumar
S/o Shri Raghunath Singh
R/o A-713, Pocket-II, Janta Qtrs.
Paschimpuri New Delhi.
2. Ved Prakash Pial @ Vedu Pradhan
S/o Shri Mange Ram
R/o B-1/43-44, Sultanpuri
New Delhi-110086.
Present Address :
B-5, 132 Sector -3, Rohini
New Delhi.
3. Peeru @ Peeriya Sansi @ Peera Ram @ Peeriya Gujrati
(Proceedings abated on 17.07.2015).
CBI Vs. Sajjan Kumar & Ors. Page No. 1 of 545
4. Khushal Singh @ Munna
(Proceedings abated on 13.08.2013).
5. Brahmanand Gupta @ Gupta Telwala
S/o Shri Mool Chand
R/o A-4/236, Sultanpuri
New Delhi- 110086.
Present Address:
H. No.22, Friends Enclave
East Block, Kabadi Market
Sultanpuri Road
New Delhi- 110086.
.....Accused
Date of Institution 29.04.2020
Received by Transfer on 10.03.2021
Judgment reserved on 15.09.2023
Judgment Pronounced on 20.09.2023
JUDGMENT
BRIEF FACTS OF THE CASE
1. The present cases were registered on the allegations that in the wake of the assassination of Smt. Indira Gandhi, the then Prime Minister of India on 31.10.1984, on 1.11.1984 and thereafter, in and around the area of Sultanpuri, that is, Blocks A, B, C, E and F, the accused Sajjan Kumar (A1) abetted and instigated co-accused Ved Prakash Pial @ Veedu Pradhan, Peeru @ Periya Sansi @ Peera Ram @ Peeriya Gyjrati (since expired), Khushal Singh @ Munna (since expired) and Brahmanand Gupta @ Gupta Telwala along with other known and unknown persons, including police personnel to do or cause to be done illegal acts, CBI Vs. Sajjan Kumar & Ors. Page No. 2 of 545 to be the member of an unlawful assembly, armed with deadly weapons, that is guns, iron rods, dandas, swords, kerosene oil etc in prosecution of the common object of the members of such unlawful assembly to use force or violence, to loot, damage, burn the properties of Sikhs, to kill members of Sikh community residing in that area and led that unlawful assembly and instigated the mob by pointing out the houses of Sikhs for killing, looting, arson and killing members of the Sikh community and further delivered fiery/ provocative speeches that is 'Saare Sardaron ko maro, ye sardar ka ghar hai, inhe bhi maro, sardaron ne meri maa maar di hai, inko maar do, kaat do' to the mob and instigated and promoted violent enmity against Sikh community and disturbed harmony between the two religious groups/ communities in the locality and promoted feeling of enmity between the members of non-Sikh and Sikh community to create feelings of enmity, hatred, ill will between different groups and communities and led an unlawful assembly which killed Surjeet Singh, s/o Iqbal Singh, r/o B-2/309, Sultanpuri and several other persons.
2. FIR No.250/84 PS Sultanpuri was registered on 1.11.1984 against unknown persons on receipt of a telephonic message by an unknown person that following the assassination of Smt. Indira Gandhi, the then Prime Minister of India, a mob had set the Gurudwara of Budh Vihar on fire and was also looting and burning the houses of Sikh community; FIR No.347/91 PS Sultanpuri was registered on 13.12.1991 on the basis of affidavit filed by Joginder Singh (PW7) before the M.L. Jain and A.K. Banerjee Committee on 23.07.1987 wherein he alleged that on CBI Vs. Sajjan Kumar & Ors. Page No. 3 of 545 01.11.1984, accused Sajjan Kumar, MP of the area, brought a mob of ruffians armed with lathis, rods, kerosene oil, petrol etc. and called the members of mob and told them that they had 72 hours to kill Sikhs and no Sikh should escape and that his brother Surjeet Singh was dragged out and burnt alive; and FIR No.307/94 PS Sultanpuri was registered on 14.06.1994 on the basis of an affidavit filed before the Ranganath Misra Commission on 09.09.1995 by Smt. Anek Kaur, wherein she alleged that on 01.11.1984 at about 8.00 a.m. a mob led by one Ratan surrounded the houses of Sikh community and threatened to set them on fire; Sajjan Kumar, MP, and Shri Jai Kishan, Congress leader came to the locality in a jeep and threatened Sikhs to be killed. After investigation, Delhi Police filed closure report in FIR No.347/91 and FIR No.307/94 which was accepted by the Court while in respect of FIR No.250/84, Delhi Police filed four charge sheets and one supplementary charge sheet in the Court against 25 accused persons, covering the death of 60 persons and all the 25 accused persons were later on acquitted by the Trial Court/ Hon'ble High Court.
3. Thereafter the Government of India appointed the Nanavati Commission in May, 2000 for inquiring into the 1984 anti-Sikh riots incidents which submitted its report to the Government of India on 09.02.2005 which recommended to the Government to examine only those cases where the witnesses had accused Sajjan Kumar specifically and yet no charge sheets were filed against him and the cases were closed as untraced and the cases which still deserved to be re-examined were those including FIR No.250/84, FIR No.347/91 and FIR No.307/94 all CBI Vs. Sajjan Kumar & Ors. Page No. 4 of 545 of PS Sultanpuri. After considering the findings of Nanavati Commission, the Government of India, Ministry of Home Affairs vide order dated 24.10.2005 directed CBI to investigate/ re- investigate cases concerning involvement of accused Sajjan Kumar and others including FIR No.250/84, FIR No.347/91 and FIR No.307/94 all of PS Sultanpuri and the order of the Central Government was conveyed vide letter dated 24.10.2005 (EX.PW10/M) forwarded by Shri K.P. Singh, Spl. Secretary Home addressed to the then Director of CBI and based on the said letter, several cases were registered in CBI including RC- 7(S)/2005/CBI/SCBII, New Delhi on 17.11.2005 under the signature of Shri Akhileshwar Prasad the then SP, CBI SCB II, New Delhi which is Ex.PW10/A; second FIR bearing No.RC8 (S)/2005/CBI/SCBII, New Delhi, bearing the signatures of Shri S.J.M Gillani, the then SP, CBI SCB II which is Ex.PW10/B (D-
2) and the third FIR bearing No.RC 25(S)/2005/CBI/SCR-I, New Delhi, bearing the signatures of Shri Vineet Vinayak, the then SP, CBI SCR-I which is Ex.PW10/C (D-3). Investigation of the said cases was taken up.
CHARGE
4. After completion of investigation, charge sheet was filed on 13.01.2010 before the Ld. CMM, Delhi. After completion of proceedings under Section 207 Cr.P.C., the matter was committed to the Court of Sessions on 20.03.2010 and subsequently was received in this Court by transfer on 10.03.2021. Vide order dated 22.04.2010, application under Section 91 Cr.P.C. filed by the accused persons was dismissed. Charge was framed against CBI Vs. Sajjan Kumar & Ors. Page No. 5 of 545 the accused persons vide order dated 07.07.2010 of my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial. The accused Sajjan Kumar was charged for the offences under Section 109 IPC read with Sections 147, 148, 149, 153-A, 295, 302, 436 IPC and also for the offence under Section 153A IPC. The other accused persons were charged for the offences under Section 109 read with Sections 147, 148, 149, 153-A, 295, 302 and 436 IPC and also substantively for the offences under Sections 147, 148, 149 IPC and under Section 436 read with Section 149 IPC; Section 295 read with Section 149 IPC and Section 302 read with Section 149 IPC. Subsequently the accused Peeru @ Peeriya Sansi @ Peera Ram @ Peeriya Gujrati expired and the proceedings stood abated qua him vide order dated 17.07.2015 of my Ld. Predecessor. The accused Khushal Singh @ Munna also expired and the proceedings against him stood abated vide order dated 13.08.2013 of my Ld. Predecessor.
5. Certain objections were raised by the Ld. Defence Counsel as recorded during the examination-in-chief of PW6 on 16.11.2018 with respect to reference of affidavit of PW6 Smt. Cham Kaur dated 07.09.1985 filed before the Ranganath Misra Commission of Enquiry and the Ld. Defence Counsel had submitted that in terms of Section 6 of the Commission of Inquiry Act, the said statement/ affidavit of the witness before the Commission of Enquiry could not be used/ referred to by the Court to which the Ld. SPP for CBI had submitted that CBI was not placing reliance on the contents of the affidavit of Smt. Cham Kaur dated 07.09.1985 (D-8) and thereafter the said objection CBI Vs. Sajjan Kumar & Ors. Page No. 6 of 545 was not pressed. Vide order dated 24.01.2019 of my Ld. Predecessor, record in Session Case No.32/90 and Session Case No.04/93 in FIR No.252/84 PS Sultanpuri decided by Ld. ASJ vide order dated 31.5.1994 was allowed to be requisitioned. On 12.02.2019, the Ld. SPP for CBI had submitted that he had no objection to the defence counsel confronting the witness with the true typed copy of the statement of the witness Cham Kaur dated 24.07.1987 and 13.11.1991 filed by them in Crl. Revision Petition bearing No.438/2010 filed by the accused Sajjan Kumar before the Hon'ble High Court challenging the order on charge and once the same was traced/ certified copy obtained, same could be exhibited. By order dated 27.02.2019 of my Ld. Predecessor, the Director (Prosecution) was directed to produce the statements under Section 161 Cr.P.C. dated 14.11.1984 imputed to witness Smt. Cham Kaur, examination-in-chief of PW6 Cham Kaur recorded on 24.07.1987 and her cross- examination recorded on 13.11.1991 which would be available in the police file. On 08.03.2019, it was submitted by SHO PS Sultanpuri that only original FIR Book was available and the other record was not available.
6. An application was filed on behalf of the accused persons seeking compliance of the order dated 27.02.2019 of the Ld. Predecessor of this Court by which the Director of Prosecution was directed to produce the statement recorded under Section 161 Cr.P.C. dated 14.11.1984 imputed to the witness Smt. Cham Kaur (PW1) and her examination-in-chief recorded on 24.07.1987 and cross-examination recorded on 13.11.1991 in case titled as "State v. Uddal & Ors." (Session Case No.32/90 CBI Vs. Sajjan Kumar & Ors. Page No. 7 of 545 and 04/93) in case FIR No.252/84, PS Sultanpuri and the said application was disposed of vide order dated 22.09.2021. Another application was filed on behalf of the accused seeking directions to accept the documents i.e. previous statement dated 14.11.1984 recorded under Section 161 Cr.P.C., true typed copy of the statement of the examination-in-chief and cross-examination dated 24.07.1987 and 13.11.1991 respectively of Smt. Cham Kaur (PW6) filed by the accused as Annexure P17 (colly) in Criminal Revision Petition bearing No.438/2010 as primary evidence in the present case and to be exhibited accordingly or for reconstruction of the file. On 27.05.2022, it was held that since it was not disputed that the records in respect of the statements were not traceable, it would be a matter of arguments at the time of final arguments as to whether the said statements would be admissible in evidence and thereby considered at the stage of judgment. An application had been filed on behalf of the accused persons seeking directions for production of documents in respect of PW6 from the case diary which was disposed of vide order dated 18.07.2022 observing that the question of value to be attached to the statements remained open which shall be decided at the stage of judgment.
7. The prosecution in support of its case has examined 11 witnesses. PW1 Shri Vishwendra, Private Secretary to Hon'ble Lieutenant Governor proved the sanction order for prosecution of accused persons for the offence under Section 153A IPC which is Ex.PW1/A bearing his signatures. He stated that the said sanction for prosecution was granted by the Hon'ble LG in the criminal cases mentioned in the order itself. He was Deputy Secretary, CBI Vs. Sajjan Kumar & Ors. Page No. 8 of 545 Home NCT Delhi on the date when the said sanction order was issued. He stated that the entire material concerning the case had been placed before the Hon'ble LG for consideration of grant of sanction. The order of sanction is dated 01.01.2010.
8. PW2 Shri Sunil Mittal deposed that in the year 2009 he had been associated with Senior Architect Papiya Sarkar and he worked as an Assistant with Senior Architect Papiya Sarkar and was then posted in CPWD Nirman Bhawan, New Delhi. As an assistant to Papiya Sarkar his official duties were to take measurements of the spot and then to draw the plan of the spot. He was an Architect by qualification. He stated that they, with the help of Google site took the view of Sultanpuri, Delhi area to specify and demarcate the boundary and outlines of the affected place as per the present case incident. On that occasion in the year 2009 he along with Inspector R.K. Jha visited the Sultanpuri area. He then noted the dimensions in Sultanpuri area as per the advice and instructions of Inspector R.K. Jha on rough papers. On the basis of dimensions noted in Sultanpuri area by him, he prepared the site plan with the help of computer and computer printout of the site plan is Ex.PW2/A. He stated that he himself had fed the said material of the site plan in the computer on the basis of the afore-stated dimensions and he himself had taken out the printout and the computer system was in a perfect functioning order. He stated that the dimensions noted and then exhibited in the plan were the distances on the site and those distances were point X to X1 700 meters, X1 to X2 300 meters, X2 to X3 200 meters and X3 to X4 890 meters. The short distances were measured with the meter tape roll which was of 100 meters and CBI Vs. Sajjan Kumar & Ors. Page No. 9 of 545 long distances were taken with the help of vehicle car speedometer. He stated that the site plan Ex.PW2/A was given to the CBI through a covering letter dated 06.07.2009 and the said letter was signed by Ms. Papiya Sarkar and he proved the letter as Ex.PW2/B.
9. PW3 Shri I.B. Karan deposed that on 08.11.2005 he was holding the post of Director (Delhi) Ministry of Home Affairs, Government of India, New Delhi. He had seen the letter dated 08.11.2005 which was drafted on his dictation and bearing his signatures which is Mark X. He stated that as per the said document, certain documents were sent to Shri U.S. Misra, Director CBI, as per the list of documents enclosed with the letter Mark X. He had seen the list, photocopy of which was annexed with the letter Mark X but since the list did not bear his signatures, he was not sure if the documents mentioned in the list were those documents which were sent to the Director, CBI, may be those were the documents sent to the CBI. The list annexed with his letter Mark X is Mark X1.
10. PW4 Smt. Prem Kaur, PW5 Smt. Sheela Kaur, PW6 Smt. Cham Kaur and PW7 Shri Joginder Singh are material witnesses and their testimony would be discussed later. PW8 Shri Raj Kumar Tripathi deposed that on 29.09.2008 he was posted as Metropolitan Magistrate, Karkardooma Court and an application for recording the statement of Smt. Sheela Kaur under Section 164 Cr.P.C. was moved by the IO Insp. R.K. Jha before the Court of Ld. ACMM, KKD Court Shri Sanjeev Jain which was marked to him for recording the statement. A copy of the statement was CBI Vs. Sajjan Kumar & Ors. Page No. 10 of 545 initially marked on 10.09.2015 and thereafter during the cross- examination of PW5, the same was exhibited as Ex.PW5/D3. The applications for recording of statements of Smt. Sheela Kaur and Smt. Jatni Kaur are Ex.PW8/A and Ex.PW8/B and the order of the Ld. ACMM-1 marking the application to him is at point A. The statement of Smt. Sheela Kaur is Ex.PW8/C. He stated that the IO had identified the witness. He had also given the certificate of correctness of the statement and thereafter he had given directions for the proceedings to be sent to the Court concerned. On the application Ex.PW8/D of the IO for supply of copy of the statement, he had passed the orders. The original statement of Smt. Jatni Kaur is Ex.PW8/E. He stated that the IO had identified the witness. He had also given certificate of correctness of the statement and thereafter he had given directions for the proceedings to be sent to the Court concerned. On the application Ex.PW8/F of the IO for supply of copy of the statement, he had passed the orders.
11. PW9 Shri Satish Kumar Arora deposed that on 11.11.2008 he was posted as MM Karkardooma Court. An application had been marked to him by the then Ld. ACMM-I Shri Rakesh Pandit for recording the statements of witnesses Shri Joginder Singh and Smt. Gopi Kaur which were put up before him. The application for recording the statement of Smt. Gopi Kaur is Ex.PW9/A on which the order of the Ld. ACMM-1 marking the application to him is at point A. The statement is Ex.PW9/B. He stated that the IO had identified the witness. He had also given certificate of correctness of the statement and thereafter he had given directions for the proceedings to be sent to the Court concerned CBI Vs. Sajjan Kumar & Ors. Page No. 11 of 545 vide his order. On the application ExPW9/C of the IO for supply of copy of the statement, he had passed the orders. The application for recording of statement of Shri Joginder Singh is Ex.PW9/D on which the order of the Ld. ACMM-1 marking the application to him is at point A. The copy of the statement is Ex.PW7/B and original statement is Ex.PW9/E. He stated that the IO had identified the witness. He had also given certificate of correctness of the statement and thereafter he had given directions for the proceedings to be sent to the Court concerned. On the application Ex.PW9/F of the IO for supply of copy of the statement, he had passed the orders.
12. PW10 Shri Rajan Kumar Jha deposed that on 14.08.2008 he was posted as Inspector at CBI, Spl. Crime Branch, New Delhi. The investigation of the present case was marked to him by the Superintendent of Police, CBI, Special Crime Branch. He stated that the present case was registered by CBI, pursuant to the order of the Central Government which was conveyed vide letter dated 24.10.2005 forwarded by Shri K.P. Singh, Spl. Secretary Home addressed to the then Director of CBI. The copy of the said letter is Mark PW10/1. He stated that based on the said letter, several cases were registered in CBI including the present case i.e. RC-7(S)/2005/CBI/SCBII, New Delhi on 17.11.2005, RC8(S)/2005/CBI/SCBII, New Delhi, RC 25(S)/2005/CBI/SCR- I, New Delhi. He stated that after registration of RC-7, it was entrusted to Shri Richhpal Singh, the then Inspector, CBI, SCB- II, New Delhi on 17.11.2005. He continued with the investigation till 14.08.2008 and then the case was transferred to him. PW10 stated that he went through the case file containing the CBI Vs. Sajjan Kumar & Ors. Page No. 12 of 545 investigation carried out by his predecessor. He also went through the investigation carried out earlier by the Delhi Police. He also went through the report of the Nanavati Commission as well as the letter dated 24.10.2005 issued by Shri K.P. Singh. He found that there were witnesses namely Bhagwani Bai, Thakri Kaur, Jatni Kaur etc. in the CBI file who were naming Sajjan Kumar for provoking the mob in Sultanpuri area. However, he found no statement making such allegations against Sajjan Kumar in the Delhi Police file. He also found various affidavits filed by the witnesses/ victims before different commissions/ committees constituted after 1984 riots who were also alleging Sajjan Kumar for making provocative speeches to instigate mobs to commit various crimes of arson, looting, killing etc. After analyzing all such evidence on record, he with the help of his predecessor IO prepared the list of remaining witnesses to be traced and examined.
13. PW10 further deposed that after taking over the investigation he camped for several days in Tilak Vihar, Sultanpuri and adjoining areas and contacted various victims, witnesses and developed sources to identify such witnesses. He also sent notices to them through speed post but most of them were returned unserved due to lapse of more than 20 years of the incident and the witnesses had since then shifted from their old addresses. However, he was able to examine Smt. Cham Kaur, Gopi Kaur, Prem Kaur, Popari Devi, Sheela Kaur, Jatni Kaur and many others. Some of them had specifically named Sajjan Kumar who made provocative speeches in different blocks of Sultanpuri including Blocks A, B, C, E and F. Investigation further disclosed CBI Vs. Sajjan Kumar & Ors. Page No. 13 of 545 that pursuant to the said provocative speeches, mobs headed by Sajjan Kumar committed various crimes including killing, arson, looting and damaging the properties and religious places of Sikh Community in Sultanpuri area. In pursuance of the statements of witnesses specifically mentioning the name of Sajjan Kumar, the matter was discussed with senior officers and law officers of CBI and it was decided that the statements of all such witnesses should be recorded before the Ld. MM under Section 164 Cr.P.C. Pursuant to the approval, he contacted the witnesses and sought their consent for recording their statements before the Ld. MM. They were explained about the importance of recording such statement. Most of them agreed and gave their consent, however, witnesses namely Thakri Kaur and Kamla Kaur expressed their fear from Sajjan Kumar in giving their statement before the Ld. MM. They were however consistent in their statement under Section 161 Cr.P.C.
14. PW10 stated that witnesses Bhagwani Bai, Popari Kaur, Cham Kaur, Jatni Kaur, Sheela Kaur, Joginder Singh and Gopi Kaur were got examined under Section 164 Cr.P.C. The applications for recording statements of Smt. Sheela Kaur and Smt. Jatni Kaur are Ex.PW8/A and Ex.PW8/B. He had identified the witnesses. He had also moved applications Ex.PW8/D and Ex.PW8/F for supply of copy of the statements. Copies of the statements of the witnesses recorded under Section 164 Cr.P.C. were supplied to him. The application for recording statement of Smt. Gopi Kaur is Ex.PW9/A. He had identified the witness and had also moved application Ex.PW9/C for supply of copy of the statement. Copy of the statement of the witnesses recorded under CBI Vs. Sajjan Kumar & Ors. Page No. 14 of 545 Section 164 Cr.P.C. was supplied to him. The application for recording statement of Shri Joginder Singh is Ex.PW9/D. He had identified the witness and had also moved application Ex.PW9/F for supply of copy of the statement. Copies of the statements of witnesses recorded under Section 164 Cr.P.C. were supplied to him.
15. PW10 stated that Shri Devender Kumar, the then Ld. MM had recorded the statement of Smt. Bhagwani Bai who had expired during the pendency of the trial and as such could not be examined. Application for recording the statement of Smt. Bhagwani Bai is Ex.PW10/D. The said application was marked to Shri A.S. Aggarwal, the then Ld. MM but as he was on leave it was put up before Shri Devender Kumar, Ld. MM vide the order of the Ld. ACMM. He had identified the witness and had moved an application for supply of copy of the statement recorded under Section 164 Cr.P.C. which is Ex.PW10/E. Copy of the statement was supplied to him and the statement is Mark PW10/2. He further stated that the statement of Smt. Cham Kaur was also got recorded. The application for recording the statement is Ex.PW10/F which was marked to Shri A.S. Aggarwal, the then Ld. MM (he had since expired) vide order of the Ld. ACMM. He had also identified the witness and had moved an application for supply of copy of the statement recorded under Section 164 Cr.P.C. Ex.PW10/G. Copy of the statement was supplied to him and the statement is Ex.PW6/B. The statement of Smt. Popari Kaur was also got recorded under Section 164 Cr.P.C., copy of which was supplied to him and the statement is Mark PW10/3 (D-20).
CBI Vs. Sajjan Kumar & Ors. Page No. 15 of 54516. PW10 deposed that after recording the statements of witnesses under Section 161 Cr.P.C. and under Section 164 Cr.P.C., the witnesses were again taken to Sultanpuri area where their family members were killed. After identification of the said spots, a request was made to CPWD for assisting CBI in making a detailed site plan. Accordingly, sketch plan including the location of Sultanpuri area were prepared by Mr. Mittal, draftsman on the instruction of Papiya Sarkar, Sr. Architect. The sketch plan is Ex.PW2/A which was received by CBI vide letter dated 06.07.2009 Ex.PW2/B. They had also provided a detailed Google map covering the said blocks of Sultanpuri area which is Ex.PW2/DA. He had also collected site plan prepared by Delhi Police which is Mark PW10/4. He stated that vide letter addressed to Mr. G. Upadhyay, SP, CBI, which was marked to him, the jurisdictional map of PS Sultanpuri and Mangolpuri as submitted before the Nanavati Commission was received and the same are Ex.PW10/H (colly) (D-17). PW10 stated that he also collected the GD Part A and Part B. The daily diary register of PS Sultanpuri for the period 19.10.1984 to 10.11.1984 (D-27) and 23.10.1984 to 10.12.1984 (D-26) are Ex.PW10/I and Ex.PW10/J. DD No.11 A regarding receipt of the information from some unknown person at PS Sultanpuri intimating about destruction/burning of Gurudwara was received by him from Delhi Police. Copy of the DD is Mark PW10/5 (D-28). He stated that based on DD No.11/A dated 01.11.1984, FIR No.250/84 dated 01.11.1984 was registered at PS Sultanpuri and marked to Sukhbir Singh. The same FIR was later re-registered in CBI as RC-7. He also collected ex-gratia compensation CBI Vs. Sajjan Kumar & Ors. Page No. 16 of 545 records from Shri M.K. Dwivedi, SDM Hqs/SV addressed to SP CBI regarding death of various people during 1984 riots and the letter is Ex.PW10/K and the record is Mark PW10/6 (colly) (D-
16). He stated that as per the mandate of Nanavati Commission report for investigating cases where witnesses had named Sajjan Kumar, the extracts of the relevant portions were forwarded to CBI vide letter dated 24.10.2005. The extracts of the relevant portion of Nanavati Commission report are Mark PW10/7 (colly) (D-15/3 and 4), later exhibited as Ex.PW10/L (colly).
17. PW10 deposed that after completion of investigation of the present case as well as other two cases which were investigated by two other different IOs, a consolidated proposal was forwarded to the Chief Secretary Govt. of NCT for granting sanction under Section 196 Cr.P.C. for launching prosecution for the offence under Section 153 A IPC against Sajjan Kumar and four other accused persons. The said proposal contained entire relevant statements and documents for analysis by the competent authority. He along with other officers of CBI were also called for discussion before the competent authority. After convincing with the oral and documentary evidence submitted by CBI, the competent authority was pleased to grant sanction against five accused persons vide order dated 01.01.2010 Ex.PW1/A (D-31). He stated that on receipt of the sanction for prosecution, it was found that all the incidents of arson, killing, destruction of properties, looting etc., were committed in continuity and had occurred on the same date i.e. 01.11.1984 in the same area of Sultanpuri. Blocks A, B, C, E and F were contiguous areas and due to proximity of time and place, accused persons A1 to A5 CBI Vs. Sajjan Kumar & Ors. Page No. 17 of 545 committed all the said offences which formed part of the same transaction hence, as per legal advice, a consolidated charge sheet was filed in all the three cases on 13.01.2010.
18. PW10 stated that he had also investigated the role of Delhi Police in the present case. In this regard, investigation disclosed that the true statements of several witnesses/victims were not recorded by the investigating officers of Delhi Police/ Spl. Investigation Team/ Riots Cell. When witnesses were shown the previous statements recorded by Delhi Police, they had categorically stated that the contents of the statements were partially correct. They had also stated that they named Sajjan Kumar before Delhi Police but since the said contents were not available in their statements hence, they realized that the statement recorded by Delhi Police was not their true version. Further, investigation also disclosed that despite evidence of hundreds of killings in Sultanpuri area, they did not find any postmortem report on record. The investigation also disclosed that dead bodies were brought in the hospital in trucks by the police but when it was inquired as to what was the identification of the police officers who had brought the said dead bodies, they without disclosing their identity took away the dead bodies and the trace and trail of the said dead bodies was unknown to the investigating agencies including CBI. They had specifically investigated the role of Shri Hari Ram Bhati who was the then SHO, PS Sultanpuri, as the reference of this officer had come from the statement of witnesses as well as from the Nanavati Commission report. However, they could not proceed to take any action against him as he had expired during investigation. He CBI Vs. Sajjan Kumar & Ors. Page No. 18 of 545 identified the accused Sajjan Kumar (present through VC) and the identity of the other two accused persons was not disputed.
19. PW11 Shri S.S. Kishore deposed that the investigation of the present case was entrusted to him on 06.03.2009. At that time, he was DSP, Special Crime-1, New Delhi. He was asked to examine the witness Joginder Singh. He examined him and recorded his statement under Section 161 Cr.P.C. which is Ex.PW7/DC. After that it was decided to have a consolidated investigation report in respect of RC-7(S)2005, RC-8(S)2005 and RC-25(S)2005. Thereafter the record of RC-25(S)2005 was handed over to Shri R.K. Jha for filing the charge sheet who later on filed the charge sheet. He stated that the other two cases were not investigated by him. He stated that CBI had been given the mandate to investigate the said cases by the Justice Nanavati Commission vide letter dated 24.10.2005 which is Ex.PW10/M. Prosecution evidence was closed vide statement of Ld. SPP for CBI dated 25.03.2022.
20. Statement of the accused persons was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence existing on record including the exhibited documents were put to the accused persons which they denied and stated that they had been falsely implicated in the present case. The accused Sajjan Kumar (A1) stated that it was a matter of record that Nanavati Commission was appointed in May, 2000 for inquiring into the 1984 anti-Sikh riots but stated that there was no closure in respect of FIR No.250/84 PS Sultanpuri and after a full trial all the accused persons had been acquitted in the said case. So the CBI Vs. Sajjan Kumar & Ors. Page No. 19 of 545 present case could not have continued against him as he was not named in the said FIR nor it was covered by the recommendations of the Nanavati Commission. There was no basis for registration of RC-7 as a full trial had already taken place. There was no basis for re-registration of FIR No.250/84 PS Sultanpuri as RC-7 against him as it was never sent for closure nor he was named at any stage of investigation or trial. He stated that the site plan was not believable nor it was presented with the charge sheet. He admitted that being an MP, he used to go to Sultanpuri area often for doing the work of the people and a lot of people used to gather but he did not identify all of them and he did not know Smt. Sheela Kaur. He denied what was stated by PW5 that she had been making complaints to different authorities but she was not heard and no case was registered and he stated that the case was registered as FIR No.250/84, PS Sultanpuri which was duly investigated and tried and all the accused persons were acquitted by the Court. Smt. Sheela Kaur had appeared in the Court and given her testimony as a prosecution witness but she had not named him at any point of time. He did not remember the names of family members of Sheela Kaur but even they had appeared as witnesses in the said matter but they did not name him at any point of time. He also stated that the CBI itself had not relied on the affidavit dated 07.09.1985 of PW6 which is Ex.PW6/A (colly). He stated that he was an MP of the area and used to do the work which came to him but he did not recognize Cham Kaur.
21. A1 further stated that the affidavit Ex.PW7/A (D-11) was produced in the Court twice and was denied and disowned by CBI Vs. Sajjan Kumar & Ors. Page No. 20 of 545 Joginder Singh and he stated that PW7 had signed the affidavit in order to get compensation but the contents of the affidavit were not correct and he did not name anyone therein. He stated that the husband of Bhagwani Bai Shri Seva Singh, Thakri Kaur and Jatni Kaur were all examined before the Court pertaining to the present case in FIR No.250/84, PS Sultanpuri but they had not named him at any stage. He stated that Smt. Cham Kaur, Gopi Kaur, Prem Kaur, Popri Devi, Sheela Kaur, Jatni Kaur and others had been examined as witnesses in the Court but none of them had named him at any stage. He stated that the legal process was used to target him and the statements of Thakri Kaur and Kamla Kaur were taken though they had not named him at any point earlier. Popri Kaur was not produced as a witness in the present case and was dropped by the prosecution. He stated that no person had given any statement against him before the Nanavati Commission. He stated that PW11 was supposed to investigate the entire case along with the previous record. He had investigated the matter but did not find any witness against him so he had cited Joginder Singh again as a witness with fresh allegations to target him. He stated that the witnesses had been tutored to give a false statement against him.
22. A1 further stated that no witness had given any statement against him during investigation or trial of the case earlier. Joginder Singh had given his statement earlier under Section 164 Cr.P.C. and he had denied his affidavit during the said statement and he had not stated about his involvement in any manner. After his statement and the statement of the wife of the deceased Smt. Rajwant Kaur, the Court had closed the case. The statement of CBI Vs. Sajjan Kumar & Ors. Page No. 21 of 545 Smt. Rajwant Kaur was recorded before the Ld. Magistrate and she had not taken his name in the said statement or before the CBI and she had stated that her husband had been killed at a Railway Phatak but she could not say who had killed him. Thereafter, the Ld. Magistrate had closed the case and even CBI had not cited her as a witness as Smt. Rajwant Kaur had not taken his name. Joginder had admitted in his statement that earlier also he had given a statement before CBI and had not taken the name of anyone but the CBI had concealed the said statement of Joginder Singh and in order to bind Joginder Singh had got his statement recorded under Section 164 Cr.P.C. before the Ld. Magistrate because Joginder Singh was changing his statement again and again and had not taken his name. In order to falsely implicate him, the statement of Joginder Singh was got recorded under Section 164 Cr.P.C. before the Ld. Magistrate. He stated that PW10, Shri R.K. Jha had admitted during his testimony that he had moved an application for getting the statement of Joginder Singh recorded under Section 164 Cr.P.C. in which it was recorded that CBI had earlier also got the statement of Joginder Singh recorded under Section 161 Cr.P.C. The statement under Section 161 Cr.P.C. had not been produced by CBI before the Court and had been deliberately withheld as it did not name him at all.
23. A1 further stated that when he was granted bail by the Hon'ble High Court, he had produced the statements of all twelve witnesses including Joginder Singh and when he had filed a revision before the Hon'ble High Court, he had filed the said statements. Initially the CBI had cited the twelve witnesses but CBI Vs. Sajjan Kumar & Ors. Page No. 22 of 545 when they produced the statements before the Hon'ble High Court in bail and revision, being record of the case, the CBI dropped nine witnesses as they had not named him anywhere. CBI had always tried to hide the record of the statements of witnesses from him. The statement of Cham Kaur had been hidden by CBI and had not been produced in the Court despite directions of the Court. He stated that he had produced whatever record was available with him in respect of three witnesses during the trial of the case though the record of statement of Cham Kaur was not traceable. He stated that RC-7 was registered as FIR No.250/84, PS Sultanpuri and the said case could not proceed against him as per the recommendations of the Nanavati Commission as there was a full-fledged trial of FIR No.250/84 and it was not sent for a closure report and no witness had taken his name in the said case. In the said case, there was trial in respect of killing of 60 persons and statements of their family members and relatives were recorded in the Court but no one had taken his name during the trial.
24. A1 stated that when FIR No.250/84 was being tried in the Court of Ld. ASJ, Ms. Manju Goel, at that time RC-1 was registered against him in 1990 which was also tried in the same Court and the decision in both the cases was announced on 23.12.2002 in which all the accused persons were acquitted. It was evident that if any person had taken his name in FIR No.250/84, the case would have proceeded against him at that time. The Ld. Judge had recorded in the judgment Ex.PW10/D- 13 (colly) that he was not a member of the unlawful assembly. In the Court of the Ld. ASJ, the complainants and the witnesses CBI Vs. Sajjan Kumar & Ors. Page No. 23 of 545 were appearing along with their counsels and had duly seen him and if he was in any way involved in the present case, they would have pointed out the same to the Court. The decision of the Court that he was not in the area nor a part of the unlawful assembly was in respect of FIR No.250/84 as well. In RC-7/FIR No.250/84, CBI could not find any witness against him so to target him, the witnesses who had already given their statements in FIR No.250/84 were again made witnesses in the present charge sheet with fresh allegations but only three of the said witnesses were produced before the Court. In RC-8 also, CBI neither found any witness against him nor produced any witness in respect of the alleged incident before the Court. He stated that the present case had been lodged to target him and to falsely implicate him and to ruin his political career at the behest of his political rivals who had colluded with CBI in lodging the present case. He stated that he wanted to lead evidence in defence.
25. A2 Ved Prakash Pial @ Veedu Pradhan stated that the site plan was not believable and was not presented with the charge sheet. He stated that the CBI itself had not relied on the affidavit dated 07.09.1985 of PW6 which is Ex.PW6/A (colly). He stated that the affidavit Ex.PW7/A (D-11) was produced in the Court twice and was denied and disowned by Joginder Singh and he stated that he had signed the affidavit in order to get compensation but the contents of the affidavit were not correct and he did not name anyone therein and the names contained in the affidavit were incorrect. He stated that the statements of Thakri Kaur and Kamla Kaur were taken though they had not named him at any point earlier. Popri Kaur was not produced as a CBI Vs. Sajjan Kumar & Ors. Page No. 24 of 545 witness in the present case and was dropped by the prosecution. He stated that no person had given any statement against him before the Nanavati Commission. He stated that PW11 was supposed to investigate the entire case along with the previous record. He had investigated the matter but did not find any witness against him so he had cited Joginder Singh again as a witness with fresh allegations to target him. He stated that the witnesses had been tutored to give a false statement and he had been falsely implicated in the present matter. He stated that he wanted to lead evidence in defence.
26. A5 Brahmanand Gupta @ Gupta Telwala stated that he had faced trial in FIR No.250/84 and was acquitted after a full- fledged trial so there could be no retrial against him in RC-7. He stated that Smt. Sheela Kaur had been examined as a witness in the said case and had not named him. He stated that FIR No.252/84 PS Sultanpuri was tried against him wherein Cham Kaur was examined as PW1 and she never named him and he was acquitted in the said case by Shri S.S. Bal, the then Ld. ASJ. He stated that the husband of Bhagwani Bai Shri Seva Singh, Thakri Kaur and Jatni Kaur were all examined before the Court pertaining to the present case in FIR No.250/84, PS Sultanpuri but they had not named him at any stage. He stated that Smt. Cham Kaur, Gopi Kaur, Prem Kaur, Popari Devi, Sheela Kaur, Jatni Kaur and others had been examined as witnesses in the Court but none of them had named him at any stage. Popri Devi, Gopi Kaur and Kamla were examined in respect of killing of their relatives before the Court but they did not name him. He further stated to the same effect as A2. He stated that he wanted CBI Vs. Sajjan Kumar & Ors. Page No. 25 of 545 to lead evidence in defence.
27. The accused persons examined two witnesses in defence. An application was moved on behalf of the accused persons for examining Shri Brahmanand Gupta, who is an accused in the present case under Section 315 Cr.P.C. as a defence witness which was allowed vide order dated 04.07.2022. DW1 Brahmanand Gupta admitted that he was an accused in 'State v. Udadl & Ors.' FIR No.252/84 PS Sultanpuri. He was acquitted in the said case. He admitted that Cham Kaur was examined as a witness in the said matter. He had obtained the statement of Cham Kaur which is Mark PW6/DB from the Court. He had also obtained Mark PW6/DA and Mark PW6/DC from the Court. He stated that Shri O.P. Soni was his counsel in the said matter who had since expired. He had moved a rejoinder dated 22.11.2021 to the application before the Court for compliance of the order of the Court dated 27.02.2019 and along with the rejoinder, he had placed on record the copy of the complete file of the statements recorded before the Court of the witnesses in FIR No.252/84, PS Sultanpuri. The same are Mark DW1/1 (colly).
28. DW2 Shri Mam Chand deposed that he retired as Inspector on 31.05.2004. He remained posted in the Anti-Riot Cell from September 1990 to 1996. He was connected with the investigation of FIR No.347/91 PS Sultanpuri and volunteered the initial investigation was conducted by Insp. Ram Kishan. A sealed envelop was opened and file of case FIR No.347/91 was taken out and shown to the witness. He stated that the untraced challan in the said FIR was filed by the then ACP Rajiv Ranjan CBI Vs. Sajjan Kumar & Ors. Page No. 26 of 545 on 08.02.1994 and he identified the signatures of ACP Rajiv Ranjan on the same. The untraced report is Ex.DW2/A. He identified the signatures of Insp. Ram Kishan on the rukka which is Ex.DW2/B and also on the statement of Smt. Rajwant Kaur, wife of Late Shri Surjeet Singh. The statement of Smt. Rajwant Kaur is Mark DW2/1. He stated that he had read the statement of Smt. Rajwant Kaur before presenting the challan. She had stated in her statement that her husband had not been killed at the residence or in the Gali but somewhere near the Railway Phatak and she had not named any accused person. He had partly investigated the said matter. He had prepared the site plan at the pointing out of Inderjit, son of Joginder and recorded the statement of Inderjit. The statement of Inderjit is Mark DW2/2. Inderjit had not stated anything about the present case except that Surjeet Singh had expired near the Railway Phatak. The site plan is Ex.PW7/DA. He admitted that in the site plan he had not shown the spot of death of the deceased as the deceased had not expired at his residence or in the Gali. Thereafter, the investigation was handed over to ACP Rajiv Ranjan by the orders of senior officers.
29. DW2 was shown the statement of Joginder Singh, son of Shri Rood Singh which is Ex.PW7/DD and he stated that as far as he remembered, Joginder Singh had not supported the case though he was the complainant of the said case. He did not remember what he had stated and volunteered the same was there in his statement. The name of wife of Joginder Singh was Satwant Kaur. Again said, after seeing the document that it was Malkiyat Kaur. The statement of Malkiyat Kaur was recorded by CBI Vs. Sajjan Kumar & Ors. Page No. 27 of 545 ACP Rajiv Ranjan and the same is Mark A. He stated that Malkiyat Kaur had also not supported the case and stated that the deceased had expired near the Phatak. The Index had been prepared by him and the same is Ex.DW2/C. The application for recording the statement of Joginder Singh under Section 164 Cr.P.C. was in his handwriting but it was signed by ACP Rajiv Ranjan and he had dictated the same to him. The application is Ex.DW2/D. He stated that the statement of Joginder Singh was got recorded under Section 164 Cr.P.C. as there was contradiction between the contents of his affidavit and statement recorded under Section 161 Cr.P.C., after obtaining legal opinion. The ACP had directed him to get the statement of Joginder Singh recorded before the Ld. Magistrate and he had produced Joginder Singh before the Ld. Magistrate. His statement was recorded under Section 164 Cr.P.C. which is Ex.PW7/DF. He had also obtained a copy of the said statement from Court. He did not know if the statement of Rajwant Kaur was also got recorded under Section 164 Cr.P.C. When the untraced report was filed, notice of the same was given to Joginder Singh which is Ex.PW7/DG. The said notice was signed by him and was in his handwriting. DW2 admitted that the investigation regarding the death of Surjeet Singh was also carried out in FIR No.268/84 PS Sultanpuri which is Ex.PW7/DB. None of the witnesses had stated about the role of Sajjan Kumar or any other rioters and had not given any clue about any rioter so the closure report was filed in FIR No.347/91. Defence evidence was closed vide order dated 25.08.2022.
CBI Vs. Sajjan Kumar & Ors. Page No. 28 of 545ARGUMENTS
30. I have heard Shri D.P. Singh and Ms. Tarannum Cheema, Ld. SPPs for CBI along with Shri Manu Misra, Ms. Shreya Dutt, Ms. Arunima Nair and Shri Akash Singh, Ld. Counsels for CBI, Shri H.S. Phoolka, Ld. Sr. Advocate, Shri Maninder Singh, Ld. Sr. Advocate, Shri Gurbaksh Singh, Shri Harpreet Singh Hora, Shri Mandeep Singh, Ms. Kamna Vohra, Ms. Shilpa Dewan, Shri Avtar Singh, Shri Prabhjyot Singh, Shri Daleep Singh, Ld. Counsels for the complainant/ victim and Shri Anil Kumar Sharma along with Shri S.A. Hashmi, Shri C.M. Sangwan, Shri Anuj Sharma and Shri Apoorav Kumar Sharma, Ld. Counsels for the accused persons and perused the record. Written submissions were filed on behalf of CBI and the complainant/ victim and written submissions and additional written submissions were filed on behalf of the accused persons which I have perused.
ARGUMENTS ON BEHALF OF CBI
31. The Ld. SPP for CBI had argued that the incident in the present case related to the period from 31.10.1984 till 03.11.1984 i.e. 4 days after the killing of Smt. Indira Gandhi by Sikh bodyguards. What happened thereafter were riots/ genocide of Sikhs and about 3000 people died in Delhi. Very few FIRs were registered and there were no postmortem reports, no bodies were given last rites by the families. There was no police help and no intervention by any wing of the administration. A few FIRs that were filed were on the pretext of farce investigation and equally farcical prosecution leading to acquittals but in a rare case of East Delhi, there was conviction. Not satisfied with the situation and CBI Vs. Sajjan Kumar & Ors. Page No. 29 of 545 as there was uproar of civil society, a Commission was appointed in the name of Ranganath Misra Commission in 1985. In all 10 Commissions and Committees were formed over the next 15 years culminating in Nanavati Commission which gave an exhaustive report in 2005. Amongst the various recommendations made by the Nanavati Commission, one was that CBI be handed over investigation of those cases which were untraced or where closure reports were filed. Reference was made to D-15 Ex.PW10/M which was a letter written by Shri K.P. Singh, Ministry of Home Affairs to Shri U.S. Misra, Director of CBI and that there was a specific recommendation in the same relating to the accused Sajjan Kumar. The Mangolpuri cases were not registered by CBI initially. The Delhi Cantt case had resulted in acquittal which reached the Hon'ble High Court and thereafter the accused had been convicted and he was serving life sentence along with other accused persons.
32. The Ld. SPP further submitted that in the present case charge sheet was filed by CBI in 2010 against five persons. Hari Ram Bhati SHO had died during the proceedings so his role could not be brought to trial. Two accused persons died during the trial and the present matter was against three accused persons. On 07.07.2010 charge was framed against the accused persons for various sections. It was submitted that the cases of the present nature had to be read in a different context and could not be treated like ordinary murder cases as such incidents did not occur every now and then and arose out of peculiar situations and had to be dealt with as such. It was submitted that we are in the 76th year of independence and had started the freedom with riots CBI Vs. Sajjan Kumar & Ors. Page No. 30 of 545 in 1947 which saw unprecedented killings. Exactly 37 years hence, the Sikhs in Delhi and other parts of India faced a genocide like situation and after another 37 years the matter was being heard as to whether the Sikhs were entitled to justice or they should continue to suffer. In 1984, the then Prime Minister was killed and from the world over leaders were pouring in and at that time Delhi was burning. There were three days of unabated killing of persons belonging to one community. Their establishments were burnt, their religious places were burnt without any preventive action or arrests and army being pressed into service and it was only on the third day that the establishment woke-up as the time given for the riots was complete. Then some sanity started prevailing. Army was called in and police swung into action. Some incidents continued till 5 th November but thereafter the said incidents stopped.
33. It was submitted that there were DD reports but none mentioned about the riots or the killing of Sikhs, looting, burning and a few FIRs without naming anyone were registered. Same were vague and on procured facts or on wrong facts. In the said scenario, as there was uproar from the civil society, Commissions were formed to give some semblance of sanity. The terms and conditions of the Ranganath Commission were how to prevent such like incidents and not to take action. Large scale affidavits were taken in hotchpotch manner by students, volunteers and used as part of the Commission's records. The uproar continued and led to formation of more committees and commissions with the Jain Banerjee Committee being set up in 1987. Many of the Sikhs who did not have a say before the Justice Ranganath Misra CBI Vs. Sajjan Kumar & Ors. Page No. 31 of 545 Commission got a say before the said Committee. Joginder Singh who was the star witness of the present case gave an affidavit before the said Committee. It was pointed out that even the Ranganath Commission had suggested that there should be more Committees going into the role of police and what had happened. There was a lot of pressure and some people refused to sign on the dotted line and opted out of the Committees but the Committees continued.
34. The Ld. SPP argued that the cases had peculiar similarities in that only Sikh establishments and commercial places and males were targets. Though it was a huge unruly crowd but not even a single Hindu establishment or house was touched which showed the precise conspiracy which was not possible unless the administration was with the rioters and the politicians were carrying a list of the electorate which helped to identify and target. Many persons even young or old were burnt alive. Pictures of Sikhs being garlanded with burning tyres were still around and there was no one to take their bodies which were collected and dumped without any last rite being performed or there being a post-mortem report. The volunteers gave last rites to bodies in groups or heaps. It was submitted that there were two decisions on record in which investigation was done which shocked the conscience of the Court and of the civil world. There had been other incidents of rioting lately but the cases of 1984 showed how investigation and prosecution should not happen when the country itself was based on the premise of so many deaths of 1947. There had been thousands of riots in the country such as in Bengal, Bihar, UP and Delhi had seen three such riots CBI Vs. Sajjan Kumar & Ors. Page No. 32 of 545 and 2 were big enough to shock everyone. As such, it became important to look at the riots in a different perspective and if that was not done and one insisted on the same principles as for murder cases, the riots would not stop happening nor the perpetrators would be punished. It was submitted that it was for the Courts how they wanted to innovate and deal with such cases. Reference was made to the judgments on what the duty of the Court should be in extraordinary circumstances, namely Zahira Habibulla Sheikh v. State of Gujarat (2004) 4 SCC 158, Harendra Sarkar v. State of Assam (2008) 9 SCC 204, NHRC v. State of Gujarat (2009) 6 SCC 767, Prithpal Singh v. State of Punjab (2012) 1 SCC 10, Bablu Kumar v. State of Bihar (2015) 8 SCC 787, Krishna Mochi v. State of Bihar (2002) 6 SCC 81, Duli Chand v. State 1997 (43) DRJ (DB) of the Hon'ble High Court of Delhi and State v. Manohar Lal 1998 SCC OnLine Del 778 and it was argued that the defence of earlier judgments and earlier testimonies should not be allowed and they should be ignored. It was submitted that the present case related to crime against the community and humanity and was not against a person in particular.
35. The Ld. SPP for CBI had further referred to the judgment of the Hon'ble High Court of Delhi in State through CBI v. Sajjan Kumar and others 2018 SCC Online Delhi 12930 which it was submitted was in the context of the riots of 1984 and it made reference to the letter by which the matters were referred to CBI and the said judgment referred to how CBI had got the records. The charge sheet in the CBI case mentioned about the role of officials of Delhi Police and that these were crimes CBI Vs. Sajjan Kumar & Ors. Page No. 33 of 545 against humanity. It was submitted that extraordinary interpretations were necessary to balance the system in extraordinary situations and the Court has to "avoid the pebbles and let us concentrate on the boulders" especially while dealing with contradictions which were natural and were bound to occur over a period of time. It was for the Court to see if it found them to be pebbles or boulders.
36. The Ld. SPP had submitted that there were three cases, that is FIR No.250/84, 347/91 and 307/94 which were put together and a common charge sheet was filed. The common charge sheet had two challenges- there were cases which were not tried or those in which A1 had not been named. Four trials in respect of the riots that took place in Sultanpuri were conducted in respect of FIR No.250/84 re-registered as RC-7 which pertained to 49 murders, 126 deaths were part of FIR No.252/84 which was also a part of the record (and had been relied upon by the Ld. Counsel for the accused persons though it was not a part of the charge sheet). FIR No.307/94 was not tried and was re-registered as RC- 8 and in that case, earlier a closure report had been filed and FIR No.347/91 pertained to the killing of Surjeet Singh in respect of which RC-25 was registered. Reliance was placed on the judgment of the Hon'ble High Court of Delhi in Sajjan Kumar v. CBI 2012 SCC Online Delhi 4027. It was submitted that in FIR No.250/84 the role of A1 was of an abettor and conspirator and he was not tried in that case and as such his role had to be seen. In all there were 491 deaths in Sultanpuri area which was a contiguous area and there were no trials in respect of all the deaths. As such, the mob would not be different. In one case CBI Vs. Sajjan Kumar & Ors. Page No. 34 of 545 there was conviction of two persons relating to Sultanpuri. A number of deaths had been bundled into one case. The reason for filing a consolidated charge sheet was mentioned on page 14 of the charge sheet and it was submitted that the mention of the FIRs in question was made in the Nanavati Commission Report. Reference was also made to the judgment of the Hon'ble High Court of Delhi in Sajjan Kumar v. CBI Criminal Revision Petition No.438/2010 decided on 16.07.2013 and it was submitted that the said judgment had been affirmed by the Hon'ble Supreme Court.
37. It was submitted that in the present case there were witnesses of four different kinds i.e. those with regard to the records, namely PW1 who proved the sanction, PW2 who proved the site plan and PW3 who brought on record the letter by which the matters were handed over to CBI by the Ministry of Home Affairs. The second set of witnesses was of those who were witnesses to burning, looting of Sikh properties and rioting in general and highlighted abetment, conspiracy and instigation. They were witnesses to the speech made in the area on 01.11.1984. Some of them had been examined in FIR No.250/84 or 252/84 but they were relevant for all the cases. The third witness was a solitary witness to the murder of Surjeet Singh and the accompanying mayhem that happened i.e. PW7 Joginder Singh. He was a mona, that is a cut Sikh so he was not identified as a Sikh and not killed. The persons were identified as they were found in the house as in the crowd, it could not be said to which caste, clan, religion they belonged merely on the basis of their clothes. The fourth set of witnesses was of witnesses of CBI who CBI Vs. Sajjan Kumar & Ors. Page No. 35 of 545 narrated about the investigation and the challenges they faced. It was submitted that PW1 had stuck to his ground that the entire material was before the Hon'ble LG and he had taken a view after having gone through the record or discussing the same and the accused could not make a dent on the testimony of the said witness. PW2 was an Architect and reference was made to Ex.PW2/A which is the site plan and it was submitted that it was an important document and it showed that A, B and C blocks were contiguous. The spot where the speech was made was shown and how the crowd marched killing hundreds of people and burning their houses. PW3 had exhibited the letter Ex.PW3/DA.
38. It was submitted that some of the witnesses had died during trial including Bhagwani Bai. Four witnesses were not examined i.e. Mishri Kaur, Thakri Kaur, Gopi Kaur and Popri Kaur as they had already been examined in FIR No.252/84 to avoid repetition and also to bring the trial to a conclusion which had started in 2010. It was submitted that PW4 Prem Kaur was examined in 2015, PW5 between September 2015 and 07.08.2018 and PW6 from 16.11.2018 till 2019 so the witnesses had been comprehensively examined. PW7 was now no more and was in ailing health when he was examined so in order to avoid repetition and so that the trial saw an end, some of the witnesses were not examined. It was submitted that most of the witnesses were more than 70 years of age and some around 80 years and were not in a position to depose. Priority was PW7 who was in ailing health when he gave his testimony in Court and then he passed away. Reference was made to the testimony CBI Vs. Sajjan Kumar & Ors. Page No. 36 of 545 of PW4 and it was submitted that none of her statements were confronted to her and in those circumstances the value of the testimony had to be seen and whether it was hearsay or covered in exception to hearsay. She had clearly stated that only Sikhs were being targeted and about burning, looting of their houses which was crystal clear. Moreover, she did not say that she had seen the actual incident and maintained her case that she was hiding with her children so she could not recognize the people who had burnt her house. She could not say if her husband was a casualty in the incident but disclosed the misery which would come in exception to hearsay. Her cross-examination was only by way of suggestions which as per the settled law meant nothing.
39. PW5 Sheela Kaur had deposed about Balbir Singh, Basant and Balihar in respect of whose death trial had taken place in FIR No.250/84 "State v. Suresh Chand". It was submitted that the cross was mainly revolving around showing what she did not know. Second set of cross-examination was about the earlier statements and it had come out that 49 people were killed who were all males. The entire cross-examination amounted to badgering the witness and dealt with situations like where she went, which lady accompanied her, who met her. The cross continued for three years. Reference was made to the testimony of PW6 and the objection taken to her affidavit under Section 6 of the Commissions of Enquiry Act and it was submitted that it was dealt in State through CBI v. Sajjan Kumar and others (supra) and also in Sajjan Kumar v. CBI (supra, 2012) about the admissibility of the document and it was said that the said CBI Vs. Sajjan Kumar & Ors. Page No. 37 of 545 document must be read. It was submitted that the exhibition of the document could not be faulted though the contents may not be gone into and that the contents in view of Section 6 of the Act could not be used against the accused is what was the import of Section 6 of the Act. It showed that even in 1985 the witness had named Sajjan Kumar and it was not the first time in 2018 that PW6 had taken the name of Sajjan Kumar or before the CBI and as such his involvement had been pointed out even earlier. The cross-examination of the said witness was mainly on how many people she knew and how many people were killed and on the previous statements and to show that she was under influence and changing her stand from the earlier testimonies. Reference was then made to the testimony of PW7 Joginder Singh and it was submitted that he was the solitary eyewitness of the case. Reference was made to the affidavit D-11 (of 1987) Ex.PW7/A which was prepared by a set of volunteers and the statement of Joginder Singh recorded under Section 164 Cr.P.C. It was submitted that PW8 and PW9 were the then Ld. MMs, who had recorded the statements of witnesses and Gopi Kaur was not a witness in the present case so the statement under Section 164 Cr.P.C. was not relevant. PW10 was the DSP, CBI and PW11 had recorded the statement of Joginder Singh. It was submitted that the Court must ignore technicalities and there was no material difference between what the witness PW7 had said before and during the course of trial.
40. It was contended that when the investigation was taken up by Delhi Police, that was the only time when the witnesses had not named A1 and everything else was the same. The Delhi CBI Vs. Sajjan Kumar & Ors. Page No. 38 of 545 Police had put nameless and faceless persons from the crowd and there was change of place, date and time which was the modus operandi adopted by the Delhi Police. Before registration of FIRs, the persons were named, after Delhi Police investigation persons were named, but only during the investigation by the Delhi Police, the accused persons were not named and the defence was trying to take benefit of contradictions which were not even pebbles. The kind of horror that had taken place was for everyone to see and fear was writ large. The witnesses had seen fear from close quarters and had been hiding and had seen death in front of their eyes. When the police had changed the narrative, it was not feasible to name the police as the investigating agency. Every Committee and Commission which had been set up had held that the establishment and Delhi Police were complicit at the time and to expect the same people who were complicit to investigate was asking for too much and in those circumstances, if there were different versions, the Court would have to view the culpability of the accused persons in that light. The Court had also to see how CBI after 20 years could investigate more than what was investigated by the Delhi Police when the material was available. The closure for the victims could not go beyond the family members and there was undue and stark effort by the police to close the cases in a very casual manner and with lots of malafide. A child who was a minor was tried to be made a major witness. The wife who was hiding and had not seen anything was referred to as the person who was there and her statement did not merit to be seen and besides contradictions with the earlier statements, the defence had nothing.
CBI Vs. Sajjan Kumar & Ors. Page No. 39 of 54541. Reference was made to the cross-examination of PW7 and it was submitted that certain statements were put to him which were not exhibited and only questions were put and there was no confrontation. Section 302 IPC was not even a Section which was put in FIR No.268/84. Though death was being investigated and it was stated that the death of Surjeet Singh was being investigated but the case was with regard to everything but death. It was submitted that it was impossible in those days that someone could be identified and he could have escaped being killed. In the present case there was a definite stand of the witness which was completely contrary to the case set up at that time and which was in line with the case now set up. Even at present there were many victims who had not come forward and in State through CBI v. Sajjan Kumar and others (supra), the witnesses had talked about killing of family members for the first time in the Court. It was stated that Mam Chand who was a defence witness in the present case had stated about contacting the witness on phone but in 1992 it could not have been possible. The son Inderjit was 11 years old at the time of the incident and 19 years old in 1992 and efforts were made to put words into his mouth. The whole gali was wiped out whereas the suggestion put to PW7 was that no riot had taken place. Statement to Inspector Ram Kishan was marked and not exhibited. Rajwant Kaur was not produced as a defence witness and was not a witness in the present case. Witness was confronted with third party statements recorded by Delhi Police, which should be ignored as Delhi Police itself was an accused in the present case. There were more than 400 deaths in the area but the suggestion CBI Vs. Sajjan Kumar & Ors. Page No. 40 of 545 that was put was that there was no death in the said gali.
42. It was submitted that ACP Rajiv Ranjan had written the closure report and Mam Chand had acted under his dictation. The officers were meeting the witnesses again and again, yet there was only one statement and efforts were going on to shield someone which was clear from the application made by Mam Chand on the instructions of Rajiv Ranjan for recording of statement of witnesses under Section 164 Cr.P.C. CBI had reached the conclusion that the investigation by Delhi Police had been a farce. It was submitted that the ambit of the mandate of CBI was restricted. It was also submitted that no recommendation was made by CBI against Delhi Police as it was not the usual practice to make a recommendation against another agency and even otherwise CBI was not relying on the investigation done by Delhi Police so no recommendation was made. No recommendation was made in any case till now as it was not the mandate given by the Home Ministry and the mandate was only to examine the FIRs and the role of the police was looked into by other Committees and action had been taken against some officers also. Two Committees had looked into the role of police. The Nanavati Commission had dealt with the aspect that the Delhi Police was complicit and CBI was not going by their investigation and it was not within its purview to take action so it did not recommend any action and it was within the purview of the earlier Committees and it was not stated in the charge sheet anywhere that the Delhi Police was negligent or it did not do its job.
CBI Vs. Sajjan Kumar & Ors. Page No. 41 of 54543. It was submitted that the Delhi Police had filed an untraced report in FIR No.347/91 which was specifically with regard to the killing of Surjeet Singh and it needed to be seen as to what kind of evidence was sought to be collected and closure was filed and whether effort was made to shield someone. Reference was made to the affidavit of PW7 and statement under Section 164 Cr.P.C. and that one signature was in English which he denied and one was in Hindi which he admitted subsequently. The application for recording statement under Section 164 Cr.P.C. Ex.DW2/D showed that efforts were made to shield someone and in the statement under Section 161 Cr.P.C., there was no mention of any politician and SHO so there was no reason why the same was mentioned in Ex.DW2/D, which application was written by Mam Chand and signed by ACP Rajiv Ranjan and they admitted that the politician referred to was Sajjan Kumar and SHO was Hari Ram Bhati. The Ld. SPP had pointed out that the table showing the statements of the witnesses had also been submitted. It was submitted that Cham Kaur was only confronted with the marked documents and not with exhibited documents. The witnesses were people belonging to low strata with low IQ and were illiterate and it was submitted that the Courts had dealt with such witnesses and reference was made to various judgments. It was also submitted that repetitive witnesses had not been examined in the present case and no suggestion was put to the witnesses that they had any motive to falsely implicate the accused persons. Moreover, in the present case the evidence was recorded after nearly 35 years of the alleged incident. Reference was made to the testimony of PW10 Rajan Kumar Jha, who had CBI Vs. Sajjan Kumar & Ors. Page No. 42 of 545 stated that there was no postmortem report on record and as regards the dead bodies, the prosecution wanted to bring the evidence of the police officer but as there was no objection by the accused persons so the DD entry was exhibited as Ex.PW10/N (D-28/1) and it was the DD dated 01.11.1984 of PS Sultanpuri. In fact the first FIR was registered on the basis of the said DD.
44. Reference was made to the cross-examination of PW11 and it was submitted that no statement of 25.01.1985 was there. It was submitted that whatever was there in the closure report was put to PW11 and he stated that he did not remember as he was there for a very short time and the same was also clear from the first page of his deposition that he had been given investigation just before the challan was filed. In the cross- examination of DW2 Mam Chand, it had come that there were 468 deaths in Sultanpuri. Moreover, the age of Inderjit was 19 years in 1992 so he would be around 11 years old in 1984. Reference was made to the untraced report Ex.DW2/A and that there were six statements under Section 161 Cr.P.C., case was registered on 13.12.1991, statement of Rajwant W/o Surjeet Singh (deceased) was recorded on 08.01.1992 and after one month, the file reached Mam Chand, who recorded the statement of Inderjit. ACP Rajiv Ranjan had only investigated Joginder Singh and Malkiyat Kaur and two Ld. MMs were witnesses and other than that, there was no investigation and the untraced report was filed on 08.02.1994 when lastly something was done on 25.09.1992, nothing was done in 1993 and then the untraced report was filed in 1994, which showed the kind of investigation that was done. The investigation was done only for 9 months and CBI Vs. Sajjan Kumar & Ors. Page No. 43 of 545 there was nothing to show why the application for recording statement under Section 164 Cr.P.C. required the mentioning of the politician or the SHO.
45. The Ld. SPP for CBI had further submitted that there had been no decision on Section 153A IPC till now and the death of Surjeet Singh had not been dealt with in any of the matters. It was argued that in some matters the proceedings were going on till date and investigation was going on and in some cases investigation was yet to start. In State through CBI v. Sajjan Kumar and others (supra), the Hon'ble High Court had rejected the contention of A1 regarding the case not being covered by the recommendations of Nanavati Commission and even the admissibility of the statements was adverted to. It was submitted that A1 himself had gone to the Hon'ble High Court but his challenge did not succeed. From the said judgment it was clear that modus operandi of the accused was to change the narrative and in the present case, it was tried to be shown that somebody had said that death had taken place at Railway Phatak and that the witness had not seen anybody. First recorded statement was only in respect of loss which is Ex.PW7/DB and not of death and then it was stated that the witness had travelled to Kolkata and the son of the witness was contacted and the entire effort was not to find the truth. In the local enquiries no name had come out and people from the same area who were not the victims would have stated about the incident whether there was mayhem in 1984 or peace and even the generic details were not collected such as about the houses which were burnt or not burnt and even in that respect the statements were not recorded.
CBI Vs. Sajjan Kumar & Ors. Page No. 44 of 545The people may not have named anyone or A1 but a general statement could have been there and they could have stated about seeing the crowds being led by someone. It was submitted that if the statements recorded by Delhi Police were removed, then the statements were consistent. PW4 had maintained that she was a witness and was in hiding and her statement had to be taken at face value for what she had stated and she had not tried to add anything. PW7 had died after his evidence was recorded. After 35 years he had deposed in Court, it had to be considered that he had faced tragedy of different proportions and was not getting justice and was living in fear. There were so many people who were victims and different people were involved. The test to be adopted was whether PW7 was consistent and in the present case PW7 had remained consistent and the Court should take his statement to be as sacrosanct as it should be.
46. In the written arguments that were filed on behalf of CBI, it was submitted that it was an extraordinary situation when 37 years post-independence, the 1984 riots shocked the conscience of the country. After almost the same time coincidentally, this Court was hearing the arguments of one solitary death pertaining to one locality of Delhi, so as to finally bring the matter to its logical conclusion. It was submitted that the riots were an aftermath of the assassination of Smt. Indira Gandhi, former Prime Minister, on 31.10.1984 by her Sikh bodyguards. While the actual figures are horrendous and much more to say the least, the official figures accepted by the Committees and the Hon'ble High Court of Delhi were that 2733 Sikhs died in the riots between 01.11.1984 to 04.11.1984. Much had been said about the CBI Vs. Sajjan Kumar & Ors. Page No. 45 of 545 mass killings of Sikhs, none so ably as the prologue given in State v. Sajjan Kumar and Others (supra). The Hon'ble High Court of Delhi, in the very same judgment, found that these are crimes against humanity and called for a different approach to be adopted in these horrific crimes. While dealing with the issue, the Hon'ble Delhi High Court found parallels for crimes against humanity in Bangladesh and the United Kingdom. It was submitted that while the case concerned the killing of one Surjeet Singh and various other offences including rioting in Sultanpuri, Delhi, the overall extraordinary circumstances needed to be understood for a just and fair adjudication of the case and it had to be understood that the 1984 riots are extraordinary cases requiring extraordinary remedies and in such unusual fact situations, it is the duty of the courts to innovate the law and pass unconventional orders. The situation becomes unique in riot cases since even when the riots are controlled, several forces attempt to interfere with the registration and investigation of crimes. Local bigwigs and police both play a role in such obstruction of justice and cases of communal riots cannot and must not be dealt with the same brush as a case of murder. The Court, in such cases, must strive to search for the truth to protect the innocent and punish the guilty and should not get too technical in its approach and trial in such cases cannot be left at the hands of the parties and it is the duty of the Courts to maintain public confidence in the due administration of justice.
47. It was submitted that it was only the findings of the Nanavati Commission in 2005 that led to certain cases being transferred to CBI, including the present case. A brief time-line CBI Vs. Sajjan Kumar & Ors. Page No. 46 of 545 was referred to. It was submitted that the CBI was directed to investigate the case in 2005, when 21 years had already passed. The contemporaneous records and witnesses were either scattered or unavailable, posing a herculean task for CBI. The fear psychosis in the victims was overcome by CBI by instilling a sense of confidence in the witnesses, majority being rustic and uneducated. The CBI filed the charge sheet on 13.01.2010 and since the mode and manner of the commission of the offences was the same, with the incidents occurring in continuity, and with proximity of time and place, the CBI chose to file a consolidated charge sheet. It was the untrustworthiness of the previous investigation which had in fact necessitated the CBI investigation in the first case. After a perusal of the records of the previous investigations and during the examination of the witnesses by CBI, it emerged that something was amiss in the previous investigation. The consistent stand of the witnesses and the material on record showed that the investigation undertaken by Delhi Police was partisan and was done with the sole objective to shield the mighty culprits. Accordingly, the CBI conducted the investigation without placing reliance on the earlier investigation which was tainted as pointed out by the witnesses. It was asservated that ultimately it was the discretion of the prosecution to determine the records which it proposed to rely upon, in terms of the mandate of Section 173 Cr.P.C. and the reliance on the earlier investigation and prosecution would be against the very mandate and spirit with which the investigation was handed over to CBI by the Government of India, pursuant to the recommendations of the Nanavati Commission.
CBI Vs. Sajjan Kumar & Ors. Page No. 47 of 54548. It was further submitted that the Delhi Police was also complicit and it had come in the evidence of DW2 that there were more than 500 deaths in Sultanpuri and only 4 FIRs were registered to investigate all the cases of deaths and looting in the area. It was put forth that the Delhi Police investigation and prosecutions were sham, where either the victims were threatened to shield the accused, or victims were too scared to come forward, or were simply and conveniently left out of the investigation. In similar mock trials, the Hon'ble High Court of Delhi had issued show cause notice to the parties as to why there should not be a fresh investigation or trial in Criminal Revision Petition Nos. 245-249 of 2017. It was submitted that the SHO of the area Hari Ram Bhati was also being investigated but due to his death no further action could be taken. The Delhi Police did not do any satisfactory investigation and political interference in police functioning was a reality and the same was well documented in the various Commissions and Committees formed in the aftermath of the riots. It was submitted that Sajjan Kumar was not tried in any case except RC-1(S)/90-SIV-2/SIC/1-B and what happened in the case also showed the clout of Sajjan Kumar which made the criminal justice system succumb to his illegal tactics. It was further submitted that such was his fear that despite being named for the murder of Surjeet Singh, DW2 Mam Chand, Inspector, Riot Cell in his cross-examination admitted that "...no officer from riot cell had called Sajjan Kumar for investigation in the present case.." Despite the horrors the witnesses faced, the failure of the criminal justice system, their social and economic hardships and the passage of time, what was CBI Vs. Sajjan Kumar & Ors. Page No. 48 of 545 unambiguous was the prime role of Sajjan Kumar and the targeting of Sikhs and except when the Delhi Police or the Riot Cell dealt with the case, the witnesses stated the names of the accused. They were courageous enough to come forward and name the culprits before the Commissions and also during the CBI investigation. In effect, any or all prosecutions conducted earlier were nothing less than sham trials and PW10 R.K. Jha had been categorical in proving the same.
49. It was submitted that while the Nanavati Commission gave directions to investigate all three FIRs, during the framing of charge and its subsequent challenge, the CBI restricted the charge as under:
i. Trial of the accused for the murder of Surjeet Singh arising out of FIR No.347/1991, PS Sultanpuri, in which only an untraced report was filed and there was no trial.
ii. Trial of the accused for burning, looting, arson, damaging of Gurudwara in FIR No.307/1994 of PS Sultanpuri, in which only an untraced report was filed and there was no trial.
iii. In FIR No.250/1984 of PS Sultanpuri, accused Sajjan Kumar was not tried and hence there arose no bar to proceed against the said accused.
It was submitted that the offences which are being tried are distinct and separate than any or all previous prosecutions and any attempt to create a bogey of double jeopardy ought to be rejected.
50. It was submitted that the Riot Cell took up the investigation of murder of Surjeet Singh in 1991 and the case stood closed in 1994. Despite Sajjan Kumar being named CBI Vs. Sajjan Kumar & Ors. Page No. 49 of 545 immediately after the riots, he was never tried by the Delhi Police. The timeline of investigation by Delhi Police was referred to highlight the facade of investigation that was attempted to be created and that an untraced report was filed with absolutely no investigation as was evident from the index. DW2 who was the Inspector of the Riot Cell admitted to never calling Sajjan Kumar for even questioning and claimed ignorance of all the Commissions/ Committees which looked into the matter. It was submitted that he was a partisan witness, showing complicity of Delhi Police in the case, in as much as he offered money to PW7 to not narrate the true sequence of events. The CBI investigation commenced in 2005, 21 years after the riots. The witnesses had lost all faith and after more than two decades of injustice were scared to utter a word. Many of the witnesses availed witness protection, in fear of their well-being. The CBI could not even cite or examine all the witnesses in the case as they had either died or refused to testify out of fear; or due to the passage of time, certain witnesses were not in a capacity to depose; or the ground realities had changed, where even successfully tracing out the witnesses was an arduous task. The CBI could thus cite and examine only certain witnesses. It was submitted that the testimony of a sole witness was enough to secure conviction and non-examination of a repetitive witness did not lead to any adverse inference against the prosecution. It was ultimately the prosecutor who had the discretion to call witnesses to prove his case, and all such requirements had been duly met in the present case. Reliance was also placed on several judgments in this regard.
CBI Vs. Sajjan Kumar & Ors. Page No. 50 of 54551. It was further submitted that when the witnesses came in the case, they were examined for over 4 years (PW5), so much so that the Court had to ask the defense to not put repetitive questions. On the contrary, the previous sham trials, now being cited, showed cross-examinations being wrapped up in half a page which showed the context and circumstances in which the trials were conducted. It was submitted that it was necessary to understand the categories of witnesses to the crime and one set of witnesses i.e. PW4 to 6 focused on burning, looting of Sikh properties and rioting in general, highlighting the abetment to crime through conspiracy and instigation. Their testimony was generic showing the modus operandi that was adopted, which showed that Sikh males were killed, their properties were burnt and there was presence of kerosene and white powder. It was not by chance that in that area the accused Sajjan Kumar was present and similar modus operandi was being adopted in all areas. They were witnesses to the instigation and speech by Sajjan Kumar and such other offences, except the murder of Surjeet Singh. The other was PW7, who was the witness to the murder of Surjeet Singh and being a mona, he was a natural witness to the crime when all other family members i.e. women and children were hiding inside the house and not in a position to attest to the killings outside. In the present case there was one direct eyewitness which was rare and he had to be given sanctity and reference was made to the judgment in State v. Manohar Lal (supra) and it was submitted that the circumstances were similar in the present case. Ex.PW7/DB was a cryptic statement of 4 lines and was covered by the said judgment. Even during cross-
CBI Vs. Sajjan Kumar & Ors. Page No. 51 of 545examination, the defence had not disputed that he was a mona or that Surjeet Singh was killed. PW7 was a star witness of the prosecution with respect to the murder of Surjeet Singh, while also seeing Sajjan Kumar provoke and instigate the crowd. He had been clear and consistent on the murder of Surjeet Singh and on the role of Sajjan Kumar in addressing the mob. His statements were consistent across forums, except the period when the Delhi Police was dealing with the case. He also named other accused persons and explained their role, for which no effective cross-examination had been conducted. For the Delhi Police investigation, he demolished the entire case being set up by the defence when he highlighted the money being offered to him to not name Sajjan Kumar. He had withstood lengthy cross- examination and was a reliable witness and his evidence was of sterling quality.
52. It was contended that PW4 had given crucial details about the nature of the crime i.e. Sikhs being killed, white powder being thrown from which smoke would emanate, Sikh houses being burnt and looted, all of which went unrebutted. She was a truthful and consistent witness in as much as because she was in hiding, she categorically stated that she did not see who burnt her house. She described being taken to the camp; where children and others said Sajjan Kumar, Jai Kishan, Ratan, and Gupta Telwala were in the mob. PW5 and PW6 were witnesses to establish the nature of incidents in the area in that period and the aftermath and both the witnesses confirmed seeing Sajjan Kumar addressing and instigating the mob. Apart from contradiction on whether they named the accused, they were consistent about the CBI Vs. Sajjan Kumar & Ors. Page No. 52 of 545 nature of the incident and had been subjected to lengthy cross- examination and intentionally confused despite being rustic and illiterate witnesses, so much so that the Court had to ask the defence to not be repetitive. While appreciating their evidence, it was submitted that the Court must not lose sight of the political pressures and extraordinary situations. Even post the CBI taking over the investigation, witnesses in the case had to be provided protection. PW10 as the investigating officer had found in the records that though the witnesses were naming Sajjan Kumar for provoking the mob in Sultanpuri, no statement to this effect was on the Delhi Police file and he also found various affidavits filed by witnesses/ victims before different Commissions/ Committees alleging that Sajjan Kumar made provocative speeches. To uphold the sanctity of his investigation and to ascertain the truth, he got examined the witnesses specifically mentioning Sajjan Kumar under Section 164 Cr.P.C. and also confirmed the clout of Sajjan Kumar with Thakri Kaur and Kamla Kaur expressing their fear from Sajjan Kumar. He also confronted Sheela Kaur, Jatni Kaur, Cham Kaur with their previous statements where Sajjan Kumar's name was not recorded and they all stated that their past statements were partly correct and partly wrong and that they had taken Sajjan Kumar's name. His investigation demolished the bogey of previous prosecutions and a summary of such sham prosecutions, attempted to be relied upon by the accused, had already been filed before the Court.
53. PW11 had recorded the statement of PW7 and confirmed that Joginder was scared and had to be comforted. He further confirmed to the three FIRs being of the same locality and the CBI Vs. Sajjan Kumar & Ors. Page No. 53 of 545 mob being the same. It was submitted that while the then Ld. Magistrates had been examined to prove the statements of witnesses recorded under Section 164 Cr.P.C., Ex.PW8/E was the statement of Jatni Kaur who could not be examined owing to her death and her statement had been admitted by the accused in their Section 313 Cr.P.C. and she confirmed that Sajjan Kumar was instigating the mob. Amongst other witnesses examined, PW1 proved the sanction for prosecution under Section 153A IPC, PW2 proved the site plan and PW3 I.B. Karan proved the concerned records coming to the CBI. The defense had only attempted to rely on alleged contradictions between witness statements, but such inconsistencies were immaterial. Such alleged discrepancies were mere pebbles and not boulders in the appreciation of evidence, caused as a result of the passage of time, the surrounding circumstances of the case and the witnesses being rustic/ illiterate/ of low intelligence. Further, such alleged contradictions ought to be adjudicated keeping in mind the extraordinary circumstances prevailing and the limited scope of previous statements. A tabular narration of the previous statements of the witnesses, the confrontations made and the answers given was also given. It was submitted that the evidence on record would show how the entire Sultanpuri witnessed rioting, looting, targeting of Sikhs in a similar fashion. The instigation and conspiracy to abet the offences was crystal clear from the eyewitnesses, all of whom gave similar versions about the mode and manner of the commission of the offences. The attempt of the defense to change the place of death of Surjeet Singh had no bearing on the case, more specifically keeping in CBI Vs. Sajjan Kumar & Ors. Page No. 54 of 545 mind the topography of the area. PW7 had proved the death of Surjeet Singh, being the most natural person to witness the killing, more specifically when the killing had been admitted by the accused. It was submitted that it was in this context that the matter ought to be adjudicated by the Court and the extraordinary surrounding circumstances ought to be taken note of and the perpetrators of such horrific crimes be punished. The CBI investigation found Sajjan Kumar and other accused responsible and guilty for the offences and they were natural, reliable and truthful eyewitnesses testifying to this effect.
54. Detailed analysis was given of the evidence of PW7, who it was submitted was the eye-witness to the killing of Surjeet Singh by the mob and the inflammatory speech made by A1 instigating the mob not to spare the Sikhs. He could not be identified as he was a mona and was a rustic witness. He was a truthful and wholly reliable witness whose testimony was natural and convincing and could be acted upon, even without corroboration and there was no reason to disbelieve his evidence, who in clear and categorical terms stated that on 01.11.1984, he saw the accused Sajjan Kumar addressing the mob that no Sikh should be spared on which the mob got violent. He also named other accused persons in his examination in chief and assigned them the role and withstood the lengthy cross-examination of the defence. He was on the street and was present outside the house of Surjeet Singh at that time when he was dragged from his house and killed by the mob in the gali. A very strange suggestion was put to him by the defence during cross- examination that no riots took place in the area and no Sikh was CBI Vs. Sajjan Kumar & Ors. Page No. 55 of 545 killed which laid bare the stance of the accused and it seemed to be the defence case that on 01.11.1984 no rioting took place and no sardars were killed. PW7 denied the said suggestion and nothing emerged in the cross-examination of PW7 to doubt his presence at the spot at the time of incident and he was the witness who saw the happenings at crucial places at the relevant point of time. He had taken a consistent stand throughout. Reference was also made to the conduct of DW2. It was submitted that even though PW7 was a rustic/ illiterate witness, yet he remained consistent and truthful in his evidence and that he was a rustic witness had been verified by PW11. It was submitted that the defence had argued that the name of Sajjan Kumar did not figure in the statements made by PW7 in the previous investigation into the case and the defence had relied upon various previous statements of the witness and he was cross examined in the context of the said statements but the witness had taken a consistent stand regarding the occurrence and the presence of the accused. Regarding FIR No.268/84, PW7 had taken the definite stand that he had stated the entire incident to the police and he had given the same set of names as given in the present case to the police. His statement was recorded under Section 161 of Cr.P.C Ex.PW7/DD before the Riot Cell; his statements Ex.PW7/DE and Ex.PW7/DF were also recorded before the Ld. MM in FIR No.347/91 and his statement Ex.PW7/DC was recorded under Section 161 Cr.P.C. by CBI and it was his consistent stand that he had named all the accused as in the present case. His statements Ex.PW7/B and Ex.PW9/E were recorded under Section 164 Cr.P.C. and he was confronted during CBI Vs. Sajjan Kumar & Ors. Page No. 56 of 545 his cross-examination but it was his consistent stand that he saw the accused Sajjan Kumar leading and instigating the mob and the confrontation was regarding 72 hours' time to eliminate Sikhs and the role of Sajjan Kumar.
55. The affidavit Ex.PW7/A wherein PW7 had named Sajjan Kumar and others had been admitted and the witness was cross examined on the same. It was thus submitted that PW7 was a witness of sterling truth, who had survived to tell the gory tale of the heinous crime. His testimony had a ring of truth and he was a wholly reliable witness and he was a witness who saw Sajjan Kumar leading and instigating the violent mob. He had himself seen the killing of Surjeet Singh by the mob. He could not be identified as he was mona. It was reiterated that he had remained consistent throughout his evidence regarding naming the accused Sajjan Kumar and the other accused persons.
56. As regards PW6, it was submitted that she had deposed that accused Sajjan Kumar was addressing and instigating the mob which eventually erupted in violence and about loss of her family members and she had consistently identified A1. Reference was made to her examination-in-chief and she had withstood the cross-examination and reiterated the same in the cross-examination. She had also taken a consistent stand that she had named accused Sajjan Kumar from the beginning. It was submitted that the defence had miserably failed to show any malice, or ill will or enmity on the part of the witness and it was her consistent stand that she had named A1 at every instance from the beginning. Her affidavit Ex.PW6/A wherein she had CBI Vs. Sajjan Kumar & Ors. Page No. 57 of 545 named accused Sajjan Kumar, Brahmanand Gupta and others with regard to inciting and killing of Sikhs had been admitted by the defence and no cross-examination was done and there was no dispute regarding the said affidavit. She could recognize A1 as he was the MP/ MLA at that time and she had also identified him in Court. It was submitted that the investigation done previously by the Delhi Police could not be trusted and the police miserably failed to fulfill its duties. The Nanavati Commission had also raised questions on conduct of the police during the riots and as noted in the Nanavati Commission report, some of the affidavits showed that police officers in charge of the Police Station had refused to record complaints of the individuals. PW6 had unequivocally questioned the role of police regarding the investigation done by them and in not registering the name of accused Sajjan Kumar. She also stated that the police was hand in glove with the accused persons. Her stand was further affirmed by the IO PW10 and his testimony strongly corroborated the claim of witnesses regarding faulty investigation done by Delhi Police. Regarding previous statements of PW6, she denied having made the statement Mark PW6/DA dated 14.11.1984 to the police and stated that the police had not recorded her statement. However, her consistent stand was that she had named Sajjan Kumar earlier. She admitted giving the statement dated 19.12.1984 Mark PW6/DC but stated that it was the same as narrated in the Court in the present case. In the affidavit Ex.PW6/A, she had named A1, Brahmanand Gupta and others with regard to inciting and killing of Sikhs and there was no dispute regarding the affidavit nor there was any cross conducted CBI Vs. Sajjan Kumar & Ors. Page No. 58 of 545 in that regard. As regards Mark PW 6/DB recorded in Court, it was the consistent stand of the witness that she had named A1. She had also stated that she had narrated the statement Ex.PW6/B under Section 164 Cr.P.C. dated 24.09.2008. It was thus submitted that PW6 was a witness of sterling honesty, besides being the most natural and probable witness to the events. In the case in which she had deposed earlier and the deposition of the case on which the defence had relied heavily, Sajjan Kumar was never an accused.
57. As regards PW5, she had deposed that she saw Sajjan Kumar addressing and instigating the armed mob. She saw the killing of her family members. She proved the presence of Sajjan Kumar in the mob and also identified him in Court. She was a rustic witness and deposed that she remained under constant fear or threat by the accused Sajjan Kumar. It was her consistent stand that she had seen Sajjan Kumar on the date of occurrence. She had clearly and categorically deposed that on 01.11.1984 she saw the accused Sajjan Kumar addressing the mob that the Sikhs had killed their mother and the mob started raising slogans and the accused continued to incite them, which eventually erupted in violence and loss of her 3 family members. The defence had chosen not to effectively challenge the status of PW5 as an eyewitness, though the defence had given contradictory suggestions and also tried to show that PW5 was hiding at the time of the occurrence. The said attempts did not make any dent in her natural, spontaneous and forthright testimony. It was further submitted that much of the cross-examination and the subsequent submissions made by the defence focused on the so-
CBI Vs. Sajjan Kumar & Ors. Page No. 59 of 545called deviations/ improvements/ contradictions allegedly reflecting on her credibility. It was submitted that it was her consistent stand that she had seen accused Sajjan Kumar leading and instigating the mob. It was submitted that PW5 had withstood the cross-examination of the defence. It was also submitted that a rustic witness was not expected to remember every small detail of the incident and she was a truthful and wholly reliable witness.
58. As regards the previous statements, PW5 did not remember what was stated about Sajjan Kumar in Ex.PW5/D2 and Ex.PW10/D-5 and she stated that she had not named Sajjan Kumar out of fear though, it was her consistent stand that she had seen the accused Sajjan Kumar. As regards Ex.PW5/D-1 confrontations were only regarding threats by accused Sajjan Kumar. As regards Ex PW5/D-3 and Mark A and Ex.PW8/C, the cross-examination of the defence was only regarding security and confrontation. It was thus submitted that the witness/ victim produced by the prosecution was a wholly truthful person who had deposed in sufficient details, despite the long lapse of time. She proved the presence of Sajjan Kumar in the mob. It was her consistent stand that she had seen Sajjan Kumar on the date of occurrence. Moreover, in the case where she had earlier deposed, Sajjan Kumar was never an accused.
59. PW4 Prem Kaur had deposed that she heard news of Sikhs being attacked and killed by mob. She and her children hid in her neighbours' house for entire day and night. She proved inaction and involvement of the police during the incident and she proved CBI Vs. Sajjan Kumar & Ors. Page No. 60 of 545 that her children had disclosed the presence of the accused namely Sajjan Kumar and Gupta Telwala in the mob. It was argued that the defence had miserably failed to show any malice, or ill will or enmity on the part of the witness. The cross- examination alleging a rival political connection fell apart because the witness had categorically denied all such imaginary suggestions. It was thus submitted that PW4 was a natural, probable and truthful witness. She was a simple person of ordinary means, who suffered toil for a lifetime to put together the bits and pieces of her shattered life. She had honestly deposed that she heard news of Sikhs being attacked and killed by mob. She had not been cross examined on material aspects of her testimony. A chart was also given regarding the different statements of witnesses that were recorded and it was submitted that some of the statements of witnesses referred to in the cross- examination were neither exhibited nor marked, mainly the statement dated 20.12.1984 of PW7 in FIR No.268/84 and the stand of the witness was that he had named Sajjan Kumar and the statement dated 25.01.1985 in FIR No.268/84 and the stand of the witness was that he did not remember the said statement. Further, the statement dated 10.02.1985 in FIR No.250/1984 of PW5 was not exhibited or marked and the stand of the witness was that she had not named Sajjan Kumar earlier out of fear. A chart was also given on behalf of CBI showing the previous prosecutions in Sultanpuri area where PW5 and PW6 had been examined and also a chart as to under what Sections the charge was framed and the evidence that had been led to prove the charges.
CBI Vs. Sajjan Kumar & Ors. Page No. 61 of 545ARGUMENTS ON BEHALF OF THE COMPLAINANT
60. The Ld. Sr. Advocate for the complainant had submitted that as per the orders of the Hon'ble Supreme Court, in 2018, a fresh SIT was constituted to investigate the cases further and reference was made to the orders of the Hon'ble Supreme Court. A Supervisory Committee was appointed by the Hon'ble Supreme Court of two retired judges to go into the cases and SIT had submitted its report and the matter was pending before the Hon'ble Supreme Court. It was a matter to be considered why repeatedly cases were reopened. Fresh investigation was started sometime by CBI and sometime by SIT. Even the Hon'ble Supreme Court had to constitute an SIT headed by a High Court Judge because it was the biggest massacre which had taken place in India and it was so stated even in the Senate of US and talked about throughout the world and India's name had been maligned because the guilty had not been punished despite India being a democracy. 30-32 years had passed but nothing had happened. The earlier investigation had been a farce and perfunctory and not done properly and the Court had to see why the cases were reopened and that defective investigation should not become a hindrance. It was submitted that the statement given to Raj Singh in 1985 was itself a farce and in every case where the Court had returned conviction in the 1984 cases, the Court had to ignore the defective investigation and the Court had criticized the role of the police. It was submitted that the cases of Duli Chand v. State (supra) and State v. Manohar Lal (supra) pertained to Trilokpuri area in East Delhi and State through CBI v. Sajjan Kumar and others (supra) was of Delhi Cantt area which were CBI Vs. Sajjan Kumar & Ors. Page No. 62 of 545 two different corners of Delhi and the present case was of Sultanpuri, which was of the third corner. In the whole of Delhi, the same thing was happening and the same modus operandi was followed by the mob and in State through CBI v. Sajjan Kumar and others (supra) it was held that it was a crime against humanity and it was a genocide and when it is a case of genocide, then it is an international crime and it cannot be equated with a normal crime. It was submitted that even after 34 years, the Hon'ble Supreme Court was appointing fresh SIT to show to the world that the country was governed by rule of law and that no one was above the law. Reference was made to the judgment of Hon'ble Ms. Justice Gita Mittal in Court on its Own Motion v. Mahender Singh Manan and Ors. Crl. Rev. P. No.248/2017 decided on 29.03.2017: MANU/DE/0857/2017 which also pertained to Delhi Cantt. area and ultimately the case was decided in State through CBI v. Sajjan Kumar and others (supra) and A1 was convicted.
61. It was submitted that after all the efforts by the government, justice was evading the victims. In FIR No.250/84, there was clear mention of 49 deaths but no one was convicted and in the arguments in Sajjan Kumar v. CBI (supra) decided on 16.07.2013, 7 more deaths were mentioned but no one was convicted. Parliament had also discussed the issue because the law of the land was not enforced and first time after 21 years in 2005, at the highest level, the government had showed its intention that it wanted to punish the guilty and that made the difference. It was submitted that A1 wielded considerable power and reference was made to the incident when the CBI had gone CBI Vs. Sajjan Kumar & Ors. Page No. 63 of 545 to arrest A1 in August 1990 and that the same was part of the judgment in State through CBI v. Sajjan Kumar and others (supra). It was submitted that even CBI did not feel safe so how could poor persons be expected to stand up, they belonged to the lowest strata and were washing utensils in homes and they could not be expected to stand up against the persons against whom even the CBI could not stand. It was submitted that the statements of Sheela Kaur and Cham Kaur of 1991 showed fear in their minds so they did not name anyone and did not name anyone even when the Ld. Addl. PP asked them. It showed the kind of fear that was prevailing and there was no witness protection available at that time. Reference was made to the judgments of the Hon'ble Supreme Court in Zahira Habibulla Sheikh v. State of Gujarat (supra) and NHRC v. State of Gujarat (supra) wherein it was observed that there was a failure of the system and no protection was given and the same could not be ignored by the Court. Reference was also made to the judgment of the Hon'ble Supreme Court of Bangladesh, which was relied upon in State through CBI v. Sajjan Kumar and others (supra). It was submitted that there were two eras- one when people were under fear and the government had no intention to punish and the second when the government was willing to take steps and the Court could not ignore the same. The Prime Minister had apologized in the Parliament. The government had rejected all the recommendations which showed the influence of the accused and in the present case, the witnesses were not even produced in the Court. In the appeal before the Hon'ble High Court, when the accused relied upon the judgment CBI Vs. Sajjan Kumar & Ors. Page No. 64 of 545 of acquittal, it shook the conscience of the Court, which took up the matter on its own motion and initiated proceedings why the trial should not take place.
62. Reference was made to the order in the revision petition filed by A1 against framing of charge and that the accused had argued that the prosecution was illegal but the Hon'ble High Court in Sajjan Kumar v. CBI (supra) decided on 16.07.2013 did not grant any relief on the said submission. It was accepted that the Nanavati Commission had recommended only specific cases so it could not now be argued by the accused that the CBI had overstepped its authority by registering the cases without any basis. It was submitted that there was a furore in the country, not only by the opposition but also by the media and the civil society took up the matter and the Parliament decided. So the government entrusted the cases to CBI after debates and decision by the Parliament that the cases should be given to CBI for re- investigation. It was submitted that in a case of crime against humanity, the Court had to keep in mind the atmosphere prevailing when the statements were made. It was submitted that in the House of Lords judgment, the trial had started in 1996 relating to an offence of 1942 and when it was a case of crime against humanity and genocide, the Court had to see the statement and not discard it on the basis that earlier the witness had not so stated. The judgments showed how internationally the said crimes had been dealt and where the witnesses had made their statements after many years. The matter went to the European Court of Human Rights and the judgment was relied upon in State through CBI v. Sajjan Kumar and others CBI Vs. Sajjan Kumar & Ors. Page No. 65 of 545 (supra). The appeal was dismissed.
63. It was submitted that in the present case, it was the Delhi Police which still held power as was clear from the judgment in State through CBI v. Sajjan Kumar and others (supra) and it refused to protect even the CBI Officers showing the kind of influence exercised by the accused and the same police did the investigation and the prosecution which aspect could not be ignored by the Court. India was a signatory to the Convention on Genocide of 1959, the Government had stated before the Rajya Sabha that the law was enough and there was no need for a new law but there was failure in implementation of the law. The Court had to see the intention to enforce the law and to ensure that nobody was permitted to defeat it by adopting clever tactics and the Court had to decide keeping in view the prevailing situation of that time of a person who is in the position of a victim with no one to support him and the police was also discouraging and the atmosphere was such that the government machinery was going out of way to support the accused. The poor people could not be expected to stand up. The era pre 2005 and post 2005 had to be seen. It was only in 2013 while making statement in the present case that the witnesses were given witness protection and reference was made to the order of DSLSA dated 27.09.2013. It was submitted that the present case was on a better footing than State through CBI v. Sajjan Kumar and others (supra) as in that case, the prosecution witness Jagdish Kaur had not named A1 in the affidavit whereas in the present case PW7 had named A1 at the first instance. It was submitted that India had taken an active part in saving human rights but in India itself the accused CBI Vs. Sajjan Kumar & Ors. Page No. 66 of 545 had not been punished. In several countries, the issue of genocide of 1984 was raised in the Parliament. The Hon'ble Supreme Court and the Government were so concerned that they were opening and reopening the cases but every time the efforts were being frustrated and the case had to be seen in context of the same. The Ld. Sr. Counsel for the complainant had relied upon several judgments.
64. The Ld. Senior Counsel for the complainant had argued that 3000 Sikhs had been killed and the background of the cases had to be seen and also how many FIRs were lodged. Sikhs were victims and had suffered during the riots. There was an admission that an incident of rioting had taken place and people had been cut and burnt and there was no less than a genocide. FIR No.347/91 was connected to RC-25. The entire cross- examination which had been done on behalf of the accused persons was to show the files of the earlier trial or the closure reports or to prove that the witnesses had seen the documents or were aware that the closure report had been filed or that they were aware about resiling from the previous statements but there was no cross-examination on the fact of genocide. It was not put to the witnesses that the witnesses were not present at the spot or that they did not see A1 or that no such incident had happened and the credibility of the witnesses was sought to be challenged only on the ground of the closure reports. There was one incident which was the killing of the then Prime Minister which led to a genocide and the case of the prosecution was that A1 provoked, incited, goaded and he was the leader. The charge was framed in two phases i.e. one against A1 and the second charge against the CBI Vs. Sajjan Kumar & Ors. Page No. 67 of 545 others and reference was made to the charge against A1 and that he was charged under Section 109 IPC. There were also charges for substantive offences. The effect of the cross-examination was to put case files to the witnesses and to show that they were not supporting their own testimony but the same was of little value given the fact and circumstances of the case.
65. The timeline was referred to i.e. the incident was of 01.11.1984 on the basis of which FIR No.250/84 was registered at PS Sultanpuri but unfortunately Section 302 IPC was not added to it. The assassination of the then PM led to the biggest disaster and travesty of justice for the victims. Thereafter on 13.12.1991 FIR No.347/91 was registered on the basis of the affidavit of Joginder Singh given before the Banerjee Committee and the said affidavit for the first time spoke of the offence under Section 302 IPC against A1. Thereafter, FIR No.307/94 was registered on the statement of Anek Kaur who had since expired but she had also not made any allegation of murder but had named A1 as leading the mob. Subsequently closure reports were filed in FIR No.347/91 and 307/94 but in respect of FIR No.250/84, four charge sheets and one supplementary charge sheet were filed. There were 25 accused and all of them were acquitted. It was as if nobody had killed the Sikhs and there were victims from 1984 onwards till today who were still waiting for justice. In May 2000, Nanavati Commission was set up and it was argued that if the closure reports were good, there was no need for the Government of India to appoint the Commission and the only issue looked into by the Commission was the Anti Sikh riots. On 09.02.2005 report was submitted by the Nanavati CBI Vs. Sajjan Kumar & Ors. Page No. 68 of 545 Commission and it was mentioned in the report that 500-600 people had gathered on the instigation by A1 and had burnt the houses of Sikhs and killed many people. However, the Nanavati Commission had given recommendation to examine only those cases where the witnesses had accused A1 specifically and the aforesaid three FIRs were also directed to be investigated by CBI. On the basis of the findings of the Nanavati Commission, the Ministry of Home Affairs on 24.10.2005 directed CBI to investigate and re-investigate the present cases.
66. The Ld. Sr. Counsel had contended that the accused persons had achieved acquittals in the earlier trials and discharge on the basis of their skills of threatening the witnesses as the Court works on evidence and on the basis of witnesses resiling from their affidavits but the order of the Government armed the CBI to meet the witnesses again and re-investigate the matter. The Delhi Police had not recorded statement under Section 164 Cr.P.C. of even a single witness and the entire effect fell on the victims and their families. When the CBI started investigating the cases, the three FIRs were re-registered as RCs and in FIR No.347/91 Section 302 IPC was already there and it related to the death and cold-blooded murder of Surjeet at the goading and instigation of A1. Finally, the system of investigation became a little better for the victims and on 25.05.2008, the first statement under Section 164 Cr.P.C. was got recorded and that was the plight of the community waiting for justice. Thereafter in September and November 2008, statements under Section 164 Cr.P.C. of other witnesses were recorded and of PW7 on 11.11.2008 and of Popri Kaur on 11.11.2008. Sanction was taken CBI Vs. Sajjan Kumar & Ors. Page No. 69 of 545 from the Government of NCT of Delhi for prosecuting the accused and it was nobody's case that the sanction was bad in law. Charge sheet was filed which was a consolidated one in respect of the three RCs on 13.01.2020 for several sections and thereafter charges were framed accordingly. There was also substantive charge against A1 for the offences.
67. Reference was made to the statement of PW10 and that it showed how the investigation by Delhi Police was not containing the name of A1 whereas the effort of CBI was to find and unearth the truth. It was submitted that all the files which were relied upon by the accused persons were prior to the directions of Nanavati Commission and the accused persons were relying on the investigation prior to the Nanavati Commission but pursuant to the CBI charge sheet, no witness had resiled so the fear factor had gone. The witnesses were scared earlier by a man who was elected by them and they had to survive in the community and the person who should have been standing up for them became the predator. Section 164 Cr.P.C. statements of all the witnesses were got recorded which was good for the victims but bad for the accused. The charge sheet did not say that the matter stood closed but it was filed for the offences committed by the accused persons. It was contended that it was not illegal to bring out the truth before the Court and there was no question of double jeopardy. The accused persons had not challenged the charge sheet when it was filed and they waited for the trial so that they could put the witnesses in trouble and as such the matter was never challenged at the inception. PW10 had stood the test of cross-examination on multiple dates and it showed that there was CBI Vs. Sajjan Kumar & Ors. Page No. 70 of 545 no postmortem report on record and the bodies were cremated. Though so many Sikhs were killed but there was no postmortem report by the Delhi Police in a case under Section 302 IPC and in fact the residents of Delhi suffered more at the hands of Delhi Police than A1 who they had elected. Fortunately, some people who had seen the genocide were alive and PW7 was one of them and investigation was done into the role of the then SHO but everything was buried with the death of the SHO, otherwise he would have been prosecuted.
68. It was submitted that the chief examination of PW7 covered everything, it covered the incident of killing, what took place after the killing and there was the affidavit and the statement under Section 164 Cr.P.C. In 1984 he was 37 years of age and in 2019 when he was examined, he was 72 years old. He had stated that he was not educated and only knew how to put the signatures and as per the accused persons, the affidavit was explained to him in vernacular. Reference was made to the statement under Section 164 Cr.P.C. of PW7 and it was submitted that he had stated about seeing his brother being cut by sword in front of his eyes but he could not do anything and he had given the same testimony in Court. The chief examination of the said witness was identical to his statement under Section 164 Cr.P.C. which also bore the certificate of the Ld. MM and the Ld. MM had also deposed about the same. It was submitted that the effect of the two statements had to be seen and quite clearly, the testimony of the sole witness could be believed to be true as the somersault was only prior to a safe atmosphere being provided by the Government in 2005. It was submitted that it had to be CBI Vs. Sajjan Kumar & Ors. Page No. 71 of 545 considered that at that time there was no witness protection plan in place and no security was provided to the witnesses and they were left to fend for themselves and they were living in a miserable condition. When they got security, they came forward and spoke the truth. It was pointed out that the cross-examination was confined only to the earlier facts and there could be no two views as the investigation was ordered by Government of India to be given to CBI.
69. Reference was made to Sections 147, 149, 107 and 109 IPC and it was submitted that in the present case there were three other witnesses PW4, PW5 and PW6 who may not have been a part of the incident of killing of Surjeet but had narrated the same facts that A1 was leading the mob and exhorting people and Sikhs were killed and witnesses had supported the said version. Their statements before the Court were in the same format and the testimony of PW7 in light of the same became more authentic and genuine and he had withstood the cross-examination over several dates. It was submitted that Section 109 IPC derived authority from Section 107 IPC which was divided in three parts i.e. to incite or aid or conspire. Abetment had been used everywhere but in fact it meant an extension of conspiracy. Even if one stopped only at instigation, it was sufficient to prove the case and what was relevant was the common intention to kill the Sikhs. A1 was a leader of mass appeal who knew that people would follow him and would die for him and he had told them to kill others which showed instigation and the words used "tumahri maa ko mara hai inko maro" were meant to provoke the emotions of the people. It was argued that out of a mob of CBI Vs. Sajjan Kumar & Ors. Page No. 72 of 545 500 or so, only 4 to 5 persons had been made accused. There were so many people on the roads but they were out of the purview of law as Delhi Police chose not to investigate the matter properly or to identify the dead bodies properly. There was no list of police officers who had messed up the investigation and they were never arrested. It was submitted that instigation was writ large by the statements of witnesses and they had stated not just about hearing from someone but having seen the same. It was submitted that the present was a clear case of abetment by A1 and others acted on his behalf. It was the law laid down by Hon'ble Supreme Court that if persons were carrying weapons, there was no reason to believe that the assembly was lawful and in the present case witnesses had stated about the mob carrying dandas etc. which was sufficient to make it unlawful. Reliance was placed on the judgment of the Hon'ble Supreme Court in Soma Sundaram @ Somu v. State represented by The Deputy Commissioner of Police (2020) 7 Supreme Court Cases 722 :
(2020) 3 Supreme Court Cases (Cri) 465 : 2020 SCC Online SC
480. The instigation was to kill the Sikhs and to teach them a lesson.
70. It was submitted that we live in a civilized society and if something happened it did not mean that you start killing a community which had nothing to do with the act. Here the Sikhs were vulnerable and were small in number and in the entire country, the Sikhs were killed which showed instigation and the instigation was specific here and enough to provoke others to go and kill people of the Sikh community. Joginder Singh got saved as his hair were cut and he was a mona and in those times many CBI Vs. Sajjan Kumar & Ors. Page No. 73 of 545 mothers had cut the hair of their children out of fear. A1 was speaking standing on a jeep with 500 people around him and he was pointing his finger towards the Sikhs and once there was instigation, it was not necessary that there should also be conspiracy. There was clearly an unlawful assembly and the objective of the unlawful assembly was to kill Sikhs and if the instigation was not on the spot, then it would be difficult to show but here the instigation was at the spot. The killing and the deaths were confirmed and PW7 had stuck to his evidence. It was urged that the affidavit of PW7 was the bone of contention and PW7 had never stated that he had not signed the affidavit and the story was the same everywhere and could be read in complete continuation and he did not change his version at all. The affidavit was given after three years of the incident and still he had given a similar statement under Section 164 Cr.P.C. and before the Court. Reliance was also placed on the judgment in Ranga Nayaki v. State by Inspector of Police (2004) 12 SCC 521 : 2004 SCC Online SC 1312 which it was submitted talked about the principal offender and in the present case, instigation was by words and conduct and a particular community was targeted. Reliance was also placed on several other judgments.
71. The Ld. Senior Counsel for the complainant had further submitted that the perspective of the complainant had to be seen. FIR No.347/91 was registered. Joginder Singh was the star witness. It was a situation where muscle power was used and people were pressurized and they had been given homes in lieu of jhuggis. They also influenced the cops who had messed up the case. When the Nanavati Commission was set up, it sparked a CBI Vs. Sajjan Kumar & Ors. Page No. 74 of 545 turn around and before that everything was done as the accused wanted. The Commission came down heavily in the report regarding the police investigation and stated that it could not be believed that 500 people were killed in Sultanpuri, bodies were buried, cremated and thrown but there was nothing to show who had done the same. It was submitted that consistently people had named A1 and his associates and there was no reason for the Nanavati Commission to name the accused if he was not involved as he was already close to the establishment. The words used by the accused "hamari maa ko maara hai" to instigate the people also showed that it was done with the intention to emotionally appeal to the people that their mother had been killed. It was urged that everything prior to the Nanavati Commission was done under the influence of A1. The FIRs in question were specifically mentioned and it was the FIRs where the name of the accused was there which were directed to be re- investigated. The Commission was unbiased and for the first time the people whose family members had been killed felt that somebody would listen to them. The Commission was carrying out its functions already after 21 years of the alleged incident and then the people started giving their statements and affidavits. Joginder Singh also came before the Commission though his statement was not there and the people spoke about the brutality that had taken place. A man voted to power by the people who was responsible for their safety had betrayed them. The other circumstance was that investigation was being carried out by a fair and honest officer of CBI who was doing the investigation properly and was not cowed down by the accused. It was CBI Vs. Sajjan Kumar & Ors. Page No. 75 of 545 submitted that the accused persons had never challenged the report of the Nanavati Commission and no hue and cry had been raised as the accused had the hope that they would manage but they could not get everything managed.
72. It was pointed out that PW11 followed by PW10 had carried out the investigation and some important aspects had come up that the Delhi Police had not done their job properly and postmortem reports, though it was a case of Section 302 IPC were missing. The endeavor of the police was to show it not even as a case of unnatural death and in such a situation the courts could not convict under Section 302 IPC and it resulted in the acquittal of the accused persons as everyone had been influenced. It was submitted that it was not in dispute that Surjeet Singh had died but the accused persons had not admitted the spot during cross-examination and it was their contention that the death had taken place at the Phatak. However, it was not the case of the CBI that Surjeet Singh had died at the Phatak and the death could be confirmed only by an eyewitness or during investigation. The CBI was suffering from a handicap of conducting investigation after 24 years but the accused persons themselves committed a mistake i.e. the accused persons had relied on a site plan and got it exhibited as Ex.PW7/DA. On the one hand a suggestion was put to the witness that Surjeet Singh had died at the Phatak as his wife had said so but on the other hand, the accused had put to the witness that he did not get out of the house. The site plan showed that House No.2/301 and 2/309 in B-Block belonged to Joginder and Surjeet Singh respectively and were in the same line and the defence had admitted the said document as it was got exhibited CBI Vs. Sajjan Kumar & Ors. Page No. 76 of 545 by the defence. The last suggestion put to PW7 was that he was not an eyewitness and that he had not come out of the house whereas PW7 had categorically stated that 15-20 people were killed in his presence and his brother was dragged out, cut and burnt. It was submitted that PW7 did not change his statement and when he found the environment of security he came forward. The site plan showed that the houses were of 25 sq. yds and PW7 had stated that if he was not a Mona he would not have survived and everybody knew that the houses were of Sardars and if PW7 was in his house, the mob would have entered his house and killed him. The suggestion to PW7 was that he was inside the house and he came out of the house only after 3 days which could not be believed as it could not be believed that the mob would not have gone to his house and killed him if he was inside the house and his testimony became relevant. No suggestion was put to him that he was not a mona.
73. Reference was made to the examination-in-chief of PW7 and that he had specifically stated that he came out of his house and then his brother was pulled out. The accused had confirmed the gali by putting the site plan. PW7 was staying in a Jhuggi and he was given a house in Sultanpuri by the Government. PW7 had come out in his Gali and mixed in the crowd and the factum of his being in the Gali was satisfied. It was submitted that there was no way that the wife of the deceased Surjeet Singh would know where he was killed as the endeavor was to change the spot and the body was removed. It was submitted that the names of certain persons were taken consistently and the said persons could not be acquitted. It was argued that PW7 had no animosity CBI Vs. Sajjan Kumar & Ors. Page No. 77 of 545 with the five persons whose names were taken and he could have taken other names but he took names as mentioned and PW7 had no ulterior motive to derive from A1 and he had stated that he was not hiding. It was submitted that the endeavor of the accused was to rely on the report of Delhi Police which had been deprecated by the Nanavati Commission and it had to be seen that the mob was armed with lathis, dandas, tyres, powder. The arson started on 01.11.1984 at 10 a.m. though the disturbances had started from the evening of 31.10.1984. It was asservated that as an MP, it was the responsibility of A1 to protect the people but there was nothing to show that A1 had got any DD entry lodged or asked the police to come and save the people and there was nothing to show that he had done anything to save the people or made a call on 100 number. It was a case of poor, helpless people. First, there was an announcement that no Sikhs should come out as there was disturbance so that the killing would be easier and that was the reason that at 10 a.m. in the morning the Sikhs were in their houses and became sitting ducks. It was submitted that the narrative of Rajwant Kaur's statement was based on the closure report. PW7 had now stated as he was fearless and the justice system had prevailed and the accused did not exercise undue influence.
74. It was submitted that the accused persons were taking a contradictory stand that PW7 was in his house and was not present and nothing was put to him except the frivolous investigation by Delhi Police. He had become a part of the crowd which had killed many others. It was submitted that power is a very dangerous weapon which the accused used to perfection till CBI Vs. Sajjan Kumar & Ors. Page No. 78 of 545 he was sitting on the chair. Joginder was the only witness for the murder of Surjeet. The proceedings of Delhi Police showed that the factor of fear was looming large from 1984 to 2005 and no government did anything to look into the grievance of the people. It was argued that the accused had not stated that it was a witch hunt and they had not challenged the Report of Nanavati Commission. The accused persons tried to harass the witnesses but they did not succeed and no alibi was put forth as to what the accused persons were doing - whether they were in some other meeting or what they were doing. DW1 had fumbled when he was asked about the CBI. It was argued that when the accused persons did not have an alibi they could not discredit a witness who had spoken up after so many years. PW10 was the IO who had filed the charge sheet and he had justified fair investigation. Hari Om, who was the then SHO had himself fired on Sikhs and had died during investigation. PW11 was asked about something in the Delhi Police and the Riot Cell file but it did not matter as it was investigation done in the pre-Nanavati phase and it had been superseded already and the investigation by the Riot Cell was not relevant at all.
75. It was submitted that PW9 had recorded the statement of Gopi and Joginder Singh. The accused persons had vehemently argued on the statement under Section 164 Cr.P.C. recorded in 1992. It was clear that the said statement was a procured one and due to the circumstances as the witness was under threat but now the witness had spoken the truth and the contradictory stands had been superseded by the Nanavati Commission and the Nanavati Commission had not looked into it and had ordered re-
CBI Vs. Sajjan Kumar & Ors. Page No. 79 of 545investigation so the CBI was not required to look into it and the accused persons could not take benefit of the earlier investigation. It was submitted that Nanavati Commission was not an ex-parte Commission. The accused persons had also approached the Commission and gave detailed reply which was discredited and thrown out but the same was not challenged. During cross-examination everything put to the witnesses was pre 2005 and there was no question as to why Nanavati Commission was set up and it was not even stated that the other accused persons were not with A1 and none of the accused persons had put up any defence of alibi. Five persons had been consistently named by all the witnesses. Moreover, the witnesses had not named everyone but only the people of that area. All the statements under Section 164 Cr.P.C. post-Nanavati Commission named Sajjan Kumar and others and all the testimonies named Sajjan Kumar and others and there was no discrepancy in the testimonies. It was contended that the circumstances had to be seen that the accused was in power and witnesses were scared, even at present after the presence of police witnesses were being killed and in 1992 there was no security for them and they lost everything and had seen people being killed, chopped and the circumstances differed in 1992 and in 2005. It was submitted that if the Delhi Police had investigated properly, the Commission would not have ordered re-investigation and the previous investigation was superseded by the Report of the Nanavati Commission.
76. It was asservated that PW7 had consistently named Sajjan Kumar and his statement under Section 164 Cr.P.C. of 2008 was CBI Vs. Sajjan Kumar & Ors. Page No. 80 of 545 made without any coercion, fear factor and without inducement and the same was proved in Court and in 2019, he had re- affirmed the same. It was argued that even if a witness dies, his statement under Section 164 Cr.P.C. is given importance and becomes admissible. Post 2005, the fear factor was not there and it showed what actually the witness had said in 1987 and he now stuck to that. The inference was that he had given an affidavit in 1987 and he stood by it. It was submitted that the earlier resiling from the affidavit could not be effective, when a serious doubt was cast on the investigation by Delhi Police. In those circumstances, affidavit being resiled from by a poor witness, who could not withstand the mammoth system showed that fear was writ large. There was fighting on streets and people were killed. Question of just saying about the theft did not arise, he was picked up and taken to the PS and threatened to give a particular statement in the present case. There was blatant instigation and the words stated to have been used by A1 were consistent. The mob had swords, powder, lathis, dandas so it was pre-meditated and it was a genocide and murder and a planned and brutal attack on humanity.
77. The Ld. Counsel for the complainant had relied upon two judgments and submitted that in CBI v. Hemendhra Reddy & Anr. (SLP(CRL.) No. 7628/2017 decided on 28.04.23 the Hon'ble Supreme Court had held that even after filing of closure report investigation could be carried out without an order recalling the order accepting the closure report. Reliance was also placed on the judgment in Namdeo v. State of Maharashtra, Appeal (Crl.) No. 914/2006 decided on CBI Vs. Sajjan Kumar & Ors. Page No. 81 of 545 13.03.2007 by the Hon'ble Supreme Court wherein it was held that conviction could be based on the sole testimony of a witness and the quality of the evidence had to be seen. It was argued that it was not that Sikhs had not been killed and it was the hidden agenda of the Congress to kill the Sikhs only to take revenge and the Delhi Police had shielded them. There was only a single conviction. It was submitted that even if one witness projected something, conviction could be based on that. Moreover, compensation could not be equated with a criminal offence and it was the settled law that the offender should not go unpunished. Only Sikh men were targeted which showed the agenda and there was instigation by the accused Sajjan Kumar to kill the Sikhs.
78. Written submissions were also filed on behalf of the complainant making similar submissions. It was submitted that the witnesses of the present case filed their affidavits before the Justice M.L. Jain and Justice A.K. Banerji Committee constituted by the Government of India between the years 1985 to 1987 and had categorically named Sajjan Kumar as the main accused person who had instigated the riots which further culminated into lootings and killings of innocent Sikhs. It was submitted that the cold-blooded murder of Shri Surjeet Singh was witnessed by PW7 Joginder Singh who after hearing loud noise came out of his house and got saved as he was a "mona" (had a haircut) and mingled in the rioters to save himself. PW7 had stated in his affidavit dated 23.07.87 submitted before the M.L. Jain and A.K. Banerjee Committee, as well as in his deposition before this Court recorded in the year 2019 about the said fact and he had been consistent in his testimony regarding the slaughter of Sikhs.
CBI Vs. Sajjan Kumar & Ors. Page No. 82 of 545It was submitted that PW7 had categorically stated that he saw and heard Sajjan Kumar leading the mob and instigating them to kill the Sikhs as they killed their mother (Smt. Indira Gandhi), saying "unhone hamari maa mari hai, koi sardar bachna nahi chahiye" and he had seen his brother Surjeet Singh being pulled out from his house No.309 that was in the same gali as PW7's house. Surjeet Singh was brutally murdered by first cutting his body into pieces and was burnt by pouring kerosene oil. Reference was made to Sections 107 and 109 IPC and it was submitted that the deposition made by PW7 Joginder Singh in his affidavit dated 23.07.1987, his statement under Section 164 Cr.P.C. dated 11.11.2008 and his examination-in-chief dated 28.03.2019 stated that on 01.11.84, Sajjan Kumar MP of his area, led an unlawful assembly armed with lathis, swords, rods, kerosene oil, petrol etc. and called members of mob namely Nathu Pradhan, Ramesh, Peeru Sansi, Viki, Mistri, Tara Chand, Bhaskar, Arjun, Mohinder Jalab and Munna and told them that they had 72 hours to make murderous attack on Sikh persons in the area as their mother had been killed and no Sikh should be spared. The provocative and fiery speeches delivered by accused Sajjan Kumar, who was an MP and a leader of mass appeal at the relevant time, evoked the emotions of the mob. He addressed the then Late Prime Minister, Smt. Indira Gandhi as "Maa", thereby evoking the emotions of an angry mob and instigated and provoked the mob and incited them that their "Maa" had been killed and that no Sikh should be spared. This was not a heard theory but a seen theory wherein as a result of this instigation, the mob picked and chose only Sikh persons with a clear intention to CBI Vs. Sajjan Kumar & Ors. Page No. 83 of 545 only target and kill Sikh population of the area. Reference was made to the phrases that were used to cause instigation.
79. It was submitted that the accused persons had common intention and had also abetted and provoked the mob which was an unlawful assembly armed with swords, lathis, etc. with the sole target to kill the Sikhs and the charges had been proved by cogent and impeccable evidence by public witnesses as well as Government officials including CBI officials and it had been proved beyond doubt that Sajjan Kumar was the principal offender who abetted and instigated the other co-accused persons in the wake of the assassination of Smt. Indira Gandhi. It was submitted that the accused persons were constructively liable by virtue of Section 149 IPC as under the said section which declared the principle of common object, upon an offence being committed by any member of an unlawful assembly, every person, who at the time of the offence being committed was a member of such assembly would be guilty of such an offence. It was submitted that in cases of rioting, the courts must convict those accused persons whose presence was not only consistently mentioned from the stage of FIR but also to whom overt acts were attributed. In the present case, the name of the accused persons had emerged from the very beginning of the investigation which had been established by the testimonies of the witnesses. Reliance was placed on the judgments in Sherey v. State of UP 1991 Supp (2) SCC 437 and Pandurang Chandrakant Mhatre and Others v. State of Maharashtra (2009) 10 SCC 773. A table giving the analysis of the testimony of the witnesses was also submitted.
CBI Vs. Sajjan Kumar & Ors. Page No. 84 of 54580. Reference was made to extracts from testimony of PW7 and it was submitted that his testimony had not been impeached in any manner. Further the site plan Ex.PW7/DA was an admitted document which established that the house of PW7 and Surjeet Singh was in the same Gali and that the houses were very close to each other as each house was not more than 25 sq. yds. As such the testimony of PW7 that he came out of his house and mingled with the mob and saw his brother being pulled out of the house was genuine, trustworthy and sufficient to convict the accused persons as PW7 was the eyewitness to the massacre. It was submitted that the investigation conducted by the Delhi Police officials was biased, unfair, shoddy and perfunctory. Pursuant to the recommendations of the Nanavati Commission, CBI was entrusted with the investigation of the cases in 2005 i.e. 21 years after the riots to unearth the truth, which was deliberately concealed by some unworthy police officials to shield the accused persons. PW10 had categorically deposed in his testimony regarding the biased and unfair investigation conducted by Delhi Police and reference was made to the statement of PW10 who was the investigating officer and had recorded the statements of PW6, PW5, PW4, Gopi Kaur, Popri Devi and Jatni Kaur and it was submitted that the testimony of the said witnesses proved the indifferent/ callous approach intentionally adopted by Delhi Police while investigating heinous offences which led to the targeted killing of hundreds of Sikh persons. The said testimony proved that due procedure was not followed in the investigation done by Delhi Police : no postmortem reports were on record despite the case being that of CBI Vs. Sajjan Kumar & Ors. Page No. 85 of 545 murder which was serious in nature; the statements of witnesses that categorically mentioned the name of the accused persons were not recorded at the relevant time; that investigation was conducted in a slipshod manner and no practical/ substantial efforts were made to establish the case against the accused who were responsible for the mass killings hence establishing that the Delhi Police officials were hand in glove with the accused persons. It was submitted that the testimony of PW10 was unimpeached and the accused ought to be convicted. The said aspect had also been endorsed by the report submitted by the SIT 1984 Riots (constituted on 14.12.2018 by Ministry of Home Affairs, GOI as per order dated 04.12.2018 passed by the Hon'ble Supreme Court in W. P. (Crl.) 09/2016 in the matter of S.G.S Kahlon v. UOI which was headed by Hon'ble Mr. Justice S.N. Dhingra, Chairman, SIT 1984 and reference was made to the findings of the SIT). It was submitted that the observation made by the SIT suggested that neither the grievances of the 1984 riots victims were addressed nor any justice was given to them.
81. It was submitted that it is the settled law that statements under Section 164 Cr.P.C. need to be treated with the greatest sanctity. PW10 had got recorded the statement of PW7 and others before the Ld. Magistrate which had been duly proved during trial and it had also been proved that all safeguards had been taken by the Ld. MM while recording the said statements and testimony of PW9 and PW11 had gone unimpeached and no contradiction was found therein. Reliance was placed on the judgments in R. Shahji v. State of Kerala (2013) 14 SCC 266, CBI Vs. Sajjan Kumar & Ors. Page No. 86 of 545 Vadivelu Thevar v. State of Madras 1957 SCR 981 and Karulal v. State of M.P. 2020 SCC OnLine SC 818. It was thus submitted that the impeccable, trustworthy and unimpeachable evidence which had come on record during trial had evidently proved that A1 had instigated, provoked the mob which had converted into an unlawful assembly armed with deadly weapons, swords and lathis to kill the Sikhs specifically and loot their houses, kill their children and was thus guilty of offences he was charged for as well as the other accused persons. It was a massacre and the killings had been diabolic and thousands of families were ruined. So much so that till today people who had suffered the carnage were living a life full of fear and terror. Hundreds of families lost their loved ones as they were brutally murdered in front of their eyes which was impossible to forget. It was submitted that the victims were waiting for justice for over 39 years and their hope for justice arose after the Nanavati Commission ordered re-investigation by CBI in the cases where Sajjan Kumar was specifically mentioned and it was prayed that the accused persons be convicted and be handed over the stringent of punishments for the offences committed by them under Sections 147, 148, 149, 153A, 302, 436, 295 and 201 IPC and also for the offence of abetment under Section 109 of the IPC.
ARGUMENTS ON BEHALF OF THE ACCUSED PERSONS
82. The Ld. Counsel for the accused persons had argued that the appeal was pending before the Hon'ble Supreme Court CBI Vs. Sajjan Kumar & Ors. Page No. 87 of 545 against the judgment of Hon'ble Mr. Justice S. Muralidhar in State through CBI v. Sajjan Kumar and others (supra). As regards the judgments of the other countries, it was submitted that in US there was technical process of law and in UK common law was followed, European countries had their own law. Neither the Ld. SPP nor the Ld. Sr. Advocate for the complainant had mentioned a single word how the citations relied upon were similar to the present case. In the judgment in State through CBI v. Sajjan Kumar and others (supra), the lady had denied making any statement to the Delhi Police or the Anti-Riot Cell. The Anti-Riot Cell had been appointed on the recommendations of a Committee and the consent of Ld. Sr. Advocate for the complainant was there and not to project A1. All the witnesses were her relatives, who had deposed for the first time except one witness and they were given benefit of not being heard before. The said matter was before the Hon'ble Supreme Court and the question was whether the name of A1 was there or not. Reference was made to the judgment in Sajjan Kumar v. CBI (supra) decided on 16.07.2013 in the revision petition against the order on charge and it was submitted that the said judgment was not against the accused persons. The said judgment did not discuss the arguments advanced on behalf of the accused persons or of the other side. The accused had argued that the witnesses had already been examined, some witnesses were from FIR No.252/84 and one was from FIR No.250/84 and the witnesses had deposed what they had stated earlier but the prosecution had picked up as per its convenience. It was submitted that the said judgment had to be dealt with as a whole and there was not a CBI Vs. Sajjan Kumar & Ors. Page No. 88 of 545 single judgment there, which was suggestive of ignoring the criminal jurisprudence. It was submitted that the prosecution had to bring equivalence and the accused persons also maintained that what happened in 1984 was a sad incident but the question was whether A1 was part of it or not. There was a general observation in State through CBI v. Sajjan Kumar and others (supra) that several times witnesses do not say something but come subsequently and it was for the Trial Court to decide whether to believe the said witnesses or not. The judgments talked about minor contradictions but in the present case, there were material contradictions in the testimonies of the witnesses and qua what they had said earlier.
83. It was submitted that a case was registered against A1 in 1990. Anwar Kaur had said that everyone's case had been sent for trial except her husband's death. The case was given to CBI in 1990 Ex.PW10/D13 and it also pertained to A-4 Block. The said case and FIR No.250/84 were tried simultaneously. A1 was acquitted and in fact all the accused persons were acquitted and the appeal was pending since 2003. In the said judgment it was categorically held that there was no meeting in Sultanpuri and the name of A1 had not figured though Brahmanand was an accused. It was submitted that Justice Manju Goel had referred to Delhi Administration v. Shakti Singh & Ors. Criminal Appeal No.86 of 1996 wherein it was held that fresh allegations could not be relied on. The Ld. Counsel for the accused persons had then referred to the order on charge in the present case and the prosecution had stated that it was emphasizing on the trial of only the death of Surjeet Singh and not the others so the allegations CBI Vs. Sajjan Kumar & Ors. Page No. 89 of 545 qua the killing of others were withdrawn. When A1 was summoned, the counsels had gone to Dalhousie Road and given the details of all the cases. "State v. Uddal", "State v. Gopi" arose out of FIR No.252/84 and in Mark PW10/D1 it was admitted that the counsel had given information in 2009, still the CBI had a predetermined mind to arrest the accused Sajjan Kumar.
84. It was submitted that in the present case there were three complainants and all the three had been examined earlier and the cases either ended in a logical conclusion or were sent for closure. Enough opportunity had been given to the complainants to protest if they wanted to. The Ld. Counsel had submitted that if witnesses were there and had already been examined, it could not be called further investigation but it would amount to fresh investigation and it could be further investigation only if the investigating agency found some documents or evidence, otherwise they did not have the locus-standi.
85. It was submitted that the witnesses had not turned hostile in the Court. It was contended that in RC-7 there was not even an iota of evidence against A1 that he was at any point of time named during investigation or trial which lasted for 19 years. There were advocates of the complainant and from CBI and also from the Gurudwara side and from other institutions and now abruptly the name of Sajjan Kumar had been taken which was unfair. It was submitted that no case was made out by any stretch of imagination but the prosecution was trying to fight the case on the strength of Nanavati Commission and the earlier complaints. Witnesses had not stated about being afraid or scared or that they CBI Vs. Sajjan Kumar & Ors. Page No. 90 of 545 had come again as they had not got justice and it was not a case of omission or seeking retrial and it was for the prosecution to give the reason why they had brought 9 witnesses against A1. As per the prosecution case, 96 persons were killed in A Block itself and that the accused Sajjan Kumar had gone from A Block to B Block, B to C, C to D and covered six blocks but there was no evidence of any of the blocks. The Ld. SPP had not argued anything in respect of Sheela Kaur or Cham Kaur before the Court and it was for him to show that their testimony was to be believed which was not shown. In RC-8 CBI had not produced any witness except one who was a hearsay witness and not an eyewitness and had not stated that she had any knowledge. In RC-25 Joginder Singh was the only witness and the prosecution was not clear what they wanted to say. There was only solitary evidence produced without any corroboration and even no witness was produced who could say that people were killed in the gali. It was not even stated who was the IO of the said RC.
86. It was submitted that FIR No.268/84 had been got lodged by Joginder Singh regarding looting etc. and he had not even stated about the killing of Surjeet and wife of Surjeet Rajwant had stated about not knowing anything. It was argued that case FIR No.347/91 was registered on the strength of the affidavit given, however, the said FIR was sent for closure Ex.DW2/A. In para 4 of the charge sheet, it was admitted that the concerned competent Court had accepted it as per the mandate of law on 28.02.2004 and it was not stated that there was any slackness or mistake in the same. After closure, no protest petition was filed by PW7 though ample opportunity was given to the complainant, CBI Vs. Sajjan Kumar & Ors. Page No. 91 of 545 as per the mandate of the Hon'ble Supreme Court that acceptance of closure report can be only after notice is issued and PW7 was summoned as also the wife of the deceased Smt. Rajwant Kaur. They gave statements which are part of the record and statement of Rajwant Kaur was marked however, inference could be drawn and the statement of Joginder Singh was exhibited.
87. It was argued that there could be further examination but if the prosecution did not produce the IO, then how CBI could pursue the matter and could, in the absence of the IO, it be substantiated that further investigation had taken place. Reference was made to Section 157 Cr.P.C. which deals with collection of evidence and that if there was no examination or investigation the further investigation became infructuous. Further, some new witnesses should have been examined and not the same witnesses and the IO was to file a supplementary report under Section 172 Cr.P.C. and for Section 173(8) Cr.P.C., there must be fresh evidence oral or documentary and whether it was of sterling quality or not was for the Court to decide. The purpose of Section 157 Cr.P.C. was collection of new evidence but in the present case one did not know who had collected the evidence. Reference was made to the statement of PW10 and it was submitted that there was no investigation so plea of further investigation for which permission was sought vanished in the air. PW10 had stated that the case was investigated by the other IO and that the records were separately distributed to the different IOs and he stated that he could not answer regarding the record of the present case. He had voluntarily stated that the IO of the said case had been cited as a witness and it was submitted CBI Vs. Sajjan Kumar & Ors. Page No. 92 of 545 that it was for the prosecution to tell who was the IO. PW11 S.S Kishore was shown all the statements from the record but he stated that he did not remember and he only stated about recording the statement of Joginder Singh under Section 161 Cr.P.C. He also stated that he was not the IO who conducted the investigation of the case of Joginder Singh.
88. The Ld. Counsel had submitted that Joginder Singh's statement was with CBI, which was recorded under Section 164 Cr.P.C. dated 11.11.2008 Ex.PW7/V and the statement under Section 161 Cr.P.C. dated 08.03.2009 Ex.PW7/DC. First the statement under Section 164 Cr.P.C. was got recorded and then the statement under Section 161 Cr.P.C. was recorded 4 months thereafter. It was argued that PW7 was the solitary witness and it was the settled law that where there are different statements and ambiguity, there should be corroboration by an independent witness but that was not so and no one else had supported the case that Surjeet Singh died in the gali where he had said he had died. Neither the wife of Surjeet-Rajwant, nor Malkiyat Kuar wife of Joginder Singh nor son of Joginder Singh Inderjit had supported the said version. It was submitted that the record was got preserved by Syed Sajid Ali and reference was made to the application Ex.PW11/D1 moved before the Ld. MM, Rohini asking for the record of the case and the order dated 16.01.2006 vide which direction was passed for preserving the record of the present case pursuant to which the judicial file was kept intact and placed before the Court and the record had been got preserved by CBI. It was submitted that the Investigating Officer started giving evasive answers and he stated that they could not CBI Vs. Sajjan Kumar & Ors. Page No. 93 of 545 find Rajwant Kaur but then how he could say that he was not conducting the investigation. It was argued that Joginder Singh could not be a bigger sufferer than the wife of Surjeet Singh, who lost her husband but she had lodged the report only to get compensation. Reference was made to the statement of Rajwant Kaur recorded on 15.03.2003 in the Court at the time of the closure report and it was submitted that there was no reason to disbelieve Mark PW11/D2. The same was shown to the IO from the judicial record but he stated that he did not remember the same and he had stated that he was not the IO. Reference was also made to the statement of Rajwant Kaur recorded on 08.01.1992 by Insp. Ram Kishan. She had stated that her husband was not killed in the gali and PW11 stated that he did not remember if the said statement formed part of the record and he did not say that the said statement was wrong. Reference was made to the statement of Inderjit and Malkiyat Kaur recorded on 01.03.1992 which were part of the judicial record.
89. The Ld. Counsel had further argued that in Ex.PW/7DD, even Joginder Singh had not supported the case that Surjeet Singh had died in the gali nor Malkiyat Kaur, nor Rajwant Kaur, nor Inderjit. After a gap of 30-32 years saying so had no meaning. Reference was made to Ex.PW7/DF, which is the statement of Joginder Singh, which was got recorded under Section 164 Cr.P.C. before the Court. Reference was also made to Ex.PW9/D, which was an application for getting the statement under Section 164 Cr.P.C. of Joginder Singh recorded which meant that the statement under Section 161 Cr.P.C. had already been recorded by then. There was already a statement of Joginder CBI Vs. Sajjan Kumar & Ors. Page No. 94 of 545 Singh given to CBI and he had stated that he had earlier given his statement wherein he did not name anyone. Before Court, Joginder Singh made 3 statements. PW11 had stated that he did not know about the statement under Section 161 Cr.P.C. and even the Ld. SPP for CBI had stated that they did not have the said statement and the record of the charge sheet also stated that there was no such statement. It was submitted that it was not clear as to what was the reason to record the statement under Section 161 Cr.P.C. dated 08.03.2009 when the witness had already been produced before the Court and it could only be a supplementary statement to support what was said earlier. PW11 had given the reason. He was shown the site plan but he did not answer and stated that his only role was to examine Joginder Singh which showed the conduct of the IO.
90. It was submitted that PW7 was the neighbour and cousin of the deceased and the houses were nearby. Surjeet Singh was residing in B/2-309 and Joginder Singh in B/2-301. Before the affidavit of 23.07.1987, Joginder Singh was silent on the killing of Surjeet Singh in his statement on the basis of which FIR No.268/1984 was registered. There was a statement dated 13.03.1985 Ex.PW7/DB under Section 161 Cr.P.C. of FIR No.268/1984 that he had lodged the report. PW11 had also stated that the said statement was there and there was no mention of killing of Surjeet Singh or that Surjeet was his neighbour or about any killing much less of Surjeet Singh. PW7 had not named the accused anywhere before the affidavit and killing of Surjeet Singh was not mentioned anywhere except by Rajwant Kaur to claim compensation but the same was not brought on CBI Vs. Sajjan Kumar & Ors. Page No. 95 of 545 record. There was no mention about the killing of Surjeet Singh from 1984 to 1987 and there was also silence on who killed him as also on whether somebody knew about the same. Jain and Aggarwal Committee advised for registration of the case and the case was registered only on 13.12.1991 as FIR No.347/1991. Further, there was no statement between 1987 and 1991. The rukka was Ex.DW2/B and investigation started in the State case under the supervision of Rajiv Ranjan the then ACP. It was admitted by the prosecution that untraced challan was filed on 08.02.1994 which is Ex.DW2/A and the matter was sent as untraced after recording of statements of Joginder Singh, Inderjit, Malkiyat Kaur and Rajwant Kaur, and none of them had supported the case and the same was accepted on 28.02.2004 after 10 years. On 08.01.1992, statement under Section 161 Cr.P.C. of Rajwant Kaur was recorded which was Mark DW2/1 wherein she had stated that Surjeet Singh left in the morning of 01.11.1984 and did not come back and after sometime she came to know that her husband had been killed by rioters and somebody told her that he was killed near the Nala or Railway Crossing though she did not know the correct position. The killing was informed by a labourer to her but she did not know his name or address and she could not trace the dead body of her husband despite making efforts. She had stated that Joginder Singh was her relative and that he had filed the affidavit but he did not know who had killed her husband so she knew that some names were given by Joginder Singh and she stated that the names given by him in his affidavit were wrong meaning thereby that maybe police had put the names to him. The IO had stated CBI Vs. Sajjan Kumar & Ors. Page No. 96 of 545 that he did not know where Rajwant Kaur had married but she had stated that she had married her devar. She had stated that Sajjan Kumar had not done anything in killing or getting her husband killed. It was submitted that the prosecution had not questioned Mam Chand on the same though he was examined as DW. It was contended that Rajwant Kaur was consistent in her statement before the Court.
91. Reference was made to the statement of Joginder Singh dated 04.05.1992 Ex.PW7/DD which was part of the closure report and was not disputed by the CBI. In the statement to Rajiv Ranjan, PW7 had stated that at that time he was present at home and he was scared and out of fear, he went out of his house and hid in another gali in the house of a Hindu and he was in hiding even on 02.11.1984. He stated that he came to know that Surjeet Singh was killed near Nangloi phatak. He had stated that someone from Babbar Khalsa Committee had got his affidavit signed but it was not read over to him. He had also stated that the names of accused persons mentioned in the affidavit were all incorrect and he had not seen them in the crowd and he somehow saved his life and was hiding. The last para in question and answer form was revolving around the affidavit and he had stated that he had told them that he had not identified anyone in the crowd. It was argued that the said record was not challenged by CBI and it was not even put to Mam Chand that he had written the statement himself and it was not written by Rajiv Ranjan. Reference was made to the statement under Section 164 Cr.P.C. dated 22.08.1992 of Joginder Singh Ex.PW7/DF in which he could not say what had happened outside his house. It was CBI Vs. Sajjan Kumar & Ors. Page No. 97 of 545 submitted that Joginder Singh had given different statements and except in the affidavit, he had not named Sajjan Kumar anywhere. So, an application for getting his statement recorded under Section 164 Cr.P.C. was moved which is Ex.DW2/D as there was nothing else which the police could do as in the affidavit he had named Sajjan Kumar but then he was disowing the affidavit. The IO had spoken to the Director (Prosecution) and then got recorded the statement under Section 164 Cr.P.C. and he had not supported the spot of occurrence even. It was admitted by CBI that the statement of Joginder Singh was recorded under Section 164 Cr.P.C. and he had stated that he could not tell what had happened outside the house and that his affidavit was incorrect and he had signed the affidavit at the instance of Atma Ram who it was submitted remained present in the Court on most dates. He had stated that he had no knowledge about the names mentioned in the affidavit nor he had seen them during the riot of 1984. It was submitted that the statement of Joginder Singh recorded on 31.03.2003 and of Rajwant Kaur were considered by the Court and it was observed in the ordersheet that he had stated that he had made the statement on oath. Ex.PW7/DG dated 08.02.19994 was notice given to Joginder Singh and no protest petition was filed by him. He did not appear before the Ranganath Misra Commission or the Nanavati Commission and he did not tell anything and then he made the statement before CBI.
92. Reference was made to the cross-examination of PW7 and it was submitted that it showed how unnatural his conduct was. He was claiming much more than what the lady had claimed who CBI Vs. Sajjan Kumar & Ors. Page No. 98 of 545 had suffered. It was contended that there was no need for him to lodge the report when the wife of the deceased was there and he had not even asked her if she had made a complaint and he did not even advise her to lodge a complaint. During cross- examination, he was shown the site plan but he stated that he was illiterate. He denied giving the statement dated 25.01.1985 but he admitted that the IO had met him. It was suggested to him that none of the persons had stated about the killing to which he stated that he did not know. Statement dated 13.03.1985 was read over to him and he stated that he knew about the Ranganath Commission but he did not appear before the said Commission. It was argued that PW7 was confronted on material points and he had given different versions regarding from where he had got the affidavit typed. Initially, he had stated that it was typed from the camp but thereafter he had changed the version and stated that the affidavit was prepared at Tis Hazari. There were also different versions as to at whose instance the affidavit was prepared. He had stated about being aware of the M.L. Jain and Aggarwal Committee and about registration of FIR No.347/91 but had also stated at another point that he did not know but later stated that he knew which showed that he was a tutored witness. He had identified Raj Singh, Krishan and Mam Chand so he identified all the three IOs but he did not know about the case which meant that he was showing ignorance at every stage. He had even shown ignorance about Rajwant Kaur and her marriage which showed that he was tutored to say no to everything and as such could not be believed.
CBI Vs. Sajjan Kumar & Ors. Page No. 99 of 54593. It was argued that there was no reason why Rajwant Kaur who was the wife of the deceased came forward and made a statement against PW7. Further, the brothers of the deceased were there as also other family members but they were not examined. The CBI had stated that it was its discretion to examine any witness but law also said that when a material witness was there, the prosecution could not withhold the witness. The law was settled that if a witness could not unfold the case, the prosecution could drop him but not if the witness reached the root. As per PW7 Rajwant Kaur was there in the gali and had witnessed the incident and was also the wife of the deceased so there was no reason why she was not examined and she could not be dropped and it was not stated what the reservation of the prosecution was in producing her. CBI had camped at the spot for a fortnight but they could not trace anyone from the family of the deceased but easily found PW7. He was asked that his son had stated how Surjeet Singh had died but PW7 had stated that his son did not know though in his examination-in-chief he had stated about the son. As per the prosecution, the son of PW7 Inderjit was 11 years old so his statement had no meaning. Rajwant Kaur was the lady for whom PW7 was pursuing the case but he did not know where she lived and when the exact address was given that his son had told that she was living near Shivaji College, he admitted but again he stated that he did not know her address. He was asked if she had got married to which he stated no whereas Rajwant Kaur, Malkiyat Kaur and Inderjit Singh had stated that Rajwant Kaur had got remarried. He did not know if she had lodged any CBI Vs. Sajjan Kumar & Ors. Page No. 100 of 545 complaint or what action was taken by her. He had stated that he had never asked his bhabhi to lodge a report and he was pursuing the case without knowing where she was. It was submitted that CBI could have found out where she was which showed the conduct of the prosecution and that the witness was deliberately not brought forth though it had met her and as such adverse inference was liable to be drawn against the prosecution.
94. PW7 had stated that he was offered money by the police but the said statement was made in the Court for the first time and had no relevance. He was confronted and he was running away from saying about Rajwant Kaur. He had brought a new issue about A1 stating about 72 hours and he was confronted on the same and he stated that he had said so in Karkardooma, Tis Hazari and in Patiala House Court. He stated about knowing only about Surjeet but he could not state about other sardars. He was asked if Rajiv Ranjan had met him and his wife in 1992 and he stated about meeting Rajiv Ranjan but he also stated that he did not know him. All his statements were different. He had admitted that he had appeared before the Court and given statement on 22.08.1992 and the Court had satisfied itself before recording his statement Ex.PW7/DE and he had identified his signatures on the same but the names of the accused were not there. He was confronted regarding the affidavit and he stated that the affidavit was correct and he was questioned about Atma Singh. It was submitted that one statement of the said witness was missing and the CBI had stated that it had only one statement under Section 161 Cr.P.C. of the said witness though in the application for getting recorded the statement under Section 164 Cr.P.C., it was CBI Vs. Sajjan Kumar & Ors. Page No. 101 of 545 stated that one statement was recorded before getting the said statement recorded. He was confronted with the statements under Section 161 Cr.P.C. and Section 164 Cr.P.C.
95. The Ld. Counsel for the accused persons had further argued that Joginder Singh was an unnatural witness and he claimed to be closely related to the deceased but he had not informed the police at all and he had not brought forth the fact of killing of Surjeet Singh prior to the filing of the affidavit which he had himself disowned twice and he had made improvements deliberately from day one and the prosecution could not deny that the statement of PW7 was moulded to suit the particular prosecution theory for the purpose of targeting Sajjan Kumar and the question was whether the testimony of such a witness could be believed. There was no credibility of the testimony as there was no evidence on record direct or indirect which proved the occurrence, much less the role of accused persons and no circumstances were suggestive of the same. The Hon'ble Supreme Court had laid down that the Courts must not be swayed by the aura of the crime or the status of the accused. It was being projected that the accused was very influential but it was not the case that PW7 was terrorized or scared and the behaviour of PW7 was unnatural and grossly against normal conduct and there was a strong bias in the story projected by him. It was submitted that the prosecution would admit that a witness had to be tested on the fire of cross-examination. In ordinary course, the witness deposes soon after the occurrence or after sometime but it is not that they make repeated statements after various periods. The criminal jurisprudence was to the effect that the Court would ask CBI Vs. Sajjan Kumar & Ors. Page No. 102 of 545 why the complainant did not come at the first possible opportunity and there was no possible explanation by the prosecution or the witness why PW7 remained silent for so long and when the affidavit and the FIR were there, why he resiled from the same before the investigating agency and the Court. The Hon'ble Supreme Court had observed that delay affords an opportunity to the complainant to make deliberation which had happened here and it spoilt the chance of an unsolved and untarnished version to be presented before the Court which was the case here. The earlier investigation could not be wiped off from the record. There was no satisfactory evidence nor unerring or clinching evidence and there were gaps and missing links in the case of the prosecution. It was submitted that the case had been planted on A1 though no case was made out and further investigation had not revealed anything.
96. The Ld. Counsel for the accused persons had submitted that the case of the prosecution must stand on its own legs. Reference was made to the order by which anticipatory bail was granted to the accused and it was submitted that the accused had placed on record all the statements and the specific plea taken was that the witnesses had already been examined on the same subject matter. The Hon'ble High Court while granting anticipatory bail observed that the statements would be looked into at the stage of trial. It was submitted that the Ld. SPP for CBI had argued against the record as the CBI had been asked by the Court to preserve the record. There was not a single judgment that Sections 154 and 155 of the Indian Evidence Act would not be applicable. The judgment of the Hon'ble High Court also CBI Vs. Sajjan Kumar & Ors. Page No. 103 of 545 stated that the statements would be looked into at the stage of trial and against the order on charge, the accused persons had gone to the Hon'ble Supreme Court and the Hon'ble Supreme Court had also observed that no doubt that the statements were there and that they would be looked into at the time of trial. It was submitted that all the orders were there and nowhere it was the case of CBI that the earlier statements were bogus or that the earlier trials were a fraud and there was not a single evidence of what they had stated or even to say that A1 had gone from one block to another to another block. Earlier several persons had been named as accused but now only Sajjan Kumar had been named. CBI could not sit over the judicial verdicts when the orders were not challenged and the judgments by which accused persons had been acquitted were not bogus. In RC-8 there was no evidence and in RC-7 CBI could not proceed and they knew the same so joint investigation was conducted saying it was same in point of time. The CBI knew that they would not succeed in getting even a charge framed in the case of death of Surjeet so the cases were consolidated. The CBI had got the case in 2005 and from 2005 to 2010, the question was what evidence they had collected. When the same witnesses were examined, it could not be said to be a case of further investigation and it was only re- investigation or de-novo investigation which was not permitted and there was no reason why the CBI did not admit that it was reinvestigation or fresh investigation as they felt that the accused might get it quashed.
97. It was submitted that as regards the judgment in State through CBI v. Sajjan Kumar and others (supra) by which A1 CBI Vs. Sajjan Kumar & Ors. Page No. 104 of 545 was convicted, it was only on one point regarding the name of the accused in English translation or Hindi affidavit and the said judgment did not apply to the present case and it was a different case. In that case, there were three cases which were not sent for closure as the CBI had come in when the proceedings on the closure report were going on so the Court had said that if there was fresh evidence, the matters could be proceeded with. In the present case, Joginder Singh had duly appeared before the Court and what he had stated in the investigation and trial was important and not what he had stated in his affidavit. Joginder Singh had already been examined. There was no reason why Malkiyat Kaur, wife of Joginder Singh should have been disbelieved who also had stated that there was no such incident in the Gali or even Inderjit who stated that no such incident had taken place. There was no reason why CBI had not called Malkiyat Kaur and Inderjit Singh in the witness box to state that they were made to give their statement forcibly and there was also no reason why Rajwant Kaur was not called. It was submitted that the case which succeeds on facts does not need any citations. It had to be seen what was there on the face of it and there was not even one statement of a witness which stated that the incident as alleged by the CBI had taken place. The charge revealed what allegations the accused persons had to meet and if CBI could withdraw charge in respect of killing of 6 persons then arson, looting would also go with the same. It was also submitted that from 1987 to 1991 no FIR was registered due to the order of the Division Bench of the Hon'ble High Court and the matter had even gone to the Hon'ble Supreme Court. It was CBI Vs. Sajjan Kumar & Ors. Page No. 105 of 545 admitted that in respect of RC-7 there were restrictions, still the charge sheet was filed though the CBI knew that the case could not proceed. It was strange that 3000 people had died but Nanavati Commission had picked up only 7 cases out of which 3 cases were not pursued by CBI as they pertained to dacoity and in one case there was no evidence and it meant that for 5 years Nanavati Commission had only proceeded with the case of Surjeet Singh. Full-fledged proceedings had taken place before the Nanavati Commission but it could not be believed that only one case was found as genuine.
98. The Ld. Counsel for the accused persons had argued that it was not disputed that even solitary evidence could be there but it was also the settled law that there must be corroboration whereas there was none to corroborate the incident in the present case or to show where the incident had occurred in the instant case. It was contended that the arguments on behalf of the CBI and the complainant were not confined to the subject matter and the case before the Court was, if the accused were involved in the occurrence wherein Surjeet died. It was submitted that PW7 had given more than 8 statements and he had changed his version in all the statements and there was also the judgment that he was not consistent. Even the judgments which were filed by CBI showed that if the witness was not consistent his testimony could not be relied upon and in fact PW7 had even deposed before the Court and he was asked about his affidavit and he had twice appeared before the Court and said that he had signed the affidavit due to influence of Atam Singh Lubhana but he was not confronted with the said statement. Mam Chand was not CBI Vs. Sajjan Kumar & Ors. Page No. 106 of 545 confronted in this regard and it was not stated why the testimony of PW7 should be accepted. The prosecution had failed to point out whose case was not initiated and who had not got the compensation on the basis of the complaint that was lodged. It was also not the case put forth in the charge sheet and that 3000 persons had been killed and the victims had not been taken care of.
99. It was submitted that it was conceded by the prosecution that the case was not covered within the ambit of the Nanavati Commission. Two of the cases were not emphasized but had been brought in only to show the occurrence which in any case was not disputed. 11 witnesses had been examined in the competent Court which was the Sessions Court where the trial took place and there was no whisper as to why they had not named the accused Sajjan Kumar earlier. It was submitted that the case was to be decided on the basis of documents and the criminal jurisprudence was not to be touched and it had to be seen if the case was proved. There was only one prosecution witness in RC- 25 and it was to be seen whether he could be believed or not. There were two sets of evidence in that other accused persons were named in the 10 charge sheets and now only one person was being named along with Vedu, who had never been named and Brahmanand had been acquitted twice and revision petition had been preferred which was pending in the Hon'ble High Court. It was submitted that the facts were being distorted and it was for the Court to see if the accused persons were involved or not.
CBI Vs. Sajjan Kumar & Ors. Page No. 107 of 545100. It was contended that the arguments on behalf of the complainant were as if it was for the accused to prove the case and alibi had no relevance as the prosecution was to prove its case. PW7 had stated about being a mona but it was known that it was a Sardar's house and he could not have been left if he was in that house. If he was known to everyone and the killers were local people, there was no reason why PW7 was left off and he had stated that they knew him and he knew them and knew them well so why would they spare him. As such the question of his being a Sardar or not being a Sardar did not arise. The houses were of 25 square yards each and there were twelve houses in each line. It was surprising that from out of 24 persons in the houses, at least someone else would have also stated about Surjeet being killed but no one else stated about the occurrence. It was submitted that the occurrence was not established and the site plan did not show where the killing had taken place. As regards the previous statements, when the statement under Section 164 Cr.P.C. was got recorded, nothing survived. Everyone had got compensation. It was urged that if the Nanavati Commission was correct, then why G.C. Mathur Commission was set up in 2015 and why in 2020, three more cases were lodged against A1. If the prosecution was being withdrawn for six cases, then even Section 147 IPC etc. went and in any case the said sections had been considered earlier and the accused persons could not be tried again for the same offences.
101. Written submissions were filed on behalf of the accused persons submitting that a consolidated charge sheet was filed by the CBI in 3 cases which was a re-registration of earlier FIRs and CBI Vs. Sajjan Kumar & Ors. Page No. 108 of 545 it was the admitted case of the prosecution that the said FIRs mentioned in the composite charge sheet were earlier investigated by the then investigating agencies and sent to the concerned competent courts after the completion of investigation either for trial or closure. The result of the said three cases was mentioned in para (iv) of the charge sheet. It was not the case of the CBI in the charge sheet that the earlier investigation(s)/ trial(s) were farce and not fair as argued by the Ld. SPP and the only reason given in the charge sheet [para (vi)] was that on consideration of the findings of Nanavati Commission, the Government directed the CBI to investigate/re-investigate the cases. It was submitted that none of the complainants/ witnesses cited in the present charge sheet had ever expressed their dissatisfaction or reservation in respect of the earlier investigation conducted/ judicial proceedings in any manner. It was contended that the prosecution had no reason to file the consolidated charge sheet and the only reason assigned for the same was in para (xiv) of the charge sheet. However, the claim of the CBI was absolutely incorrect and contrary to the contents of the charge sheet and none of the witnesses cited in the charge sheet or got examined before the Court supported the contention of the prosecution. The three cases were from different areas of Sultanpuri and the witnesses cited were from that respective area and none of the witnesses had claimed that there was one mob in A, B, C, E and F area.
102. It was further submitted that on 30.11.2015, the CBI moved an application Mark PW10/D3 before the Ld. MM seeking formal permission for further investigation/re-
CBI Vs. Sajjan Kumar & Ors. Page No. 109 of 545investigation of FIR No.250/84, PS Sultanpuri and the Ld. MM ordered that if law permitted, no permission was needed for further investigation. On 13.01.2010, CBI filed a composite charge sheet before the then Ld. CMM and on 01.02.2010 cognizance was taken and summons were issued to the accused persons. On 05.04.2010 the matter was marked to the Court of the then Ld. District Judge, North-East. The accused persons moved an application under Section 91 Cr.P.C. seeking directions for production of documents for summoning the entire previous record of earlier investigation/ judicial record in respect of the charge sheet for the purpose of consideration of documents at the time of charge whereas, the stand of the prosecution was that at the time of framing of charge documents relied upon by the prosecution could only be considered and the defence could not be allowed to bring their documents in defence. The Court vide its order dated 22.04.2010 observed that the statements of witnesses recorded in the earlier proceedings would be required for the purpose of confronting the witnesses at the time of cross- examination as provided under Sections 145 and 157 of the Evidence Act. It was submitted that as per para X of the charge sheet, the criminal acts of the unlawful assembly at the instigation of A1 resulted into killing of several persons but during the arguments on charge, the defence brought on record that the killing of the six persons referred to had already been sent for trial in Charge Sheet No.2 "State v. Gopi and Others" in FIR No.250/1984 and was decided by the concerned competent Court vide judgment dated 30.09.1993 (Ex.PW10/D9) and the killing of other three persons was sent for trial in FIR CBI Vs. Sajjan Kumar & Ors. Page No. 110 of 545 No.250/1984 in "State v. Suresh Chand and Others"
(Ex.PW10/D10) and the witnesses cited in the present case were already examined as prosecution witnesses in the earlier trial and none of the witnesses cited in the earlier trial had named A1 and Vedu Pradhan for their involvement in the riots or attributed any role to them either direct or indirect. However, Brahmanand Gupta was an accused in the said killing of 49 persons which was tried and included the killing of Basant Singh, Balbir Sngh and Balihar Singh. 72 witnesses were cited and it pertained to A-4 Block. There was no whisper of holding of any meeting and there was no accusing finger against A1 and Vedu Pradhan either during investigation or trial. It was submitted that there was no reason with CBI for the re-trial of killing of the said 6 persons and RC-7 by no stretch of imagination was covered within the ambit of recommendations of Nanavati Commission which was conceded by the prosecution that earlier trial had taken place. The prosecution had also admitted and confirmed the fact of the earlier trial of killing of six persons through its IO (PW10) in his examination-in-chief dated 22.11.2021.
103. It was pointed out that on 01.07.2010 charge was directed to be framed and on 07.07.2010 charge was framed against the accused persons. There were two sets of charges - one against A1 and one against the other accused persons. The issue was whether the CBI had proved the charges and whether the prosecution had brought any document or evidence to strengthen the charge or if the witnesses were old bottles with new lables or the charges had some substance or not. It was submitted that there was not a single word mentioning that the earlier investigation was a farce CBI Vs. Sajjan Kumar & Ors. Page No. 111 of 545 in the charge sheet and there was not even a whisper that the investigation was defective and not just and fair. It was submitted that A1 faced trial in RC-1 in respect of the riot incidents dated 01.11.1984 of A-4 Block and was acquitted (judgment dated 23.12.2002 in Sessions Case No.33/2001 is Ex.PW10/D13) and reference was made to the said judgment which it was submitted, established that the name of A1 did not figure in the entire earlier investigation or trial. It was submitted on behalf of the accused persons that the record be preserved and the Court directed CBI to preserve the record. At that time it was not the case of CBI that the record was not with them and after that there was silence from CBI if they had the record or not. It was submitted that A1 had got some records except one record which was of "State v. Uddal" FIR No.252/84 which was not traceable and with the other record, the accused persons were allowed to confront the witnesses but it remained an issue. In the application under RTI Act filed by the accused, it was stated that the record had been handed over to CBI. The Court vide order dated 07.07.2010 on the request of the defence directed the CBI to preserve the record.
104. It was submitted that there were several phases. The first phase commenced from the date of occurrence till Justice Ranganath Misra Commission was appointed/ constituted by the Government of India on 26.04.1985:
i) It was not the case of the prosecution that prior to the appointment of Justice Ranganath Misra Commission the victims/witnesses/complainants in the present consolidated CBI Vs. Sajjan Kumar & Ors. Page No. 112 of 545 charge sheet had not approached the police officials or concerned authorities or that they were not heard.
ii) It was an admitted case of the prosecution that FIR No.250 of 1984 (RC-7) was registered on 01.11.1984. The said FIR was in respect of A-4 Block, Sultanpuri, Delhi. It was also an admitted fact that FIR No.252 of 1984 pertained to A-4 Block, Sultanpuri, Delhi. Both the said FIRs were earlier investigated and sent for trial. Out of those FIRs, there were four charge-sheets in FIR No.250/84 and six in FIR No.252/84. The cases were registered on the first day and the ladies had admitted that on their statement, the FIRs were registered, they were not hostile witnesses and they had deposed in the Court but no-one had name Sajjan Kumar. The name of Sajjan Kumar appeared in 1991 when the CBI came into picture and except PW4 all the other witnesses had been examined before in respect of the same subject matter before the concerned competent Court during the earlier trial and the cases were decided as per the mandate of law. What was the result of the said FIRs was not mentioned and both pertained to A-4 Block of Sultanpuri. Statement of Joginder Singh was recorded in FIR No.268/84 which is Ex.PW7/DD. No one had expressed any grouse against the conduct of investigation or against the judicial proceedings nor existence of the name of A1 was traceable by way of attributing any role to him and not even remotely A1 was connected with the cases. Thereafter, allegations were made against A1 directly and blatantly targeting him.CBI Vs. Sajjan Kumar & Ors. Page No. 113 of 545
Mohan Singh and Hoshiar Singh were real brothers and sons of witness No.1 cited in the list of witnesses. Ranjeet was the cousin, Basant was father, Balbir and Balihar were the sons. It started with the allegation that A1 was responsible for their killing but it was not stated whether the cases were registered earlier or sent for trial or not and there was no whisper regarding the same in the charge sheet. The prosecution had misinterpreted the orders as per their own convenience. The killing of the said six persons was sent for trial in FIR No.250/84 which resulted in acquittal in FIR No.250/84. Four charge sheets were filed with the first charge sheet relating to the death of three persons and the second charge sheet relating to death of three other persons. The first was in the name of "State v. Suresh Chand & Ors.", Ex.PW10/D10 (part B-I) and it related to the death of Basant, Balbir and Balihar. It was submitted that the prosecution knew that individual cases would not stand so they consolidated the charge sheet in respect of three FIRs. The name of accused Brahmanand found mention in the said trial though A1 and Vedu were not named and they were not sent for trial earlier. It was argued that as such accused Brahmanand could not be sent for retrial and Section 300 Cr.P.C. would be attracted. The accused persons had been acquitted in the said charge sheets and the names of the accused persons were given by those who had lost their near and dear ones i.e. wife, son, daughter, daughters-in-law and there were seven witnesses. None had named A1. The case was decided in 2002. No CBI Vs. Sajjan Kumar & Ors. Page No. 114 of 545 appeal was preferred. Revision petition was preferred which was pending since 2003. The Ld. Counsel further submitted that the cases where A1 was convicted started in 2010 only. It was submitted that in no statement nor even in any deposition or judgment was A1 named or even thereafter when the revision was preferred he was not named and even before the Hon'ble High Court the witnesses had not stated that they could not name A1. 49 persons were killed, 72 witnesses were examined and there was no whisper of any meeting being conducted or of any procession. It was the same case, same persons were killed and now the prosecution had come with a new version. It was argued that there should be balancing and there was nothing which reflected or indicated or demonstrated involvement of A1. The second case was "State v. Gopi"
Ex.PW10/D9 which related to the killing of Ranjeet, Hoshiar and Mohan and there was no accusing finger against A1 or Vedu and the accusation was against Brahmanand but he was acquitted and the executive could not step into the shoes of the judiciary. Again all the accused persons were acquitted vide judgment dated 30.09.93.
iii) The defence had placed on record several judgments to demonstrate that the witnesses cited in the present consolidated charge sheet had already been examined by the concerned competent Courts in respect of the same subject matter i.e. occurrence/ killings of their respective family members/ relatives namely certified copies of CBI Vs. Sajjan Kumar & Ors. Page No. 115 of 545 judgments and statements of witnesses Ex.PW10/D10;
Ex.PW10/D5; Ex.PW10/D4; Ex.PW10/D9; Ex.P10/D12 (in respect of killing of 21 persons); Ex.PW10/D12 (Smt. Prem Kaur cited at Sl. No.8 was earlier examined as PW8 in FIR No.252/1984 and PW9 in RC-1); Mark PW6/DA and Mark PW6/DC (Smt. Cham Kaur cited at Sl. No.2 was earlier examined as PW1); Ex.PW10/D14 [(Smt. Popri Kaur cited at Sl. No.3, Smt. Gopi Kaur cited at Sl. No.7, Smt. Thakri Devi cited at Sl. No.9, Smt. Kamla Devi cited at Sl. No.10 were earlier examined in the said case as PW10 (Ex.PW10/D17), PW9 (Ex.PW10/D15), PW11 (Ex.PW10/D19) and PW8 (Ex.PW10/D20)] respectively. It was argued that the accused Brahmanand was accused in both the earlier cases. Joginder Singh complainant of RC- 25 had also made a statement under Section 161 Cr.P.C. dated 13.03.1985 in FIR No.268/1984, Ex.PW7/DB wherein he had not even stated/ mentioned regarding the killing of Surjeet Singh which is the subject matter of the present case before filing of affidavit Ex.PW7/A.
105. The second phase was the appointment of Justice Ranganath Misra Commission under Section 3 of the Commission of Inquiry Act, 1952 on 26.04.1985 by the Central Government. Reference was made to the terms of recommendations and that it was appointed to inquire into incidents of organized violence and to adopt preventive measures so that such riots do not take place in the future. Reference was made to the composition of the said Commission and that it was meant to protect the interest of the victims. The Members of the CBI Vs. Sajjan Kumar & Ors. Page No. 116 of 545 Commission had visited the camps along with NGOs and SGPC and examined many persons. The term of the Commission was also extended and in the affidavits, the name of only H.K.L. Bhagat had come. The said Commission had given the meaning of organized violence but the name of A1 had never come before the Commission. It was stated therein that the present could not be called organized violence and it could not be believed that leaders would go and lead a mob. Committees were set up for rehabilitation, employment, accommodation, compensation so without lodging of FIRs, compensation could not have been given. It was not the case that complaints of the victims had not been taken or even that no action was taken and till the second phase A1 was not named and was not in the picture. It was submitted that none of the witnesses in the present case appeared or had given any grouse or grievance before the said Commission and the CBI had deliberately not placed the true facts in respect of the report of the said Commission of Enquiry.
106. The third phase was when on the recommendation of Justice Ranganath Misra Commission that there should be a Committee of a judicial officer and high ranking police official of outside Delhi, Justice Jain and Banerjee Committee was constituted vide notification dated 02.02.1987. The ambit of the Committee was to investigate and monitor criminal cases of riots where omissions were there and to go through the affidavits filed by various victims and make recommendations regarding the registration and investigation of cases pertaining to specific incidents. Brahmanand Gupta preferred a Civil Writ Petition No.3337/1987 seeking quashing of the notification dated CBI Vs. Sajjan Kumar & Ors. Page No. 117 of 545 23.02.1987 and the same was quashed by the Hon'ble High Court vide order dated 04.10.1988 in Brahmanand Gupta v. Delhi Administration reported as 1990 (41) DLT 212 and appeal was preferred against the said judgment in Citizen Justice Committee and others v. Brahmanand Gupta and others which was dismissed vide judgment dated 08.02.1996 of the Hon'ble Supreme Court. Joginder Singh had also given an affidavit before the Committee. It was submitted that the notification establishing the M.L. Committee was quashed so the affidavit filed by Joginder remained pending.
107. The fourth phase was the appointment of Justice J.D. Jain and Shri D.K. Aggarwal Committee to examine the cases relating to riots in Delhi which was constituted by the Delhi Administration in the year 1990 which recommended for registration of a fresh case on the basis of the affidavit dated 23.07.1987 of PW7 and consequently FIR No.347/91 PS Sultanpuri (RC-25 herein) was registered and on the affidavit dated 09.09.1985 filed by Smt. Anek Kaur before the Justice Ranganath Misra Commission, FIR No.307/94 was registered at PS Sultanpuri (RC-8). It was pointed out that none of the complainants in the said cases during investigation and before the Court supported the contents of their respective affidavits nor the investigating agency was able to find any evidence supporting the version of the affidavits and as such the prosecution after seeking legal opinion from the legal department sent the cases for closure for want of evidence which were accepted as per the mandate of law by the concerned competent Courts under intimation to the complainants. It was submitted that Joginder CBI Vs. Sajjan Kumar & Ors. Page No. 118 of 545 Singh in FIR No.268/84 had not stated about the death of Surjeet Singh but only about the things which were stolen and in the affidavit of 1987, he had for the first time spoken about the death of Surjeet Singh. The FIR was registered and it was investigated by the Riot Cell and it ended in a closure report which was accepted after giving due notice to the complainant to prefer a protest petition if any. None of the complainants or witnesses particularly Joginder Singh had preferred any protest petition or expressed any dissatisfaction before any forum. It was also submitted that the cases against A1 came into existence only in 1991. The Anti Riots Cell was set up which took up cases without bothering whether the witnesses had been examined earlier or not and whosoever gave a complaint, the case was registered.
108. The fifth phase was the appointment of the Nanavati Commission in May 2000 by the Government of India which submitted its report on 09.02.2005 to the Government. It was stated that none of the complainants/ witnesses cited in the present composite charge sheet had either appeared before the Justice Nanavati Commission or made any complaint/ representation expressing their dissatisfaction with the investigation conducted/ judicial proceedings or any dissatisfaction with the functioning of Delhi Police or of the Anti Riots Cell. Vedu and A1 were not there before the Commission though the name of Brahmanand Gupta was there. So if the Nanavati Commission had not been appointed, A1 would have been a free bird but he was here and presently facing trial because of the report of the Nanavati Commission though his CBI Vs. Sajjan Kumar & Ors. Page No. 119 of 545 case was not covered and he had been blatantly targeted by CBI. Prior to this there was only one case against A1 of 1990 which was RC-1 wherein he had been acquitted. It was submitted that the name of A1 was not there in the charge sheet or supplementary charge sheet of FIR No.250/84 and none of the witnesses or even Sheela Kaur or Cham Kaur who were cited or examined had preferred a revision petition or appeal against the acquittal in 2003 though a revision petition was pending. Reference was made to the recommendations of the Nanavati Commission (pages 217 to 221 of the charge sheet Ex.PW10/7 (colly) D-15/2 to D-15/4 at D-15/4 page 221). It was argued that the report of the Commission was only advisory but the prosecution had placed on record extracts of the report of Nanavati Commission which were earlier marked and at the instance of the accused, they were exhibited as Ex.PW10/L (D- 15/3). Reference was also made to the letter which was earlier Mark PW10/1 and then exhibited as Ex.PW10/M (D-15/1). It was argued that the prosecution had submitted that the Prime Minister had to give assurances and as such the letter became important. It was submitted that the accused persons were not covered within the ambit of recommendations of Nanavati Commission.
109. It was contended that the CBI was not fair in the present case and had merely filed relevant extracts of the report of Justice Nanavati Commission of Enquiry into the 1984 riots but had withheld the Memorandum of Action Taken on the report. It was pointed out that the report of the Commission could be placed before the Parliament only with a Memorandum of Action taken CBI Vs. Sajjan Kumar & Ors. Page No. 120 of 545 by the government on the report within a period of six months of the submission of the report by the Commission to the appropriate Government. The accused had placed on record the copy of the Memorandum of Action Taken on the report during the course of final arguments. It was stated that the stand of the government was given in the Memorandum of Action Taken on the report which was placed before the Parliament on 10.08.2005 and 11.08.2005 before Lok Sabha and Rajya Sabha respectively along with the report of Justice Nanavati Commission Ex.PW10/M (colly). The prosecution was silent on it and the same would show that what was argued by the Ld. SPP for CBI and the Ld. Counsel for the complainants was contrary to the facts. The said report was submitted by the Home Minister before the Parliament on which the statement was given by the Prime Minister. Reference was made to the said report and it was argued that what was stated therein was the same as what was argued on behalf of the accused persons and put during cross- examination and the same stand had been taken that the name of A1 was not there except in one case on the complaint of Anwar Kaur which was also the answer of the Government and there was misrepresentation by the Ld. SPP and the Ld. Counsel for the complainant. The IO had stated that on the recommendations of the Nanavati Commission, the cases had been registered but Ex.PW10/M showed that the only assurance by the PM was that if the law permitted, action would be taken if the name of the accused persons had been taken. IO did not answer the question when asked which law permitted the registration of cases. The question that arose was whether retrial was permissible in Court CBI Vs. Sajjan Kumar & Ors. Page No. 121 of 545 or not when it had already been stated that 96 witnesses who were examined in the Court had not named A1. The cases were of the same A-4 block and the same vicinity and trial of RC-1 and FIR No.250/84 was held simultaneously so the Court had knowledge of both the cases and had given the observation that A1 was nowhere in the area of Sultanpuri. The Government itself had stated that there was no case against A1 and there was no reference to Brahmanand.
110. Reference was made to Section 4 of the Commissions of Inquiry Act and it was submitted that the recommendations in the report were accepted conditionally but it was not accepted that A1 was liable and the investigating agency could not have gone beyond the recommendations of the Nanavati Commission. Even the letter Ex.PW10/M stated that the cases be entrusted to CBI as per the recommendations of the Nanavati Commission and thereafter the cases were registered. Reference was made to D- 15/3 Ex.PW10/L which showed that all the witnesses had already been examined in FIR Nos.250/84, 252/84 and 268/84. Even Joginder Singh had already been examined though the Commission had advised that where the witnesses had already been examined, the cases could not be re-registered but the present cases were registered. It was not the case of CBI that A1 had been named but no charge sheet was filed. The IO had stated that he had camped in the area, he had contacted the people, seen the record and found that no one had named Sajjan Kumar earlier. It was not the specific case of CBI that the earlier investigation was a farce. They could not have again charge sheeted Brahmanand who had already been acquitted after trial CBI Vs. Sajjan Kumar & Ors. Page No. 122 of 545 from 1984 to 2003. As regards RC-8 no evidence was produced. It was argued that the accused persons were not covered by the ambit of recommendations of Nanavati Commission and Joginder Singh had already been examined earlier but he had not named A1.
111. It was submitted that the question which arose was whether the Executive Authority could interfere in the judicial process or proceedings to which the answer was in the negative and the judicial process could be looked into by the judicial authority only. RC-7 was clearly not covered in the ambit of Nanavati Commission and there was no protest from any corner after the closure report was filed and as such it had attained finality and could be reopened only if there was fresh evidence. Anwar Kaur and the other witnesses had appeared before the Court and were not hostile and were duly cross examined and the judgment in RC-1 was on record. It was argued that the issue that arose was whether the case of CBI before this Court was that in FIR No.250/84, though Sajjan Kumar was named yet he was not charge-sheeted or the case was closed as untraced. However, none named Sajjan Kumar or Vedu or showed their involvement either during investigation or trial of the said case. Or whether the case of CBI was that the witnesses had named A1 and other co-accused, yet no charge sheet was filed against them. It was submitted that the accused Brahmanand was named as an accused and he faced trial, which ended in acquittal. Reliance was placed on the judgments Ex.PW10/D10 and Ex.PW10/D12. Reference was made to the four charge sheets which arose from FIR No.250/84, PS Sultanpuri in which 96 witnesses were CBI Vs. Sajjan Kumar & Ors. Page No. 123 of 545 examined but none named Sajjan Kumar or Vedu at any stage either during investigation or trial and the cases ended with a logical conclusion. Some of the witnesses/ complainants had preferred revisions before the Hon'ble High Court in FIR No.250/1984 but none of the witnesses cited in the present case or in the said revisions had named Sajjan Kumar at any stage of investigation/ trial or in their respective revisions. It was submitted that the criminal revision petitions which were pending were bearing Nos.459/2003 to 464/2003 in FIR No.250/84 and there was no revision petition in FIR No.252/84 and as such the same had attained finality. The appeal of RC-1 was also attached with the revision in FIR No.250/84 as it pertained to the same block and the same people. In respect of FIR Nos.307/94 and 347/91, it was the admitted position that closure reports were accepted as per the mandate of law. The plea of CBI was that the only ground for re-registration of the case was Ex.PW10/M (colly)(D-15/1) and the recommendations of the Nanavati Commission (D-15/4) and in the letter it was stated that further examination and re-opening of the cases would be taken within the ambit of law.
112. The Ld. Counsel for the accused persons had contended that the present was not a case of further investigation but of fresh investigation wherein the accused persons had been targeted and reliance was placed on the judgment of the Hon'ble High Court of Delhi in Hoor Begum v. State (NCT of Delhi) and Anr. 2011 (JCC) 2131. Reference was also made to Section 173 (8) of Cr.P.C. and it was submitted that in the present case there was no fresh document/ clue/ evidence from any witness to CBI Vs. Sajjan Kumar & Ors. Page No. 124 of 545 proceed with the case or to file the charge sheet so the present was not a case of further investigation. Here re-investigation was being done which was not permitted without an order from a higher court and the previous record had to be read whether it was exhibited or not. Re-investigation meant revisiting the evidence which was already recorded and here also the witnesses were being re-examined. It was submitted that the case on the face of it was bogus and it was not open to CBI to re-investigate the matter as further investigation was where one started off from where the investigation had been left off and the same was confirmed by the Hon'ble Supreme Court. Reliance was placed on the judgment in Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (2013) 5 SCC 762. No doubt police could on its own do further investigation and there was no need to seek permission if it was permissible in law but the present was a case of fresh or de-novo investigation or re-investigation which was not permissible without any previous record and in the instant case the CBI was withholding the record. It was not a case where Joginder Singh had given any fresh affidavit or document and there could be no supplementary charge sheet without a charge sheet. If the previous record was not brought before the Court, then it amounted to fresh investigation and in the present case there was no Court observation that the previous statements of Joginder, Anek Kaur, Sheela Kaur would not be read. The CBI had not even filed the previous record and if the record had been placed, no charge would have been framed against the accused persons. Reliance was placed on the judgment of the Hon'ble Supreme Court in Re: To Issue Certain Guidelines Regarding CBI Vs. Sajjan Kumar & Ors. Page No. 125 of 545 Inadequacies and Deficiencies in Criminal Trials State of Andhra Pradesh & Ors. (2021) 10 SCC 598. It was submitted that what the accused had produced before the Court was also to be considered and read.
113. It was reiterated that the report of a commission of enquiry was not binding upon the government or Courts but it was helpful to the investigating agency in making investigation. The investigating agency may with advantage of the report make use of the report of the commission in its onerous task of investigation bearing in mind that it did not preclude the investigating agency from forming a different opinion under Sections 169/ 170 Cr.P.C. if the evidence obtained by it supported such a conclusion. Reliance was placed on the judgment in T. T. Antony v. State of Kerala 2011 SCC (Cri) 1048. It was submitted that out of the 7 cases recommended by Nanavati Commission, only four cases were registered. CBI filed a closure report in respect of FIR No.178/84, PS Mangol Puri re-registered as RC-6/S/2005 for re-closure of the case for want of evidence which was confirmed by the IO and did not proceed in FIR No.325/93 and FIR No.329/93, PS Mangol Puri as the said two cases were not pertaining to 1984 riots and it did not re-register those cases. It was submitted that the approach of CBI should have been that there was no case made out for proceeding with FIR No.250/84 (RC-7) as full-fledged trial had taken place and in FIR Nos.347/1991 and 307/94 there was no fresh evidence to proceed with and it should have filed closure reports.
CBI Vs. Sajjan Kumar & Ors. Page No. 126 of 545114. It was contended that the prosecution had admitted through the IOs of the case that they had the entire record of the previous investigation/ trial. Despite that CBI had not deliberately placed the record along with the charge sheet or at any stage of the trial. CBI was bound to place on record the entire earlier investigation/ judicial proceedings record along with the instant charge sheet for judicial scrutiny. Reliance was placed on the judgment of the Hon'ble Supreme Court in Vinay Tyagi v. Irshad Ali (supra) wherein the Hon'ble Supreme Court had discussed the "nature, purpose and scope of further investigation under Section 173 (8) Cr.P.C." The observation of the Hon'ble Apex Court was that it was in continuation of and supplement to primary investigation and it's basis was discovery of fresh evidence. It was submitted that the said judgment was very comprehensive and had defined what is further investigation and it was observed that fresh/ de- novo/ re-investigation was not permissible in law except the superior courts had the jurisdiction under Section 482 Cr.P.C. or even Article 226 of the Constitution of India to order it. It was urged that there could be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. Since the prosecuting agency did not place the previous record of the earlier investigation/trial, the defence had placed on record the record of FIR No.250/84, 252/84, 347/91 whatever was available. The record pertaining to Smt. Cham Kaur was not traceable. But, the documents placed by the defence sufficiently and substantially proved that she was examined earlier and the said documents could not be denied by CBI Vs. Sajjan Kumar & Ors. Page No. 127 of 545 the prosecution as the documents supplied by the prosecution in the case of Smt. Cham Kaur supported the said fact.
115. The Ld. Counsel submitted that to prove the charge, the IO admitted that there was no fresh evidence. CBI had no reason to file a consolidated charge sheet and it was mentioned which witnesses were regarding which RC. It was submitted that to prove the guilt of the accused persons, the CBI had cited 35 witnesses out of which witnesses at No.1 to 12 were public witnesses i.e. relatives and known of the victims. Witnesses 1 to 5 and 7 to 10 pertained to RC-7. To prove RC-7, the prosecution had got examined only PW5 and PW6 whereas it had cited 9 witnesses. Witnesses at No.11 and 12 pertained to RC-8 though both had stated that they had not seen the alleged incident and had not supported the case of the prosecution. CBI had got examined only Prem Kaur who was not a witness to the alleged incident and did not examine Misri Kaur. Only the witness at Sl. No.6 was examined in support of RC-25. It was also submitted that except PW4, all the witnesses had been examined earlier. The prosecution had got only four witnesses examined and the Ld. SPP had argued that all the witnesses were not examined as some of them had expired (four) or they had already been examined in FIR No.250/1984 and FIR No.252/1984 in order to avoid repetition so there was no need to re-examine them pertaining to the same matter as the subject matter of the present case and of the earlier matters was the same and they had already deposed therein and as such it was contended that the prosecution had considered it as a futile exercise to bring them in the present case. It was argued that if that were so, there was no need to even CBI Vs. Sajjan Kumar & Ors. Page No. 128 of 545 bring PW5 Sheela Kaur and PW6 Cham Kaur before the Court as they had already been examined earlier in FIR No.250/84 in 'State v. Suresh' and 'State v. Uddal' in FIR No.252/84. It was the admitted case of the prosecution through the IO that both the witnesses had been examined and did not name any of the accused except Brahmanand who had already been acquitted in both the cases i.e. pertaining to Sheela Kaur (FIR No.250/84) and Cham Kaur (FIR No.252/84).
116. As regards PW5, the IO had admitted that Sheela Kaur was PW32 in the earlier case which was the trial regarding killing of three persons in FIR No.250/84 and all the accused had been acquitted though Section 153A IPC was not there. However, the other sections had been invoked. It was argued that as per the witness herself Sajjan Kumar was not unknown to her and his identity was not disputed to her and she had identified him in the Court. Even otherwise he was the MP and the witnesses used to go to him for their work regarding ration card etc. The prosecution was aware that PW5 and her mother-in-law Smt. Jatni Kaur had been examined as PW32 and PW31 respectively in respect of the present subject matter in the earlier trial of FIR No.250/84 (RC-7) and the CBI had again cited them at Sl. No.3 and 4 in the list of witnesses in the present charge sheet and the same had been admitted by the IO during the cross-examination dated 22.11.2021 and that they had not stated about the involvement of Sajjan Kumar. Reference was made to the deposition of PW5 and it was submitted that the defence had placed on record the earlier deposition of PW5 and her relatives in FIR No.250/84 PS Sultanpuri in respect of the killing of her CBI Vs. Sajjan Kumar & Ors. Page No. 129 of 545 three relatives. It was submitted that PW5 had named Sajjan Kumar first time through her statement recorded under Section 161 Cr.P.C. by CBI on 31.08.2008 i.e. after a gap of 24 years in the present case (Ex.PW5/D-1). Prior to that she had never raised any accusing finger against Sajjan Kumar or Ved Prakash. She had also made a statement under Section 164 Cr.P.C. on 29.09.2008 Mark A and the defence had cross examined her with regard to her previous deposition and reference was made to her cross-examination and contradictions in the same were pointed out. She was also confronted with her statement dated 31.08.2008 under Section 161 Cr.P.C. Ex.PW5/D1 which was purported to be given to CBI and she was also confronted with her statement Ex.PW5/D3.
117. The Ld. Counsel had submitted that Jatni Kaur was listed as witness at Sl. No.5 in the present case and she was the mother- in-law of PW5 Sheela Kaur. Jatni Kaur was the wife of Basant Singh and mother of Balbir and Balihar Singh and mother-in-law of Sheela Kaur. PW10 had stated that Jatni Kaur and Sheela Kaur had deposed in the earlier case and he had stated that he had confronted them with the record. It was a case where earlier other accused persons had been named but Sajjan Kumar was not named whereas at present Sajjan Kumar was named and none of the other accused persons had been named and the words were very clear. It was argued that PW10 was trying to justify whereas he should have recorded in the statement under Section 161 Cr.P.C. that part of their statements recorded earlier was correct and the other part was not correct and to suppress one lie four lies were being brought. The certified copy was shown to PW10 and CBI Vs. Sajjan Kumar & Ors. Page No. 130 of 545 it was seen that the statement of Sheela Kaur was in respect to killings but PW10 had stated that he did not want to see the case diary. In fact if the prosecution had placed the said statements before the Court there would have been no charge against A1 as his involvement had been denied. There was no explanation why after 24 years Sheela Kaur had been brought before the Court as PW5. Before that there was not an iota of evidence that A1 was involved. Sheela Kaur herself had not gone before the Nanavati Commission but only thereafter in 2008 she had named him. The second statement was the one under Section 164 Cr.P.C. dated 29.09.2008 and initially it was Mark A as she had not identified her signatures on the same but it was exhibited during cross- examination.
118. Reference was then made to the cross-examination of PW5 and that in the first part of the cross-examination, it was tried to be demonstrated that all the members of the family of Sheela Kaur and neighbours were affected in the incident in which she had lost three members of her family. Bhagwanti, Ram Kaur, Padmini Kaur, Daya Kaur, Chal Kaur were all named and were related or neigbours of PW5 and they were named to show that they were also affected by the incident. Jatni Kaur was also likewise named and she had already been examined before the Court. Houses of all the said persons were close to each other and there was a map which showed that these were houses of 25 sq. yds each. From the place of occurrence, they were taken to the camp together and the relatives or neighbours remained together. Government facilities were provided there. Police officials were coming and different agencies were there and quite naturally the CBI Vs. Sajjan Kumar & Ors. Page No. 131 of 545 witnesses would have been discussing the things but still they had not named A1. In A Block 49 persons had been killed but none of the family members of the persons killed had named Sajjan Kumar. Initially PW5 had stated about going to Tis Hazari Court and Karkardooma Court but not about going to Patiala House Court but then she had stated that she had been to Patiala House Court where the killing of three members of her family was tried.
119. As regards the preparation of the site plan PW5 had stated that she was illiterate but she knew about Anwar Kaur's case and PW5 was asked about the same as both the said cases were decided on the same day i.e. FIR No.250/84 and RC-1 and both pertained to A-4 block and were tried and decided together. An attempt was made to show that PW5 was aware about both the said cases and that all the persons were living together. Kaura Kaur was the wife of Balihar who had died but his wife was not examined in the Court though inquiry was made from her. Dhoban was also a witness and she had lost four brothers and her son. A-4/177 was of Sheela Kaur, A-4/178 was of her mother-in- law Jatni Kaur, A-4/179 was of Daya Kaur and Daya Kaur was also related but PW5 had only stated that she was living near her house which showed her conduct. PW5 had stated that death had taken place in the house of her mother-in-law but initially she had stated that she did not know the house of her mother-in-law. PW5 even denied that SI Sukhbir Singh had come to her and then she admitted that people had been visiting her.
CBI Vs. Sajjan Kumar & Ors. Page No. 132 of 545120. It was further argued that initially PW5 had stated that no case was registered whereas in reality she had got the case registered but she was silent about the result of the case and whether it was taken to logical conclusion by the Court. If the accused had been acquitted, it meant that the trial had taken place but she did not say so. It was the tactic played by the prosecution to attract the charge against A1 that she was not heard and the complaint was registered but she was silent as to the result of the same. Reference was made to the deposition of PW10 and that he was confronted with the statements. It was admitted by the IO that the killing of the said persons had been sent for trial and in those circumstances there could not be a retrial. PW10 had admitted that A1 Sajjan Kumar had not been named anywhere and it was also not the case that the IO had criticized the Delhi Police or stated why Delhi Police had not tried A1. What was there on the record was not there in the arguments advanced on behalf of CBI and A1 had not been tried earlier as he had not been named earlier. Till the appointment of the Nanavati Commission or even thereafter, the said complainants had no grievances at all in respect of the complaints lodged by them regarding the killing of their family members. Neither during investigation nor during the trial lasting till 2003 were Sajjan Kumar and Vedu named though the matter continued for 19 years from 1984 to 2003.
121. It was submitted that five ladies had been examined on the same day i.e. 28.10.1991 namely, Banto, Jatni Kaur, Sheela, Bilki and Chand Kaur. It was for the first time in 2018 that PW5 had stated before the Court that she was scared during the trial of the CBI Vs. Sajjan Kumar & Ors. Page No. 133 of 545 earlier case. It was argued that the said statement was made for the first time in 2018 before the Court and that could not be treated as reliable because earlier the witness had not stated anything about being scared. She was confronted with the statement dated 28.10.1991 Ex.PW5/D2 which was her examination-in-chief recorded in the Court earlier. Before the present case, in none of the cases PW5 had stated about meeting in Sultanpuri by A1 and before this Court she had taken the name of Sajjan Kumar. It was not an omission as the Court record did not say that she could not take the name of Sajjan Kumar earlier and now she was taking it, rather she had stated that she had taken his name earlier which showed that she was tutored to take the name of A1. Suggestions were put to her and she was confronted with her statement recorded in 1985. She had further stated that she had narrated everything to the police but she did not know what was recorded which again showed that she was tutored. She had alleged about threats being extended to her but had not lodged any report and as such she had been confronted with all her earlier statements. It was argued that it had to be seen whether any corroborating evidence was there or not and if the witness was reliable or not. It was highlighted that it is the settled law that once a witness is examined as a prosecution witness, one could not be allowed to perjure himself/ herself by resiling from the testimony given earlier in the Court. In this case, it was on the face of it that she was tutored to support the case of CBI. Smt. Sheela Kaur in her deposition before the Court had given a totally new and concocted version that too totally different from what she had deposed earlier before the Court on 28.10.1991 in CBI Vs. Sajjan Kumar & Ors. Page No. 134 of 545 regard to the same incident i.e. the subject matter of the present case.
122. In RC-1, 54 witnesses were there but none had named Sajjan Kumar. Reference was made to Ex.PW10/D6 and that statements of relatives were also placed on record. Reference of all the three relatives was there in the statement of PW14 in "State v. Suresh". Daya Kaur, Jatni Kaur and all the others did not name Sajjan Kumar or Vedu. Daya Kaur had identified Brahmanand but did not name A1 or Vedu. Reference was made to the statement of Bhagwanti Kaur Ex.PW10/D7 who had named the persons who had fired and with whose shot her relative was killed and that others were killed by lathi blows. Ram Kaur in her statement ExPW10/D8 had stated that five persons were killed and that Uddal was there and she had also named the accused persons and identified them and as such she had a clear concept as to who and how the people were killed. All the said persons were related to Sheela Kaur and had stated about the same incident.
123. As regards PW6 Cham Kaur, it was submitted that the judicial record of FIR No.252/1984, PS Sultanpuri, Sessions Case No.32/1990 and 4/1993 titled as "State v. Uddal" was not traceable despite all efforts made by the accused persons to trace the record from the various record rooms of different District Courts. The accused had placed on record RTI applications which were filed and which revealed that the record was with CBI and the response of CBI who stated that they did not have the record. The Court directed the Director (Prosecution) to produce the CBI Vs. Sajjan Kumar & Ors. Page No. 135 of 545 record and the Court had called for the record as the Court appreciated the efforts made by the accused in all the Courts to trace the record. The Director (Prosecution) and SHO had confirmed that the record was given to CBI but CBI had stated that the judicial record was not with them but they had only the case diary. It was not disputed that Nanavati Commission had the entire record and as per the charge sheet as well, the entire record had been handed over to CBI and if they had not produced the record then the accused persons had collected from the previous counsel Shri O.P. Soni and it was stated from where the statements were procured and as such the accused persons had placed on record the source from where they had got the statements and Brahmanand had also been examined as a defence witness but he was not cross examined and even no suggestion was put to him that the record was false. It was argued that CBI was not denying the existence of the documents and even if the documents of the accused were wrong, the documents of the CBI could not be wrong or those which were given to CBI by Nanavati Commission could not be wrong and if they were wrong, CBI could not have proceeded against the accused persons.
124. It was submitted that there were four statements of the said witness but the stand of the prosecution was that they could not be read. However, authenticity of the 4 statements dated 14.11.1984, 24.07.1987, 19.12.1984, 13.11.1991 could not be disputed. The stand of the accused persons was that as the earlier case was a decided case, the statements could be read. The defence had placed on record the statements of PW6 which were CBI Vs. Sajjan Kumar & Ors. Page No. 136 of 545 available with them being Mark PW6/DA, Mark PW6/DB, Mark PW6/DC, statement dated 13.11.1991 in FIR No.252/1984 and certified copy of the judgment Ex.PW10/D12. It was submitted that cross-examination/ confrontation in respect to the said statements was allowed with the consent of the prosecution (order dated 27.02.2019). Reference was made to the proceedings which were conducted in the different courts for bringing the said documents on record and that the Court had held that it would be a matter of arguments at the time of final arguments as to whether the statements would be admissible in evidence and thereby be considered at the stage of judgment. It was submitted that the said facts in respect of the statements had also been confirmed by the IO PW10. Reference was made to the order dated 18.07.2022, wherein it was confirmed by the prosecution that the statements claimed by the defence did exist and it was held that the said documents would be looked into at the time of final judgment and the statement of the IO and the record produced by the prosecution confirmed and established the authenticity of the statement/ judgment.
125. The question was whether PW6 had named A1 for the first time or at any time prior during investigation or trial and it was on 22.08.2008 that A1 was named in the statement under Section 161 Cr.P.C. to CBI by Cham Kaur and she admitted that she was examined in respect of the said incident in Tis Hazari Court. She had made the complaint in respect of the killing of her father and son but she had not named A1 or Vedu though she had named Brahmanand. Nine accused persons were named out of whom Brahmanand was one and the said case was decided by the then CBI Vs. Sajjan Kumar & Ors. Page No. 137 of 545 Ld. ASJ vide judgment dated 31.05.1994 and all the accused persons were acquitted. Sheela's case were decided in 2003 which also resulted in acquittal. It was submitted that from 1984 to 2008 the complainants did not prefer any appeal or revision. PW6 had given an affidavit dated 07.09.1985 Ex.PW6/A before Justice Ranganath Commission to which objection was raised by the accused persons on the ground that it could not be exhibited in view of Section 6 of the Commissions of Inquiry Act and thereafter the Ld. SPP for CBI had submitted that the CBI was not placing reliance upon the contents of the affidavit of PW6 and it was referred to only for the purposes of showing that PW6 had filed an affidavit before Ranganath Misra Commission and nothing beyond that and the statement of the Ld. SPP was separately recorded in that regard and reflected in the order dated 24.01.2019 that CBI was not relying on the contents of the affidavit and the same had been put only to show that she had approached the Commission, though in the said affidavit she had mentioned the name of Sajjan Kumar. PW6, neither during investigation nor during trial before the Court supported the contents of the affidavit Ex.PW6/A and did not raise any accusing figure in respect of the involvement of A1 and others.
126. It was submitted that in her examination-in-chief PW6 had claimed that the occurrence of killing of her son and father was on 02.11.1984 whereas charge was framed in respect of the incident of 01.11.84 and as such her deposition did not support the case of the prosecution. In all her earlier/ previous statements during investigation/ judicial proceedings she had deposed the occurrence to be of 02.11.1984 whereas for the first time in her CBI Vs. Sajjan Kumar & Ors. Page No. 138 of 545 statement under Section 161 Cr.P.C. to CBI, she had stated the occurrence to be of 01.11.84. She had stated that the meeting by A1 was of 01.11.1984 and the hamla had come on 02.11.1984, whereas in her statement under Section 161 Cr.P.C. she had stated that the incident was of 01.11.1984 and on 02.11.1984 she was taken to police chowki which meant that she had been used by CBI to target A1 but there was no examination by the Ld. SPP for CBI regarding the date. During cross-examination an effort was made to confirm the date of the incident and if it was of 02.11.1984 and whether she had lodged the report or not and she had admitted that the incident had affected the entire area of A- Block. The persons who had lodged the report on 01.11.1984 were covered under FIR No.250/84 and those who lodged the report on 02.11.1984 were covered under FIR No.252/84. It was submitted that her stand could not be reconciled and it showed her conduct. Reference was made to her cross-examination and that she was confronted on material points. It was submitted that the contradictions were on material points and her deposition demonstrated on the face of it that she was there with totally fresh allegations which was not permissible as there could be no departure from rules of evidence or fundamental tenets of the criminal justice system and her deposition led to the conclusion that the prosecution story was after a good deal of deliberation and inspired no confidence.
127. It was argued that Joginder Singh had lodged FIR No.268/84 regarding looting etc. merely because he was not able to get compensation. During cross-examination Cham Kaur was asked if she had lodged report only for the purpose of CBI Vs. Sajjan Kumar & Ors. Page No. 139 of 545 compensation and she had admitted that complaint was given to the police. She had stated that a similar incident happened in the neighbourhood so the neighbours were also witnesses. She had re-confirmed the date to be 02.11.1984 and not 01.11.1984 when the people had died. She had stated that all the victims had lodged their report and approached the police which was available. Police had registered complaint for respective occurrences. She had named the persons who were killed which showed that she was well acquainted with the persons who were affected and killed. All were taken to Rani Bagh Camp.
128. It was submitted that initially PW6 had stated that there was no statement dated 14.11.1984 but then the said statement was read out to her and she disowned the same and stated that she had not given the said statement. She was reminded that a large number of persons were there when the statement was recorded and twelve names were suggested to her. Then she did not deny that her statement was recorded on 14.11.1984 but gave an evasive reply. Names of 13 accused persons were put to her and she had stated that she had named them but she denied that she did not name Sajjan Kumar. On 14.11.1984 she had lodged a report in respect of the killing of her son and at no point of time she had stated that the said statements were bogus and the said statements were even before the higher courts so the statements could not be disputed. The dispute arose when she was confronted with the statement. PW6 had disowned her statement dated 14.11.1984 but the judgment, certified copy of which was obtained from the record of Hon'ble High Court where the revision petition was pending was there and is Ex.PW10/D12.
CBI Vs. Sajjan Kumar & Ors. Page No. 140 of 545The statement was Mark PW6/DA and the statement dated 14.11.1984 had already been appreciated in the said judgment and PW6 had not named anyone in that statement. Para 25 of the said judgment was explicit that PW6 had not named Sajjan Kumar or any other accused.
129. The next statement was dated 24.07.1987 Mark PW6/DB which was before the Court and during cross-examination PW6 had admitted giving the said statement. It was submitted that marking or exhibiting the document did not make any difference and it had to be decided by the Court whether the statement was to be read or not. The Court could see how much truth the witness was telling and how much tutored she was and she was tutored to say that part of what she had stated was not there in the statement which was recorded. It was submitted that there was no reason why the Court would pick and choose. She had stated that she had named Sajjan Kumar and that what she had said in the Court earlier was narrated to her and she was confronted with the statement which was recorded in the Court earlier word by word. Her statement was then recorded on 19.12.1984 by SI Prem Nath which was Mark PW6/DC. She admitted the said statement but with the reservation that the name of Sajjan Kumar was not there and she was confronted with the same. Reference was also made to the judgment dated 31.05.1994 and that the IO had admitted in the present case that PW6 witness had been examined in that case.
130. The witnesses cited at Sl. Nos.1, 3, 5, 7, 8, 9 and 10 by CBI in support of RC-7 had not been got examined though the CBI Vs. Sajjan Kumar & Ors. Page No. 141 of 545 defence had placed on record their earlier statements/ deposition before the Court pertaining to the same subject matter. In her earlier statement Ex.PW10/D5 Sheela Kaur had never named Sajjan Kumar. Jatni Kaur was cited as PW5 in the list of witnesses in the present case but was not examined and in her earlier deposition as PW31 Ex.PW10/D4 she had never named Sajjan Kumar which was confirmed by the IO. It was submitted that a full-fledged trial had taken place in which four sisters Kamla, Popli, Thakri and Gopi had deposed. Reference was made to the judgment Ex.PW10/D14 where they were examined in "State v. Gopi and others". They were cited in order to prove RC-7 but they had already been examined and they had stated that their husbands were killed on 02.11.1984 whereas in the present case they were made witnesses for the incident of 01.11.1984. PW10 had admitted that in Ex.PW10/D17 and the other statements of the said witnesses, they had not named Sajjan Kumar nor attributed any role to him. It was submitted that the IO was representing the State and he was expected to be fair but he was trying to cover up the date of the incident. In fact the IO had stated that he had camped in the said area and marshalled the record. The witnesses had stated that on 01.11.1984 nothing had happened but in the statement under Section 161 Cr.P.C. to the CBI, it was stated that the incident had taken place on 01.11.1984.
131. It was submitted that in the present case Bhagwani Bai (since deceased) who was at Sl. No.1 in the list of witnesses of the present case was not examined as she was stated to have expired. The killing of her two sons Hoshiar Singh and Mohan CBI Vs. Sajjan Kumar & Ors. Page No. 142 of 545 Singh was sent for trial in "State v. Gopi and others" in FIR No.250/84 PS Sultanpuri. Her husband Sewa Singh was examined as PW19 Ex.PW10/D11 and his two statements dated 10.04.85 and 14.10.92 were also exhibited and he had narrated everything but he did not raise any accusing finger against A1 and did not name Sajjan Kumar at all. Reference was made to the cross-examination of PW10 and that he had admitted that the witnesses had not said about the involvement of A1 in that case so the question arose as to how in the present case, it could be said that A1 was involved when there was no fresh evidence either documentary or ocular. Certified copy of the judgment is Ex.PW10/D9. It was submitted that Mishri Kaur was not an eyewitness.
132. As regards Joginder Singh, it was submitted that he was the complainant and the sole witness in the present case claiming to have witnessed the killing of deceased Surjeet Singh. The prosecution had conceded before the Court that it was pursuing the case of killing of Surjeet Singh alone. He had first time, lodged the report of killing of Surjeet Singh through affidavit dated 23.07.1987 Ex.PW7/A and had named A1 through the said affidavit. Prior to that, Joginder Singh had not taken any step or lodged the report in respect of the occurrence of the killing of Surjeet Singh or raised any accusing finger of the involvement of accused Sajjan Kumar and others in any manner whatsoever i.e. for a period of around 2 years and 9 months approximately. Joginder Singh had not explained why and who authorized him from the family of the deceased to file the case. In cross- examination, he was specifically asked whether Smt. Rajwant CBI Vs. Sajjan Kumar & Ors. Page No. 143 of 545 Kaur, the wife of the deceased had lodged some report in respect of the killing of her husband. His reply was that he did not know. The question arose when Joginder Singh did not know or had no knowledge whether Smt. Rajwant Kaur, wife of the deceased or other members of his family had lodged the report or not and if lodged, what was the result of the same, his filing the affidavit was without any substance and his behaviour was unnatural which could not be accepted by a person of common prudence. However, an FIR No.347/91 of PS Sultanpuri was registered consequent to the affidavit Ex.PW7/A filed by Joginder Singh before Jain Banerjee Committee. It was an admitted case, in the charge sheet of the CBI at page 19, para (iv) that after the investigation of the case, closure report was filed on 08.02.2004 (Ex.DW2/A) which was accepted by the concerned Court on 28.02.2004. CBI, despite having the entire police/ judicial record of case FIR No.347/91 of PS Sultanpuri had deliberately withheld the said record from judicial scrutiny. The said fact of having record with the CBI had been admitted by Shri Ranjan Kumar Jha, IO of the case, in his examination-in-chief dated 01.11.2021 and in his cross-examination dated 22.11.2021 as well. Shri S.S. Kishore PW11 had also categorically admitted that the entire record of FIR No.347/91 PS Sultanpuri was handed over to CBI.
133. It was submitted that CBI had not placed the entire police/ judicial record of the case FIR No.347/91 of PS Sultanpuri which CBI had taken by moving an application Ex.PW11/D1 before the Ld. Court, while claiming further investigation, which was handed over to CBI by the Ld. Court and on the request of CBI it CBI Vs. Sajjan Kumar & Ors. Page No. 144 of 545 was directed to preserve the record vide order dated 16.01.2006. Judicial record of FIR No.347/91 was summoned by the defence from the record room of Rohini Court and was available on record with this Court in sealed cover. CBI had no reason to withhold the judicial record from judicial scrutiny and in view of the judgment in Vinay Tyagi v. Irshad Ali @ Deepak & Others (supra), the Trial Court had to consider the entire record of Delhi Police and CBI along with all the documents. The said record revealed that PW7 had lodged a complaint Ex.PW7/DB dated 13.03.85 regarding riots in FIR No.268/84 wherein there was no mention of the incident of killing of Surjeet Singh at all or the identification of rioters and he had stated that he could not identify anybody from the rioters. He had admitted that the house of Surjeet and his house were opposite with 10 feet gali. He had stated that the family members were present there. Rukka was sent by Insp. Ram Kishan Ex.DW2/B for registration of the case. The affidavit Ex.PW7/A was disowned by PW7 twice before the concerned competent Court where the case was sent for closure i.e. on 22.08.1992, in his statement recorded under Section 164 Cr.P.C. and on 31.05.2003, in his statement before the Court.
134. It was submitted that in the present case RC-25, Joginder Singh had again owned his affidavit Ex.PW7/A. It was submitted that during investigation of FIR No.347/91 as per the judicial record, PW7 had made the statement Ex.PW7/DB and Ex.PW7/DD which was statement dated 14.05.92 recorded under Section 161 Cr.P.C. by Shri Rajiv Ranjan, the then ACP. He had disowned his affidavit Ex.PW7/A on the strength of which FIR No.347/91 was registered at PS Sultanpuri. He had been making CBI Vs. Sajjan Kumar & Ors. Page No. 145 of 545 different statements during the course of investigation. Under the circumstances, it was deemed fit to seek legal opinion from the prosecution and the file was sent to Chief Prosecution for legal opinion which directed to get the statement of Joginder Singh recorded under Section 164 Cr.P.C. to find out the truth of involvement of a politician and SHO of the area. The then ACP, Rajiv Ranjan, moved an application dated 25.06.92 Ex.DW2/D and his statement was recorded on 22.08.92 under Section 164 Cr.P.C. which is Ex.PW7/DF by the Ld. MM who had satisfied himself that PW7 was making the statement voluntarily. Further, it was not only Joginder Singh but even Smt. Rajwant Kaur w/o deceased Surjeet Singh, Malkiyat Kaur, wife of the complainant and Inderjit Singh, son of the complainant who were examined in the said FIR and their statements were recorded. Reference was made to the statement of Smt. Rajwant Kaur dated 08.08.91 before Justice J.D. Jain and D.K. Aggarwal Committee and dated 08.01.92 Mark DW2/1 recorded under Section 161 Cr.P.C. and she was also examined before the Court vide statement Mark PW11/B2. Malkiyat Kaur was also examined on 14.05.92 and her statement is Mark A. Inderjit Singh who was living with PW7 and Malkiyat Kaur and other brothers and sisters were examined under Section 161 Cr.P.C. and his statement is Mark DW2/2. Site plan Ex.PW7/DA was also prepared on his pointing out.
135. It was submitted that CBI had recorded the statement of Joginder Singh under Section 161 Cr.P.C. dated 08.03.2009 Ex.PW7/DC wherein he had named A1 after a gap of 24 years of the occurrence of killing of Surjeet Singh. The statement of Joginder Singh also found mention in the application Ex.PW9/D CBI Vs. Sajjan Kumar & Ors. Page No. 146 of 545 moved by Shri R.K. Jha wherein he had claimed that his statement was recorded under Section 161 Cr.P.C. and he was volunteering to make a statement before the Ld. MM under Section 164 Cr.P.C. but the same was not placed on record for judicial scrutiny because he had stated in his statement under Section 161 Cr.P.C. that he had earlier made a statement to the CBI wherein he did not name anybody out of fear. The recording of statement under Section 161 Cr.P.C. approximately after four months of recording of statement under Section 164 Cr.P.C. Ex.PW7/B established that there was a statement of Joginder Singh which had been taken off the record malafidely and his second statement under Section 161 Cr.P.C. Ex.PW7/DC had no meaning and was recorded in order to support the script of CBI to target A1 and others.
136. It was further submitted that PW7 was confronted with all his previous statements during cross-examination and he was cross examined on how close and associated he was with the family of deceased Surjeet Singh and whether he was aware of the steps taken/ reports lodged by the family members of the deceased or whether PW7 knew the whereabouts of Smt. Rajwant Kaur as he had no reason to abruptly file the affidavit Ex.PW7/A after a gap of 2 years and 9 months. He did not know where Smt. Rajwant Kaur was living presently and on a query about the relationship with the family, his answer was very casual. He did not know if Smt. Rajwant Kaur had lodged the complaint in respect of the killing of her husband to the police and he had also not advised to lodge the report. It was submitted that the question arose as to who had authorized him to file the CBI Vs. Sajjan Kumar & Ors. Page No. 147 of 545 affidavit or pursue the case of deceased Surjeet Singh when the family members of the deceased were very much there. PW7 had admitted that SI Krishan Kumar had visited him on 20.12.1984 in respect of investigation of FIR No.268/84 but he stated that he had named A1 in the statement. The statement was read over to him and there was nothing in it regarding the killing of Surjeet Singh or involvement of any person but he said that he had named A1.
137. PW7 had denied the site plan Ex.PW7/DA stating that he did not understand site plan. It was pointed out that DW2 was the author of the site plan. He was earlier cited as a prosecution witness but was dropped by the prosecution without assigning any reason but as he was one of the IOs of the case of deceased Surjeet Singh, he was summoned as a defence witness. He had deposed that he had investigated the matter and had prepared the site plan at the pointing out of Inderjit Singh and statement of Inderjit Singh which bears the signatures of DW2 is Mark DW2/2 wherein Inderjit Singh had stated that Surjeet Singh was killed near Railway Phatak. It was contended that the prosecution had not denied the site plan. In the site plan, the place of killing of Surjeet Singh was not shown and that was because none, either from the family of the deceased or the complainant or from the neighbourhood had ever said that the killing took place in the Gali where the deceased Surjeet Singh and his wife Smt. Rajwant Kaur along with their family were living. The Gali was thickly populated. It was submitted that the site plan did not show the spot of death of the deceased as he had not expired at the residence or in the Gali though PW7 had stated that he was very CBI Vs. Sajjan Kumar & Ors. Page No. 148 of 545 much there when Surjeet Singh was killed in his presence. He was reminded that in his presence, statements of several other persons were recorded on the same day but he stated that he did not know whether they said something or not. He was also confronted with the statement Ex.PW7/DB and the statement under Section 164 Cr.P.C. It was urged that there was nothing to suggest that PW7 had ever approached Ranganath Misra Commission though he admitted that he knew about the same and claimed that he had lodged a complaint there which statement was untrue. Further reference was made to the cross- examination and registration of FIR No.347/91.
138. It was submitted that Mam Chand DW2 who was one of the IOs of the present case had given comprehensive details in his deposition before the Court which confirmed the case of the defence. The prosecution despite much efforts could not even give an iota of dent to his deposition. The prosecution had got examined PW10 and PW11, both IOs of the present case. PW10 had filed the present composite charge sheet. But both of them had denied their role as IO of RC-25 and had categorically deposed that none of them conducted the investigation of the said case. PW10 also stated that he could not answer regarding the record and investigation of the case except that he got the statement of Joginder Singh recorded under Section 164 Cr.P.C. PW11, the other IO had also repeatedly stated that though the investigation of the case was entrusted to him on 06.03.2009, he was asked to examine the witness Joginder Singh and he examined him and recorded his statement under Section 161 Cr.P.C. Ex.PW7/DC. He had also admitted that the judicial CBI Vs. Sajjan Kumar & Ors. Page No. 149 of 545 record of earlier investigation in FIR No.347/91 was handed over to the CBI through Court against the application Ex.PW11/D1 and the Ld. MM vide order dated 16.01.2006 on the request of CBI directed the Ahlmad to keep the file in proper custody with a sealed envelop with seal of the Court. He admitted that Smt. Rajwant Kaur was the wife of the deceased and volunteered they searched for her but she could not be found. It was submitted that the statement of the IO was untrue on the face of it because on the one hand, the IO claimed that he had no knowledge of the investigation conducted and on the other hand he claimed that during investigation, effort was made to trace Smt. Rajwant Kaur. It was argued that CBI had deliberately not cited Smt. Rajwant Kaur, Smt. Malkiyat Kaur and Inderjit Singh and the witnesses available in the neighbourhood as they did not support the version of Joginder Singh that Surjeet Singh was killed in the Gali. The IO had given evasive answers regarding the statements of Rajwant Kaur, Inderjit Singh, Malkiyat Kaur and when asked about the earlier statement of Joginder Singh recorded by CBI, PW11 stated that PW10 could answer and his role was confined to only examining PW7. It was argued that it was the admitted case of the prosecution that FIR No.347/91 dated 13.12.91 was earlier investigated by Anti Riot cell and sent for closure and the closure report was accepted by the concerned competent Court vide order dated 28.02.04 and the prosecution had sought permission for further investigation. The question that arose was whether the prosecution had conducted further investigation in respect of the killing of Surjeet Singh or not but the prosecution was unable to tell who had conducted the investigation of RC-25 CBI Vs. Sajjan Kumar & Ors. Page No. 150 of 545 which raised a serious doubt.
139. It was submitted that the claim of Joginder Singh of being a mona so he could witness everything while being there amongst the rioters could not be accepted as he categorically admitted in his cross-examination that "he very well knew Nathu Pradhan, Munna etc. and they also knew him well" and admittedly he was known to the accused persons as a Sikh and if he had been seen amongst the rioters he would have been easily identified and targeted too. Submissions were made regarding the evidence of PW7 and it was submitted that the evidence of PW7 was modulated to suit a particular prosecution theory for the purpose of securing conviction and such a witness could not be relied upon. It was submitted that the record of the case made it abundantly clear that right from reopening of the case, the script was new in the present case. Evidence had been tailored to match it and that was the reason that previous statements of the witnesses were conveniently brushed aside as the case had been re-opened on the strength of fresh and concocted allegations. Moreover, the present was a case of further investigation but the CBI had not placed the record of the earlier investigating agency and had no reason to withhold the record from judicial scrutiny of the Court as it was the mandate of law. It was argued that the contradictions and discrepancies went to the heart of the matter and shook the basic version of the prosecution case whereas the evidence of the defence witness was not impeached. It was contended that the prosecution had not been able to make any dent in the deposition during cross-examination. Defence version could not be brushed aside without adverting to defence CBI Vs. Sajjan Kumar & Ors. Page No. 151 of 545 evidence. It was submitted that the prosecution could not derive strength from the weakness of defence put up by the accused and it had to establish its case beyond reasonable doubt. It was submitted that the plea of the prosecution and the Ld. Counsel for the complainant was not to consider the previous statement/ deposition of witnesses in the earlier investigation/ trial pertaining to the same subject matter which could not be reconciled on the strength of law and fact and was against the mandate of law and such an approach was not admissible and the previous statements/ deposition during investigation or before the Court could not be brushed under the carpet and there was no provision to sweep aside such discrepancy as unimportant. It was urged that the defence had only one way to discredit the testimony of the witness by putting his earlier statements under Section 145 Cr.P.C. by way of cross-examination, which was as per Section 146 Cr.P.C. to test his veracity. Section 155 Evidence Act was incorporated for the purpose of impeaching the creditability of the witness which could be impeached by the adverse parties, by way of proof of former statement inconsistent with any part of the evidence which was liable to be discredited to declare the witness unworthy of credit. It was argued that the prosecution wanted that clear, direct, effective and explicit special provision under Section 145 Cr.P.C. may not be applied and the previous statements of the witnesses be taken off the record whereas earlier those witnesses had not produced a shred of evidence regarding involvement of A1 and others and they had material inconsistency in their individual statements before the Court which rendered them completely unreliable. It was CBI Vs. Sajjan Kumar & Ors. Page No. 152 of 545 submitted that the argument of the prosecution and the Ld. Counsel for the complainant that Section 145 Cr.P.C. should not be applied for discrediting the witness with the previous statements was not admissible and was an entirely a wrong approach to sweep aside the discrepancies in the previous statements as unimportant and the previous statements could not be brushed aside. It was submitted that as per the settled law, if a material witness gave a version in his evidence which was materially at variance with what he had stated previously in his statement to the police or before the Court, it would be a material discrepancy and it merited careful consideration in determining whether the witness was truthful and reliance was to be placed on his evidence.
140. It was submitted that as per the settled law, sentiments or emotions however, strong are neither relevant nor had any place in the court of law. The story narrated by the witnesses in their evidence differed substantially from that set out in the statement before the CBI and there were a large number of contradictions in their evidence on vital points which could not be excluded from consideration in determining the innocence of the accused. It was argued that it was unsafe to believe the contradictory nature of the statement without keeping in mind the existence of two contradictory statements and the argument was founded on the obvious consideration that both accounts of the witnesses could not be correct. Reliance was placed on the order of the Hon'ble High Court dated 26.02.2010 while granting anticipatory bail and the order of the Hon'ble High Court dated 16.07.2013 in Criminal Revision Petition No.438/2010 (supra) and of the CBI Vs. Sajjan Kumar & Ors. Page No. 153 of 545 Hon'ble Supreme Court in Sajjan Kumar v. CBI (2010) 9 SCC
368. It was submitted that the prosecution had taken a strange plea that why the plea of alibi was not taken by the accused but even if the accused had not taken the plea of alibi, the prosecution case could not be said to be proved against the accused. It was submitted that the defence version did not exonerate the prosecution of its onus to prove the case beyond reasonable doubt and the veracity of the prosecution case, with regard to the manner and its place of occurrence had to be proved beyond reasonable doubt for which the burden was on the prosecution. Moreover, the prosecution case had to stand on its own legs and it had to prove the guilt of the accused and the onus to prove the charge in a criminal case consistently was on the prosecution and it never shifted on the accused. Each and every incriminating circumstance had to be clearly established by reliable and clinching evidence and circumstances so proved from the chain of events. As such the arguments of the prosecution were absolutely valueless and had no substance. Even no admission by the counsel in a criminal case relieved the prosecution from its duty to prove the facts of the case and the prosecution must furnish the best corroboration of the offence.
141. It was argued that the judgments under Section 107, 108 IPC in respect of abetment relied upon by the Ld. Counsel for the complainant were of no help to the prosecution because in the said judgments, the ingredients of Sections 107, 108 and 149 IPC were discussed but in the present case, there was no iota of evidence that abetment took place or that the accused persons were engaged with others in reference to their common intention CBI Vs. Sajjan Kumar & Ors. Page No. 154 of 545 for doing that thing in pursuance of a conspiracy. It was submitted that some reasonable and prima facie ground/ evidence must exist before the Court to enable it to form its opinion to prove affirmatively that the accused was directly or indirectly connected with the case. Similarly, it had to be established when such intention was first entertained by anyone which was a relevant fact as against each of the persons believed to be so conspiring as well as for the purpose of showing that any such person was a party to it. It was submitted that in criminal jurisprudence one did not begin to enquire whether the accused is guilty of crime until one had established that crime had been committed in that case. It had not been established where Surjeet Singh was killed. The prosecution had to furnish corroboration which must be such that it rendered the testimony of the witness believable in the facts and circumstances of the case.
142. It was argued that the claim of the prosecution was that further investigation had been conducted but the same must be as contemplated under Section 173(8) Cr.P.C. The scope of such investigation was restricted to the discovery of further oral or documentary evidence and it was a kind of continuation of previous investigation. It had to be understood in complete contradistinction to a re-investigation, fresh or de-novo investigation. In the present case, the complainant/ witnesses were re-introduced who earlier deposed pertaining to the same subject matter and did not name Sajjan Kumar and the other accused in any manner either during investigation or trial or before the Court except accused Brahmanand Gupta who was named. Now, the same set of witnesses with their old allegations CBI Vs. Sajjan Kumar & Ors. Page No. 155 of 545 had undertaken to name the accused persons as abettors/ rioters. It was contended that the witnesses had changed their version and it was on the face of it considerable divergence in the evidence and the said investigation could not be treated as further investigation. It was settled law that re-investigation would mean re-visiting the evidence which had already been collected by the investigating agency, which was not permissible but further investigation was possible, which would mean to investigate the matter further from the point where it had been left off in the previous investigation and in the present case, there was no fresh input/ evidence to file the charge sheet and in such a situation, the legal recourse was to acquit the accused. It was submitted that if such kind of prosecution was allowed to take place, there would be no end of criminal trial as it would be repeated till the desired objective of the investigating agency was achieved followed by a fresh charge sheet. In the instant case there were many gaps and missing links and the entire case of the prosecution suffered from infirmities, discrepancies and material contradictions and the prosecution had utterly failed to establish its case and the allegations of the prosecution against the accused persons were fake and the case was cooked up against them.
143. It was submitted that the entire emphasis of the prosecution was on the aspect that the statements made by the prosecution witnesses during the earlier investigation or before the Court in respect of the same subject matter should not be considered as according to the prosecution, the earlier investigation was unsatisfactory and the prosecution did not rely on the same. It had admitted that the CBI conducted the CBI Vs. Sajjan Kumar & Ors. Page No. 156 of 545 investigation without placing reliance on the earlier investigation and further claiming that it was ultimately the discretion of the prosecution to determine the records which it proposed to rely upon but the same was against the mandate and spirit of law. It was submitted that the said admission sufficiently punctured the prosecution case, as a fresh or de-novo or re-investigation was not permissible in law and without the order of higher judiciary coupled with specific directions as to the fate of the investigation already conducted, no fresh de-novo or reinvestigation could be conducted, which showed that the present proceedings were malafide and bad in law. It was argued that the prosecution could not be allowed to interpret the law as per its convenience and that too against the well settled principles of criminal law and administration of justice and the CBI had proceeded in the present case by way of violating the procedural and statutory protection afforded under the law. Whether the previous statements/ depositions of the witnesses inspired confidence or not would be decided by the Trial Court and the prosecution was bound to place the entire material for judicial scrutiny. In the present case, the script was new. The prosecution could not be allowed to brush the record of the previous statements under the carpet and re-open its case on the strength of fresh and concocted allegations. The CBI, by concealing the earlier prosecution and statements of the witnesses had tried to prejudice the case of the accused by attempting to curtail his defence and had tried to mislead the Court by suppressing and concealing the material evidence. It was argued that the prosecution had no authority whatsoever to brush aside the statements made by the witnesses CBI Vs. Sajjan Kumar & Ors. Page No. 157 of 545 PW5, PW6 and PW7 in the earlier investigation/ deposition before the concerned competent Courts.
144. It was submitted that it was not stated what further evidence oral and documentary the prosecution had to proceed against the accused persons. It was submitted that the issue to determine before the Court was whether there existed grounds to presume/ believe that the CBI had obtained further evidence oral or documentary in the present case. It was contended that as per the settled law, in terms of sub-section (8) of Section 173 Cr.P.C. both the reports i.e. report filed by Riot Cell and CBI had to be read co-jointly and it was the cumulative effect of the reports and the documents annexed thereto which the Court would be expected to apply its mind to determine whether there existed grounds to presume that the accused had committed the offence and if the answer on the basis of the reports was negative, the Court shall acquit the accused persons. The versions narrated by the witnesses in the earlier statements/ depositions/ investigation differed substantially/ entirely in their new set of statement i.e. the same set of witnesses with their old allegations had undertaken to name the accused Sajjan Kumar. Reliance was placed on several judgments in respect of further investigation and aspect of consideration of both the reports of Anti-Riot Cell/ SIT i.e. Hoor Begum v. Govt. of NCT of Delhi (supra); Vinay Tyagi v. Irshad Ali @, Deepak & Ors. (supra); Dharam Pal v. State of Haryana & Ors. (2016) 4 SCC 160; Vinubhai Haribhai Malaviya & Others. v. State of Gujarat & Anr. AIR 2019 SC 5233; Ram Udagar Mahto v. State 2021 Legal Eagle (DEL) 738, 2022 Cr. LJ 1127 and Luckose Zachariah @ Zak CBI Vs. Sajjan Kumar & Ors. Page No. 158 of 545 Nedumchira Luke & Ors. v. Joseph & Ors. 2022 (1) TR (SC) 181 and on the judgment in In Re.: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. The State of Andhra Pradesh & Ors. (supra) which it was submitted manifested the right of the accused to have access to all material in possession of the prosecution which direction applied to the facts of the case whereas the present case was an example of the prosecution abusing their discretion to conceal and suppress material facts and evidence. It was submitted that it was to protect the accused from such abuse of process and abuse of prosecution discretion that the Hon'ble Supreme Court passed the said directions which were also consistent with the judgment of the Hon'ble Supreme Court in Nitya Dharmananda @ K. Lenin and Anr. v. Sri Gopal Sheelum Reddy also known as Nithya Bhaktananda and Anr. Crl. Appeal No.2114 of 2017 and the judgment of the Hon'ble High Court of Delhi in Ashutosh Verma v. CBI Crl. M.C. No.79 of 2014. It was submitted that the said judgment ensured that the entire material was brought to the knowledge of the accused whereas the accused were still in dark if the prosecution had other material in their possession. Reliance was also placed on CBI v. INX Media Pvt. Ltd. Crl. M.C. No.1338 of 2021.
145. The Ld. Counsel had referred to the authorities relied upon by CBI and the Ld. Counsel for the complainant and submitted that the same were not applicable to the facts of the present case and propositions of law which had been laid down were not in dispute. Reference was made to the judgment in Satyajit Banerjee & Ors. v. State of West Bengal & Ors. (2005) 1 SCC CBI Vs. Sajjan Kumar & Ors. Page No. 159 of 545
115. Reliance was placed on the judgment in Jacob Mathew v. State of Punjab 2005 Criminal Law Journal 3710. It was submitted that presumption of innocence is a human right and such a legal principle could not be thrown aside under any situation. Reliance was placed on the judgment in Dilavar Hussain v. State of Gujarat 1990 (3) Crimes 423. It was submitted that there should be delicate judicial balancing not just for the prosecution but also the accused and law is there for public welfare. It was submitted that the prosecution in the present case was moving in reverse gear and no one was denying rule of law or due process of law. The present was not a case that the evidence had been tampered at any stage. It was submitted that the Court only had to see the facts before it and the evidence that came on record. It was submitted that even at the stage of charge, if there were contradictory statements, grave suspicion could not be there and the accused should be discharged and in the present case PW7 had given different statements so grave suspicion could not have been there.
ARGUMENTS IN REBUTTAL
146. The Ld. SPP for CBI in rebuttal had submitted that the evidence which had been brought on record in the present case could not be read in the manner in which the accused persons had read it. The present was a case dealing with human tragedy and there could not be an accounting process of the statements of witnesses and the parameters of what needed to be considered in cases such as the present was not answered during the arguments on behalf of the defence. The entire focus of arguments on behalf CBI Vs. Sajjan Kumar & Ors. Page No. 160 of 545 of the accused persons was three fold i.e. they wanted to read the investigation, Commissions and terms of reference in part; read previous statements and that they were different from what was stated now and that advantage be given to the accused persons as conceived in law and they tried to raise the issue of double jeopardy on the basis that there were four cases of the same FIR which had been tried earlier and had resulted in acquittal and now another trial would result in double jeopardy. No reply was given to what was addressed on behalf of the prosecution regarding the parameters that were set by the Parliament in this case when the case was asked to be re-investigated by CBI whereby there was an endorsement of the Nanavati Commission Report narrowing down the action that had to be taken and it contained a certain number of cases which were asked to be registered from three different areas i.e. Sultanpuri, Mangolpuri and Delhi Cantt. The case of Delhi Cantt had resulted in conviction. In the case of Mangolpuri, the CBI had filed a closure report and the Court had upheld the closure report. In the said case the allegation of CBI being partisan was from the side of the complainant whereas in the present case the allegation of the CBI being partisan was levelled by the accused persons. It was submitted that another case pertaining to A1 was found buried in the record and it was a chance discovery. Even at present the Hon'ble Supreme Court was dealing with petitions wherein it was considering opening more cases and SIT had already been put in place by the Hon'ble Supreme Court. The case was looked into from the aspect of what the Nanavati Commission had said.
CBI Vs. Sajjan Kumar & Ors. Page No. 161 of 545147. As regards Brahmanand, it was submitted that it was true that he was a part of other cases but he was also a part of the present case and when the Nanavati Commission said that the cases involving A1 should be investigated, it meant investigating the other persons also. In 1984 and thereafter an environment was created where investigation was not done properly. The question regarding trial of Brahmanand had already been answered by the Hon'ble Supreme Court and the Hon'ble High Court and he had also raised this question in the petition challenging framing of charge before the Hon'ble High Court in Sajjan Kumar v. CBI (supra) decided on 16.07.2013 wherein it was held that if someone else was also involved, that person should be tried. In the said order, the Hon'ble High Court had also answered the argument raised on behalf of the defence that CBI should have waited for Memorandum of Action Taken report. It was submitted that the offences for which the accused persons were being tried in the present case were distinct offences and Section 300 Cr.P.C. was not at all applicable. Reference was also made to the order granting sanction dated 01.01.2010 Ex.PW1/A for prosecuting the offence under Section 153A IPC. It was submitted that apart from Section 153A IPC even abetment under Section 109 IPC was not in consideration in the earlier cases. The present was a new trial so along with the other offences, the accused could be tried. The moment another section was added, it made it a distinct offence and the entire case could be tried. Reference was made to Section 300(2) Cr.P.C. and it was submitted that Section 302 IPC was a distinct offence and the said charge in the present case was never tried CBI Vs. Sajjan Kumar & Ors. Page No. 162 of 545 earlier. Section 109 IPC changed the complexion of the case and other offences were also added such as Sections 153A, 295 IPC. Brahmanand was duly named and identified in the Court and it was submitted that some accused in the Delhi Cantt. case had also been tried earlier.
148. It was submitted that the case of Surjeet Singh was one which had never been tried though there were cases of others also of the area and A1 was the MP of the area. Initially till the Ranganath Misra Commission only one affidavit had been filed but that was because the people were so scared that despite the Commission being formed within less than one year of the riots, people were too scared and these were people with little means and no education but later on there were 24 affidavits as admitted by the defence witness. A pandora's box could have been opened as there were so many cases which were not registered and there was evidence that deaths were double of the cases that were prosecuted but the said prosecutions could not be opened and were not found fit though suspicion was there.
149. It was submitted that it was not possible to prepare a ledger of the different statements that had come on record. The incident was of 1984 and from 1984 to 1985 statements were recorded in various police stations. In 1985 Ranganath Misra Commission was set up and thereafter other commissions and committees were constituted. Before the police came into the picture there was an account of the victim and then the account of the investigation of Delhi Police and based on that the prosecution was launched. It was submitted that the Court was bound by what CBI Vs. Sajjan Kumar & Ors. Page No. 163 of 545 was brought before the Court and the earlier courts had been handicapped by what little was brought before them and the judgments were very cryptic and even the evidence was cryptic as also the cross-examination. A1 was not an accused then as people were afraid which was also on record and it was on record that threats were extended. CBI had taken the previous statements which were recorded not before the police but even prior to the police before different commissions and under Section 164 Cr.P.C. and before the Court. It was submitted that the earlier statements could not be read and the CBI had also not relied upon them as they could not be believed so they were not placed on record. It was argued that re-investigation only meant that the investigating agency had to take the matter forward from where it was left of and there were judgments of the Hon'ble Supreme Court to the effect that it was about reaching the truth. Reference was made to the closure report Ex.DW2/B and C and it showed that in a period of 9 months how many cases were registered and many of them were sent as untraced. Infact in respect of the case in question, it showed that the statement of an 11 years old boy, son of Joginder Singh was recorded and of the wife of Joginder Singh and other than that no efforts were made at all.
150. It was submitted that in 1991 people were still there who could have made statements and even the topography of the area had not changed but no further investigation was done and an untraced report was filed in 2002 Ex.DW2/D. Efforts were made to change the case. Reference was made to the application for getting the statement under Section 164 Cr.P.C. recorded and that CBI Vs. Sajjan Kumar & Ors. Page No. 164 of 545 Ex.DW2/A showed that there was no inquiry or investigation and the list of witnesses also reflected the same. In 1994 the untraced report was prepared but it was not filed till 2002 as the investigating agency was not sure of it, but thereafter it was filed as the Nanavati Commission was set up and there was panic and an exercise was started of making the closure report more robust so the application was written which referred to examining the role of a politician and and an SHO and the defence witness Mam Chand who had been examined had stated that the politician was A1 and the SHO was Hari Ram Bhati. In the case of Delhi Cantt. the Riot police was still pursuing the closure report even when the matter went to CBI. It was submitted that 1989 judgment was relied upon by the Ld. Counsel for the accused persons whereas the present case came into existence in 1991 and the registration of the case was never challenged before any Court nor it formed part of any pleadings in the case.
151. The Ld. SPP for CBI had further argued that the case of murder of Surjeet Singh had never been tried. Three cases were investigated together in light of the directions given by the Nanavati Commission which were part of the charge sheet and reference was made to Ex.PW10/L. It was submitted that the charge against A1 was all encompassing as that was the factual scenario that played but due to restrictions placed by the Commission, A1 could not be absolved of his guilt and the matter was confined to the death of Surjeet Singh. There could have been three different charge sheets and three investigations but the matter was same in point of time and in view of Sections 218 to 223 of Cr.P.C., the same could be tried together. Sajjan Kumar CBI Vs. Sajjan Kumar & Ors. Page No. 165 of 545 had been named by the witnesses even in FIR No.250/84 extensively but he was not tried in the said FIR and as such he could not be absolved of his larger role. As regards the offence under Section 302 IPC, CBI could not go beyond the mandate of Nanavati Commission so only the death of Surjeet Singh was sent up for trial. The mob was the same, the exhortation was the same and damage was similar so it had to be understood in that manner. One could not lose the focus of the enormity of the tragedy and the cases had been given special treatment by the Parliament and by the courts and there could not be a common foundation on which the criminal justice system could be based and there could not be a ledger and accounting of the statements. Thus, the other offences against the accused persons were pressed and as regards killings, only the death of Surjeet Singh was being pressed. Similar was the situation in State through CBI v. Sajjan Kumar and others (supra) where in the charge sheet other murders were also mentioned and notice had been given by Hon'ble Ms. Justice Gita Mittal in Court on its Own Motion v. Dhanraj and Ors. Crl. Rev. P. No.245/2017 decided on 29.03.2017: 2017 SCC OnLine Del 7707 to open the cases but despite there being witnesses of murders of others especially Nirmal Singh, yet what was tried was only the 5 deaths of family of Jagdish Kaur and no other death was tried though the same were mentioned by the witnesses. The defence witness Mam Chand had said that there were 24 affidavits before the Ranganath Commission and many others would have come forward but A1 was not tried. It was submitted that the Sikhs finally got justice only in 2017.
CBI Vs. Sajjan Kumar & Ors. Page No. 166 of 545152. It was submitted that the moment a police complaint was made or there was an affidavit, the police did three things to cover up the matter i.e. it took statements in which there was change of place of death, secondly the witnesses stated that they had not seen the incident as they were hiding and thirdly that A1 was not present. The police had done so to overcome the affidavits or the complaints which were made till the time the investigation was under the control of Delhi Police. Hon'ble Mr. Justice Muralidhar in State through CBI v. Sajjan Kumar and others (supra) and Nanavati Commission had given a finding that riot police had not investigated the matters fairly. So the things could not be looked at mechanically and other than where the Delhi Police was in charge, the witnesses had not said anything differently, be it before the Commission or before the Courts or in the statements under Section 164 Cr.P.C. and it was only the prosecutions by the Delhi Police which had gone wrong.
153. Reference was made to the statement of Joginder Singh dated 13.03.1985 Ex.PW7/DB which was only about looting of articles and nothing else and on the basis of which FIR No.268/84 was registered and it was not about any murder. Thereafter reference was made to the affidavit of Joginder Singh dated 23.07.1987 given after about 2 years of the earlier statement in which he had come out with this case which the CBI had not changed. It was only on the basis of the letter of the Administrator dated 09.10.1991 that the case was registered in 1991 otherwise it would not have been registered. It was argued that the women had been in hiding so the wife of the deceased Rajwant Kaur was not an eyewitness and Joginder Singh had CBI Vs. Sajjan Kumar & Ors. Page No. 167 of 545 stuck to his ground. The case was registered in 1991 but in September 1992 the investigation was closed based on the statement of son of Joginder Singh who was then 11 years old and who stated that his father was hiding and the place of death was changed and the statement of Joginder was there that he did not know and thereafter the case was closed as untraced. It was submitted that we are talking of a democratic country and the capital of that country and the party in power was helping in not getting Sajjan Kumar named. It was submitted that the witness had maintained his stand even when he was confronted and he had stated that he was under fear and he had even said that he was offered money by Mam Chand. As regards the argument that re-investigation had taken place, the Ld. SPP for CBI also relied upon the judgment of the Hon'ble Supreme Court in Vinay Tyagi v. Irshad Ali (supra) and submitted that in the present case there was a government order and matter was discussed in the two Houses of Parliament and it was mentioned investigation/ re- investigation. All previous investigations were trashed and fresh investigation was ordered and the same was tested by the Court in the initial stages when the challenge was made which went uptil the Hon'ble Supreme Court. Ex.PW10/M showed that the directions to investigate the cases were pursuant to the discussion which took place in Lok Sabha and Rajya Sabha and that is how the CBI got entrusted with the case and the same had also been noted by the Hon'ble High Court in its order. The whole country felt ashamed of what had happened and the issue was raised outside the country as well. The Nanavati Commission had reflected on the role of Delhi Police and that the investigation CBI Vs. Sajjan Kumar & Ors. Page No. 168 of 545 was not done properly and how people had shied away from naming people and what the Commission could not rectify, the Hon'ble Supreme Court had stepped in as late as 2018 in S. Gurlad Singh Kahlon v. Union of India & Ors. (supra) and directed investigation by constitution of SIT. Further, on 12.09.2022 the Hon'ble High Court of Delhi had allowed the disciplinary authority to pass order against the officer of Delhi Police Durga Prasad who was connected with the investigation in the riots case and justice was coming slowly.
154. It was submitted that the affidavit of Joginder and the FIR specifically named Brahmanand and his statement also named Brahmanand and this took him outside double jeopardy as earlier no investigation was done against any person specifically. Investigation could have been done if somebody was the accused but no one had been called by Delhi Police who stated about the incident nor the accused were ever called so the technicality of law would not come in the way. Mam Chand who was the defence witness had stated that as far as he remembered no officer had called Sajjan Kumar for questioning. It was submitted that the arguments on behalf of the accused persons were fraught with wrong statements or the context was wrong. The Ld. Counsel for the accused persons had read the Memorandum of Action Taken Report but had not pointed out how the same had been dealt with by the Hon'ble High Court in its orders and the arguments were noted but not agreed to so there was no need for the CBI to produce the same. As regards the argument on limited terms of scope of reference of the Committees, it was submitted that Justice Nanavati had dwelled into the terms of reference of CBI Vs. Sajjan Kumar & Ors. Page No. 169 of 545 every other Commission or Committee which was formed prior to the Nanavati Commission and there was not a single term of reference about the cases that could be pursued due to unfairness in the investigation. Most of the Committees were only set up to wishy wash public eye or as an instrument to sideline the issues that were raging in those days.
155. It was submitted that the role of A1 had been referred to again and again. It was strange that there were so many politicians but only names of few persons in few areas had come up such as one person is East Delhi, or one person in Central Delhi and one person in Outer Delhi, the same could not be by accident or by design and it came from a truthful account of a few people who could stand up and name them and not by chance. CBI had taken up the investigation after nearly 21 years of the incident by which time the topography had changed, the people were not there, many of them were killed and the women were hiding so many of the cases were now being taken up.
DISCUSSION
156. A perusal of the record shows that FIR No.250/84 was registered at PS Sultanpuri on 01.11.1984 under Sections 147, 148, 149, 395, 396, 188 IPC against unknown persons that on 01.11.1984, following the assassination of Smt. Indira Gandhi, the then Prime Minister of India, a mob had set the Gurudwara of Budh Vihar on fire and was also looting and burning the houses of Sikh community. The same was re-registered as RC-7 on 17.11.2005. Justice Nanavati Commission recommended re- examination of some cases closed as untraced including FIR CBI Vs. Sajjan Kumar & Ors. Page No. 170 of 545 No.250/84 PS Sultanpuri and as such it was re-registered as RC-7 on the directions of the Government of India, Ministry of Home Affairs vide order dated 24.10.2005.
157. FIR No.347/91 PS Sultanpuri was registered on 13.12.1991 under Sections 147, 148, 149, 302, 201, 395 and 436 IPC on the basis of affidavit filed before the M.L. Jain and A.K. Banerjee Committee on 23.07.1987 by Joginder Singh (Ex.PW7/A) in which it was alleged that on 01.11.1984, Shri Sajjan Kumar, MP of the area brought a mob of ruffians armed with lathis, rods, kerosene oil, petrol etc and called the members of the mob and told them that they had 72 hours to kill Sikhs and no Sikh should escape and the SHO, who was accompanying them fired and killed three Sikhs. Surjeet Singh was also dragged out and burnt alive. The said FIR was registered pursuant to the letter of the Administrator dated 09.10.1991.
158. FIR No.307/94 PS Sultanpuri was registered on 14.06.1994 under Sections 147, 148, 149, 436, 427, 395 IPC on the basis of affidavit filed before the Justice Ranganath Misra Commission on 09.09.1985 by Smt. Anek Kaur (since deceased) wherein it was alleged that on 01.11.1984 at about 8.00 a.m., a mob led by one Ratan surrounded the houses of Sikh community and threatened to set them on fire; the local police did not come to help the Sikhs and the then SHO and other police personnel threatened the Sikhs. A1 along with Jai Kishan came to the locality in a jeep and when the Sikhs asked them for help, A1 and Jai Kishan threatened the Sikhs that they would be killed.
CBI Vs. Sajjan Kumar & Ors. Page No. 171 of 545159. In the latter two cases, closure reports were filed earlier which were accepted by the Court concerned even as per the consolidated charge sheet that was filed in the instant case on 28.02.2004 and 15.01.1999 respectively. Admittedly in FIR No.250/84 PS Sultanpuri, Delhi Police had filed four charge sheets and one supplementary charge sheet in the Court against 25 accused persons covering the death of 60 persons and all the 25 accused persons were acquitted later by the Trial Court/ Hon'ble High Court. As noted in the judgment of the Hon'ble High Court dated 16.07.2013 in Sajjan Kumar v. CBI (supra):
"148. I have heard ld. counsel for the parties. It is emerged that on the basis of DD No. 14-A dated 01.11.1984, case FIR No.250/1987 was registered at P.S. Sultanpuri, Delhi on 01.11.1984 for the riots which took place in Sultanpuri area, Delhi. The police had filed four charge-sheets including one supplementary charge-sheet. After trial, accused therein were acquitted in the first charge-sheet vide judgment dated 23.12.2002 passed by Smt. Manju Goel, the then ld. Addl. Sessions Judge, Patiala House Courts, New Delhi. In the second charge- sheet accused therein were also acquitted vide judgment dated 30.09.1993 passed by Shri S.S. Bal, the then ld. Addl. Sessions Judge, Patiala House Courts, New Delhi. In third charge-sheet accused therein were convicted vide judgment dated 30.03.1991 passed by Shri J.B. Goel, the then ld. Addl. Sessions Judge, Patiala House Courts, New Delhi. In the fourth charge-sheet accused therein were acquitted vide judgment dated 24.04.1997 passed by Shri S.S. Bal, the then ld. Addl. Sessions Judge, Patiala House Courts, New Delhi.
149. The first charge-sheet, i.e., State vs. Suresh Chand & Ors. was qua the killing of 49 persons whereas second charge-sheet, i.e., State vs. Gopi & ors. related to the killing of 7 persons in C-Block, Sultanpuri area. In the present case, the CBI has picked up names of three persons, i.e., Vasant Singh, Balbir Singh and Balihar Singh killed in riots from CBI Vs. Sajjan Kumar & Ors. Page No. 172 of 545 the list of 49 deceased persons mentioned in charge- sheet No. 1 and further 3 deceased persons namely Mohan Singh, Hoshiar Singh and Ranjeet Singh from the charge-sheet no. 2. Thus, the CBI has made killing of above six persons as the subject matter of the RC-7(S)/2005/SCB-II-Delhi (FIR No.250/84).
150. Joginder Singh had filed an affidavit before Sh. L.N. Jain and A.K. Banerjee Committee constituted on 23.07.1987 alleging the killing of his cousin Surjeet Singh by some assailants named in that affidavit. On the basis of the said affidavit FIR No. 347/1991, PS Sultanpuri, was registered on 13.12.1991. The same was investigated. Police filed report under section 173 of Cr.P.C. Complainant Joginder Singh was examined by the concerned court and vide order dated 28.02.2004 filed the case as untraced. However, death of Surjeet Singh is the subject matter of the present RC 25(S)/05/SCR- 1/DLI.
151. FIR No.307/1994 was registered at PS. Sultanpuri, Delhi on the basis of an affidavit filed by Smt. Anek Kaur before Justice Ranganath Misra Commission constituted on 09.09.1985 regarding the killing of her husband Vakil Singh. This affidavit was accepted by Lt. Governor and consequently on 14.06.1994, aforesaid FIR was registered.
152. The CBI had clubbed two cases bearing FIR No. 347/1991 and 307/1994 registered at Police Station Sultanpuri on 13.12.1991 and 14.06.1994 respectively. The aforesaid two cases were sent for closure before the concerned competent court and the closure report was accepted vide order dated 28.02.2004 and 15.01.1999 respectively.
153. The complainant Smt. Anek Kaur did not support the contents of her affidavit filed before the Justice Ranganath Misra Commission on the basis of which the above said case was registered. Rather, she disowned her affidavit. Smt. Anek Kaur was examined during investigation of FIR No. 268/1984, which covers the offences alleged in her affidavit and there too she did not support the version of the prosecution."
160. As per the case of the prosecution, the Ministry of Home Affairs, Government of India while exercising its powers under CBI Vs. Sajjan Kumar & Ors. Page No. 173 of 545 Section 3 of the Commission of Enquiry Act, vide Notification No.441(E) dated 08.05.2000 appointed Justice Nanavati Commission of Enquiry (1984 Anti Sikh Riots) for inquiring into the 1984 Anti-Sikh riots which submitted its report to the Government of India on 09.02.2005. At this juncture, it would be apposite to refer to the submissions made by the Ld. Counsel for the accused persons that there were several phases- the first phase commenced from the date of occurrence till Justice Ranganath Misra Commission was appointed/ constituted by the Government of India on 26.04.1985. It was submitted that it was not the case of the prosecution that prior to the appointment of Justice Ranganath Misra Commission the victims/witnesses/complainants in the present consolidated charge sheet had not approached the police officials or concerned authorities or they were not heard. In fact, as stated in the charge sheet itself, FIR No.250 of 1984 (re-registered as RC-7) was registered on 01.11.1984 which was in respect of A-4 Block, Sultanpuri, Delhi. The Ld. Counsel had also referred to FIR No.252 of 1984 which it was submitted also pertained to A-4 Block, Sultanpuri, Delhi. The said FIR has not been specifically referred to by the prosecution but it cannot be disputed that the said FIR was also registered, investigated and sent for trial. It was also the submission of the Ld. Counsel for the accused persons that the witnesses cited in the present consolidated charge sheet were already examined in respect of the same subject matter before the concerned competent Court during the earlier trial and the cases were decided as per the mandate of law (in respect of which the defence had placed on record several CBI Vs. Sajjan Kumar & Ors. Page No. 174 of 545 judgments), which submission would be adverted to later.
161. It was then submitted that the second phase was the appointment of Justice Ranganath Misra Commission under Section 3 of the Commission of Inquiry Act, 1952 on 26.04.1985 by the Central Government and it was submitted that the CBI had deliberately not placed the true facts in respect of the report of the said Commission and reference was made to the observations in the said report. However, there is nothing in the said observations which precluded the matters from being proceeded further. It may be mentioned that the affidavit on the basis of which FIR No.307/94 was registered was filed by Smt. Anek Kaur before the Justice Ranganath Misra Commission. According to the Ld. Counsel, the third phase was when on the recommendations of Justice Ranganath Misra Commission, Justice Jain and Banerjee Committee was constituted to go through the affidavits filed by various victims and make recommendations regarding the registration and investigation of cases pertaining to specific incidents. It was submitted that Brahmanand Gupta (A5) had preferred a Civil Writ Petition No.3337/1987 seeking quashing of notification dated 23.02.1987 and the same was quashed by the Hon'ble High Court vide order dated 04.10.1988 (reported as 1990 (41) DLT 212) and appeal was preferred against the judgment in Citizen Justice Committee and others v. Brahmanand Gupta and others which was dismissed vide judgment dated 08.02.1996 of the Hon'ble Supreme Court. In this regard, reference may be made to the order of the Hon'ble High Court dated 04.10.1998 quashing the notification establishing the Committee in Brahmanand CBI Vs. Sajjan Kumar & Ors. Page No. 175 of 545 Gupta v. Delhi Administration (supra) wherein it was observed as under:
"In our opinion, there is no merit in this contention. lt is now well settled that the report of a Commission set up under the Commissions of Inquiry Act is recommendatory in nature, and it has no power to enforce its recommendations. (See R. K. Dalmia v. Justice Tendulkar AIR 1988 SC 538). This being so, it is open to the Government to accept all or any of the recommendations given by the Commission. Assuming that the Commission has travelled beyond the scope of the reference made to it, it is, in our opinion, for the Government to decide and consider whether to accept or act on such a recommendation or not. The. Government may choose to ignore any advice or recommendation which is given which is not sought for. But if an unsought for advice is tendered and the Government chooses to accept the same, then we fail to see as to how the acceptance of such an advice can be impugned. In exercise of its executive powers, the Government is free to seek advice from any quarter. The advice so given helps the Government in coming to an administrative decision. Dehors any statute a suggestion can be mooted to the Government to act, administratively, in a particular manner and we fail to see any legal impediment in the Government accepting such an advice. If, therefore, the Commission exceeded the terms of its reference and gave some recommendation or advice which was not covered by the provisions of the Commission of Inquiry Act, the Government, in our opinion, was not constrained by the provisions of any law in accepting such a recommendation.
xxx The impugned notification does not expressly give the power to the Committee to receive any fresh material or information or allegations with regard to the incidents of rioting. The Committee was nevertheless, required to examine whether there were cases of omission to register or properly investigate offences. We fail to understand as to how the Committee could have been made aware of cases where there were such omissions or improper investigation without some one informing the Committee in respect thereto. Clause 3(d) expressly CBI Vs. Sajjan Kumar & Ors. Page No. 176 of 545 enables the Committee to perform any other function in addition to what has been enumerated in Clause 3(a) to (c). It was necessary, in order to perform functions enumerated in Clause 3, for the Committee to seek information as to whether there have been instances of omission to register cases or instances of improper investigation. This information could be supplied either by the persons who had sought to register the cases or by some one else who knew about such instances. To restrict the Committee to the documents which already existed would have hampered the Committee in carrying out its duties. We are, however, in agreement with Mr. Gupta that the Committee was not authorised to accept or act on any fresh allegations against individuals pertaining to the said incidents of rioting. In other words, whereas it was open to the Committee to get information where there has been omission to register or properly investigate offences, the Committee had no jurisdiction to accept any affidavits in which fresh allegations were levelled for the first time, which allegations were not sought to be levelled at the time of or soon after the riots had taken place."
There is no dispute about the same.
162. The Ld. Counsel for the accused persons had further submitted that the fourth phase was the appointment of Justice J.D. Jain and Shri D.K. Aggarwal Committee to examine the cases relating to riots in Delhi which was constituted by the Delhi Administration in the year 1990 which recommended for registration of a fresh case on the basis of the affidavit dated 23.07.1987 of PW7 and consequently FIR No.347/91 PS Sultanpuri (RC-25 herein) was registered and on the affidavit dated 09.09.1985 filed by Smt. Anek Kaur before the Justice Ranganath Misra Commission, FIR No.307/94 was registered with PS Sultanpuri (RC-8). The said FIRs have been referred to by CBI as well and there is no dispute about the same and in fact on the basis of the said FIRs, RC-8 and RC-25 were registered.
CBI Vs. Sajjan Kumar & Ors. Page No. 177 of 545The Ld. Counsel for the accused persons had submitted that none of the complainants in the said cases, during investigation and before the Court had supported the contents of their respective affidavits nor the investigating agency was able to find any evidence supporting the version of the affidavits and as such the prosecution after seeking legal opinion from the legal department sent the cases for closure for want of evidence which were accepted as per the mandate of law by the concerned competent Courts under intimation to the complainants. It was submitted that none of the complainants or witnesses particularly Joginder Singh had preferred any protest petition or expressed any dissatisfaction before any forum. It is not in dispute that the cases were sent for closure and that the closure reports were accepted by the concerned competent Courts and further that the complainants or witnesses had not preferred any protest petition against the acceptance of the closure reports though the said aspect would also be adverted to later.
163. The Ld. Counsel for the accused persons had highlighted that the terms of reference of all the said Committees and Commissions was limited to which the Ld. SPP for CBI had submitted that Justice Nanavati had dwelled into the terms of reference of every other Commission or Committee which was formed prior to Nanavati Commission and there was not a single term of reference about the cases that could be pursued due to unfairness in the investigation. It was also submitted that most of the Committees were only set up to wishy wash public eye or as an instrument to sideline the issues that were raging in those days. However, the said issue need not be gone into as the terms CBI Vs. Sajjan Kumar & Ors. Page No. 178 of 545 of reference of the different Committees and Commissions are not in issue before this Court.
164. The Ld. Counsel had submitted that the fifth phase was the appointment of the Nanavati Commission in May 2000 by the Government of India which submitted its report on 09.02.2005 to the Government. It was stated that none of the complainants/ witnesses cited in the present composite charge sheet had either appeared before the Justice Nanavati Commission or made any complaint/ representation expressing their dissatisfaction over the investigation conducted/ judicial proceedings. While there is no dispute with the said fact, it is also pertinent that the accused persons themselves had never challenged the recommendations of the Nanavati Commission Report by way of a separate writ petition or other proceedings and it was only after the present consolidated charge sheet was filed that the said issue was raised. It was also contended that the CBI was not fair in the present case and had merely filed relevant extracts of the report of Justice Nanavati Commission of Enquiry into the 1984 riots but had withheld the Memorandum of Action Taken on the report. It was submitted that it was the settled law that the report of the Commission is always placed before the Parliament along with the Memorandum of Action Taken on the report within a period of six months of the submission of the report by the Commission to the appropriate Government and the accused persons had placed on record the copy of the Memorandum of Action Taken on the report during the course of final arguments. It was stated that the stand of the government was given in the Memorandum of Action Taken on the report which was placed before the CBI Vs. Sajjan Kumar & Ors. Page No. 179 of 545 Parliament on 10.08.2005 and 11.08.2005 before Lok Sabha and Rajya Sabha respectively along with the report of Justice Nanavati Commission Ex.PW10/M (colly). As regards the said contention, it is true that CBI had placed on record only extracts of the report of the Nanavati Commission but even the accused persons have not specifically referred to any other part of the report. The Ld. SPP for CBI on the other hand had submitted that the Hon'ble High Court in Sajjan Kumar v. CBI (supra) had answered the argument that CBI should have waited for the Memorandum of Action Taken Report and that the Ld. Counsel for the accused persons had not pointed out how the same had been dealt with by the Hon'ble High Court in its orders and the arguments were noted but not agreed to so there was no need for the CBI to produce the same. A perusal of the judgment dated 16.07.2013 of the Hon'ble High Court in Sajjan Kumar v. CBI (supra) shows that the Hon'ble High Court had noted the submissions made on behalf of A1 as under:
"23. In the month of August, 2005, the Government filed Memorandum of Action Taken Report of Justice G.T. Nanavati Commission, wherein it was categorically stated that the petitioner Sajjan Kumar was not named as accused in this case nor any fresh material/ evidence was produced before Justice Nanavati Commission against petitioner/ accused Sajjan Kumar in connection with the incident of riots covered under FIR no. 250/1984, PS- Sultanpuri, FIR no. 347/1991, PS-Sultanpuri and FIR No. 307/1994, PS-Sultanpuri, Delhi. It was also categorically stated before the Parliament that no fresh affidavit was filed before Justice Nanavati Commission in connection with this incident against Sajjan Kumar nor any new or additional evidence was there against him nor there was any justification to re-open this case.CBI Vs. Sajjan Kumar & Ors. Page No. 180 of 545
24. However, in pursuance of discussion held in Lok Sabha and Rajya Sabha on 10.08.2005 to 11.08.2005, Ministry of Home Affairs, Govt. of India entrusted the case to CBI on 24.10.2005 vide DO Letter No. U.13018/5/2005/Delhi-I for conducting further investigation/ re-investigation as per the recommendation of Justice Nanavati Commission."
Thereafter, the Hon'ble High Court observed as under:
"159. Moreover, the Government filed a Memorandum of Action Taken Report of Justice Nanavati Commission in the month of August, 2005 wherein it was categorically stated that Sajjan Kumar was neither named as an accused in this case nor any fresh material/ evidence was produced before the aforesaid Commission in connection with the incident of riots covered under FIR No. 250/1984, FIR No. 347/1991 and FIR No. 307/1994, all the above noted FIRs registered at PS- Sultanpuri, Delhi. It was categorically stated before the Parliament that no fresh affidavit was filed before the Justice Nanavati Commission in connection with this incident against Sajjan Kumar nor any new or additional evidence was there against him and there was hardly any justification to re-open this case.
160. Therefore, pursuant to the discussion held in Lok Sabha and Rajya Sabha on 10.08.2005 to 11.08.2005, the Ministry of Home Affairs, Govt. of India entrusted the case to CBI on 24.10.2005 for conducting further investigation/re-investigation as per the recommendation of Justice Nanavati Commission. Accordingly, the CBI registered three FIRs as noted above."
Thus, the Hon'ble High Court had taken note of the fact that despite the Memorandum of Action Taken Report of Justice Nanavati Commission in the month of August, 2005, pursuant to the discussion held in Lok Sabha and Rajya Sabha on 10.08.2005 to 11.08.2005, the Ministry of Home Affairs, Government of India entrusted the case to CBI on 24.10.2005 for conducting CBI Vs. Sajjan Kumar & Ors. Page No. 181 of 545 further investigation/ re-investigation as per the recommendations of the Justice Nanavati Commission and as such, it would not be open to the Ld. Counsel for the accused persons to raise the argument at this stage that the Memorandum of Action Taken Report had not been taken note of by the CBI.
Cases not covered within the ambit of the recommendations of the Nanavati Commission
165. The Ld. Counsel for the accused persons had then referred to the recommendations of the Nanavati Commission (pages 217 to 221 of the charge sheet Ex.PW10/7 (colly) D-15/2 to D-15/4 at D-15/4 page 221) and it was submitted that the accused persons were not covered within the ambit of recommendations of Nanavati Commission. On the other hand, the Ld. Sr. Counsel for the complainant had argued that the Nanavati Commission had recommended only specific cases so it could not now be argued by the accused that the CBI had overstepped its authority by registering the cases without any basis. It was submitted that there was a furore in the country, not only by the opposition but also by the media and the civil society took up the matter and the Parliament decided. So the government entrusted the cases to CBI after debates and decision by the Parliament that the cases should be given to CBI for re-investigation. It was submitted that the three-fold focus of the arguments on behalf of the accused persons was against the spirit of the case which was reopened by the Government on the recommendations of the Nanavati Commission which had held the police to be culpable, investigation to be bad and that it was a fact that people were CBI Vs. Sajjan Kumar & Ors. Page No. 182 of 545 scared to name persons and in many cases closure reports were filed. The Commission noted with anguish that it was too late to open the entire thing and found a via media wherein the cases which were either untraced or where trials had not taken place, limited to those cases, CBI was directed to investigate as per the mandate given by the Government. As regards FIR No.250/84 the same had been tried earlier but what was untraced, the CBI had focused on the same. In fact all the other cases which had already been sent up for trial could also be reopened for investigation but the same were ignored and they were not reopened though they were under suspicion and different witnesses could be brought. It was submitted that the deaths were far more than the official figure of around 3000 and not even 1/3rd of the cases were investigated and the question that arose was as to where they vanished in thin air but the CBI could not open everything.
166. A perusal of the record shows that the matters were referred to CBI vide letter dated 24.10.2005 written by Shri K.P. Singh which was initially Mark PW10/1 and was thereafter exhibited as Ex.PW10/M. The said letter refers to the discussion held in the Lok Sabha on 10.08.2005 and the Rajya Sabha on 11.08.2005 on the Report of Justice Nanavati Commission of Inquiry and that the Prime Minister and the Home Minister had given an assurance that wherever the Commission had named any specific individual as needing further examination or re- opening of case, the Government would take all possible steps to do so within the ambit of law. It also referred to the fact that the Report of Justice Nanavati Commission, inter alia, contained CBI Vs. Sajjan Kumar & Ors. Page No. 183 of 545 recommendations regarding investigation/ reinvestigation of the cases against Sajjan Kumar, amongst others and that it had been decided by the Government to entrust the said work to CBI. The said letter enclosed with it extracts of the Report against A1, amongst others and the same is reproduced herein for ready reference:
"C. Shri Sajjan Kumar "Many witnesses have stated about the involvement of S/Shri Sajjan Kumar, Balwan Khokar, Pratap Singh, Maha Singh and Mohinder Singh in the riots in areas like Palam Colony, Tilak Vihar, Raj Nagar etc. It was alleged that the mobs indulging in riots were led by Shri Sajjan Kumar and Shri Balwan Khokhar and other Congress leaders. Police did not even record the complaints of the victims/witnesses against them. Instead complaints of losses were recorded by the Police. Other local persons who have been named by the witnesses as the persons who had taken a leading part in the attacks on Sikhs are Rohtas, Ram Kumar and Ved Prakash.
The Commission is, therefore, inclined to take the view that there is credible material against Shri Sajjan Kumar and Shri Balwan Khokhar for recording a finding that he and Shri Balwan Khokhar were probably involved as alleged by the witnesses. The DSGPC and CJC have also drawn the attention of the Commission to some cases where Shri Sajjan Kumar though named was not charge sheeted or they were closed as untraced. No useful purpose can now be served by directing registration of those cases where the witnesses complaining about the same were examined before the courts and yet the other accused were acquitted by the Courts. The Commission therefore recommends to the Government to examine only those cases where the witnesses have accused Shri Sajjan Kumar specifically and yet no charge sheets were filed against him and the cases were terminated as untraced and if there is justification for the same take further action as is permitted by law. Those cases which were closed as untraced and which still deserve to be reexamined are those which would CBI Vs. Sajjan Kumar & Ors. Page No. 184 of 545 arise from FIR Nos. 250/84, 307/94 and 347/91 of police station Sultanpuri, FIR Nos. 325/93, 329/93, 178/84 of police station Mangolpuri and FIR No. 416/94 of police station Delhi Cantt." (Page 162- 163 of the Report)."
It is thus seen that the Commission had recommended to examine only those cases where the witnesses had accused Shri Sajjan Kumar specifically and yet no charge sheets were filed against him and the cases were terminated as untraced and if there was justification for the same, to take further action as was permitted by law. The cases which the Report referred to as closed as untraced and which still deserved to be re-examined were those which would arise from amongst others, FIRs No.250/84, 307/94 and 347/91 of PS Sultanpuri i.e the FIRs in question in the present case. As regards, FIR Nos.307/94 and 347/91, it was submitted by the Ld. Counsel for the accused persons that the admitted position was that closure reports were accepted as per the mandate of law. As noted in the judgment dated 16.07.2013 of the Hon'ble High Court in Sajjan Kumar v. CBI (supra) the said cases were sent for closure before the concerned competent Court and the closure report was accepted vide order dated 28.02.2004 in respect of FIR No.347/1991 and order dated 15.01.1999 in respect of FIR No.307/1994. It was also noted that the complainant Joginder Singh was examined by the concerned Court and vide order dated 28.02.2004 the case was filed as untraced. Thus, there is no doubt, as contended by the Ld. Counsel for the accused persons that the closure reports were accepted as per the mandate of law. However, these cases would fall in the category where the witnesses had accused Shri Sajjan Kumar specifically and yet no charge sheets were filed against CBI Vs. Sajjan Kumar & Ors. Page No. 185 of 545 him and the cases were terminated as untraced. It would be argued by the Ld. Counsel for the accused persons that there was no justification to take further action and it was not permitted by law as the complainants in the said cases had not filed any protest petition when the closure reports were accepted. The said aspect was duly considered by the Hon'ble High Court in judgment dated 16.07.2013 in Sajjan Kumar v. CBI (supra) wherein it was observed as under:
"155. The aforesaid Commission recommended to the Government of India to examine only those cases, where the witnesses stated against accused Sajjan Kumar specifically, yet no charge-sheet was filed against him. The Commission further recommended to examine the cases which were closed as untraced and still deserve to be re- examined including FIR No. 250/1984, FIR No. 347/1991 and FIR No. 307/1994 registered at Police Station Sultanpuri, Delhi. The Trial Court had accepted the final report under Section 173 of Cr.P.C in case FIR No. 347/1991 which was registered on the basis of the affidavit filed by Joginder Singh before Jain-Banerjee Committee. The final report in aforesaid case was accepted after considering the statement of Joginder Singh in the Court and statement recorded under Section 164 Cr.P.C whereby he totally disowned the affidavit and denied having seen the incident of killing of his brother, i.e., Surjeet Singh.
156. It is noted that both the complainants, namely, Joginder Singh and Smt. Rajwant Kaur, brother and wife of deceased Surjeet Singh (subject matter of the present case) were also summoned and examined by the Court on 15.03.1995 and 31.05.2003 respectively. Both of them denied witnessing the incident having taken place as alleged in the affidavit."
Thus, the Hon'ble High Court noted that the final report in FIR No.347/1991 was accepted after considering the statement of CBI Vs. Sajjan Kumar & Ors. Page No. 186 of 545 Joginder Singh in the Court and statement recorded under Section 164 Cr.P.C. whereby he totally disowned the affidavit and denied having seen the incident of killing of his brother i.e. Surjeet Singh and also the statement of wife of the deceased Smt. Rajwant Kaur. However, the Hon'ble High Court did not find any fault with the CBI proceeding further with the matters and as such this issue cannot now be re-agitated. Even if the closure reports had been accepted by the Court, the import of the statements of the complainants made before the Court and what evidence is brought forth by the prosecution would still have to be examined by this Court and as such it cannot be said that FIR No.347/1991 and FIR No.307/1994 did not fall in the ambit of recommendations of Nanavati Commission.
167. The Ld. Counsel for the accused persons had then urged that the issue that arose was whether the case of CBI before this Court was that in FIR No.250/84, though Sajjan Kumar was named yet he was not charge-sheeted or the case was closed as untraced. However, none named Sajjan Kumar or Vedu or showed their involvement either during investigation or trial of the said case. Reference was made to the four charge sheets which arose from FIR No.250/84, PS Sultanpuri in which 96 witnesses were examined but none named Sajjan Kumar or Vedu at any stage either during investigation or trial and the cases ended with a logical conclusion. It was also pointed out that some of the witnesses/ complainants had preferred revisions before the Hon'ble High Court in FIR No.250/1984 but none of the witnesses cited in the present case or in the said revisions had named Sajjan Kumar at any stage of investigation/ trial or in their CBI Vs. Sajjan Kumar & Ors. Page No. 187 of 545 respective revisions. Even in the judgment of the Hon'ble High Court dated 16.07.2013 in Sajjan Kumar v. CBI (supra) it was noted that "the fact incorporated by the CBI in para 4 of the charge sheet that Justice Nanavati Commission had wrongly observed that FIR No.250/1994 registered at PS Sultanpuri, Delhi was consigned untraced. In fact, full trial was conducted in that case." There is merit in the submission of the Ld. Counsel that in FIR No.250/84, none of the witnesses had accused Sajjan Kumar so there was no question of A1 being named, yet he not being charge-sheeted and the matter being sent as untraced. Admittedly in the said FIR, four charge sheets were filed but in none of the cases, A1 was named, nor was it the case that he was named but the case was sent as untraced.
168. PW10 was also cross-examined in this respect and he was asked if it was correct that as per the letter Ex.PW10/M, they were required to carry out investigation as per the recommendations of the Justice Nanavati Commission Report in the case entrusted to CBI to which he stated that it was correct that they had to undertake investigation as per the recommendations of the Justice Nanavati Commission report which guided them to re-register such cases where Sajjan Kumar was named by the witnesses. However, it was open for them to carry out investigation with open mind and there was no such direction as to how the investigation was to be carried out. It was put to him if it was correct that the Commission had recommended to the Government to examine only those cases where the witnesses had accused Sajjan Kumar specifically but no charge sheet had been filed against him and the cases had CBI Vs. Sajjan Kumar & Ors. Page No. 188 of 545 been terminated as untraced which he admitted and volunteered the Commission had also clarified which were the said cases and that those cases which were closed as untraced and which still deserved to be re-examined were those which would arise from FIRs No.250/84, 307/94 and 347/91 of PS Sultanpuri etc. It is pertinent that what was put to PW10 is a matter of record as seen from Ex.PW10/M (colly) and there is merit in what PW10 had stated that the Commission had also clarified which were the cases which deserved to be re-examined and that included cases arising from FIR No.250/84.
169. During further cross-examination PW10 stated that it was a matter of record that charge sheet was filed in FIR No.250/84 and the matter went up for trial. He admitted that the contents of para (iv), pages 8 and 9 of the charge sheet were written based on the record. He was asked if it was correct that Justice Nanavati Commission had nowhere recommended retrial in cases where the trial had already been completed by the concerned competent Court to which he replied that Nanavati Commission had specifically recommended to re-investigate FIR No.250/84 and other cases and that is why the present case was registered and investigated by the order of Government of India. He stated that it was not required to be brought to the notice of his seniors that trial had already been conducted in respect of FIR No.250/84 and it was not within the ambit of recommendations of Nanavati Commission and volunteered the seniors were his team members and they already knew the position as it existed. He stated that there was no specific direction or pressure that the case had to be retried. He denied the suggestion that the matter pertaining to CBI Vs. Sajjan Kumar & Ors. Page No. 189 of 545 FIR No.250/84 could not be re-investigated either as per the recommendations of the Nanavati Commission Report or as per the letter Ex.PW10/M since the matter had already been tried by the competent court. He stated that the FIR was registered by CBI in the present case only after the matter was vetted by the Legal Department. Again there is merit in what PW10 stated that the Nanavati Commission had specifically recommended to re- investigate FIR No.250/84. As such, on the face of it, FIR No.250/84 was not a case which would be covered within the recommendations of the Nanavati Commission. However, it cannot be lost sight of that Nanavati Commission itself had referred to FIR No.250/84 and further when this contention was raised before the Hon'ble High Court in Sajjan Kumar v. CBI (supra), the Hon'ble High Court in its judgment dated 16.07.2013 did not fault CBI on re-registering the said FIR and proceeding with the investigation in the said matter and thereafter filing the charge sheet. It is also relevant that the recommendations of the Nanavati Commission also came up for consideration before the Hon'ble High Court in State Through CBI v. Sajjan Kumar and Others 2018 SCC OnLine Del 12930 wherein it was observed as under:
"169. Here again, it is necessary to briefly refer to the precise recommendation of the Justice Nanavati Commission which has already been extracted hereinbefore. The Commission was clearly of the view that "there is credible material against Shri Sajjan Kumar and Shri Balwan Khokhar for recording a finding that he and Shri Balwan Khokhar were probably involved, as alleged by the witnesses". No doubt, the Commission observed that no useful purpose would be served by directing registration of these cases "where the witnesses complaining about the same were examined in the CBI Vs. Sajjan Kumar & Ors. Page No. 190 of 545 Court, and yet the accused were acquitted by the Courts". The recommendation of the Commission was to take further action as is permitted by law after examining only:
(i) Cases where the witnesses have accused A-1 specifically and yet no charge sheets were filed against him; and
(ii) Cases which were terminated as 'untraced'.
170. Mr. Sibal, in making his submissions, stressed that A-1 belonged to neither of these categories having been named for the first time by PW-1 before the Justice Nanavati Commission only in 2000. He further pointed to the Action Taken Report (Ex.DW- 14/A) which was drafted in compliance with the recommendations of the Commission. In the conclusion as to the whether there was any basis for re-opening the case against A-1, it was noted that "none of the 18 persons who filed affidavits before Justice Nanavati Commission has named accused Shri Sajjan Kumar for the incidents of riots in the area of PS Delhi Cantt. Therefore, there is no justification to re-open this case".
171. This, however, is clearly not the case as PW-1 definitely went before the Justice Nanavati Commission and accused A-1 of being involved in the crimes that took place at Raj Nagar. This cannot be denied even by A-1 himself. The entire argument that the present cases were wholly unjustified and were beyond the scope of what was recommended by the Justice Nanavati Commission is misconceived and proceeds on a misunderstanding of what was actually recommended. In the view of this Court, the Government's conception of which category A-1's case would fall under is not finally determinative of the question of whether the re-opening of the investigation against him was justified.
172. While it is true that a closure report was filed, and it was for the learned MM to decide as to how the matter should proceed, these records never surfaced. If the fate of the charge sheet prepared in FIR No. 67/1987 registered at PS Nangloi is anything to go by, even where a charge sheet named A-1, it was simply kept in the file and never submitted in the Court. This was an extraordinary CBI Vs. Sajjan Kumar & Ors. Page No. 191 of 545 case where it was going to be impossible to proceed against A-1 in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them. Even if they were registered, they were not investigated properly and even if the investigation proceeded, they were not carried to the logical end of actually filing a charge sheet. Even the defence does not dispute that as far as FIR No. 416/1984 is concerned, a closure report had been prepared and filed but was yet to be considered by the learned MM.
173. The fact of the matter, therefore, is that A-1 was never really sent up for trial until the CBI intervened. The Court is not impressed with the argument that the CBI deliberately suppressed the fact of the pendency of the closure report in FIR No. 416/1984. This argument appears to be born out of sheer desperation. The Justice Nanavati Commission itself treated FIR No. 416/1984 to be a case which was closed as 'untraced'. Even if this is taken to be factually incorrect, the fact remains that there was no progress whatsoever in FIR No. 416/1984.
174. In any event, it is too late in the day for A-1 to advance this argument. He cannot take advantage of an obvious failure by the Delhi Police to carry the investigation in FIR No. 416/1984 to its logical end. It is only after the CBI stepped in that witnesses found the courage to speak the truth and come forward with their versions which have formed the basis for the charge sheet and the charges framed.
175. Consequently, the Court rejects the plea on behalf of A-1 that the case against him was not covered by the recommendations of the Justice Nanavati Commission or that the CBI withheld any information in its application for re-investigation of the case. That the Delhi Police has a lot to answer for is what comes across explicitly in the answers given by the IOs of the CBI in the present case, viz. PWs 15 and 17. In particular, the contention that the testimony of PW-17 entailed an admission of "suppression of facts" is without basis."
170. The Ld. Counsel for the accused persons had argued that the plea of CBI was that the only ground for re-registration of the CBI Vs. Sajjan Kumar & Ors. Page No. 192 of 545 case was the recommendations of the Nanavati Commission (D- 15/4). It was highlighted that the report of a Commission of Enquiry was not binding upon the government or Courts but it was helpful to the investigating agency in making investigation. The investigating agency may with advantage of the report make use of the report of the Commission in its onerous task of investigation bearing in mind that it did not preclude the investigating agency from forming a different opinion under Sections 169/ 170 Cr.P.C. if the evidence obtained by it supported such a conclusion. Reliance was placed on the judgment in T. T. Antony v. State of Kerala (supra) wherein it was observed as under:
"30. A Division Bench of the Nagpur High Court in M.V. Rajwade v. Dr. S. M. Hassan 1 following the said judgment of the Privy Council2, held that the Commission was a fact-finding body meant only to instruct the mind of the Government without producing any document of a judicial nature and that findings of the Commission of Inquiry were not definitive like a judgment. It was also pointed out that there was no accuser, no accused and no specific charges for trial; nor was the Government, under the law, required to pronounce, one way or the other, on the findings of the Commission. That judgment was approved by various judgments of this Court.
31. In Ram Krishna Dalmia v. Justice S.R. Tendolkar3 a Constitution Bench of this Court while considering the constitutional validity of the Commissions of Inquiry Act, indicated that the Commission is merely to investigate, record its findings and make its recommendations which are not enforceable proprio vigore and that the inquiry or report cannot be looked upon as judicial inquiry 1AIR 1954 Nag 71.
2Maharaja Madhava Singh v. Secy. Of State for India in Council (1903-
04) 31 IA 239 (PC).
3AIR 1958 SC 538.
CBI Vs. Sajjan Kumar & Ors. Page No. 193 of 545in the sense of its being an exercise of judicial function properly so called. The recommendations of the Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. It would be appropriate to notice the following observations of the Constitution Bench: (AIR p.547, para 9) "But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statement made by any person before the Commission of Inquiry is, under Section 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking any action 'as and by way of securing redress or punishment' which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed, for redress or punishment for such wrongs, if any, has to be imposed by a court of law properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be."
32. In State of Karnataka v. Union of India4 the observations referred to above were approved by a seven-Judge Bench of this Court. In Sham Kant v. State of Maharashtra5 it was held that the findings of the Inquiry Commission would not be binding on the Supreme Court. There, the question was whether an undertrial died due to injuries sustained by him in police custody. The report of the Commission of Inquiry mentioned that the injuries possibly might have been sustained by him even prior to his arrest. In the appeal arising out of conviction and sentence of the police officer concerned, this Court, on material before it, found that the victim died on account of ill-treatment meted out by the police and held that the findings of the Commission would not bind this Court.
4(1977) 4 SCC 608.
51992 Supp (2) SCC 521: 1992 SCC (Cri) 765.
CBI Vs. Sajjan Kumar & Ors. Page No. 194 of 54533. It is thus seen that the report and findings of the Commission of Inquiry are meant for information of the Government. Acceptance of the report of the Commission by the Government would only suggest that being bound by the rule of law and having duty to act fairly, it has endorsed to act upon it. The duty of the police - investigating agency of the State - is to act in accordance with the law of the land. This is best described by the learned Law Lord - Lord Denning - in R.v. Metropolitan Police Commr.6 (All ER. 763 at p.769] where he observed as follows :
"I hold it to be the duty of the Commissioner of Police, as it is of every Chief Constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself."
34. Acting thus the investigating agency may with advantage make use of the report of the Commission in its onerous task of investigation bearing in mind that it does not preclude the investigating agency from forming a different opinion under Sections 169/170 of Cr.P.C. if the evidence obtained by it supports such a conclusion. In our view, the courts, civil or criminal, are not bound by the report or findings of the Commission of Inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law."
While it is true that the recommendations of a Commission of Enquiry are not binding on the investigating agency, it is clear that the Nanavati Commission had only recommended "to the Government to examine only those cases where the witnesses have accused Shri Sajjan Kumar specifically and yet no charge sheets were filed against him and the cases were terminated as untraced and if there is justification for the same take further 6(1968) 1 All ER 763: (1968) 2 KB 118 : (1968) 2 WLR 893 (CA).
CBI Vs. Sajjan Kumar & Ors. Page No. 195 of 545action as is permitted by law" i.e. to examine the cases and if there was justification for the same, to take further action as was permitted by law and it had not made any recommendation as to how the investigating agency was to proceed nor given any definitive direction and as such the recommendations were only the starting point for taking up investigation and even PW10 had stated that it was open for them to carry out investigation with open mind and there was no such direction as to how the investigation was to be carried out. It was also argued that there was no justification in law to proceed with FIR No.250/84 once four charge sheets had been filed and trial had taken place and no one had named A1 but once the case was re-registered and taken up for investigation and thereafter the charge sheet had been filed, this Court has to see if the prosecution has been able to prove its case against the accused persons.
171. The Ld. Counsel for the accused persons had also submitted that out of the cases recommended by Nanavati Commission, CBI filed a closure report in respect of FIR No.178/84, PS Mangol Puri re-registered as RC-6/S/2005 for re- closure of the case for want of evidence which was confirmed by the IO and did not proceed in FIR No.325/93 and FIR No.329/93, PS Mangol Puri as the said two cases were not pertaining to 1984 riots and it did not re-register those cases. During cross- examination PW10 admitted that record of FIR No.178/84, PS Mangolpuri was registered as RC-6S/2005 and the same was sent for closure. PW10 admitted that Nanavati Commission had specifically recommended re-examination of FIR Nos. 325/93 and 329/93 PS Mangolpuri. He was not aware if the said two CBI Vs. Sajjan Kumar & Ors. Page No. 196 of 545 cases were re-registered by CBI or not. However, nothing much turns on the same as each case turns on its own facts. The Ld. Counsel had also argued that it could not be believed that in five years, the Nanavati Commission had found only 7 cases to proceed with but it is not necessary for this Court to go into the said issue. The Ld. Counsel had submitted that the approach of CBI should have been that there was no case made out for proceeding with FIR No.250/84 (RC-7) as full-fledged trial had taken place and in FIR Nos.347/1991 and 307/94 there was no fresh evidence to proceed with and it should have filed closure reports. However, the CBI proceeded on the basis of its investigation and it is for this Court to examine whether any case is made out against the accused persons or not.
172. The Ld. Counsel for the accused persons had argued that the plea of CBI was that the only ground for re-registration of the case was Ex.PW10/M (colly)(D-15/1) and the recommendations of the Nanavati Commission (D-15/4) and in the letter it was stated that further examination and re-opening of the cases would be taken within the ambit of law. Even PW10 had deposed that the present case was registered by CBI, pursuant to the order of the Central Government which was conveyed vide letter dated 24.10.2005 forwarded by Shri K.P. Singh, Spl. Secretary Home addressed to the then Director of CBI. The copy of the said letter is Mark PW10/1 which was later exhibited as Ex.PW10/M (colly). As such, there is no dispute that the matters were taken up by CBI based on the recommendations of the Nanavati Commission and the letter Ex.PW10/M (colly).
CBI Vs. Sajjan Kumar & Ors. Page No. 197 of 545Re-investigation or further investigation
173. It was then argued on behalf of the accused persons that the investigation in the present cases amounted to re- investigation which was not permissible in law and not further investigation. It was submitted that as per the provisions of Section 173(8) of Cr.P.C., CBI had no fresh document/ clue/ evidence to proceed with the case or file the charge sheet under Section 173(2) of Cr.P.C. The Ld. Counsel for the accused persons had cited the judgment in Hoor Begum v. State (NCT of Delhi) & Anr. (supra) wherein it was observed as under:
"...police suo moto in exercise of its powers under Section 173(8) Cr.P.C can further' investigate into the matter or such a power can be exercised by the investigating agency on the directions of the High Court given in exercise of its powers either under Article 226 of the Constitution of India or under Section 482 Cr.P.C. But one thing is to be borne in mind that the word used under Section 173(8) Cr.P.C. is 'further investigation' and not re- investigation'. While as re-investigation would mean revisiting the evidence which has already been collected by the investigating agency which is not permissible within the domain of Section 173(8) Cr.P.C. but further investigation is possible which would mean, to investigate the matter further from the point from where it has been left in the previous investigation."
Reliance was also placed on Dharam Pal v. State of Haryana & Ors. (supra) wherein it was observed that the constitutional courts can direct for further investigation or investigation by some other investigating agency for the purpose of a fair investigation and a fair trial, though the direction for further investigation by another agency has to be very sparingly issued. In the said judgment, reliance was placed on the judgment in CBI Vs. Sajjan Kumar & Ors. Page No. 198 of 545 Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (supra) on the point of further investigation. Reliance was also placed by the Ld. Counsel for the accused persons on the judgment in Vinubhai Haribhai Malaviya & Ors. v. State of Gujarat & Anr (supra) on the point of further investigation. In Ram Udagar Mahto v. State (supra), the Hon'ble High Court of Delhi observed as under:
"15. Speaking literally, the word "further" would mean additional, more, or supplemental. "Further investigation", therefore, would mean continuation of the earlier investigation. The Supreme Court has shed light on the expression "further investigation"
in Amrutbhai Shambhubhai Patel7 (Supra) where it was observed as under:
"38. ...further investigation was a phenomenon where the investigating officer would obtain further oral or documentary evidence after the final report had already been submitted, so much so that the report on the basis of the subsequent disclosures/discoveries by way of such evidence would be in consolidation and continuation of the previous investigation and the report yielded thereby...."
xxx
17. Section 173(8) Cr.P.C. makes it clear that further investigation is permissible, however, reinvestigation or fresh investigation is prohibited. The Supreme Court distinguished "further investigation" from "reinvestigation" and "fresh investigation" in its decision in K. Chandrasekhar v. State of Kerala and Others (1998) 5 SCC 223 where it was observed as follows:
"24. ...'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-
7Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel (2017) 4 SCC 177.CBI Vs. Sajjan Kumar & Ors. Page No. 199 of 545
section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports - and not fresh report or reports -
regarding the 'further' evidence obtained during such investigation. ...."
18. The difference between the three concepts in the aforementioned terms was reiterated by the Supreme Court in Rama Chaudhary v. State of Bihar (2009) 6 SCC 346 where it held as follows:
"17. ...'Further' investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether."
174. The Ld. Counsel for the accused persons had further cited Luckose Zachariah @ Zak Nedumchira Luke & Ors. v. Joseph & Ors. (supra) wherein it was observed as under:
"16. In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence."
In all the said judgments reference had been made to the judgment of the Hon'ble Supreme Court in Vinay Tyagi v. Irshad Ali (supra) on which reliance has been placed both by the Ld. Counsel for the accused persons and the Ld. SPP for CBI. In the said judgment, the Hon'ble Supreme Court had observed in para 11 that "a very wide power is vested in the investigating agency to conduct further investigation after it has filed the CBI Vs. Sajjan Kumar & Ors. Page No. 200 of 545 report in terms of Section 173(2). The legislature has specifically used the expression 'nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Section 173(2) has been forwarded to the Magistrate', which unambiguously indicates the legislative intent that even after filing of a report before the court of competent jurisdiction, the Investigating Officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating agency is competent to file a supplementary report to its primary report in terms of Section 173 (8)." The Hon'ble Supreme Court noted the distinction between further and fresh investigation and observed as under:
"13. Having noticed the provisions and relevant part of the scheme of the Code, now we must examine the powers of the Court to direct investigation. Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the Court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its powers under Section 156(3) of the Code. Investigation can be of the following kinds:
(i) Initial Investigation.
(ii) Further Investigation.
(iii) Fresh or de novo or re-investigation.
xxx
15. 'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood CBI Vs. Sajjan Kumar & Ors. Page No. 201 of 545 and described as a 'further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation."
16. However, in the case of a 'fresh investigation', 'reinvestigation' or 'de novo investigation' there has to be a definite order of the Court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct 'fresh investigation'. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of 'fresh'/'de novo' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, CBI Vs. Sajjan Kumar & Ors. Page No. 202 of 545 therefore, has to be exercised sparingly...
Xxx
18. Next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct 'further investigation' or 'fresh investigation'. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct 'fresh' or 'de novo' investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold...
Xxx
20. The power of the Court to pass an order for further investigation has been a matter of judicial concern for some time now. The courts have taken somewhat divergent but not diametrically opposite views in this regard. Such views can be reconciled and harmoniously applied without violation of the rule of precedence. In the case of State of Punjab v. Central Bureau of Investigation [(2011) 9 SCC 182], the Court noticed the distinction that exists between 'reinvestigation' and 'further investigation'. The Court also noticed the settled principle that the courts subordinate to the High Court do not have the statutory inherent powers as the High Court does under Section 482 of the Code and therefore, must exercise their jurisdiction within the four corners of the Code.
21. Referring to the provisions of Section 173 of the Code, the Court observed that the police has the power to conduct further investigation in terms of Section 173(8) of the Code but also opined that even the Trial Court can direct further investigation in contradistinction to fresh investigation, even where the report has been filed. It will be useful to refer to the following paragraphs of the judgment wherein the Court while referring to the case of Mithabhai Pashabhai Patel v. State of Gujarat8 (supra) held as under:
"13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' 8(2009) 6 SCC 332.CBI Vs. Sajjan Kumar & Ors. Page No. 203 of 545
stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/ or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction..."
Xxx
23. This judgment, thus, clearly shows that the Court of Magistrate has a clear power to direct further investigation when a report is filed under Section 173(2) and may also exercise such powers with the aid of Section 156(3) of the Code. The lurking doubt, if any, that remained in giving wider interpretation to Section 173 (8) was removed and controversy put to an end by the judgment of this Court in the case of Hemant Dhasmana v. CBI, [(2001) 7 SCC 536] where the Court held that although the said order does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court's revisional jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified,without ambiguity, that the magistrate, in exercise of powers under Section 173(8) of the Code can direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the Investigating Officer, would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the Code. There is no occasion for the court to interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the basis of the material placed on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal CBI Vs. Sajjan Kumar & Ors. Page No. 204 of 545 investigation.
xxx
30. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code :
1.The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report.
2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173(6) of the Code.
3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.
4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.CBI Vs. Sajjan Kumar & Ors. Page No. 205 of 545
6. It has been a procedure of propriety that the police has to seek permission of the Court to continue 'further investigation' and file supplementary charge sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."
31....Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.
32. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227 of the Code.
33. At this stage, we may also state another well- settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article226 of the Constitution of India to direct 'further investigation', 'fresh' or 'de novo' and even 'reinvestigation'. 'Fresh', 'denovo', and 'reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.
xxx
35. The power to order/direct 'reinvestigation' or 'de novo' investigation falls in the domain of higher courts, that too in exceptional cases. If one examines CBI Vs. Sajjan Kumar & Ors. Page No. 206 of 545 the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the Court may, by declining to accept such a report, direct 'further investigation', or even on the basis of the record of the case and the documents annexed thereto, summon the accused.
36. The Code does not contain any provision which deals with the court competent to direct 'fresh investigation', the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a 'fresh'/'de novo' investigation, but unless it specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the same from the record of the case. In other words, but for a specific order by the superior court, the reports, whether a primary report or a report upon 'further investigation' or a report upon 'fresh investigation', shall have to be construed and read conjointly. Where there is a specific order made by the court for reasons like the investigation being entirely unfair, tainted, undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the Court of competent jurisdiction.
37. The scheme of Section 173 of the Code even deals with the scheme of exclusion of documents or statements submitted to the Court. In this regard, one can make a reference to the provisions of Section 173(6) of the Code, which empowers the investigating agency to make a request to the Court to exclude that part of the statement or record and from providing the copies thereof to the accused, which are not essential in the interest of justice, and where it will be inexpedient in the public interest to CBI Vs. Sajjan Kumar & Ors. Page No. 207 of 545 furnish such statement. The framers of the law, in their wisdom, have specifically provided a limited mode of exclusion, the criteria being no injustice to be caused to the accused and greater public interest being served. This itself is indicative of the need for a fair and proper investigation by the concerned agency. What ultimately is the aim or significance of the expression 'fair and proper investigation' in criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons.
xxx Answer to Question No.1 The court of competent jurisdiction is duty bound to consider all reports, entire records and documents submitted therewith by the Investigating Agency as its report in terms of Section 173(2) of the Code. This Rule is subject to only the following exceptions;
(a)Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof;
(b)Where an order is passed by the higher courts in exercise of its extra-ordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on 'fresh investigation' or 're-investigation' or any part of it be excluded, struck off the court record and be treated as non est. CBI Vs. Sajjan Kumar & Ors. Page No. 208 of 545 Answer to Question No.2 No investigating agency is empowered to conduct a 'fresh', 'de novo' or 're-investigation' in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate.
xxx
43.This order clearly shows that the High Court contemplated submission of a supplementary report, which means report in continuation to the report already submitted under Section 173(2) of the Code by the Delhi Police.
xxx
48. Once a Report under Section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said Report.
Furthermore, in the present case, the High Court had passed no order or direction staying further investigation by the Delhi Police or proceedings before the court of competent jurisdiction."
49. On the contrary, the court had noticed explicitly in its order that it was a case of supplementary or further investigation and filing of a 'supplementary report'.
50. Once the Court has taken this view, there is no question of treating the first report as being withdrawn, cancelled or capable of being excluded from the records by the implication. In fact, except by a specific order of a higher court competent to make said orders, the previous as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate conclusion,in accordance with law. It is also interesting to note CBI Vs. Sajjan Kumar & Ors. Page No. 209 of 545 that the CBI itself understood the order of the court and conducted only 'further investigation' as is evident from the status report filed by the CBI before the High Court on 28th November, 2007.
51. In our considered view, the trial court has to consider the entire record, including both the Delhi Police Report filed under Section 173(2) of the Code as well as the Closure Report filed by the CBI and the documents filed along with these reports."
Thus, in the said judgment, it was very categorically laid down that further investigation was permissible but no investigating agency was empowered to conduct a 'fresh', 'de novo' or 're- investigation' in relation to the offence for which it had already filed a report in terms of Section 173(2) of the Code and it is only upon the orders of the higher courts empowered to pass such orders that the said investigation can be conducted, in which event the higher courts would have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the Court. In fact, the Ld. SPP for CBI had also relied upon the said judgment and more particularly on paras 20, 23 and 43 but it is seen that the said paras refer to the power of further investigation.
175. On this aspect, the Ld. Counsel for the complainant had placed reliance on the judgment in CBI v. Hemendhra Reddy & Anr (supra) decided on 28.04.2023 by the Hon'ble Supreme Court, wherein the question that arose before the Hon'ble Supreme Court was:
"... whether the High Court was justified in quashing the entire prosecution instituted by the CBI against the accused persons for the alleged offences on the ground that the CBI could not have undertaken further investigation under sub section CBI Vs. Sajjan Kumar & Ors. Page No. 210 of 545 (8) of Section 173 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC') and filed a chargesheet having once already submitted a final report under sub section (2) of the Section 173 of the CrPC (closure report)? In other words, whether the High Court was right in taking the view that the Special Court could not have taken cognizance upon the chargesheet filed by the CBI based on further investigation having once already filed a closure report in the past and the same having been accepted by the court concerned at the relevant point of time?
The difference between "Further Investigation" and "Re- investigation" was stated thus:
"51. There is no doubt that "further investigation"
and "re-investigation" stand altogether on a different footing. In Ramchandran v. R. Udhayakumar and Others reported in (2008) 5 SCC 413, this Court has explained the fine distinction between the two relying on its earlier decision in K. Chandrasekhar v. State of Kerala and Others reported in (1998) 5 SCC 223. We quote paras 7and 8 as under:
"7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub- section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation.
This was highlighted by this Court in K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223 : 1998 SCC (Cri) 1291]. It was, inter alia, observed as follows : (SCC p. 237, para 24) "24. The dictionary meaning of 'further' (when used as an adjective) is 'additional;
more; supplemental'. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or CBI Vs. Sajjan Kumar & Ors. Page No. 211 of 545 reports--and not fresh report or reports--
regarding the 'further' evidence obtained during such investigation."
8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code. The same can be done by CB CID as directed by the High Court."
xxx
60. In Vinay Tyagi (supra), it was held that "further investigation" in terms of Section 173 (8) of the CrPC can be made in a situation where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the Court. The report on such further investigation under Section 173 (8) of the CrPC can be termed as a supplementary report.
61.In Vinay Tyagi (supra), it was held that:
"40.2. A Magistrate has the power to direct "further investigation" after filing of a police report in terms of Section 173 (6) of the Code.
Xxx xxx xxx 40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173 (2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.CBI Vs. Sajjan Kumar & Ors. Page No. 212 of 545
40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue "further investigation" and file supplementary charge-sheet. ..."
After referring to various authorities, it was held that:
"76 ...even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173 (2) of the CrPC has been accepted. It is also evident, that prior to carrying out a further investigation under Section 173 (8) of the CrPC, it is not necessary for the Magistrate to review or recall the order accepting the final report.
77.We may summarise our final conclusion as under:
(i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted.
(ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed.
(iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation.CBI Vs. Sajjan Kumar & Ors. Page No. 213 of 545
(v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC."
176. Here it would be apposite to refer to a recent decision of the Hon'ble Supreme Court in Peethambaran v. State of Kerala 2023 SCC OnLine SC 588 wherein it was argued that re- investigation had been ordered in violation of the procedure laid down in law and the Hon'ble Supreme Court of India examined the law on the said aspect and observed as under:
"10. The evolution of Section 173 CrPC has been noted by this Court in Vinubhai Haribhai Malaviya (supra). In Para 25, it is opined that investigation after the coming into force of the Cr.PC, 1973 will include all proceedings under Cr.PC for collection of evidence conducted by a police officer. "All"
would undoubtedly then include Section 173 (8) as well. The power therefore, under Section 190, of a Magistrate ordering such investigation, would encompass further investigation under Section 173 (8)."
The Hon'ble Supreme Court then referred to the judgment in Vinay Tyagi v. Irshad Ali (supra) wherein it was observed as under:
"43. At this stage, we may also state another well- settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation","fresh" or "de novo" and even "reinvestigation"."Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that CBI Vs. Sajjan Kumar & Ors. Page No. 214 of 545 this power has to be exercised by the superior courts very sparingly and with great circumspection.
**** **** ****
45. The power to order/direct "reinvestigation" or "de novo" investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct "further investigation", or even on the basis of the record of the case and the documents annexed thereto, summon the accused."
And to the arguments on behalf of the State that only further investigation was conducted, the Hon'ble Supreme Court referred to the observations in Vinay Tyagi v. Irshad Ali (supra) that:
"22."Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report"
would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the CBI Vs. Sajjan Kumar & Ors. Page No. 215 of 545 initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood incomplete contradistinction to a "reinvestigation", "fresh" or "de novo"
investigation."
And thereafter it was observed as under:
"14. This distinction between further investigation and fresh investigation /reinvestigation / de novo investigation being that the former is a continuation of the previous investigation and is done on the basis of discovery of fresh material, whereas the latter can only be done when there is a definite order of the court to that effect which must states the reason as to why the previous investigation is incapable of being acted upon.
xxx
17. The above two cases make it amply clear that a magistrate has the power to order further investigation and the cases referred to earlier make clear that fresh investigation/ reinvestigation/ denovo investigation fall into the purview of the jurisdiction of a higher court."
In the said case, it was held that it was clear that further investigation had been conducted on the basis of the order passed by a police officer and not by any duly empowered judicial officer and no such permission was ever taken, granted or ordered and it was also held that the District Police Chief could not have ordered further investigation as that power rested either with the concerned Magistrate or with a higher court and not with any investigating agency. It is thus well settled that further investigation is a continuation of the previous investigation and is done on the basis of discovery of fresh material, whereas a fresh CBI Vs. Sajjan Kumar & Ors. Page No. 216 of 545 investigation/ reinvestigation/ de novo investigation can only be done when there is a definite order of the Court to that effect which must state the reason as to why the previous investigation is incapable of being acted upon. Moreover, the Magistrate has the power to direct further investigation while fresh investigation/ reinvestigation/ de novo investigation fall within the purview of the jurisdiction of a higher Court.
177. In the instant case, it is not in dispute that in respect of FIR No.250/84, 4 charge sheets had been filed earlier and trial conducted which ended in judgments. There was no order of any superior court directing de novo or fresh or re-investigation. In fact PW10 was also cross-examined in this regard and he denied the suggestion that Nanavati Commission had only recommended re-examination of the cases and to take further investigation as is permitted by law and had not recommended re-registration of the cases. He denied the suggestion that the present case was registered against the principles of criminal jurisprudence and law as FIR No.250/84 PS Sultanpuri had never been sent as untraced and that admittedly it was sent for trial and volunteered Sajjan Kumar was not tried for the said case earlier. He denied the suggestion that the case against Sajjan Kumar was not proceeded earlier as neither during investigation nor during trial in FIR No.250/84 any of the witnesses had taken the name of Sajjan Kumar. Thus, PW10 had denied the suggestions that were put to him about RC-7 being registered against the principles of criminal jurisprudence. It was submitted by the Ld. Counsel for the accused persons that 'further investigation' is when there is discovery of further oral and documentary evidence which is CBI Vs. Sajjan Kumar & Ors. Page No. 217 of 545 followed by a further or supplementary report being filed whereas in the present case, the same witnesses had been examined again and the same set of witnesses with their old allegations had undertaken to name the accused persons as abettors/ rioters and there was revisiting of witnesses and on that basis the consolidated charge sheet had been filed which amounted to re-investigation and not further investigation. It is not disputed that in the present case, the witnesses who have been examined are the same witnesses who had been examined earlier as well except PW4 and no supplementary report was filed but a consolidated charge sheet was filed. The Ld. SPP for CBI, on the other hand, had submitted that it had conducted investigation on the basis of the recommendations of the Nanavati Commission and the directions of the Government of India contained in Ex.PW10/M and that the matter was discussed in the two Houses of Parliament and it was mentioned investigation/ re-investigation. It was also submitted that Ex.PW10/M showed that the directions to investigate the cases were pursuant to the discussion which took place in Lok Sabha and Rajya Sabha and that is how the CBI got entrusted with the case and the same had also been noted by the Hon'ble High Court in its order. However, the judgment in Vinay Tyagi v. Irshad Ali (supra) is a comprehensive judgment which does not contemplate any situation whereby re-investigation can be done on the recommendations of a Commission or on the directions of the Government and even a direction by the higher courts in this regard can be passed only in the rarest of rare cases which position has been reiterated in the recent judgment in CBI Vs. Sajjan Kumar & Ors. Page No. 218 of 545 Peethambaran v. State of Kerala (supra). Moreover, the recommendations of the Nanavati Commission clearly mentioned that the action has to be taken within the ambit of law.
178. It would then be argued on behalf of CBI that the earlier investigation was by the Delhi Police and herein CBI had conducted the investigation, however, merely the change of agency does not confer power on it to re-investigate the matter. It would also be argued that the investigation conducted by Delhi Police was tainted, biased and as such could not be considered but in the present case, there is no order from any superior court declaring the investigation conducted by Delhi Police in the present cases to be tainted and directing re-investigation or de- novo investigation. The Ld. Counsel for the accused persons had submitted that CBI had nowhere stated that any action had been taken against the concerned officers of Delhi Police, if the investigation was not carried out properly to which the Ld. SPP for CBI had submitted that the mandate of CBI was not to take action against any officer. In any case the CBI was investigating the role of the then SHO Hari Ram Bhatti but he haad expired and it was submitted that departmental action had been taken against some officers of Delhi Police. It was argued on behalf of CBI that the previous investigations were trashed and investigation was ordered and the same was tested by the Court in the initial stages when the challenge was made which went up to the Hon'ble Supreme Court. However, in the present case there is no order from a superior court regarding the fate of the investigation already conducted and the report already filed. At the same time, while on the face of it, there appears to be no CBI Vs. Sajjan Kumar & Ors. Page No. 219 of 545 further oral and documentary evidence except that the witnesses who were examined earlier during the course of investigation by Delhi Police had now named A1, the fact remains that the witnesses were examined and their statements were recorded under Section 161 Cr.P.C. and were also got recorded under Section 164 Cr.P.C. and some fresh witnesses were examined such as PW4 and other documentary evidence had also been collected during the course of investigation. The investigation does not really amount to re-investigation of the cases and rather, it is only a further investigation into the allegations that were made earlier and keeping in view the allegations that the earlier investigations were not done properly and were a farce and in two of the cases closure reports were filed without properly investigating the matter. In fact the Ld. SPP for CBI had referred to the closure report filed in FIR No.347/91 and that it showed that only some witnesses were examined and the matter was closed. Further, even the reason why the matters were entrusted to CBI was to ensure proper investigation.
179. Further, though a consolidated charge sheet was filed which was even in respect of FIRs in which only closure reports were filed, it can only be termed to be a supplementary charge sheet. As such, while the investigation done by CBI may be regarded as further investigation, there would be no merit in the submission of CBI that the previous investigation stands trashed and cannot be looked into as for that the order of a higher court was mandatory though what would be the effect of the same is to be considered by this Court. There is merit in the submission of the Ld. Counsel for the accused persons that whether the CBI Vs. Sajjan Kumar & Ors. Page No. 220 of 545 previous statements/ deposition of the witnesses inspired confidence or not would be decided by the Court. It may be mentioned that as regards FIR No.347/91 and 307/94, though earlier closure reports were filed but in view of the judgment of the Hon'ble Supreme Court in CBI v. Hemendhra Reddy & Anr (supra), prior to carrying out further investigation, it was not necessary to review or recall the order accepting the final report. Further, the investigation was taken up on the basis of specific recommendations made by the Nanavati Commission and on the basis of the Government of India entrusting the cases to CBI. It may be mentioned that a similar contention was also raised before the Hon'ble High Court in State through CBI v. Sajjan Kumar & Ors. (supra) regarding filing of the closure report and then registration of FIR by CBI and it was observed as under:
"180. The submission that the CBI could not have proceeded with the trial deserves to be rejected also on account of the fact that the order framing charges against A-1 was made the subject matter of a challenge before this Court in its decision in Sajjan Kumar v. Central Bureau of Investigation, (2010) 171 DLT 120 which was later upheld by the Supreme Court in Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368. The fact of the filing of the closure report earlier and then the registration of the FIR by the CBI was noted by the Supreme Court in its judgment as under:
"The present case arises out of 1984 anti-Sikh riot cases in which thousands of Sikhs were killed. Delhi Police has made this case a part of FIR No. 416 of 1984 registered at Police Station Delhi Cantt. In this FIR, 24 complaints were investigated pertaining to more than 60 deaths in the area. As many as 5 charge-sheets were filed by Delhi Police relating to 5 deaths which resulted in acquittals. One supplementary charge-sheet about robbery, rioting, etc. was also filed which also ended in acquittal. The CBI Vs. Sajjan Kumar & Ors. Page No. 221 of 545 investigation pertaining to the death of the family members of Smt. Jagadish Kaur, PW 1 was reopened by the Anti-Riot Cell of Delhi Police in the year 2002 and after investigation, a closure report was filed in the court on 15-12- 2005/22-12-2005.
After filing of the closure report in the present case, on 31-7-2008, a status report was filed by Delhi Police before the Metropolitan Magistrate, Patiala House Court, New Delhi. Pursuant to the recommendation of Justice Nanavati Commission, the Government of India entrusted the investigation to the Central Bureau of Investigation (hereinafter referred to as "CBI"), on 24-10-2005. On receipt of the said communication, the respondent CBI registered a formal FIR on 22-11-2005. The closure report was filed by Delhi Police on 15-12-2005/22-12- 2005, when a case had already been registered by CBI on 22-11-2005 and the documents had already been transferred to the respondent CBI.
After fresh investigation, CBI filed a charge-sheet bearing No. 1/2010 in the present case on 13-1- 2010. After committal, charges were framed on 15-5-2010. At the same time, the appellant has also filed a petition for discharge raising various grounds in support of his claim. Since he was not successful before the Special Court, he filed a revision before the High Court and by the impugned order dated 19-7-2010, after finding no merit in the case of the appellant, the High Court dismissed his criminal revision and directed the trial court for early completion of the trial since the same is pending from 1984."
181. The Supreme Court upheld the charges framed against A-1. The Supreme Court was conscious of the fact that the witnesses named by the prosecution "did not whisper a word about the involvement of the appellant at the earliest point of time", but the Judge concerned had to appreciate their evidentiary value, credibility, or otherwise and was free to take a decision one way or the other at the trial. The Supreme Court also dealt with the submissions made on behalf of A-1 that, in view of the closure report filed by the Delhi Police, the CBI was not justified in reopening the case "merely on the basis of the CBI Vs. Sajjan Kumar & Ors. Page No. 222 of 545 observations made by Justice Nanavati Commission". The Supreme Court made a note of the conclusion reached by the Delhi Police in its status report dated 31st July 2008 as under:
"From the investigation and verification made so far it was revealed that:
(a) There is no eye witness to support the version of the complaint of Smt. Jagdish Kaur
(b) The complaints and affidavits made by Smt. Jagdish Kaur are having huge contradictions:
(i) In her first statement recorded by local police during the investigation, she did not name any person specifically and also stated that she could not identify anyone among the mob.
(ii) She even did not name Shri Sajjan Kaur in her statement recorded by the IO of the Special Riot Cell after a gap of seven years.
(iii) She suspected the involvement of one congress leader Balwan Khokar in these riots but she had not seen him personally.
She was told by one Om Prakash who was the colleague of her husband, about the killing of her husband and son.
In the statement recorded on 22-1-2993 under Section 161 Cr PC during the course of further investigation, the witness Om Prakash stated that he had seen nothing about the riots. Jagdish Kaur stayed at his house from 1-11-1984 to 3-11-1984 but she did not mention the name of any person who was indulged in the killing of her husband and son."
182. Thereafter, the Supreme Court observed as under:
"It is seen from the report that taking note of lot of contradictions in the statement of Jagdish Kaur, PW 1 before the Commissions and before different investigating officers and after getting legal opinion from the Public Prosecutor, closure CBI Vs. Sajjan Kumar & Ors. Page No. 223 of 545 report was prepared and filed before the Metropolitan Magistrate, Patiala House Courts, New Delhi on 31-7-2008. It is further seen that before accepting the closure report, the Magistrate issued summons to the complainant i.e. Smt. Jagdish Kaur number of times and same were duly served upon her by the officers of the Special Riot Cell but she did not appear before the court. In view of the same, the Magistrate, on going through the report and after hearing the submissions and after noting that the matter under consideration is being further investigated by CBI and the investigation is still pending and after finding that no definite opinion can be given in respect of the closure report, without passing any order closed the matter giving liberty to the prosecution to move appropriate motion as and when required."
183. The Supreme Court, therefore, considered it necessary to observe that since the learned MM had declined to give any definite opinion about the closure report, as the same was under investigation by the CBI, "no further probe/enquiry on this aspect is required". Lastly, relying on the decision in Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355, the learned counsel for A-1 had argued before the Supreme Court that "reopening the case merely on the basis of certain statements made after a gap of 23 years cannot be accepted and according to him, it would go against the protection provided under Article 21 of the Constitution". This too was rejected by observing as under:
"Considering the factual position therein, namely, alleged demand of a sum of Rs. 1,000/- as illegal gratification for release of payment for the civil work executed by a contractor, a charge was laid against Assistant Engineer in the Bihar State Electricity Board and taking note of considerable length of delay and insufficient materials, based on the above principles, ultimately the Court after finding that further continuance of criminal proceedings pending against the appellant therein is unwarranted and quashed the same. Though the principles enunciated in the said decision have to be adhered to, considering the factual position being an extraordinary one, the ultimate decision quashing the criminal proceedings cannot be applied straightway."CBI Vs. Sajjan Kumar & Ors. Page No. 224 of 545
184. The Supreme Court then observed that the principles enunciated in Abdul Rehman Antulay v. R.S. Naik, (1992) 1 SCC 225 were only illustrative and "merely because of long delay, the case of the prosecution cannot be closed". The Supreme Court further observed that though delay may be a relevant ground, "in light of the material available to the Court through the CBI, without testing the same at the trial, the proceedings cannot be quashed merely on the ground of delay". It held that those materials had to be "tested in the context of prejudice to the accused only at the trial".
Thus, the contention regarding delay in lodging of FIR and lodging of FIR after a closure report was filed was negatived by the Hon'ble High Court though in the said case, the closure report had not been accepted when the CBI had started its investigation. At the same time, the present charge sheet has to be considered in continuity of the earlier closure reports.
180. The Ld. Counsel for the accused persons had urged that there could be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences and if such kind of prosecution was allowed to take place, there would be no end to criminal trial as it would be repeated till the desired objective of the investigating agency was achieved followed by a fresh charge sheet. While there is merit in the said submission, it is also pertinent that the accused persons had raised the said issue before the Hon'ble High Court in Sajjan Kumar v. CBI (supra) and in the judgment dated 16.07.2013, it was observed as under:
"44. Ld. Counsel has pointed out that in the instant case, CBI approached the court for permission for re-investigation in FIR No. 307/1994 and FIR No. CBI Vs. Sajjan Kumar & Ors. Page No. 225 of 545 250/1984, PS-Sultanpuri and vide order dated 15.12.2005, ld. Trial Court rejected the application and refused to give any specific permission to CBI to re-investigate the matter.
xxx
126. Ld. Counsel has pointed out that in the present case vide order dated 02.12.2005, ld. MM, Tis Hazari Courts, granted permission for further investigation in RC-25 arising out of FIR no. 347/1991 of PS-Sultanpuri. In the order dated 15.12.2005 passed by ld. MM, Karkardooma Courts in respect of RC-8 arising of FIR no 307/1994 and RC-7 arising out of FIR N0. 250/1984 respectively, it was held that the investigation is primarily the job of the investigating agency and no specific permission of Court is required for conducting further investigation in these matters."
A similar contention was also raised before this Court on behalf of the accused persons that on 30.11.2015, the CBI moved an application Mark PW10/D3 before the Ld. MM seeking formal permission for further investigation/ re-investigation of FIR No.250/84, PS Sultanpuri and the Ld. MM ordered that if law permitted, no permission was needed for further investigation. PW10 was also cross-examined in this regard and PW10 stated that he had not informed the Court while taking permission for further investigation in the case and volunteered as the permission had already been taken by his predecessor, he did not have to take the same again. As far as he remembered, his predecessor had moved an application before the Court for permission in which it was observed that no permission was required for further investigation. He was shown copy of the application moved by his predecessor seeking permission for further investigation in respect of FIR No.250/84 and he stated that it was written in the application that the case was tried by the CBI Vs. Sajjan Kumar & Ors. Page No. 226 of 545 Ld. ASJ and all the accused were acquitted stating that the evidence was not strong to connect the accused with the incidents. The application is Mark PW10/D3. Thus, PW10 was also cross-examined on the application moved by his predecessor. However, the order on the said application only referred to the legal position and it was not held that no further investigation could be held. Thus, the contention that the CBI had carried out re-investigation and not further investigation was also raised before the Hon'ble High Court but the Hon'ble High Court did not set aside the order on charge or the proceedings that had been conducted till then on the basis of the said contention and now the accused persons cannot reagitate the issue that re- investigation had been conducted which was not as per law.
Consolidated charge sheet
181. It was the contention of the Ld. Counsel for the accused persons that a consolidated charge sheet could not have been filed in respect of three FIRs and the same had been done as the CBI knew that no case was made out. It was submitted that the prosecution knew that individual cases would not stand so they consolidated the charge sheet in respect of three FIRs and CBI had no reason to file a consolidated charge sheet. The CBI knew that they would not succeed in getting even a charge framed in the case of death of Surjeet so the cases were consolidated. It was contended that the prosecution had no reason to file the consolidated charge sheet and the only reason assigned for the same was in para (xiv) of the charge sheet. However, the claim of the CBI was absolutely incorrect and contrary to the contents of CBI Vs. Sajjan Kumar & Ors. Page No. 227 of 545 the charge sheet and none of the witnesses cited in the charge sheet or got examined before the Court supported the contention of the prosecution. The three cases were from different areas of Sultanpuri and the witnesses cited were from that respective area and none of the witnesses had claimed that there was one mob in A, B, C, E and F area.
182. The Ld. SPP for CBI, on the other hand, had submitted that the reason for filing a consolidated charge sheet was mentioned on page 14 of the charge sheet. The CBI had filed the charge sheet on 13.01.2010 and since the mode and manner of the commission of the offences was the same, with the incidents occurring in continuity, and with the proximity of time and place, the CBI chose to file a consolidated charge sheet. It was submitted that the mob was the same, the exhortation was the same and damage was similar so it had to be understood in that manner. The Ld. Sr. Counsel for the complainant/ victim had also submitted that charge sheet was filed which was a consolidated one in respect of the three RCs on 13.01.2020 for several sections and thereafter charges were framed accordingly. It is not in dispute that in the instant case, a consolidated charge sheet was filed and it was stated in the charge sheet that investigation had revealed that A-1 had instigated a mob of about 300-400 persons, assembled at B-2 Block Park at Sultanpuri, Delhi in the morning of 01.11.1984, to kill and burn the people of Sikh community as the Sikh people had killed Smt. Indira Gandhi and to loot and burn their houses consequent to which the mob started attacking the nearby blocks in the locality. Further, it was revealed that as a result of the instigation of the crowd on 01.11.1984 by A1, an CBI Vs. Sajjan Kumar & Ors. Page No. 228 of 545 unlawful assembly, with a common object to kill and burn the Sikh people and to loot, damage and burn their houses, was formed and A1 led that unlawful assembly to A, B, C, E and F Blocks and other blocks of Sultanpuri. While leading the mob, A1 continued instigating the mob by pointing out the houses of Sikhs for killings, looting, arson and also setting the Gurudwara on fire and he did not hesitate even in instigating the mob to kill the children of Sikh community. As such it is the case of CBI that as it was one mob/ unlawful assembly which went from block to block and that the incidents referred to in RC 7(S)/2005/SCB- II/DLI dated 17.11.2005, RC8(S)/2005/SCB-II/DLI dated 28.11.2.005 and RC-25(S)/2005/SCU.I/ SCR-I/DLI dated 22.11.2005 were committed in continuity and pertained to the same day i.e. 01.11.1984 and the same locality of Sultanpuri and A, B, C, E and F blocks of Sultanpuri were contiguous areas and there was proximity of time and place, unity of purpose and design and continuity of actions and the criminal acts of the accused persons including A1 formed part of the same transaction therefore, a consolidated charge sheet had been filed in the three cases (para xiv of the charge sheet).
183. The Ld. Counsel for the accused persons had submitted that the cases were from different areas of Sultanpuri and the witnesses cited were also from the respective areas and that none of the witnesses had claimed that there was one area. The record shows that the present cases were re-registered on the basis of three separate FIRs lodged over a considerable gap of time in that FIR No.250 was lodged in 1984, FIR No.307 was lodged in 1994 and FIR No.347 was lodged in 1991 though they all pertained to CBI Vs. Sajjan Kumar & Ors. Page No. 229 of 545 PS Sultanpuri. Further, FIR No.250/84 covered deaths of many persons, likewise there was another FIR No.252/84 which was also in respect of multiple deaths and in those circumstances, if the incidents formed part of the same transaction, there was no reason why they could not be investigated as part of one FIR only. Registration of separate FIRs, though the circumstances in which FIR No.307/94 and FIR No.347/91 came to be registered have also been stated, would show that the incidents were treated as separate incidents and the incidents also took place at different spots. In fact one of the contentions of the CBI was that the Delhi Police had not investigated the cases properly and had not even registered FIRs separately in respect of the deaths that had taken place and had bundled them into a few FIRs. The statements of the witnesses in all the said FIRs were also recorded separately and it is seen that in FIR No.250/84, four charge sheets had been filed and sent up for trial, there was also a separate RC-1 in respect of the incident on 01.11.1984 and in the other two cases, which are under consideration, closure reports were filed on the basis of statements of different victims and were accepted by the courts of Ld. MM s on the basis of the investigation done by the Delhi Police. However, it cannot be disputed that a consolidated charge sheet has been filed in the present case and the same was duly committed to the Sessions Court and thereafter cognizance was taken, charge was framed and a full-fledged trial was conducted so what needs to be seen is whether filing a consolidated charge sheet amounted to an illegality or not and whether any prejudice was caused to the accused persons thereby or not. The Ld. SPP for CBI had submitted that the said CBI Vs. Sajjan Kumar & Ors. Page No. 230 of 545 contention was taken by the accused persons even before the Hon'ble High Court in Sajjan Kumar v. CBI (supra) decided on 16.07.2013 and a perusal of the said judgment shows that it was contended by the Ld. Sr. Counsel for A1 appearing in the said case that a consolidated charge sheet could not have been filed and reference may be made to the arguments advanced as under:
"35. The unfair investigation of CBI is also revealed from the fact that when three FIRs were registered, the CBI has filed a joint charge- sheet in all three FIRs without any rhyme and reason. The said Joint charge-sheet was filed with a view and purpose that had it not been a joint charge-sheet, none of the case would have stand on its own footing. The same is apparent from the fact that the complainant in RC No. 8 has already died and there is no material other than the statement of deceased complainant. xxx
80. Mr. Anil Sharma submitted that the prosecution has committed a gross illegality in filing a consolidated charge- heet in all the three RC‟s. The witness in RC 8 do not in any manner implicate anyone, the witnesses in RC 7 do not in any manner name the petitioners in Crl. Rev. No. 439 of 2010, i.e., Ved Prakash and Khushal Singh and the petitioners in W.P. Crl.) No. 205 of 2010, i.e., Brahmanand Gupta and Peeriya Sansi.
81. The consolidation is itself accepted to be bad in law by the CBI before the Trial Court, wherein they have stated categorically that they are pressing the charge only qua the murder of Surjeet Singh and not the charge for murder of persons in respect of which trial has already been held."
On the other hand, the Ld. SPP for CBI, before the Hon'ble High Court had submitted as under:
"96. It is further submitted that CBI has submitted a consolidated charge-sheet in the three abovementioned RCs as all the incidents of rioting, CBI Vs. Sajjan Kumar & Ors. Page No. 231 of 545 looting, burning, arson were committed in continuity, pertain to the same day and the same area, thus reflecting proximity of time and place, unity of purpose and design and continuity of action. The criminal acts of the accused form part of the same transaction. The idea of presenting a consolidated charge-sheet emanates from the scheme of the Cr.P.C. reflected in the chapter on charge, Part B, contained in Section 218 to 223. These sections deal with provisions of law reflecting instances where offences of a particular kind, depending on various factors under which they have been committed may be tried together."
The same was considered by the Hon'ble High Court and it was observed as under:
"175. Regarding the issue of filing one joint charge- sheet in more than one RCs, although there is no specific provision in Cr.P.C. prescribing one charge- sheet for more than one RCs/FIRs but it has not happened first time in this case. The Supreme Court had an occasion to deliberate upon such situation in the case of C. Muniappan and Ors. vs. State of Tamil Nadu (2010) 9 SCC 567, and observed as under:-
"28. The submission on behalf of the appellants that two crimes bearing Nos. 188 and 190 of 2000 could not be clubbed together, has also no merit for the simple reason that if the cases are considered, keeping in view the totality of the circumstances and the sequence in which the two incidents occurred, taking into consideration the evidence of drivers and conductors/cleaners of the vehicles involved in the first incident and the evidence of C. Ramasundaram V.A.O., (PW.87), we reach the inescapable conclusion that the second occurrence was nothing but a fall out of the first occurrence. The damage caused to the public transport vehicles and the consequential burning of the University bus remained part of one and the same incident. Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge sheet could not be filed (See: T.T. Antony v. State of Kerala and Ors.
MANU/SC/0365/2001 : (2001) 6 SCC 181)."CBI Vs. Sajjan Kumar & Ors. Page No. 232 of 545
176. A similar issue has been dealt by the Supreme Court recently in the case of Amitbhai Anilchandra Shah vs. The Central Bureau of Investigation and Anr. 2013 IV AD (SC) 449, wherein referring to its earlier decision of C. Muniappan and Ors. vs. State of Tamilnadu, 2010 (9) SCC 567, the Apex Court was of the view that merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge-sheet could not be filed.
177. It is worth noting that 12 FIRs were clubbed together and a common charge-sheet was filed in the case of State of Maharashtra vs. Mohammed Azmal Amir Kasab and Ors. The division Bench of Bombay High Court in para 76 of Crl. Appeal No.738/2010, decided on 21.02.2011, recorded as under:-
"76. All the 12 FIRs were clubbed together and a common charge-sheet was submitted by the DCB, CID against A1- Kasab, A2-Ansari and A3- Shaikh and wanted A1 to A35."
As such, the Hon'ble High Court had referred to various authorities and had not found any fault with the filing of a common/ consolidated charge sheet in respect of the three RCs and the said issue cannot be agitated again. Even otherwise, it cannot be said that any prejudice has been caused to the accused persons by filing of a consolidated charge sheet in respect of the three RCs by the CBI and it cannot be termed as an illegality. What is to be considered by the Court is whether the prosecution has been able to prove the offences against the accused persons and merely because a consolidated charge sheet was filed, the case of the prosecution cannot be thrown out.
Matter could not be proceeded against A1 and A5
184. The Ld. Counsel for the accused persons had then argued that the matter could not proceed against A1 as A1 had already CBI Vs. Sajjan Kumar & Ors. Page No. 233 of 545 been tried for all the offences in RC-1 including for the offence under Section 153A IPC and acquitted and the present case pertained to the same incident. The defence had placed on record certified copy of the judgment passed in RC-1 dated 23.12.2002 which is Ex.PW10/D-13 (colly) and a perusal of the same shows that A1 and A5 were also the accused therein. The accused persons in the said case were charged with offences under Sections 143, 147, 148, 302 read with 149, 201 read with 149, 435 read with 149, 436 read with 149, 449 read with 149 IPC and the accused Sajjan Kumar was further charged for the offence under Section 153A IPC. Further, as per the charge sheet filed in the said case, as noted in the judgment, on 01.11.1984, at about 3.00 p.m., the accused Sajjan Kumar, the then Member of Parliament from Outer Delhi Constituency held one meeting near Gurudwara of A-4 Block, Sultanpuri, Delhi which was attended by several persons including the other accused persons and by his speech, he instigated the persons gathered there to kill the male members of the Sikh community and also to loot their property as the assailants of the Late Prime Minister belonged to the said community. As per the charge sheet, following the meeting, an unlawful assembly was formed including the accused persons and led by Sajjan Kumar, the unlawful assembly proceeded towards the Gurudwara, set the same on fire and then started damaging the houses of Sikhs of the vicinity and started killing the Sikh male persons and killed one Navin Singh. Thus, the said charge sheet referred to the incident of 3.00 p.m. and thereafter and in the said case, as noted in the judgment, PW2 Fota Singh had stated about a meeting at about 3/ 4 p.m. when the accused CBI Vs. Sajjan Kumar & Ors. Page No. 234 of 545 Sajjan Kumar had come in a park where a crowd was gathered and he was saying that not a single child of Sikhs could be left alive.
185. In RC-1, PW1 Salawati Kaur had also stated about a crowd having gathered in the Gurudwara in a park and the accused Sajjan Kumar was saying to the crowd that all Sikhs including their children be killed. PW3 Anwar Kaur had not mentioned about Sajjan Kumar holding any meeting for the purpose of inciting the mob. PW9 Prem Kaur had also not deposed about any meeting and during cross-examination by the Ld. Addl. PP, the suggestion that was put to her was about a meeting that took place near her house in B Block at about 9.00 a.m. in which the accused Sajjan Kumar had given a speech which she denied. The Ld. Trial Court, on an appreciation of the evidence had then held that "with the quality of evidence being so poor, I am not inclined to hold that there was any public meeting anywhere in Sultanpuri on 1.11.1984 in which the accused Sajjan Kumar may have had any occasion to incite the mob against the Sikh community." Thus, the defence would argue that once a Court of competent jurisdiction had duly held that there was no public meeting anywhere in Sultanpuri on 01.11.1984 in which the accused Sajjan Kumar may have had any occasion to incite the mob against the Sikh community and PW9 therein had denied about a meeting at about 9.00 a.m. as well, A1 could not be tried again for the same offence. While the incidents appear to be the same, as noticed from the judgment which refers to the allegations in the charge sheet, RC-1 pertained to the alleged incident of 3.00 p.m. and thereafter on 01.11.1984 and further it pertained to the CBI Vs. Sajjan Kumar & Ors. Page No. 235 of 545 killing of one Navin Singh, as such the findings of the Ld. Trial Court in that case have to be read in light of the same. In the present case, in the charge that was framed, no specific timing has been stated but from the record, it is clear that the incident is alleged to be of the morning and covers a wider area. As such, even if A1 had already been tried for the offence under Section 153A IPC and acquitted, that does not preclude him from being tried in the present case for the said offence or the other offences and no doubt, the present is a separate case that was registered. It is also significant, as contended by the Ld. SPP for CBI that in the present case, the accused Sajjan Kumar has also been charged for abetment and it is seen that A1 has been charged for the offences punishable under Section 109 read with Sections 147, 148, 149, 153A, 295, 302, 436 IPC besides the substantive offence under Section 153A IPC which changes the nature of the case and as such there is no bar to his being tried in the present case, though he may have been tried and acquitted in RC-1. Further, A1 had not been tried in FIR No.250/84 so there was no bar to proceeding against him in RC-7 and in FIR No.347/91 and 307/94, only untraced reports were filed and there was no trial.
186. The next contention of the Ld. Counsel for the accused persons is that A5 Brahmanand Gupta had already been tried and acquitted in several cases and as such he could not be tried again for the same offences. Reliance was placed on the judgments Ex.PW10/D10 and Ex.PW10/D12. As regards the judgment in RC-1 which is Ex.PW10/D13 (colly), A5 Brahmanand was also an accused in the said case and the same observations would hold true as made above in respect of A1. Ex.PW10/D12 is the CBI Vs. Sajjan Kumar & Ors. Page No. 236 of 545 judgment in Sessions Case No.32/90 and Sessions Case No.4/93 in 'State v. Uddal and others' arising out of FIR No.252/84 PS Sultanpuri in which Brahmanand was also named as an accused. No doubt the said case pertained to rioting in A-4 Block, Sultanpuri but it is evident that the said case related to the incident of 02.11.1984 whereas the present cases relate to the alleged incidents of 01.11.1984 and as such the fact that A5 was tried and acquitted in the said case would not help the case of the accused.
187. Ex.PW10/D-10 is the judgment in 'State v. Suresh Chand etc.' SC No.34/2001 and SC No.35/2001 arising out of FIR No.250/84. The said judgment also arose out of FIR No.250/84 which was registered as RC-7 and is under consideration at present. The same also pertains to the incident which took place on 01.11.1984. The accused persons in the said case including A5 herein were challaned for the offences under Sections 147/ 148/ 149/ 188/ 201/ 302/ 395/ 397/ 427/ 436/307 and 295 IPC. The accused persons in the said case were then charged for the offences under Sections 147, 148, 188, 209 read with Section 149, Section 302 for murder of 49 persons, Section 325 read with Sections 323, 307, 436 read with Section 149 and Section 295/149 IPC and two accused therein i.e. Nathu Pradhan and Uddal were also charged for the murder of Pritam Singh. All the accused persons were acquitted in the said case. A perusal of the charge dated 07.07.2010 in the present case shows that A5 along with others has been charged for the offence under Section 109 read with Sections 147, 148, 149, 153A, 295, 302 and 436 IPC. There is merit in the submission of the Ld. SPP for CBI that CBI Vs. Sajjan Kumar & Ors. Page No. 237 of 545 adding Section 109 IPC changes the nature of the case and further it is seen that Section 153A IPC has also been invoked in the present case. A5 has also substantively been charged for the offences under Sections 147, 148, 149 IPC, Section 436 read with Section 149 IPC, Section 295 IPC read with Section 149 IPC and Section 302 read with Section 149 IPC.
188. The Ld. SPP for CBI had argued that it was true that Brahmanand was a part of the other cases but he was also a part of the present case and when the Nanavati Commission said that the cases involving A1 should be investigated, it meant investigating the other persons also. The question regarding trial of Brahmanand had already been answered by the Hon'ble Supreme Court and the Hon'ble High Court and he had also raised this question in the petition challenging framing of charge before the Hon'ble High Court in Sajjan Kumar v. CBI (supra) decided on 16.07.2013 wherein it was held that if someone else was also involved, that person should be tried. It was submitted that the offences for which the accused persons were being tried in the present case were distinct offences and Section 300 Cr.P.C. was not at all applicable. Reference was also made to the order granting sanction dated 01.01.2010 Ex.PW1/A for prosecuting the offence under Section 153A IPC. It was submitted that apart from Section 153A IPC even abetment under Section 109 IPC was not in consideration in the earlier cases. The present was a new trial so along with the other offences, the accused could be tried. It was submitted that Brahmanand was duly named and identified in the Court and it was submitted that some accused in the Delhi Cantt. case had also been tried earlier. It would be CBI Vs. Sajjan Kumar & Ors. Page No. 238 of 545 apposite to refer to Section 300 Cr.P.C. which reads as under:
"300. Person once convicted or acquitted not to be tried for same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.CBI Vs. Sajjan Kumar & Ors. Page No. 239 of 545
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, (10 of 1897 ) or of section 188 of this Code.
Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section."
Thus, Section 300 (1) Cr.P.C. creates a bar on a person who has once been tried by a Court of competent jurisdiction and convicted or acquitted of such offence, from being tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made or for which he might have been convicted, while the conviction or acquittal remains in force. It is not in dispute that the acquittal of A5 in 'State v. Suresh Chand etc.' SC No.34/2001 and SC No.35/2001 arising out of FIR No.250/84 is still in force. However, under Section 300(2) Cr.P.C., a person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of Section
220. In view of the said position of law, A5 could have been tried for any distinct offence for which a separate charge could have been made against him at the former trial with the consent of the State Government. In the present case, the prosecution has relied on the sanction granted by the competent authority for prosecuting the accused persons under Section 153A IPC Ex.PW1/A (the sanction was also argued to be without application of mind which aspect shall be dealt with later). As such, the matter could proceed against A5 for the offence under Section 109 read with Section 153A IPC qua FIR No.250/84 re-
CBI Vs. Sajjan Kumar & Ors. Page No. 240 of 545registered as RC-7 (though sanction was not there specifically in respect of Section 109 IPC but Section 109 IPC only refers to an act abetted being committed in consequence of the abetment and as such it would be covered). Even otherwise, the CBI in its written submissions had stated that it had restricted the charge in FIR No.250/84 to A1 who had not been tried and hence there arose no bar to proceed against him.
189. At the same time, it is pertinent that FIR No.307/94 and FIR No.347/91 which were re-registered as RC-8 and RC-25 were also registered for the offences under Sections 147, 148, 149, 436 and 302 IPC. It is not in dispute that the death/ murder of Surjeet Singh was not under trial in the aforesaid cases and in any case, the same arises out of FIR No.347/91 in respect of which a closure report was filed (which aspect has been considered above) and which has been re-registered as RC-25 and as such there can be no dispute that the matter can be proceeded against A5 for the offence under Section 302 read with Section 149 IPC as well as for the offence under Section 109 read with Section 302 IPC as the said FIR was never sent up for trial. It may be mentioned that as stated in the written submissions filed on behalf of CBI, the CBI had restricted the charge to the trial of the accused for the murder of Surjeet Singh arising out of FIR No.347/91 in which only an untraced report was filed and there was no trial and trial of the accused for burning, looting, arson, damaging of Gurudwara in FIR No.307/94 in which also only an untraced report was filed and there was no trial. Even before the Hon'ble High Court in Sajjan Kumar v. CBI (supra) decided on 16.07.2013, the argument had been raised on behalf CBI Vs. Sajjan Kumar & Ors. Page No. 241 of 545 of the accused persons that A1 and A5 could not have been tried again as A5 had already been tried for acts of rioting and murder of persons in respect of whom the present charge sheet being RC- 7/2005 had been filed and he could not be tried again for the same offence. Reference was made to 300 Cr.P.C. and Article 20 (2) of the Constitution. It was noted in the judgment of the Hon'ble High Court as under:
"55. Ld. Counsel has relied upon a case of Vinod Chaturvedi & Ors. v. State of Madhya Pradesh (1984) 2 SCC 350 wherein it is held as under:-
"The peculiar features of this case are that the prosecution had alleged that Brindaban had been murdered by a set of five persons different from the present appellants and had made them face a regular trial. Three most material witnesses being P.Ws. 1, 3 and 24 of the present trial who are close relations of deceased Brindaban had then testified before the Court that those five accused persons and no others including the appellants were responsible for the death of Brindaban. After the acquittal in 1974 nothing happened in the matter for three years and suddenly 97 on the same old allegations in the hands of the police, fresh investigation was undertaken and the present set of accused persons were arrayed as murderers of Brindaban. Those three eye-witnesses who on the earlier occasion had deposed that five named assailants were the murderers of the Brindaban changed their version and now spoke that the present appellants were the murderers. The fact that these alleged eye-witnesses were prepared to implicate the five persons who were acquitted on the earlier occasion and the present appellants on the subsequent occasion in a serious charge like murder is indicative of the fact that no credence can be given to the evidence of these witnesses and they were willing to lend their oath to any story that the prosecution advanced. Once the evidence of P.Ws.1, 3 and 24 is brushed aside on that ground, the residue by itself would not be adequate to support the charge. We have grave CBI Vs. Sajjan Kumar & Ors. Page No. 242 of 545 doubts whether the High Court in whose hands there has been a reversal of the acquittal would have found the remaining evidence to be good basis for the conviction."
56. Mr. Sharma submitted that as far as the trial in respect of looting and death of 6 persons in respect of which RC 7/2005 has already been held, a court of competent jurisdiction after trying the offences after detailed trial has passed an appropriate order acquitting the persons who were arrayed as accused. Revision Petitions against the acquittal order is pending before this Court. There cannot be retrial of an offence for which revisions are pending. Moreover, the court, for the offences in FIR No. 250/1984, had already taken cognizance and thereafter passed appropriate orders. As per settled law, court cannot take cognizance of the same offences twice.
57. Therefore, ld. Trial Court ought not to have framed charges against the petitioners. Even during the course of hearing before the ld. Trial Court, the Counsel for the CBI had made a categorical statement that he was only pressing the charges qua murder of Surjeet Singh and not of any other deceased in regard to whom trial had already taken place. The said fact has been noted in the impugned order as under:
"Moreover, the submission that in FIR No. 250/1984, four charge sheets and one supplementary charge- sheet were filed pertaining to death of 60 persons and involving 27 accused and out of those 60 accused, 6 are subject matter of present RC, same is devoid of merit in as much as during the course of arguments, it was submitted by Counsel for CBI that they are pressing the charge only qua murder of Surjeet Singh and not of any other deceased in regard to whom trial had already taken place. It is not disputed that as regard murder of Surjeet Singh, none of the accused have faced trial."
58. It is further submitted that ld. Trial Court has erred in passing impugned order in view of observation noted above. Therefore, the error is apparent from the fact that the ld. Trial Court has held that a consolidated charge-sheet have been CBI Vs. Sajjan Kumar & Ors. Page No. 243 of 545 filed and statements of other witnesses also have been recorded.
xxx
80. Mr. Anil Sharma submitted that the prosecution has committed a gross illegality in filing a consolidated charge- sheet in all the three RC‟s. The witness in RC 8 do not in any manner implicate anyone, the witnesses in RC 7 do not in any manner name the petitioners in Crl. Rev. No. 439 of 2010, i.e., Ved Prakash and Khushal Singh and the petitioners in W.P. Crl.) No. 205 of 2010, i.e., Brahmanand Gupta and Peeriya Sansi.
81. The consolidation is itself accepted to be bad in law by the CBI before the Trial Court, wherein they have stated categorically that they are pressing the charge only qua the murder of Surjeet Singh and not the charge for murder of persons in respect of which trial has already been held.
82. No prosecution could be launched even in respect of other offences as sought to be done in RC No. 7 as is evident from the fact that all allegations which have been made in the said RC including allegation in relation to burning of the Gurudwara were investigated and were part of investigation in FIR No. 250/1984. In this regard DD No. 13A dated 01.11.1984 clearly records that at 2.10 PM someone informed the Police Station that the crowd had set on fire the Gurudwara at Block A-4 and that the members of the Sikh Communities were being killed and the houses and shops of Sikhs were being burnt and looted."
On behalf of CBI, it was submitted as under:
"106. On the issue of double jeopardy, it is submitted that the case of the prosecution is that in FIR No. 347/1991, PS-Sultanpuri (RC- 25(S)/05/SCR-I/DLI) and in FIR No. 307/1994, PS- Sultanpuri (RC- (S)/05/SCB-II/DLI), only an untraced report was submitted which was accepted by the Court. As such there has not been any trial in these cases resulting in acquittal / conviction. Therefore, the filing of untraced report does not operate as a bar to subsequent prosecutions.CBI Vs. Sajjan Kumar & Ors. Page No. 244 of 545
107. Moreover Sajjan Kumar was not an accused in any of the trial pertaining to incident of rioting in the area of Sultanpuri except in one case RC- 1(S)/90-SIV- /SIC/1-B which resulted in acquittal by the ld. Sessions Court and the appeal against the same is pending in this Court.
108. In RC-25 the prosecution is seeking the trial of the accused persons for the murder of Surjeet Singh while in the remaining two RCs, the trial of the accused persons is being sought for arson, looting, burning the houses of Sikhs and in these cases Sajjan Kumar has never been tried. The trial from the PS- Sultanpuri area arose from FIR no. 250 and FIR no. 252, PS-Sultanpuri, in both of which Sajjan Kumar was not an accused and hence there was no occasion for any witness to depose against him.
109. Ld. Counsel for CBI has argued that the provisions of Section 300 (2) Cr.P.C. wherein it is specifically mentioned that the prosecution is permitted notwithstanding acquittal or conviction for an offence with the consent of the State Governments. A glance at the explanation appended with Section 300 Cr.P.C. further clarifies that the discharge of an accused is not an acquittal for the purpose of this section.
110. It is further submitted that an untraced report under Section 169 Cr.P.C. cannot be treated as a chargesheet contemplated in the scheme of section 173 Cr.P.C. It shall be the travesty of justice to hold that the acceptance of an untraced report even if the same carries a statement of the complainant amounts to an acquittal as envisaged in the scheme of the Code. The formality of the recording the statement of the complainant before passing an order on an untraced report is only an abundant precaution and does not falsify the statement of the complainant made during the course of investigation under the scheme of the Code contained in Section 161 and 164 Cr.P.C. or for that matter before a lawfully constituted commission of enquiry. The settled law is that the veracity of such statements has to be examined at the stage of trial and not at the stage of discharge / framing of charge. The witnesses have been consistently naming the accused since 1985/1987. Any alleged deviations in the various statements of the witnesses are a matter CBI Vs. Sajjan Kumar & Ors. Page No. 245 of 545 of trial.
111. The law on the issue of double jeopardy obliges that it is not the identity of allegations that matters but the identity of ingredients of the offences. It is therefore, necessary to analyze and compare not the allegations in the two cases but the ingredients of the two offences and see whether their identity is made out. There may be a situation where the same facts may give rise to different prosecutions and punishments.
112. Ld. Counsel for CBI has relied upon the case of Monica Bedi v. State of A.P. 2011 (1) SCC 284, wherein has held as under:
"It is settled law that the persons can be prosecuted and punished more than once even on sustainably same facts provided the ingredients of both offences are totally different and they do not form the same offence."
113. Further submitted that in the present case petitioner Sajjan Kumar is being prosecuted for instigating the mob to kill persons belonging to one religious group. Hence, the larger picture has to be seen including the circumstances at the time, the fact that male members of one religious community were targeted, the role of the police in protecting the accused and not helping the victims. The fact that many of the victims in their statements under Section 161 have specifically mentioned fear psychosis as a factor of delay has also been looked into."
It was then observed:
"170. During the course of hearing before the ld. Trial Court, the Counsel for the CBI had made a categorical statement that though the charge-sheet pertains to killing of six persons, he was only restricting the charges qua murder of Surjeet Singh and not of other deceased persons in respect of whom trial had already taken place...
171. The trial court at the time of framing of charge has accepted the contention of the prosecution that they were not pressing the case of death of all the six persons in RC 7 under FIR No. 250/1984 but, only qua the death of Surjeet Singh under RC-25.CBI Vs. Sajjan Kumar & Ors. Page No. 246 of 545
Accordingly, trial court has framed the charges noted above."
Thus, similar contentions were raised before the Hon'ble High Court and were not found to be a ground to set aside the order framing charge. Similar issue was also raised before the Hon'ble High Court in State through CBI v. Sajjan Kumar and others (supra) and it was observed therein as follows:
"336. ... ... ...
(vi) It is further submitted that the trial of A-3 was hit by the rule of autrefois acquit under Section 300 Cr PC. At the time of re-registration of the FIR by the CBI, the judgment of the learned ASJ in SC No. 32/1986 was in force and, therefore, the initiation of the case itself was illegal. The further proceedings are rendered null and void. In other words, A-3 could not have been tried for the same offence nor on the same facts or for any other offence for which a charge different from the one made against him might have been made and for which he might have been acquitted or convicted. It is pointed out that Ex. PW-11/A is not a consent under Section 300(2) Cr PC but one under Section 196 Cr PC which is a mandatory consent for initiation of prosecution under Section 153A Cr PC.
xxx
337. On the aspect of Section 300 Cr PC, it is submitted in reply by Mr. Cheema that criminal conspiracy is a distinct offence and a specific charge was framed by the trial Court. In fact, the trial Court failed to discuss this charge in a comprehensive manner, particularly with regard to the accused other than A-1. It also omitted to deal or dealt only perfunctorily with the charges under Sections 153A, 505, 295, 395, 427, 436, and 449 IPC. Consequently, the acquittal vis-à-vis the murder of Nirmal Singh did not bar the present trial against A-3 and A-6. There was no earlier prosecution with regard to the main charge of conspiracy and that constituted a separate and distinct offence which did not bar the subsequent CBI Vs. Sajjan Kumar & Ors. Page No. 247 of 545 prosecution. Reliance is placed on the decision in Leo Roy Frey v. Superintendent, AIR 1958 SC 119, Jitendra Panchal v. Narcotics Control Bureau, (2009) 3 SCC 57, Sardar Sardul Singh Caveeshar v. State of Maharashtra, AIR 1965 SC 682, Monica Bedi v. State of A.P., (2011) 1 SCC 284, and Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621.
338. It is further submitted that the onus to prove such a defence lay on the accused. Reliance is placed on the decision in Monica Bedi (supra). It is pointed out that the judgment of acquittal passed by the trial Court on 17th May 1986 in SC No. 32/1986, the case pertaining to the murder of Nirmal Singh, has not even been formally proved by the defence. Even if the judgment could be treated as a part of the record, the charge sheet under Section 173 Cr PC, the FIR lodged by Sampuran Kaur, the statements of witnesses, and documents collected as part of evidence of the case were not brought on record. Only the statement made by PW-10 to the police was sought to be brought on record by examining DW-4, a retired ACP, who proved Ex.
DW-4/A.
339. Notwithstanding that the authenticity of such statement having been recorded is itself doubtful, a perusal of the said statement showed that PW-10 was not a witness to the damage to the Raj Nagar Gurudwara and did not incorporate the allegations constituting an offence under Section 153A IPC. Therefore, there is nothing to show that in the previous trial, the Sessions Judge could have framed charges under Sections 153A, 295, or 120B IPC.
340. Mr. Cheema referred to Section 300(2) Cr PC which creates an exception for a second trial in a case where any distinct offence exists for which a separate charge might have been made against the accused and provides that the accused can be prosecuted for the said offence subsequently with the consent of the State Government. In the present case, there was an order (Ex.PW-11/A) whereby the State Government had given sanction for prosecution of the accused under Section 153A IPC. xxx
342. As explained by the Supreme Court in Leo Roy Frey (Supra), criminal conspiracy is a separate CBI Vs. Sajjan Kumar & Ors. Page No. 248 of 545 offence for which the previous trial would not come in the way since that was not the subject matter of trial. The facts in that case were that the previous trial proceeded against the accused under the Sea Customs Act, whereas they were sought to be tried for the offence under Section 120B IPC. The Supreme Court pointed out that "criminal conspiracy is an offence created and punishable by the Penal Code, 1860. It is not an offence under the Sea Customs Act". It further explained as under:
"The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. This is also the view expressed by the United States Supreme Court in United States v. Rabinowich. The offence of criminal conspiracy was not the subject-matter of the proceedings before the Collector of Customs and therefore it cannot be said that the petitioners have already been prosecuted and punished for the "same offence".
It is true that the Collector of Customs has used the words "punishment" and "conspiracy", but those words were used in order to bring out that each of the two petitioners was guilty of the offence under Section 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Article 20(2) cannot be invoked."
343. In Jitendra Panchal (supra), the above legal position was reiterated. Likewise, in Sardar Sardul Singh Caveeshar (supra), reference was made to the earlier decisions in State of Bombay v. S. L. Apte, (1961) 3 SCR 107 where it was observed as under:
"To operate as a bar the second prosecution and the consequential punishment thereunder, must be for 'the same offence'. The crucial requirement, therefore, for attracting the Article is that the offences are the same i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of fact in the two complaints might be CBI Vs. Sajjan Kumar & Ors. Page No. 249 of 545 substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out."
344. In Monica Bedi (supra), the law was exhaustively discussed and it was observed as under:
"It is thus clear that the same facts may give rise to different prosecutions and punishments and in such an event the protection afforded by Article 20(2) is not available. It is settled that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence."
345. As regards the onus of proof, it was observed as under:
"Be that as it may, there is no factual foundation laid as such by the appellant taking this plea before the trial court. Nothing is suggested to the Investigating Officer or to any of the witnesses that she is sought to be prosecuted and punished for the same offence for which she has been charged and convicted by a competent court of jurisdiction at Lisbon. She did not even make any such statement in her examination under Section 313 Cr. P.C. It is true that the fundamental right guaranteed under Article 20(2) of the Constitution is in the nature of an injunction against the State prohibiting it to prosecute and punish any person for the same offence more than once but the initial burden is upon the accused to take the necessary plea and establish the same."
346. In Sangeetaben Mahindrabhai Patel (supra), the legal position was summarized thus:
"In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr PC or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as CBI Vs. Sajjan Kumar & Ors. Page No. 250 of 545 well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge."
347. The Court agrees with Mr. Cheema that the Government of India had permitted the prosecution under Section 153A by its order marked herein as Ex. PW-11/A with there being a distinct offence made out in respect of which no charge was framed earlier. Following the recommendations of the Justice Nanavati Commission, there was an express letter of the Government dated 24th October 2005 authorizing the CBI to investigate the offences and, therefore, there is no illegality attached to that either."
Similar is the position in the present case wherein Section 109 IPC is a distinct offence for which no charge was framed earlier and sanction had also been granted by the Government for proceeding under Section 153A IPC, hence A5 could be tried for the offence under Section 109 read with Section 153A IPC. Further, A5 could be proceeded against for the offence under Section 302 IPC and in view of the factual and legal position, A5 can very well be proceeded against for the offences under Section 109 read with Sections 147, 148, 149 and 436 IPC as well as substantively for the offences under Sections 147, 148, 149 IPC and Section 436 read with Section 149 IPC in so far as they pertain to FIR No.307/94 besides the other offences referred to above.
Sanction for taking cognizance of offence under Section 153A IPC CBI Vs. Sajjan Kumar & Ors. Page No. 251 of 545
190. Coming to the point of sanction, in the present case the accused persons have been charged, inter alia for the offence punishable under Section 109 read with Section 153A IPC and A1 has been charged substantively as well for the offence under Section 153A IPC. Section 153A IPC reads as under:
"153A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-- (1) Whoever--
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racials, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or
(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, CBI Vs. Sajjan Kumar & Ors. Page No. 252 of 545 shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Offence committed in place of worship, etc.-- Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine."
It is pertinent that for taking cognizance of an offence under Section 153A IPC, sanction is necessary. In this regard, reference may be made to Section 196 Cr.P.C., which in so far as is material, reads as under:
"196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under section 153A, Section 295 A or sub-section (1) of section 505 of the Indian Penal Code, 1860 (45 of 1860); or
(b) a criminal conspiracy to commit such offence; or
(c) any such abetment, as is described in section 108A of the Indian Penal Code, 1860 (45 of 1860), except with the previous sanction of the Central Government or of the State Government.
xxx (3) The Central Government or the State Government may, before according sanction under sub- section (1) or sub- section (1A) and the District Magistrate may, before according sanction under sub- section (1A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of inspector, in which case such police officer CBI Vs. Sajjan Kumar & Ors. Page No. 253 of 545 shall have the powers referred to in sub- section (3) of section 155."
Thus, sanction of the Central Government or State Government is mandatory for taking cognizance of an offence punishable under Section 153A IPC. PW1 had deposed about grant of sanction for prosecution of the accused persons for the offence under Section 153A IPC by the Hon'ble LG and he had proved the sanction order dated 01.01.2010. A perusal of the sanction order dated 01.01.2010 Ex.PW1/A shows that sanction had been granted by the Hon'ble LG for institution of criminal proceedings against the accused persons for committing the offence punishable under Section 153A IPC. The said sanction order was signed by PW1 who was then the Deputy Secretary (Home). Though no substantial argument was advanced challenging the sanction order, PW1 was extensively cross-examined on behalf of the accused persons and during cross-examination PW1 stated that he had joined the Department of Home, NCT Delhi somewhere in March, 2009. He did not recall on what date the CBI had submitted record in office of the Hon'ble LG concerning the present case or that the record had been submitted with index. He also did not recall if any brief on the basis of that record was prepared for perusal by the Hon'ble LG. He could not say how many files that record comprised. He could not say as to on what particular date or as to how many days after record having been submitted by CBI was it placed before the Hon'ble LG (without seeing the official notings, it was difficult for him to answer specifically). However, nothing much turns on the same. It was then asked of PW1 whether the said order was given under dictation by the Hon'ble LG or by him to which he replied that as CBI Vs. Sajjan Kumar & Ors. Page No. 254 of 545 a practice, the order was prepared in the office and then vetted by the Law Department and then placed before the Hon'ble LG for approval and when approved, it was issued as was in the present case and it was issued under his signatures. He did not recall as to for how many days the file record remained with LG. He stated that the record of the case was part of the file whereby sanction was considered and granted. He did not recollect if he himself had checked that CBI had placed the record in original. He denied the suggestion that the correct procedure had not been followed before sanction was issued and granted but there is also nothing to dispute the procedure stated by PW1 which was followed for grant of sanction. He denied the suggestion that the Hon'ble LG had not made an application of mind before sanctioning the order or that complete record had not been placed before the Hon'ble LG or that approval of the Hon'ble LG for issuance of the order was just obtained as a matter of routine but again there is nothing to show to the contrary.
191. The witness was also cross-examined on behalf of the accused Pera Ram but the proceedings against Pera Ram stood abated on 17.07.2015 and later on the said counsel had also represented the other accused persons except A1. PW1 stated that the record submitted was a complete file and it was sent through senior officers to the competent authority to take the decision in the matter. The senior officers involved in the processing in this case comprised the Addl. Secretary Home, Principal Secretary Home and then finally the Chief Secretary through whom the record was placed before the Hon'ble LG as a normal usual practice. He did not recall the said officers by name then. Thus, CBI Vs. Sajjan Kumar & Ors. Page No. 255 of 545 PW1 had stated that the file was sent through the senior officers to the competent authority and there is nothing to show to the contrary. PW1 could not tell if any preliminary investigation process was taken up and conducted before the sanction order was issued or that who the officer was who conducted that investigation. PW1 was asked if his record contained the report of the preliminary investigating officer to which he stated that there was no such specific document. He was not aware what material was given to the preliminary investigating officer and what material he collected. Section 196(3) Cr.P.C. contains a provision that before according sanction, the Central or State Government may order a preliminary investigation by a police officer not below the rank of inspector. However, it is not mandatory that such a preliminary investigation should be ordered and in the instant case, the sanction order dated 01.01.2010 itself mentions that CBI had taken up the investigation and that based on the said investigation, it appeared prima facie that the accused persons had committed the offence punishable under Section 153A IPC.
192. During further cross-examination PW1 stated that as per Ex.PW1/A the sanction was granted on 01.01.2010. He stated that the conclusion was arrived at by the sanctioning authority on 30.12.2009. That date was not mentioned in the sanction order Ex.PW1/A. The question as to whether the order conveyed when he was directed to sign the said document was disallowed. On being asked if there was any whisper in Ex.PW1/A regarding the sanction made and when he was directed by whom to issue the order Ex.PW1/A, he stated that the file in question was received CBI Vs. Sajjan Kumar & Ors. Page No. 256 of 545 in the Home Department on 31.12.2009. On 31st itself Principal Secretary Home sent the file to Principal Secretary Law and Justice to vet the sanction order. The vetted sanction order was received in the Home Department on 01.01.2010 and the order Ex.PW1/A was issued and signed by him on the same day. The said details were not mentioned in the sanction order. Even otherwise, the same would form part of the notings and there is no need that such details should be mentioned in the sanction order. PW1 stated that as a process and procedure, the said order was issued and signed by him in his capacity as a Deputy Secretary, Home, GNCT of Delhi, though not specifically named or mentioned in the procedure. He stated that there was no specific order by the Hon'ble LG for issuing the order in question by name of PW1. Even otherwise, nothing much turns on the same when PW1 had categorically stated that the said order was issued and signed by him in his capacity as a Deputy Secretary, Home, GNCT of Delhi.
193. On being asked if the order showed any document pertaining to original sanction by competent authority or did it suggest containing any other evidence in support thereof, PW1 stated that since the sanction order Ex.PW1/A was issued strictly by relying upon the conclusion for grant of sanction arrived by the sanctioning authority, the order was issued. On being asked to demonstrate from the sanction order Ex.PW1/A that what material on record was placed before the Hon'ble LG when the proposed sanction was sought and whether the order showed if the Hon'ble LG had applied his mind on the material placed, he stated that the sanction order was duly vetted by the Law CBI Vs. Sajjan Kumar & Ors. Page No. 257 of 545 Department and had been exhibited. Material placed before the Hon'ble LG comprised documents from the investigating agency, comments of Director of Prosecution, opinion of Law Department and then the issue was discussed in a meeting with senior officers. Again there is nothing to dispute what was stated by PW1. PW1 was asked if it was correct that he had stated in two paragraphs in his order that further investigation was conducted wherefrom prima facie it appeared that the offence punishable under Section 153A IPC was committed and to let the Court know from the record whether at any point of time, further investigation was ordered in the above said three RCs to which he replied that while drafting the sanction order, the material which was relied upon was the observations and conclusions drawn by the sanctioning authority and the same was mentioned in the same and that is why it had appeared in the sanction order. He denied the suggestion that whatever he had deposed was beyond and contrary to the record or that at no point of time further investigation was ordered. Even otherwise, the only thing to be seen by the sanctioning authority was if from the material placed before the sanctioning authority, prima facie, the offence was made out against the accused persons in order to grant sanction.
194. PW1 had brought and produced the office file which contained all the material on the basis of which sanction for prosecution was granted and the file comprised a segregated part which contained official communication and notings and regarding which segregated part, the witness had claimed privilege in terms of Section 124 Evidence Act from disclosing CBI Vs. Sajjan Kumar & Ors. Page No. 258 of 545 the said material to the Ld. Counsels representing the accused persons and the rest of the file consisted quite bulky material which was placed before the Court as the material which the Ld. Counsels could look at and scrutinize to proceed with further cross-examination. The Ld. Counsels had taken inspection and scrutiny of that material. PW1 was thereafter asked if his participation was only to the extent of signing and issuing the order for grant of sanction under Section 153A of IPC dated 01.01.2010 to which he replied that on 01.01.2010, he had the charge as a Link Officer for Deputy Secretary, Home-II, the Section which dealt with such matters. In the instant case, his role was restricted to signing the sanction order. He was asked if he was nobody to examine whether the material forwarded was justified or not and he had got no right to examine that material to which he replied that the stage of his signing the sanction order had arrived only after the material had already been examined by the sanctioning authority and a decision was arrived and communicated. He himself had not taken up examination of the material. Thus, PW1 had reiterated that his role was restricted to signing the sanction order and he had not taken up the material for examination. He stated that as per the official noting in the file brought by him, the matter for issuing sanction order for signing it by him had been received by him on 01.01.2010.
195. PW1 was further asked if it was the fact that the request for grant of sanction was from the DIG forwarding the report of SP along with the material to which he replied that it was a fact. He stated that the report of SP forwarded by DIG, CBI did not indicate that the matter had been examined by the prosecution CBI Vs. Sajjan Kumar & Ors. Page No. 259 of 545 branch of CBI. He was asked if his record revealed that at any stage whether it was inquired about any objection being raised by the Prosecutor before sending the report to his department which was disallowed. It was put to PW1 that the prosecution branch of CBI did record objections and sent the material back to the IO concerned for the rectification of the same to which he stated that he could not answer the said suggestion in either negative or affirmative as it was in the domain of CBI. He answered in the affirmative when he was asked if it could be taken from him that as per the record, the opinion of Director of Prosecution was sought or not. He was asked if it was correct that the Director of Prosecution dissented and asked for more record to which he replied that it was a privileged communication and he was unable to answer it. PW1 was also asked if it was correct that sanction was accorded through him in RC-24, PS Delhi Cantt. on the same day, the sanction of the present case had been signed by him in this case to which he stated that he did not recall, if it was a matter available from record. On being shown the copy of the sanction in earlier case RC-24 he admitted that the sanction had been given and granted for prosecution under Section 153A IPC on the same day i.e. 01.01.2010. He remembered that he appeared in Court to prove that sanction in RC-24. Thus, PW1 had admitted that sanction was accorded through his in RC-24 PS Delhi Cantt. On the same day when the sanction in the present case was signed by him and he had appeared in the Court to prove the sanction though he did not recall, if he had deposed that Director of Prosecution had opined that sanction deserved not to be granted. He was shown the photocopy of the statement CBI Vs. Sajjan Kumar & Ors. Page No. 260 of 545 recorded on 07.02.2011 in RC-24, PS Delhi Cantt., and he stated that without the original file record, he was unable to affirm or deny if any such statement Mark X had been made by him before the Court or that the said statement was his statement in examination-in-chief.
196. PW1 denied the suggestion that his statement to the effect that opinion of the Director of Prosecution was a privileged communication was a false statement. He was asked if he was disputing that he had never deposed pertaining to the opinion of the Director of the Prosecution in a testimony given in the Court in RC No.24 to which he stated that it was a matter of record and that could be referred to from the original record. On being asked if he could show from the record whether the opinion of the Director of Prosecution was sent to the Law Department, NCT of Delhi or not, he stated that the question related to privileged communication and he could not answer it. He denied the suggestion that he was wrongly claiming privileged communication of the said fact whereas he had given answer to the said question in the earlier deposition in RC No.24. He admitted that he was not the Head of the Department, when the case was processed and he was merely a Deputy Secretary in Home Department, NCT, Delhi. He stated that the Principal Secretary, Home was the Head of the Department at that time and he was Mr. Patnaik. He stated that it was a matter of record that the issue seeking privilege arose during his deposition before the Court. He denied the suggestion that he was no authority to take a decision to claim the privilege before the Court. Discussion and opinion of the competent authority was taken later on. Thus, CBI Vs. Sajjan Kumar & Ors. Page No. 261 of 545 PW1 had claimed privilege in respect of opinion of the Director of Prosecution and nothing has been brought on record to show that no privilege could be claimed in that regard.
197. PW1 was asked what was the material sent with the report of SP to which he replied that the report of the SP was the material at that stage. He was asked if at a subsequent stage, some material was sent by the CBI to which he answered in the affirmative and stated that was the material brought by him including the official communication. He was asked what was the material defining the role of each accused besides the role of the accused Shri Sajjan Kumar to which he stated that the material was the investigation report of SP and discussion held in the presence of the competent authority as well the additional information furnished by the CBI of the previous cases. He denied the suggestion that individual role of the accused persons other than the accused Shri Sajjan Kumar had not been defined in the investigation report of SP. He was asked what was the material, whether statement of witnesses or some other material, on the basis of which the discussion on the role of individual accused for grant of sanction had been examined to which he replied that he had dealt with the file when the entire issue of grant of sanction had already been examined and the decision had been recorded by the competent authority in a reasoned order on the file. He denied the suggestion that there was no overt act against any of the individual accused persons attracting the provisions of Section 153A IPC or that a misleading testimony was being given by him on the point of validity of the sanction. Thus, PW1 was cross-examined at length on the record regarding CBI Vs. Sajjan Kumar & Ors. Page No. 262 of 545 the role of individual accused but he stated that he had dealt with the file when the entire issue of grant of sanction had already been examined and the decision had been recorded by the competent authority in a reasoned order on the file.
198. PW1 was asked if it was a fact that in the material placed before the authority in the case, the name of the accused Shri Sajjan Kumar had not appeared in any of the four charge sheets filed by CBI in FIR No.250/84 PS Sultanpuri and that the name of Shri Sajjan Kumar had appeared only in the case RC-7 first time to which he replied that all the material being referred to in the question was before the competent authority and the decision for grant of sanction was taken. He denied the suggestion that had it been brought to the notice of the sanctioning authority that is, the Hon'ble Lt. Governor of Delhi that a full fledged trial of the case FIR No.250/84 had already been completed, the authority would not have granted the sanction. He was asked if his record suggested/ indicated that sanction pertaining to the same incident of the same area, date and place was granted vide letter No.F10/68/90-HP dated 15.06.1994 and came to its logical conclusion after trial concerning the accused Shri Sajjan Kumar in RC 1(S)/90-SIV-II/SIC-I CBI/CGO ND on which it was observed that the question itself spoke of a matter of record and did not require the witness to further elaborate it by any answer. Same was held in respect of the question whether it was brought to the notice of the Hon'ble LG that the fact that no public meeting was anywhere held had been decided by the Court in the entire Sultanpuri area inciting the people.
CBI Vs. Sajjan Kumar & Ors. Page No. 263 of 545199. PW1 was further asked if his record suggested that it was brought to the notice of the sanctioning authority at any stage that the accused Brahmanand and Peeria had been acquitted in case FIR No.250/84 re-registered as RC-7 or that there were no fresh allegations against them to which he replied that it was difficult to answer the question very specifically as the record brought by him could be referred to and looked into the point. He stated that he could not point out before the Court what material/ document/ evidence he had got to show that the accused persons committed the offence under Section 153A for which they had been charged individually and he stated that the record was before the Court. He denied the suggestion that he was deliberately avoiding to answer the questions pertaining to the factual position. Thus, PW1 had produced the record and even otherwise, the decision to grant sanction was taken by the competent authority and PW1 had not taken up any material for examination.
200. PW1 further stated during cross-examination that as per the record, opinion and findings of Nanavati Commission were before the Competent Authority. He denied the suggestion that no such record was before the competent authority. He stated that as per the record, some memorandum of action taken on the report of Nanavati Commission was not before the competent authority. He was asked if the record suggested that there was no complainant in RC-8 nor there was any evidence in the case pertaining to the incident of RC-8 to which he stated that he was unable to figure out as it was a bulky record. He stated that it was a fact as available from the record that Smt. Anek Kaur had passed away on 13.03.2000. Copy of statement of Shri Joginder CBI Vs. Sajjan Kumar & Ors. Page No. 264 of 545 Singh recorded before the Court in FIR No.347/91, PS Sultanpuri, on 22.08.1992 and 31.05.2003 were not there on the record before the competent authority and volunteered the record suggested that affidavit as well Section 164 Cr.P.C. statement of Joginder Singh were there as a part of the record. He could not comment if other statements of Joginder Singh were before the competent authority, but comprehensive discussion had taken place with the investigating officer. That comprehensive discussion with the investigating officer was there in the official communication file which was being claimed as privileged communication. (The Court had taken a look at that communication and the discussion and the fact was there). Thus, PW1 had stated that the statements of Joginder Singh recorded on 22.08.1992 and 31.02.2003 were not there before the competent authority but he had also stated that comprehensive discussion had taken place with the investigating officer.
201. The witness was asked if the record suggested that there was no complainant from the entire Sultanpuri area nor any affidavit was filed by anyone from that area before the Nanavati Commission to which the Ld. Special Public Prosecutor pointed out that affidavits filed before Justice Ranganath Misra Commission were part of the record before Justice Nanavati Commission and those affidavits were from the persons who were residents of Sultanpuri. PW1 stated that he was unable to specify thereafter if there was no affidavit individually submitted before Justice Nanavati Commission by any person from Sultanpuri area. He denied the suggestion that he was evading the question or that the sanction order signed by him was a bald CBI Vs. Sajjan Kumar & Ors. Page No. 265 of 545 order stating that the Hon'ble Lt. Governor of NCT Delhi granted prosecution sanction. He denied the suggestion that the sanction order stood vitiated by patent illegalities by reason of non- application of mind by the competent authority or that he had defeated the object of sanction and had not adhered to the norms of compliance of Section 196 Cr.P.C. or that the draft was prepared by CBI or that the Hon'ble Lt. Governor did not look into it or that he had been tutored to give deposition in Court or that he avoided answers deliberately on the relevant facts. Thus, various suggestions were put to PW1 regarding the sanction order which he denied and even otherwise, there is nothing to dispute the sanction which was accorded by the Hon'ble LG for proceeding against the accused persons under Section 153A IPC.
Record of previous investigation/ trials
202. It was then the contention of the Ld. Counsel for the accused persons that it was incumbent on the investigating and the prosecuting agency to place the record of the earlier investigation/ trial before the Court. It was submitted that since the prosecuting agency did not place the previous record of the earlier investigation/ trial, the defence had placed on record the record of FIR No.250/84, 252/84, 347/91 whatever was available. The record pertaining to Smt. Cham Kaur was not traceable. But, the documents placed by the defence sufficiently and substantially proved that she was examined earlier and the said documents could not be denied by the prosecution as the documents supplied by the prosecution in case of Smt. Cham Kaur supported the said fact. It was contended that the CBI Vs. Sajjan Kumar & Ors. Page No. 266 of 545 prosecution had admitted through the IOs of the case that they had the entire record of the previous investigation/ trial. Despite that CBI had not deliberately placed the record along with the charge sheet or at any stage of the trial. It was argued that CBI was bound to place on record the entire earlier investigation/ judicial proceedings record along with the instant charge sheet for judicial scrutiny. A perusal of the record shows that the witnesses were also cross-examined at length on this aspect.
203. PW3 had deposed that as per the letter dated 08.11.2005 Mark X, certain documents were sent to Shri U.S. Misra, Director CBI, as per the list of the documents enclosed with the letter Mark X which is Mark X1. During cross-examination PW3 stated that CBI had never recorded any statement of his in the case at any point of time. He did not recall if letter Mark X was written by him pursuant to any requisition received from CBI. It was not necessary that his letter Mark X was written and addressed to CBI only on a communication received from CBI and volunteered may be when he was processing the Nanavati Commission Report, the said letter came to be written and proceeded with. On it being put to him that without any requisition or official communication from CBI or without any official requirement asked for, he would not write any letter on his own to any agency much less CBI, he answered that it was not necessary that letter Mark X was sent to CBI only in response to anything received from CBI, maybe there was something else in the Ministry and the said letter and documents were sent to CBI, may be the said letter was written in continuation of some earlier reference from the Ministry. He did not know if there had CBI Vs. Sajjan Kumar & Ors. Page No. 267 of 545 been a large exchange of communication between CBI and Ministry of Home Affairs before he had written the letter Mark X. He admitted that his letter Mark X referred to a previous communication from Shri K.P. Singh, but as regards any communication from CBI, he was not sure and he did not remember of any such earlier communication/ correspondence. The document was then exhibited as Ex.PW3/DA. Even otherwise, nothing much turns on the same.
204. PW3 further stated that even if the documents mentioned in the list Mark X1 had been before him, he would not have been very sure that those were the documents infact sent to CBI as per his letter Ex.PW3/DA. At present he could not say on what basis the documents mentioned in list Mark X1 were sent to CBI, it must have been sent in the context of communication/ correspondence. He was not sure whether whatever documents were mentioned in the list Mark X1 were in fact sent to CBI. He would not be sure even if the said documents mentioned in Mark X1 were shown to him whether all those documents had been sent to CBI. On being asked, what document D14/5 column 3 para 6 note-sheet para 1 to 76 correspondence PP1 to 87 PP1-13 conveyed, he stated that since he was not sure about the list Mark X1, he could not comment on the question. He denied the suggestion that he was deliberately omitting to depose facts being put to him. Thus, PW3 had remained consistent that he was not sure whether whatever documents were mentioned in the list Mark X1 were in fact sent to CBI. PW3 denied the suggestion that he was aware that he communicated to CBI that criminal case concerning victim Smt. Cham Kaur had already ended with CBI Vs. Sajjan Kumar & Ors. Page No. 268 of 545 a judgment passed by the Court and there should not be any further case concerning Smt. Cham Kaur or that copy of the judgment in FIR No.252/84 PS Sultanpuri which comprised 13 pages was also annexed or that he conveyed his stand on behalf of the Ministry to CBI that there was no justification for trial concerning the victim Smt. Cham Kaur or that the same thing was conveyed concerning victim Smt. Bhagwani Bai as per column 8 or that 13 pages judgment concerning Smt. Bhagwani Bai was sent to CBI. He denied the suggestion that he further conveyed to CBI that case FIR No.307/94 was re-registered as RC-8 concerning the husband of Smt. Anek Kaur, Smt. Anek Kaur had already deposed before the Court and had disowned the affidavit and thus there was no justification to proceed with the case on the basis of her affidavit or that he further conveyed that Smt. Anek Kaur had passed away in the year 2000. He denied the suggestion that as per column 11 of the affidavit of Shri Joginder Singh, it could not be the basis to proceed with another criminal case as Shri Joginder Singh had also disowned his affidavit before the Court or that copy of that judgment was also sent to CBI advising CBI not to proceed on the basis of affidavit of Shri Joginder Singh. He denied the suggestion that he was suppressing the said facts. Thus, he had denied the suggestions that were put to him and PW3 had only stated about the letter dated 08.11.2005 Mark X, vide which certain documents were sent to Director CBI, as per Mark X1 but he was not sure what documents were in fact sent. During cross-examination PW10 also submitted that vide Ex.PW3/DA additional record was sent and volunteered the same was received by his predecessor. He CBI Vs. Sajjan Kumar & Ors. Page No. 269 of 545 denied the suggestion that he was referring to his predecessor to give an evasive reply. He admitted that he had placed the same along with the charge sheet.
205. During cross-examination PW10 admitted that the present case was re-registration of FIR No.250/84, 307/94 and 347/91 respectively of PS Sultanpuri. He was cross-examined regarding being in possession of the record of the case and he stated that the record as referred to by him which he had gone through was with him at the relevant time. He admitted that when the investigation of the present case was handed over to him, the record of the case was handed over to him by his predecessor in entirety. He admitted that he had discussion with his predecessor regarding the case before taking over the investigation in the present case. He admitted that his predecessor had collected some record from Anti-Riot Cell of the cases pertaining to PS Sultanpuri and he had also collected some record and volunteered they took a lot of time in tracing the record and forwarded the same to them in piece meal. He had referred the fact that the record was handed over in piece meal in several case diaries. He stated that the entire record was never handed over to them. They sent letters for sending the remaining record but reply was sent in parts. The said letters or replies thereto had not been placed on record. Even no protest letter that the entire record had not been handed over to him had been placed on record. He stated that letters were sent under the signatures of seniors pointing out what record had not been received by them. He could not produce the said letters and volunteered at present the records were not with him. He stated that the letters were part of the case diary. He did CBI Vs. Sajjan Kumar & Ors. Page No. 270 of 545 not want to see the case diary to point out the said letters. He denied the suggestion that he was giving a wrong deposition or that he was aware that the said letters were not mentioned in the case diary. Thus, PW10 had stated that the entire record had not been handed over to them though the letters and replies in the said regard had not been placed on record.
206. PW10 further stated that the record from the office of Justice Nanavati Commission, Ministry of Home Affairs in respect of the present case was collected by his predecessor and volunteered the same was addressed to senior officers. He admitted that the record relevant to the present case was handed over to him when he took over investigation and filed the charge sheet. He admitted that the document Mark PW10/D-1 was handed over by the Ld. Counsel for the accused persons along with Shri S.A. Hashmi and was received by him vide his signatures and volunteered he had requested that the same be sent through the proper channel so that he could take it on record but it was not sent through the proper channel. He denied the suggestion that he was making an absolutely wrong statement that he had taken the said document and asked that the same to be sent through proper channel or that he had not told the counsel that it had been taken on record and would be considered during investigation. PW10 was further shown D-12 which is the letter dated 13.01.2006 issued by Under Secretary, Government of India to Shri Akhileshwar Prasad, Superintendent of Police forwarding the record as mentioned therein, record pertaining to FIR No.178/84 of PS Mangolpuri, FIR No.250/84 of PS Sultanpuri and FIR No.307/94 of PS Sultanpuri. The said letter is CBI Vs. Sajjan Kumar & Ors. Page No. 271 of 545 Ex.PW10/D-2. He admitted that through the letter Mark PW10/1 then Ex.PW10/M relevant record was sent to CBI. He admitted that through the said letter, the record pertaining to the three cases which formed the basis for registration of the present case was sent to CBI. PW10 admitted that when he filed the charge sheet, he had the record of all the three cases. He was not aware if the record of the said case (FIR No.347/91) was handed over by Anti Riots Cell. He denied the suggestion that he had stated falsely that he was not aware if the record of the said case was handed over by Anti Riots Cell. He was shown D-15 Ex.PW10/7 (colly) which contained the list of record pertaining to police record in FIR No.347/91, PS Sultanpuri along with the judgment of the said case and he volunteered that the same was the common letter vide which records were supplied to CBI from MHA and after registration of the case, the records were separately distributed to the different IOs relevant to their case. He admitted that he could not answer regarding the record of the said case and volunteered the IO of the said case had been cited as a witness. Thus, PW10 had stated about record being handed over to CBI but he had also stated that the entire record was not handed over.
207. PW11 was cross-examined regarding the record of FIR No.347/91 and during cross-examination PW11 admitted that the present case was a re-registration of FIR No.347/91, PS Sultanpuri. He admitted that the entire record of the case including judicial file and police file were handed over to CBI and volunteered the investigation was done by another IO and he was given the task of only recording the statement of Joginder CBI Vs. Sajjan Kumar & Ors. Page No. 272 of 545 Singh and thereafter he handed over the entire record to Shri R.K. Jha. He admitted that along with the case file, the record was handed over and volunteered his role was limited to examining Shri Joginder Singh. Thus, PW11 had stated about the entire record of the case including judicial file and police file being handed over to CBI though he volunteered that his role was limited to recording the statement of Joginder Singh. PW11 further stated that he knew Syed Sajid Ali, DSP CBI SCR-I, New Delhi. He admitted that Shri Syed Sajid Ali was connected with the present case. An envelope was taken out containing record of FIR No.347/91 PS Sultanpuri, "State v. Unknown". He admitted that the said record contained an application by Shri Syed Sajid Ali in the Court of Shri S.S. Rathi, the then MM, Rohini for further investigation and asking for the entire record- judicial, police etc. The said application is Ex.PW11/D1 bearing the signatures of Shri Syed Sajid Ali which he identified. He stated that he was not aware that Shri M.B. Singh was the SPP at that time of the CBI. He denied the suggestion that at the instance of Shri Syed Sajid Ali, the record was handed over to him by the Court of Shri Deepak Garg, the then Ld. MM, Rohini or that he got the said record preserved. Thus, PW11 denied that at the instance of Shri Syed Sajid Ali, the record was handed over to him by the Court. He did not know if the entire record that was handed over to Shri Syed Sajid Ali was handed over to him. He did not remember if there was no other record other than what was handed over by the Court to Shri Syed Sajid Ali or that right from the registration of the case in 1984 till the filing of the closure report, there was no other authentic record. As such, CBI Vs. Sajjan Kumar & Ors. Page No. 273 of 545 PW11 did not remember if there was no other record other than what was handed over by the Court to Shri Syed Sajid Ali or that right from the registration of the case in 1984 till the filing of the closure report, there was no other authentic record. Thus, PW10 and PW11 were cross-examined at length regarding the entire record being handed over to CBI.
208. The accused persons had examined DW1 who had admitted that he was an accused in "State Vs. Uddal & Ors.", FIR No. 252/84, PS Sultanpuri. He was acquitted in the said case. He admitted that Cham Kaur was examined as a witness in the said matter. He had obtained the statement of Cham Kaur which is Mark PW6/DB from the Court. He had also obtained Mark PW6/DA and Mark PW6/DC from the Court. Shri O.P. Soni was his counsel in the said matter and he had now expired. He had moved a rejoinder dated 22.11.2021 to the application before this Court for compliance of the order of the Court dated 27.02.2019 and along with the rejoinder, he had placed on record the copy of the complete file of the statements recorded before the Court of the witnesses in FIR No.252/84, PS Sultanpuri. The same are Mark DW1/1 (colly). Thus, DW1 had stated about obtaining statements recorded in "State Vs. Uddal & Ors.", FIR No. 252/84, PS Sultanpuri though the same were only marked. During cross-examination DW1 stated that the statements as mentioned in his examination-in-chief were taken by his counsel Shri O.P. Soni from the Court and handed over to him. He could read little bit. He did not know if the copies of the said statements were in Hindi or in English. He admitted that he did not know what were the documents obtained by his counsel or CBI Vs. Sajjan Kumar & Ors. Page No. 274 of 545 what was their significance. Thus, DW1 did not even know if the copies of the statements which he had placed on record were in Hindi or English and he did not know what were the documents obtained by his counsel and what was their significance. As regards the contention that Brahmanand was not asked any question in cross-examination, it was submitted by the Ld. SPP that everything was put to him in his statement under Section 313 Cr.P.C. and he had answered in a particular fashion. He was examined as a defence witness only to bring certain documents on record but he failed to do so and the documents were not even exhibited and he stated that he did not have any knowledge about what he had brought and he had no knowledge of anything so nothing could be taken against the prosecution and there is merit in the said submission on behalf of CBI.
209. It is thus seen from the record that the documents pertaining to FIR No.252/84 and RC-1 were not placed on record by the prosecution with the charge sheet and even otherwise, there was no need for the same as the said cases were not taken up during investigation by CBI in the present three cases. Further, some part of the record of FIR No.250/84, 347/91 and 307/94 was placed on record by CBI either with the charge sheet or through Court orders and some other record was produced by the accused persons by putting it to the witnesses and some part of the record was exhibited while some was marked. The Ld. Counsel for the accused persons had highlighted the efforts made on behalf of the accused persons to obtain the record from the different District Courts and had also referred to the fact that the CBI had not even filed the previous record and if the record had CBI Vs. Sajjan Kumar & Ors. Page No. 275 of 545 been placed, no charge would have been framed against the accused persons. He had also submitted that what had been produced by the accused persons had also to be read. The Ld. SPP for CBI, on the other hand had submitted that the record of the earlier investigation/ trial was not relied upon by the CBI and as such, it could not be read. It was argued on behalf of the accused persons that the prosecution should have brought forth all the records but the question was as to which records were being referred to. The CBI had stated that it had no faith in the said records. It was submitted that the Court had the onerous duty or privilege to look into the records and in Sajjan Kumar v. CBI (supra) it was said that all things stood settled before the start of trial. It was not shown that there was something of sterling quality which was not brought by CBI and there was nothing which was not earlier looked into by the Court at the stage of framing of charge. The Court was within its right to say that CBI had not done its bounden duty and given documents which benefited the accused persons but the earlier statements by witnesses before the investigating agency were unfair and working only to protect the accused persons and to minimize the scale of the crime. The investigation done by such an agency had only one role therefore, neither the result of the prosecution nor the statements made during those prosecutions should have any bearing in the present case. The only document which needed to be looked into was the earlier independent account and after the investigation was handed over to CBI, the statements under Section 161 Cr.P.C. to CBI and under Section 164 Cr.P.C. during investigation by CBI and the testimony on oath in the Court.
CBI Vs. Sajjan Kumar & Ors. Page No. 276 of 545210. The Code of Criminal Procedure specifically provides that the accused has to be made aware of the evidence which is relied upon by the prosecution and provisions have accordingly been incorporated in Cr.P.C. for the said purpose and to ensure that the documents are supplied to the accused. Reference herein may be made to Section 173 Cr.P.C. which states about the report of a police officer on completion of investigation and that it has to be accompanied by certain documents. Section 173(5) Cr.P.C. reads as under:
"When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witness."
Thus, as per Section 173(5) Cr.P.C. along with the charge sheet, those documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation are to be filed and if the prosecution does not rely on any document, it is not essential that the same be appended with the charge sheet. Further after the charge sheet is filed, the documents and the statements of the witnesses are to be supplied to the accused as per Section 207 Cr.P.C. and the requirements of the section are mandatory. There is no dispute that there was due compliance of Section 207 Cr.P.C. in the present case and only thereafter the matter CBI Vs. Sajjan Kumar & Ors. Page No. 277 of 545 proceeded further. On the face of it and in view of the provisions of Section 173 Cr.P.C., there would also be merit in the submission of the Ld. SPP for CBI that as it had not relied upon the previous investigation or trial so the record of the same was not placed on record and not supplied to the accused persons. However, what is significant in the present case is that, as noted above, there is no order from a higher court directing that the record of the previous investigation or trial cannot be looked into. Moreover, when it is the admitted case that RC-7, RC-8 and RC- 25 are re-registration of FIR No.250/84, FIR No.307/94 and FIR No.347/91, CBI on its own could not have decided not to place the record of the said cases (whatever was available) on record or that the same could not be looked into and it is for the Court to see what weightage can be attached to the said record. Even the argument that the earlier investigation was a farce would not hold good in the absence of any specific order from any higher court in that regard and as regards the trials which were conducted, it is not the case of anybody that the same were not conducted before courts of competent jurisdiction or that principles of criminal jurisprudence or the settled principles of law were not followed therein. In fact some revision petitions against the judgments are still pending and there is no order of a higher court setting aside the judgments. As such, the record of the trial conducted in the earlier cases or of the closure reports would certainly be relevant in the present case. While CBI may not have produced the record of FIR No.252/84 and RC-1 which are directly not the subject matter of the present cases but it was incumbent on CBI to have produced the record of FIR No.250/84, 347/91 and 307/94.
CBI Vs. Sajjan Kumar & Ors. Page No. 278 of 545211. The Ld. Counsel for the accused persons had relied on the judgment in In Re.: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. The State of Andhra Pradesh & Ors. (supra) which it was submitted manifested the right of the accused to have access to all material in possession of the prosecution which direction applied to the facts of the case whereas the present case was an example of the prosecution abusing their discretion to conceal and suppress material facts and evidence. It was submitted that it was to protect the accused from such abuse of process and abuse of prosecution discretion that the Hon'ble Supreme Court passed the said directions. In the said case, the Hon'ble Supreme Court observed as under:
"10. During the hearing of these proceedings, the court took into consideration the viewpoints, on behalf of High Courts, where there was either a divergence in the opinion about the practice to be adopted, or some reservation.
11. The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. PC. 3 for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. [Rule 4(i)]."CBI Vs. Sajjan Kumar & Ors. Page No. 279 of 545
Thus, it was held that even a list of other material i.e. unrelied upon material should be handed over to the accused. The Ld. Counsel for the accused persons had also placed reliance on the judgment in State of Karnataka v. Gopal Sheelum Reddy also known as Nithya Bhaktananda (supra) to argue that if there was material of sterling quality which had been withheld by the investigator/ prosecutor, the Court was not debarred from summoning or relying upon the same. The Hon'ble Supreme Court held as under:
"5. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to import justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so requires, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the charge sheet, has crucial bearing on the issue of framing of charge.
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8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/ prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge- sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge."
Thus, the Hon'ble Supreme Court held that the accused ordinarily had no right, at the stage of framing of charge to invoke Section 91 Cr.P.C. though the Court, in the interest of justice, was not debarred from exercising its power, if it was CBI Vs. Sajjan Kumar & Ors. Page No. 280 of 545 satisfied that the material available with the investigator, not made part of the charge sheet was of sterling quality. Dehors the satisfaction of the Court, the accused had no right to invoke Section 91 Cr.P.C. at the stage of charge. In the present case, trial has already been conducted and if there is material of sterling quality and duly proved, the Court can certainly look into it. The Ld. Counsel had also cited the judgment of the Hon'ble High Court of Delhi in Ashutosh Verma v. CBI (supra) to submit that the said judgment ensured that the entire material was brought to the knowledge of the accused whereas the accused were still in dark if the prosecution had other material in their possession. In the said case, the question arose of supply of statements of certain witnesses who had not been relied upon as witnesses in the charge sheet and reliance was placed therein on the judgment in Shakuntala v. State of Delhi 2007 SCC OnLine Del 304, amongst others and it was observed as under:
"27. In case the prosecution is permitted to withhold what might be vital evidence for an accused to establish his case, the unscrupulous investigating agency would be with utmost ease able to keep the court in the dark. Since the charges framed by CBI are of criminal nature, the petitioner under such circumstances has the full right to lay down his defences for the purposes of which all necessary disclosures have to be duly made in accordance with the procedures laid down under Cr.P.C. Accused can ask for the documents that withhold his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Defence has to be build up from day one and not on ad-hoc basis denying the same would seriously prejudice the rights of the accused as enshrined in the Constitution of India.CBI Vs. Sajjan Kumar & Ors. Page No. 281 of 545
28. In view of the dictum in the aforementioned judgments, this Court is of the opinion that petitioner cannot be denied an access to the documents in respect of which prayers have been made in the petition merely because CBI does not consider it relevant. If there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of the prosecution and the investigating officer ignores these documents and forwards only those documents which favour the prosecution, in such a scenario, it would be the duty of investigating officer to make such documents available to the accused."
212. Reference may also be made to the judgment of the Hon'ble High Court of Delhi in CBI v. M/s. INX Media Pvt. Ltd. and others (supra) dated 10.11.2021 wherein it was observed as under:
"15. Further contention of CBI is that the documents can be sought under Section 91 Cr.P.C. only at the stage of defence and hence the stage for seeking inspection of the un-relied documents in possession of the CBI and kept in CBI Malkhana has not arrived. It is trite law that an accused can build the defence not only by leading defence evidence but even while cross-examining the prosecution witness. Further, a document which is relevant and is of sterling quality can also be looked into by the Court at the time of framing of charge and the Court is not barred to exercise its power to summon or rely upon the said document at the stage of charge, if it is of sterling quality and has a crucial bearing on the issue of framing of charge. Therefore, at the time of framing of charge an accused can bring to the notice of the Court that an un-relied document recovered during the course of investigation and kept back by the investigating agency is relevant and has a bearing on the prosecution case only if the accused is aware of the said document."
This judgment has been upheld by the Hon'ble Supreme Court in CBI v. M/s INX Media Pvt. Ltd. & Ors. SLP (Crl.) No.1274/2022 decided on 18.07.2023 observing that prosecution CBI Vs. Sajjan Kumar & Ors. Page No. 282 of 545 did not mean persecution. Thus, time and again, it has been reiterated that the Court can exercise its power to summon or rely upon a document, if it is of sterling quality and has a crucial bearing on the case. The said propositions of law are well-settled and it is also well established that the investigation has to be fair.
213. It was submitted on behalf of the accused persons that the prosecution in the present case had consistently shifted their stand and the goal posts, initially at the stage of charge a stand was taken that the record of earlier cases/ proceedings could be considered as the case further proceeded after the stage of charge. When the accused sought that material to cross examine the witnesses, the prosecution changed their stand to that they did not have the entire record, which was also belied by the report of Delhi Police called by the Court that all material was handed over to CBI. Reference was made to the orders dated 27.02.2019 and dated 18.07.2022, wherein it was confirmed by the prosecution that the statements claimed by the defence did exist and it was held that the said documents would be looked into at the time of final judgment and the statement of the IO and the record produced by the prosecution confirmed and established the authenticity of the statement/ judgment. It may be mentioned that in respect of the previous record, even the Hon'ble High Court of Delhi in Sajjan Kumar v. CBI (supra) decided on 16.07.2013 had observed as under:
"169. It is worth to note that on investigation in RC7(S)/05/SCB-II/N.D., RC8(S)/05/SCB-II/ND and RC 25(S)/05/SCU-I, single charge-sheet was filed by the CBI. However, record of earlier investigation and trial or statement of the witnesses recorded CBI Vs. Sajjan Kumar & Ors. Page No. 283 of 545 earlier was not made part of the charge-sheet.
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174. The case of the petitioners before this Court is that there were sterling quality of documents which they have brought on record of the trial court, but same have not been considered while framing the charge. Ld. trial court by considering the charge- sheet and the material annexed therewith for the purpose of framing of charge had operated within the scope of section 227 of Cr.PC and legal position settled in this regard by the Supreme Court in Devender Nath Padhi's case. Although, FIR No.307/94 registered on the statement of Smt. Anek Kaur and FIR No.347/91 on the statement of Joginder Singh were sent untraced and Smt. Anek Kaur has since expired and at that time Joginder Singh did not own his affidavit, but keeping in view the fact that consolidated charge-sheet has been filed and now number of witnesses, as discussed above, have been examined by CBI and their statements under section 164 of the Code of Criminal Procedure has also been recorded, therefore, even if some of the witnesses have deposed, in earlier proceedings, the alleged deviation will have to be explained by the witnesses in the Court during trial. The settled law is that the veracity of such statements has to be examined at the stage of trial and not at the stage of framing of charge. Therefore, I find no illegality if the trial court has not considered the documents other than the documents filed by the investigating agency to support the charge-sheet."
Thus, the importance of producing the record of the earlier investigation/ trial cannot be minimized and the Hon'ble High Court had also noted that the record of earlier investigation and trial and statements of witnesses had not been placed on record. Further, the Hon'ble High Court had held that even if some of the witnesses had deposed, in earlier proceedings, the alleged deviation would have to be explained by the witnesses in the Court during trial and the settled law was that the veracity of CBI Vs. Sajjan Kumar & Ors. Page No. 284 of 545 such statements had to be examined at the stage of trial. The Hon'ble High Court had nowhere held that the record of previous investigation and trial and the statements of the witnesses were not to be considered and rather it was held that the veracity of the statements had to be examined at the stage of trial.
Extraordinary situations call for extraordinary remedies
214. It was then the contention of the Ld. SPP for CBI that in cases such as the present, the Court had to innovate to ensure that justice was secured and the Court could not be bound by technicalities and treat the case as that of a murder in a normal circumstance. It was submitted that in the period after the killing of Smt. Indira Gandhi by Sikh bodyguards, there were riots/ genocide of Sikhs and about 3000 people died in Delhi. Very few FIRs were registered and there were no postmortem reports, no bodies were given last rites by the families. There was no police help and no intervention by any wing of the administration. A few FIRs that were filed were on the pretext of farce investigation and equally farcical prosecution leading to acquittals. It was submitted that the cases of the present nature had to be read in a different context and could not be treated like ordinary murder cases as such incidents did not occur every now and then and arose out of peculiar situations and had to be dealt with as such. 37 years after independence which was followed by unprecedented riots, the Sikhs in Delhi and other parts of India faced a genocide like situation and the Sikhs were entitled to justice. As there was uproar from the civil society, Commissions were formed to give some semblance of sanity. It was argued that CBI Vs. Sajjan Kumar & Ors. Page No. 285 of 545 the cases had peculiar similarities in that only Sikh establishments and commercial places and males were targets. Though it was a huge unruly crowd but not even a single Hindu establishment or house was touched which showed the precise conspiracy which was not possible unless the administration was with the rioters and the politicians were carrying a list of the electorate which helped to identify and target. Many persons even young or old were burnt alive. Pictures of Sikhs being garlanded with burning tyres were still around and there was no one to take their bodies which were collected and dumped without any last rite being performed or there being a post- mortem report. The volunteers gave last rites to bodies in groups or heaps. It was urged that the overall extraordinary circumstances needed to be understood for a just and fair adjudication of the case and it had to be understood that the 1984 riots were extraordinary cases requiring extraordinary remedies and in such unusual fact situations, it was the duty of the courts to innovate the law and pass unconventional orders. The situation became unique in riot cases since even when the riots are controlled, several forces attempted to interfere with the registration and investigation of crimes and cases of communal riots could not and must not be dealt with the same brush as a case of murder. The Court, in such cases, must strive to search for the truth to protect the innocent and punish the guilty and should not get too technical in its approach and trial in such cases could not be left at the hands of the parties and it was the duty of the Courts to maintain public confidence in the due administration of justice.
CBI Vs. Sajjan Kumar & Ors. Page No. 286 of 545215. It was submitted that there were two decisions on record in which investigation was done which shocked the conscience of the Court and of the civil world and reference was made to the judgment of Hon'ble Ms. Justice Gita Mittal in Court on its Own Motion v. Dhanraj and Ors. (supra). There had been other incidents of rioting lately but the cases of 1984 showed how investigation and prosecution should not happen. It was urged that it became important to look at the riots in a different perspective and if that was not done and one insisted on the same principles as for murder cases, the riots would not stop happening nor the perpetrators would be punished. It was submitted that it was for the Courts how they wanted to innovate and deal with such cases. Reference was made to various judgments on what the duty of the Court should be in extraordinary circumstances. Reliance was placed on the judgment in Zahira Habibulla Sheikh v. State of Gujarat (supra) on which reliance was also placed by the Ld. Senior Counsel for the complainant, wherein it was observed as under:
"30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved...
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35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot CBI Vs. Sajjan Kumar & Ors. Page No. 287 of 545 always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. [...] It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial CBI Vs. Sajjan Kumar & Ors. Page No. 288 of 545 Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
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38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty...
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage- managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
41. "Witnesses" as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like CBI Vs. Sajjan Kumar & Ors. Page No. 289 of 545 the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed.
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55. The courts, at the expense of repetition we may state, exist for doing justice to the persons who are affected. The trial/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder recording evidence, overlooking the object CBI Vs. Sajjan Kumar & Ors. Page No. 290 of 545 of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.
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65. In a country like ours with heterogenous religions and multiracial and multilingual society which necessitates protection against discrimination on the ground of caste or religion taking lives of persons belonging to one or the other religion is bound to have dangerous repercussions and reactive effect on the society at large and may tend to encourage fissiparous elements to undermine the unity and security of the nation on account of internal disturbances. It strikes at the very root of an orderly society, which the founding father of our Constitution dreamt of.
66. When the ghastly killings take place in the land of Mahatma Gandhi, it raises a very pertinent question as to whether some people have become bankrupt in their ideology that they have deviated from everything which was so dear to him. When a large number of people including innocent helpless children and women are killed in a diabolic manner it brings disgrace to the entire society. Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy."
It was thus held that the courts exist for doing justice to the persons who are affected and cannot get swayed by abstract technicalities and the object of the trial is to get at the truth. It has a greater duty and responsibility i.e. to render justice. The Ld. CBI Vs. Sajjan Kumar & Ors. Page No. 291 of 545 Counsel for the accused persons, on the other hand had contended that CBI had placed reliance on the judgment in Zahira Habibulla Sheikh v. State of Gujarat (2004) 4 SCC 158 (commonly known as "Best Bakery Case") which was a result of communal frenzy and was in retaliation to killing of 56 persons in Sabarmati Express. Zahira Sheikh was the main eyewitness and she had given an affidavit pinpointing the accused persons and it was not a case that she had not named anybody, but during the trial she had resiled from her earlier statement and the accused persons were acquitted. Then she had come up with an affidavit that she was under threat and due to coercion, she could not tell the truth and she moved to the Hon'ble High Court for additional evidence, which was refused. In the said case, the question of witness protection and credibility of the evidence was before the Court and the witness was terrorized whereas in the present case, the witnesses were not hostile and there was no threat to the witnesses and it was not the case that the witnesses were not able to state or needed to be recalled or there was a need for retrial and it could also not be said that the prosecution was not fair or there was slackness on the part of the prosecution and it was not the case of the prosecution that there was no fair trial so the said judgment was not relevant and not applicable against the accused persons. The Hon'ble Supreme Court had held that the role of the PP was not fair and she could not get a fair trial and the prosecution should place the true facts so that fair trial could take place. It was submitted that the said judgment was not applicable in the present case and in Zahira Habibulla Sheikh v. State of CBI Vs. Sajjan Kumar & Ors. Page No. 292 of 545 Gujarat (5), (2006) 2 SCC (Cri) 8, she was convicted for contempt of court for repeatedly changing her statements and in that case, approval for retrial was given by the Hon'ble Supreme Court under Section 386 Cr.P.C. which empowered the High Court to order retrial but no such permission was taken in the present case as the witnesses even till the present maintained that they had named the accused even though the earlier statements before the Court did not say the same. In this regard reference was made to the judgment in Satyajit Banerjee & Ors. v. State of West Bengal & Ors. (supra) wherein it was observed as under:
"26. The law laid down in the 'Best Bakery Case' in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence."
While there is merit in the submissions made by the Ld. Counsel for the accused persons, it is pertinent that the said judgment was relied upon by the Ld. SPP only to highlight the principles to be borne in mind in cases of a similar nature.
216. The Ld. SPP had then relied on the judgment in Harendra Sarkar v. State of Assam (supra) wherein it was observed as under:
"61. The genesis of a communal riot, its development as it goes along and the consequences have been identified/ underlined by dozens of Commissions of Inquiry both judicial and administrative for more than four decades now and there appears to be near unanimity that a deliberate attempt is made by the police and the investigating agencies to forestall fair investigation in attacks on the minority communities and on the contrary to connive with the perpetrators. It is indeed tragic that though reams of paper have been used and CBI Vs. Sajjan Kumar & Ors. Page No. 293 of 545 dozens of suggestions made as to the methods to prevent or to control communal riots, yet the cancer continues to metastasize on account of several factors, one of the predominant being the feeling amongst the assailants, emboldened yet further by the anonymity which a crowd provides, that come what may, no harm will come to them. Several reports have been perused and herein below are a few of the observations made which clearly highlight the anti-minority bias in the police:....
The riots occurred broadly on account of the total passivity, callousness and indifference of the police in the matter of controlling the situation and protecting the people of the Sikh community. Several instances have come to be narrated where police personnel were found marching behind or mingled in the crowd. Since they did not make any attempt to stop the mob from indulging in criminal acts an inference has been drawn that they were part of the mob and had the common intention and purpose. The Commission was shocked to find that there were incidents where the police wanted clear and definite allegations against the anti-social elements in different localities to be dropped out while recording FIRs.
- Report of the J. Ranganath Misra Commission on the 1984 anti-Sikh riots in Delhi.
xxx
64. India is a signatory to the Universal Declaration of Human Rights. Article 2 thereof provides for rights without discrimination, without restriction of any kind based on race, language or religion etc., Article 7 provides for equality before law and to the equal protection of the law for all, Article 8 postulates the availability of an effective remedy in law for acts violating the fundamental rights guaranteed to an individual and Article 12 provides for the right to a fair trial. These rights are enshrined in Articles 14 and 21 of the Constitution of India as well. Can it be said in all honesty that the investigation and prosecution in matters relating to communal riots which is really based on protecting human dignity and the right to life, accord with the above principles? The question posed must, of necessity, give cause for introspection. Such being the background, can we evaluate a murder committed during a communal CBI Vs. Sajjan Kumar & Ors. Page No. 294 of 545 riot as a crime committed in the normal course - a common place crime as ordinarily understood? The answer must be in the negative and for the reasons already quoted above." (Emphasis supplied) Thus, in this case, the Hon'ble Supreme Court highlighted that investigation and prosecution in matters relating to communal riots are based on protecting human dignity and in such circumstances, a murder committed during a communal riot could not be evaluated as a crime committed in the normal course- a common place crime. The Ld. Counsel for the accused persons had submitted that the reliance on the said judgment was misplaced as it was a dissenting one and referred to a three-judge bench judgment of the Hon'ble Supreme Court in Kailash Gour & Ors. v. State of Assam (2012) 2 SCC 34 which held that even in cases of communal riots, standards of criminal justice system could not be by-passed and all the police officers could not be tarred with the same brush and it was not a case of riots except that it occurred on 14.12.1992 soon after the demolition of Babri Masjid and was not applicable to the present case.
217. The Ld. SPP had then cited NHRC v. State of Gujarat (supra) on which reliance was also placed by the Ld. Sr. Counsel for the complainant wherein it was observed as under:
"19. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in Resolution 40/34 of 29th November, 1985. According to the first paragraph of this Declaration, victims of crime are prescribed as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal law CBI Vs. Sajjan Kumar & Ors. Page No. 295 of 545 operative in Member States, including those laws proscribing criminal abuse of power. It is they who need protection.
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21. It needs to be emphasized that the rights of the accused have to be protected. At the same time the rights of the victims have to be protected and the rights of the victims cannot be marginalized. Accused persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims' perception the perpetrator of a crime should be punished. They stand poised equally in the scales of justice."
It was thus emphasized in this case that while the rights of the accused have to be protected, the rights of the victims have also to be protected and the victims stand poised equally in the scales of justice. The judgment in Prithpal Singh v. State of Punjab (supra) was also cited wherein it was observed as under:
"50. Extraordinary situations demand extraordinary remedies. While dealing with an unprecedented case, the Court has to innovate the law and may also pass an unconventional order keeping in mind that an extraordinary fact situation requires extraordinary measures. In B.P. Achala Anand v. S. Appi Reddy [(2005) 3 SCC 313 : AIR 2005 SC 986] this Court observed : (SCC p. 318, para 1):
"1. Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by courts, transforms into justice."
Thus, it is evident that while deciding the case, the court has to bear in mind the peculiar facts, if so exist, in a given case."
It was thus, observed that extraordinary situations demand extraordinary remedies and while dealing with an unprecedented case, the Court has to innovate the law and unusual fact situations give opportunity for innovation on which much CBI Vs. Sajjan Kumar & Ors. Page No. 296 of 545 emphasis was laid by the Ld. SPP. Further, in Bablu Kumar v. State of Bihar (supra) it was observed as under:
"29. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seen to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution."
In this case, it was emphasized that the trial should be a search for the truth.
218. Reliance was then placed on the judgment in Krishna Mochi v. State of Bihar (supra) wherein it was observed as under:
"32. Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let CBI Vs. Sajjan Kumar & Ors. Page No. 297 of 545 hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh v. State (Delhi Admn.), [(1978) 4 SCC 161 : 1978 SCC (Cri) 564 : AIR 1978 SC 1091] Krishna Iyer, J. laid down that : (SCC p. 162, para 2) "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48 : AIR 1988 SC 1998], it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of W. B v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law. In the case of Mohan Singh v. State of M.P. [(1999) 2 SCC 428 :
1999 SCC (Cri) 261 : (1999) 1 SCR 276] it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot- free."
In Duli Chand v. State (supra) the Hon'ble High Court of Delhi held as under:
"On the question of sentence, we have bestowed considerable thought to decide whether to confirm CBI Vs. Sajjan Kumar & Ors. Page No. 298 of 545 the death sentence awarded by learned Additional Sessions Judge or to convert it into imprisonment of life. We are conscious of the fact that the offence took place more than 12 years ago and the trend of judgments on the question of sentence is not to award death sentence after long lapse of many years. We are, however, of the view that not awarding of death sentence after long lapse of number of years is not an inflexible rule of general application. It would depend upon the facts and circumstances of each case to award or not to award death sentence. In the present case it has to be borne in mind that the long lapse of number of years took place mainly on account of total apathy of the Administration and Police during riots of 1984. It was only after the Government had constituted various Commissions to find out about the happenings of 1984 and the role of the Police that some cases could be brought before the Court. In our view, in this case, the lapse of time by itself is not a sufficient ground to convert death sentence into life imprisonment.
It is not an ordinary routine case of murder, loot or burning. One of the basic structure of our Constitution is secularism. It is a case where the members of one particular community were singled out and were murdered, and their properties looted and burnt. Such lawlessness deserves to be sternly dealt with. The very thought of the manner in which Kishori indulged in riots resulting in killing of innocent persons and looting and burning their properties would send shivers to any person. In November 1984 Delhi witnessed a carnage. The mob caused havoc. Having balanced on one hand the number of years that have gone by and on the other trauma caused by the mob of which Kishori was a member, we are of the firm view that any leniency, mercy or sympathy would be misplaced. As has been said by Supreme Court in Surja Ram vs. State of Rajasthan, 1997 Cr.L.J. 51, the Court has also to keep in view the Society's reasonable expectation for appropriate deterrent punishment confining to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. In our considered view the crime here falls in the category of rarest of rare case and the sentence has to be deterrent so as to send a message for future."CBI Vs. Sajjan Kumar & Ors. Page No. 299 of 545
Thus, the Hon'ble High Court noted that in November, 1984 Delhi witnessed a carnage and observed that any leniency, mercy or sympathy would be misplaced. The Ld. Sr. Counsel for the complainant had also relied upon certain portions of the judgment:
"We cannot, however, lose sight of the fact that police hardly performed its duties and as a result of various Commissions of Enquiries some of the cases could be brought before the court. These omissions and improvements have therefore, to be seen in the light of peculiar circumstances of the present case. In our view, undue significance cannot be attached to these defects in investigation if otherwise the prosecution has been successful in proving its case beyond reasonable doubt.
She has denied Ex.DA being her purported statement recorded by the police on 18th December 1991. What we have stated above about the part played by the police would be applicable here too.
The contradictions pointed out by Mr. Bali, as noticed hereinbefore, in our view, are minor in nature keeping in view the facts and circumstances of the case and also the fact that witnesses were deposing after more than a decade of the incidents. The same would be the position of the improvements alleged to have been made by the witnesses in their depositions in Court. It has also to be kept in view that the witnesses tend to exaggerate when deposing in court but that does not necessarily has to lead to rejection of their entire testimony. The absence of mention of the name of the accused in the FIR or that of even victims, on the facts and circumstances of the case, is not fatal. The accused cannot be permitted to take advantage of tardy investigation. The guilt of Kishori stands established from evidence of record."
It was thus noted that the police hardly performed its duties and that the accused could not be permitted to take advantage of tardy investigation. In fact the Ld. SPP for CBI had also submitted that CBI Vs. Sajjan Kumar & Ors. Page No. 300 of 545 even in the present case, the Delhi Police was complicit and it had come in the evidence of DW2 that there were more than 500 deaths in Sultanpuri and only 4 FIRs were registered to investigate all the cases of deaths and looting in the area. It was argued that the investigations and prosecutions done would show that:
i. No dead bodies were found;
ii. No post-mortems were conducted;
iii. No preventive arrests were made;
iv. The army was not called for three days;
v. The enormity of the crime was not brought out.
Despite so many murders being tried in the
same trial, very few witnesses were cited,
conveniently being ones who could be
influenced;
vi. A nameless and faceless crowd was the key in
the commission of the offences;
vii. Sajjan Kumar and some other important people
were clearly not touched or mentioned despite so many witnesses naming them before various committees;
viii. The narrative of the prosecution cases was kept to be very weak on purpose;
ix. So much so, even this was not categorically brought out that all the victims were only Sikh males and therefore, there was a larger design than mere killings;
x. It was deliberately withheld that not a single Hindu household or Hindu establishment was touched by such a rowdy crowd which was clearly unprecedented unless, motivated and guided by very influential people.
It was contended that the Delhi Police investigation and prosecutions were sham, where either the victims were threatened to shield the accused, or victims were too scared to CBI Vs. Sajjan Kumar & Ors. Page No. 301 of 545 come forward, or were simply and conveniently left out of the investigation. It was further submitted that the genesis of the riots could be summarized as under:
i. Police officers deliberately made no attempt to prevent the collection of crowds.
ii. Only half-hearted attempts were made to protect the life and property of minority.
iii. In rounding up those people participating in the riots, the victims rather than the assailants were largely picked up.
iv. There was an attempt not to register cases against the assailants and in some cases even if the cases were registered, loopholes were provided with the intention of providing a means of acquittal to the accused.
v. The investigation was unsatisfactory and tardy and no attempt was made to follow up the complaints made against the assailants.
vi. The evidence produced in Court was
deliberately distorted so as to ensure an
acquittal.
Thus, it was submitted that the Delhi Police did not do any satisfactory investigation and political interference in police functioning was a reality and the same was well documented in the various Commissions and Committees formed in the aftermath of the riots. Further reference was made to the judgment in State v. Manohar Lal (supra) and it was argued that the defence of earlier judgments and earlier testimonies should not be allowed and they should be ignored. It was CBI Vs. Sajjan Kumar & Ors. Page No. 302 of 545 submitted that the present case related to crime against the community and humanity and was not against a person in particular. In the said case, it was observed by the Hon'ble High Court of Delhi as under:
"21....during the early days of November 1984, the Delhi witnessed worst of the carnage, following the assassination of Mrs. Indira Gandhi, preceded by large scale riots which had broken out, then resulting into the killings of innocent persons irrespective of their age, middle aged or teenager of a particular community. The acts cannot be regarded but barbarism. For no fault of theirs innocent persons were done to death in a most cruel manner, namely pouring petrol and burning them alive. This cannot be regarded as an ordinary routine case of murder, looting or burning.
Members of one particular community were targeted, their properties looted and burnt and people done to death. The law and order machinery had completely broken down. Unprecedented lawlessness prevailed during those days and the miscreants had absolute free hand for indulging in criminal acts. The situation created by the anti- communal forces cannot be viewed lightly and needs to be dealt with sternly. The after effects of the incidents would be felt by the people left behind for years. Though the time is the best healer certain situation cannot be retrieved or healed... Let's think of the agony and the sufferings of the family members who are left behind. The mob caused nothing short of havoc. There can be no place for leniency, mercy or sympathy in such cases.
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23. In our considered view, the crime in the present case falls in the category of rarest of rare cases and the sentence has to be commensurate with the degree/gravity of the offence so that a required message is sent since there can be no place in the civilized society for the people like appellants/convicts. In the above view of the matter, having regard to the facts and circumstances, in our view the death sentence imposed by the trial court deserves to be confirmed under Section 366 of the Code."
CBI Vs. Sajjan Kumar & Ors. Page No. 303 of 545It was reiterated in the said case that there could be no place for leniency, mercy or sympathy in such cases and the Ld. Sr. Counsel for the complainant had also relied on the said observations.
219. The Ld. SPP for CBI had further referred to the judgment of the Hon'ble High Court of Delhi in State through CBI v. Sajjan Kumar and others (supra) which it was submitted was in the context of the riots of 1984 and it made reference to the letter by which the matters were referred to CBI and the said judgment referred to how CBI had got the records. The charge sheet in the CBI case mentioned about the role of officials of Delhi Police and that these were crimes against humanity. It was submitted that extraordinary interpretations were necessary to balance the system in extraordinary situations and the Court has to "avoid the pebbles and let us concentrate on the boulders"
especially while dealing with contradictions which were natural and were bound to occur over a period of time. It was for the Court to see if it found them to be pebbles or boulders. The prologue of the said judgment was specifically referred wherein it was observed as under:
"In the summer of 1947, during partition, this country witnessed horrific mass crimes where several lakhs of civilians, including Sikhs, Muslims and Hindus were massacred. A young poet, Amrita Pritam, who fled to this country with her two little children from Lahore was witness to the manifold tragedies during that perilous journey. She was moved to pen an 'Ode to Waris Shah' in which she spoke of the fertile land of Punjab having "sprouted poisonous weeds far and near" and where "Seeds of hatred have grown high, bloodshed is everywhere / Poisoned breeze in forest turned bamboo flutes into CBI Vs. Sajjan Kumar & Ors. Page No. 304 of 545 snakes/ Their venom has turned the bright and rosy Punjab all blue". The killings would continue in the streets of Delhi.
Thirty-seven years later, the country was again witness to another enormous human tragedy. Following the assassination of Smt. Indira Gandhi, the then Prime Minister of India, on the morning of 31st October 1984 by two of her Sikh bodyguards, a communal frenzy was unleashed. For four days between 1st and 4th November of that year, all over Delhi, 2,733 Sikhs were brutally murdered. Their houses were destroyed. In the rest of the country too thousands of Sikhs were killed.
A majority of the perpetrators of these horrific mass crimes, enjoyed political patronage and were aided by an indifferent law enforcement agency. The criminals escaped prosecution and punishment for over two decades. It took as many as ten Committees and Commissions for the investigation into the role of some of them to be entrusted in 2005 to the Central Bureau of Investigation (CBI), 21 years after the occurrence. xxx The accused in this case have been brought to justice primarily on account of the courage and perseverance of three eyewitnesses. Jagdish Kaur whose husband, son and three cousins were the five killed; Jagsher Singh, another cousin of Jagdish Kaur, and Nirpreet Kaur who saw the Gurudwara being burnt down and her father being burnt alive by the raging mobs. It is only after the CBI entered the scene, that they were able to be assured and they spoke up. Admirably, they stuck firm to their truth at the trial.
This Court is of the view that the mass killings of Sikhs in Delhi and elsewhere in November 1984 were in fact 'crimes against humanity'. They will continue to shock the collective conscience of society for a long time to come. While it is undeniable that it has taken over three decades to bring the accused in this case to justice, and that our criminal justice system stands severely tested in that process, it is essential, in a democracy governed by the rule of law to be able to call out those responsible for such mass crimes. It is important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done."CBI Vs. Sajjan Kumar & Ors. Page No. 305 of 545
It was further observed:
"387. The Court would like to note that cases of the present kind are indeed extraordinary and require a different approach to be adopted by the Courts. The mass killings of Sikhs between 1st and 4th November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, answer the description of 'crimes against humanity' that was acknowledged for the first time in a joint declaration by the governments of Britain, Russia and France on 28th May 1915 against the government of Turkey following the large scale killing of Armenians by the Kurds and Turks with the assistance and connivance of the Ottoman administration. The declaration termed the killings as "crimes against humanity and civilization for which all the members of the Turkish Government will be held responsible together with its agents implicated in the massacres."
xxx
392. In India, the riots in early November 1984 in which in Delhi alone 2,733 Sikhs and nearly 3,350 all over the country were brutally murdered (these are official figures) was neither the first instance of a mass crime nor, tragically, the last. The mass killings in Punjab, Delhi and elsewhere during the country's partition remains a collective painful memory as is the killings of innocent Sikhs in November 1984. There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in U.P. in 2013 to name a few.
Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system. As these appeals themselves demonstrate, decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither 'crimes against humanity' nor 'genocide' is part of our domestic law of crime. This loophole needs to be addressed urgently.
CBI Vs. Sajjan Kumar & Ors. Page No. 306 of 545xxx
396. The Court has digressed into the above brief discussion on 'crimes against humanity' since cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere."
Thus, the Hon'ble High Court noted that crimes such as those in the present case are crimes against humanity and cases such as the present are extraordinary and require a different approach to be adopted by the Court.
220. The Ld. Sr. Advocate for the complainant had on the same lines submitted that the present cases required extraordinary remedies. It was submitted that the investigation which had taken place prior to the CBI taking over the matters was farcical and the same had been taken note of by the higher courts and that as per the orders of the Hon'ble Supreme Court, as late as in 2018, a fresh SIT was constituted to investigate the cases further. It was a matter to be considered why repeatedly cases were reopened. Fresh investigation was started sometime by CBI and sometime by SIT. Even the Hon'ble Supreme Court had to constitute an SIT headed by a High Court Judge because it was the biggest massacre which had taken place in India and it was so stated even in the Senate of US and talked about throughout the world and India's name had been maligned because the guilty had not been punished despite India being a democracy. It was submitted that even after 34 years, the Hon'ble Supreme Court was appointing fresh SIT to show to the world that the country was governed by rule of law and that no one was above the law. The same was also taken note of by the Hon'ble High Court of Delhi CBI Vs. Sajjan Kumar & Ors. Page No. 307 of 545 in State through CBI v. Sajjan Kumar and others (supra) wherein it was observed as under:
"158. What happened in the aftermath of the assassination of Smt. Indira Gandhi was indeed carnage of unbelievable proportions in which over 2700 Sikhs were murdered in Delhi alone. In the present case, we are only concerned with five of such killings in one particular area, viz., Raj Nagar within the jurisdiction of PS Delhi Cantonment. The law and order machinery had clearly broken down and it was literally a 'free for all' situation which persisted. The aftershocks of those atrocities are still being felt. That many cases remained to be properly investigated was acknowledged recently by the Supreme Court in its order dated 11th January 2018 in W.P.(Crl.) 9/2016 (S. Gurlad Singh Kahlon v. Union of India) by which it was considered appropriate to constitute a three- member Special Investigating Team ('SIT') to proceed to investigate as many as 186 cases in which further investigation had not taken place. By a recent order dated 4th December 2018, the Supreme Court has permitted a two-member SIT to probe the matter."
The Ld. Sr. Advocate for the complainant had also submitted that even after 34 years of the incident, the Hon'ble Supreme Court had directed for constitution of a fresh SIT and in this regard had referred to the order dated 10.01.2018 of the Hon'ble Supreme Court in S. Gurlad Singh Kahlon v. Union of India & Ors. (supra) and the order dated 11.01.2018 in the said matter by which it was directed that a fresh SIT be constituted which was to be headed by a former judge of the Hon'ble High Court of Delhi. Reference was also made by the Ld. SPP for CBI to the said orders. It is not in dispute that considering that investigation had not been taken up in several cases, the matters are continuously being taken up pertaining to the 1984 Anti Sikh riots.
CBI Vs. Sajjan Kumar & Ors. Page No. 308 of 545221. The Ld. Sr. Counsel for the complainant had further submitted that in State through CBI v. Sajjan Kumar and others (supra) it was held that the riots were a crime against humanity and it was a genocide and when it was a case of genocide, then it was an international crime and it could not be equated with a normal crime. Reference was made to the judgment of Hon'ble Ms. Justice Gita Mittal in Court on its Own Motion v. Mahender Singh Manan and Ors. (supra) which it was submitted pertained to the incident of Delhi Cantt. and ultimately the case was decided in State through CBI v. Sajjan Kumar and others (supra) and A1 was convicted. In the said judgment, it was observed as under:
"4. Concerned with inter alia the progress of the investigation and the cause into the large scale violence in 1984, the Government of India appointed several commissions including, inter alia Marwah Commission, 1984; Justice Ranganath Misra Commission of Enquiry, 1985; Dhillon Committee, 1985; Ahuja Committee, 1985; Kapur Mittal Committee, 1987; Jain Banerjee Committee, 1987; Potti Rosha Committee, 1990; Jain Aggarwal Committee, 1990 and the Narula Committee, 1993 to examine different aspects of the matter. xxx
7. In a discussion in the Lok Sabha on the 10th of August 2005 and the Rajya Sabha on the 11th of August 2005 regarding the report of the Justice Nanavati Commission of Inquiry into 1984 Anti-Sikh riots in Delhi, the then Prime Minister and Home Minister had given an assurance that wherever the Commission has named any specific individuals as needing further examination or re-opening of case, the government will take all possible steps to do so within the ambit of law.
The assurance was thus restricted only to cases where certain individuals had been named in the report of the Justice Nanavati Commission."CBI Vs. Sajjan Kumar & Ors. Page No. 309 of 545
The Ld. Sr. Counsel had also referred to paras 83, 84 and 85 of the said judgment wherein the Hon'ble High Court had referred to the judgment in Bablu Kumar & Ors v. State of Bihar and Anr. (supra) which has already been referred to by the Ld. SPP for CBI and to the judgment in Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. (supra) which has also been referred to by the Ld. SPP for CBI on the duty of the Court. It was observed therein:
"83. At the same time, the Supreme Court has repeatedly commented on the duty of the court. We extract two illuminating judicial precedents hereafter.
84. In MANU/SC/0780/2015 : (2015) 8 SCC 787, Bablu Kumar & Ors. v. State of Bihar & Anr., the Supreme Court has stated as follows:
"22 Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. The law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it or if summons are issued, they CBI Vs. Sajjan Kumar & Ors. Page No. 310 of 545 are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses. The Public Prosecutor who conducts the trial has a statutory duty to perform. He cannot afford to take things in a light manner. The court also is not expected to accept the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non- application of mind by the trial court has the potentiality to lead to the paralysis of the conception of fair trial.
23. In the case at hand, it is luculent that the High Court upon perusal of the record has come to hold that the notices were not served on the witnesses. The agonised widow of the deceased was compelled to invoke the revisional jurisdiction of the High Court against the judgment of acquittal as the trial was closed after examining a formal witness. The order passed by the High Court by no stretch of imagination can be regarded as faulty. That being the position, we have no speck of doubt in our mind that the whole trial is nothing but comparable to an experimentation conducted by a child in a laboratory. It is neither permissible nor allowable. Therefore, we unhesitatingly affirm the order passed by the High Court as we treat the view expressed by it as unexceptionable, for by its order it has annulled an order which was replete with glaring defects that had led to the miscarriage of justice."
Para 85 referred to the judgment in Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. (supra) which has already been referred to above. Thus, the duty of courts in cases of a similar nature was delineated.
CBI Vs. Sajjan Kumar & Ors. Page No. 311 of 545222. The Ld. Sr. Counsel had then urged that it was evident that A1 wielded considerable power and as such the cases against him were not taken up. It was pointed out that the CBI had gone to arrest A1 in August 1990, though it was the government of Janta Party and not of Congress but the CBI team was kept hostage, the jeep was burnt which showed the influence of the accused, the police was called but they stated that they were helpless and the same was part of the judgment in State through CBI v. Sajjan Kumar and others (supra) and it was only when bail was granted to the accused that the CBI was permitted to go. Even CBI did not feel safe so how could poor persons be expected to stand up, they belonged to the lowest strata and were washing utensils in homes and they could not be expected to stand up against the persons against whom even the CBI could not stand. Even the Ld. SPP for CBI had adverted to the same. In this regard, the Hon'ble High Court in State through CBI v. Sajjan Kumar and others (supra) had observed as under:
"160. With regard to A-1 himself, the extraordinary power that he wielded as a politician and as an MP was noted by this Court in its order in Sajjan Kumar v. State 43 (1991) DLT 88 where it confirmed the anticipatory bail granted to him in FIR No.250/1984 registered at PS Punjabi Bagh which pertained to an incident that took place in Sultanpuri, Delhi. The FIR was registered on the affidavit and statement of one Anwar Kaur, who along with her husband Navin Singh and children were living in H.No.A4, Sultanpuri, Delhi. On 1st November 1984, while she was present in her house she saw thousands of the people of the area armed with lathis, dandas, iron rods and knives, looting the houses of Sardars and setting them on fire. This mob was being led by A-1 who was instigating them, saying that all Sikh males be burnt to death and their property be looted. Under that instigation, her husband was dragged out and attacked with a sharp-edged weapon and CBI Vs. Sajjan Kumar & Ors. Page No. 312 of 545 burnt to death after being doused in kerosene oil. Thereafter, her house was also burnt. She took refuge in the house of her daughter Film Kaur, who was residing in D-Block, Sultanpuri. Late at night, some people came there and removed the burnt dead body of her husband, which was never traced. xxx
168. It is another matter that this Court, while confirming the bail order, held that the apprehensions of the CBI that A-1 could cause hindrance to the investigation were "totally misplaced". According to the learned Single Judge, on the date of the alleged incident, he was an MP and had "a following"; he had "a standing in the society and commands respect, love, and affection of the people of his constituency", and further that his social background is such that "there is neither any possibility nor has he betrayed the trust placed in him by the Court in avoiding to join the investigation or interfered in the due administration of justice". All these expectations were obviously belied because the investigation never went anywhere and nothing of consequence happened in that case. It was only much later, when the Justice Nanavati Commission was constituted, that a recommendation was made for registration of cases against A-1."
Thus, the Hon'ble High Court had referred to the power wielded by A1 and that it was only when the Nanavati Commission was constituted that a recommendation was made for registration of cases against A1. The Ld. Sr. Counsel for the complainant had submitted that the statements of Sheela Kaur and Cham Kaur of 1991 showed fear in their minds so they did not name anyone and did not name anyone even when the Ld. Addl. PP asked them (the said aspect would be adverted to later). It was submitted that it showed the kind of fear that was prevailing and there was no witness protection available at that time and even the Ld. SPP for CBI had referred to the lack of a witness protection programme at the relevant time due to which the witnesses could not depose CBI Vs. Sajjan Kumar & Ors. Page No. 313 of 545 without fear. Reference was made to the judgments of the Hon'ble Supreme Court in Zahira Habibulla Sheikh v. State of Gujarat (supra) and NHRC v. State of Gujarat (supra) wherein it was observed that there was a failure of the system and no protection was given and the same could not be ignored by the Court. Reference was also made to the order of Delhi State Legal Services Authority dated 27.09.2013 by which Sheela Kaur, Popri Kaur and Joginder Singh were provided round the clock security.
223. The Ld. Sr. Counsel for the complainant had then referred to judgments on how the crimes of a similar nature had been dealt internationally and reference was made to the judgment of the Hon'ble Supreme Court of Bangladesh in Government of the People's Republic of Bangladesh v. Abdul Quader Molla Criminal Appeal No.24-25 of 2013 decided on 17.09.2013 LEX/BDAD/0004/2013, which was relied upon in State through CBI v. Sajjan Kumar and others (supra) wherein it was observed as under:
"240. In respect of charge no. 2, it is contended on behalf of the appellant that the tribunal acted illegally in not disbelieving P.Ws 2, 4 and 10 in failing to consider that these witnesses made inconsistent statements with their earlier statements. He further contended that PW2 made hearsay evidence but he did not disclose the source of knowledge and therefore, his evidence could not be legally admitted into evidence. In respect of PW4, it is contended that this witness did not mention the complicity of the appellant in her book regarding the killing of poet Meherun Nessa and other members of her family and this shows that she is a procured witness and cannot be relied upon. He has also drawn our attention about the statements of PW12 in relation to the statements of PWs 2, 4 and 10 made CBI Vs. Sajjan Kumar & Ors. Page No. 314 of 545 before him and their statements in court and since there are serious deviation from their earlier statements, the tribunal acted illegally in believing them.
xxx
267. On behalf of the defence it was submitted that in her book 'Shahid Kabi Meherunnessa' ext-B, she did not state that Abdul quader Molla killed them, rather she stated that the Non-Bangalees suddenly attacked Meher's house and killed her brothers, mother and Meher. She was confronted with this statement in course of cross-examination. In reply she stated that since no steps were taken for the trial of the perpetrators of war crimes, she did not mention any one's name in her book for fear of reprisal in the hands of perpetrators and that she deposed against Quader Molla at this stage as his trial was proceeding. This explanation appears to me cogent, reasonable, believable in the context of the situation then prevailing in the country. The perpetrators of Crimes against Humanity were rewarded by the authorities in power since August 15, 1975 instead of putting them to justice. It is only this present Government which pledged to the people to put them on trial and after coming to power in 2009 started the process of trial. This is an admitted fact and the court can take judicial notice of this fact."
It was further submitted that in the House of Lords judgment, the trial had started in 1996 relating to an offence of 1942. The conviction in this case was of 1999 i.e. after 50 years of the incident and it was submitted that the witness had not mentioned the incident to N.K.V.D. when interviewed after the war and he made no statement on the subject for over 50 years. It was held that when it was a case of crime against humanity and genocide, the Court had to see the statement and not discard it on the basis that earlier the witness had not so stated. The matter went to the European Court of Human Rights and the appeal was dismissed and reference was made to Anthony Sawoniuk, [2000] 2 CR.
CBI Vs. Sajjan Kumar & Ors. Page No. 315 of 545Arr. R.220, appealed before ECHR being by Anthony SAWONIUK against the United Kingdom in Anthony Sawoniuk v. The United Kingdom Application No.63716/00 before ECHR and the said judgment was relied upon in State through CBI v. Sajjan Kumar and others (supra). The Ld. SPP for CBI had also highlighted that while dealing with the issue, the Hon'ble Delhi High Court found parallels for crimes against humanity in Bangladesh and the United Kingdom. The Ld. Sr. Counsel for the complainant had also relied on Antonio Cassese and Ors., International Criminal Law - Critical Concepts in Law, 2015 (1st Ed), wherein it was observed as under:
"... My own personal opinion is that no amount of time can be "too long" to satisfy the needs for truth and some measure of accountability, nor can some arbitrary legal time limit be set. The argument that some wounds are too old to be exposed has little moral integrity."
Reference was then made to the answer dated 02.03.2016 by Ministry of Home Affairs to Question No.718 in Rajya Sabha wherein it was stated that as regards the International Convention for Elimination of All Forms of Racial Discrimination, adequate safeguards existed in the Constitution of India and other legislations expressly prohibiting racial discrimination in all forms. It was submitted that while there was no need for a new law but there was failure in implementation of the law. The Court had to see the intention to enforce the law and to ensure that nobody was permitted to defeat it by adopting clever tactics and the Court had to decide keeping in view the prevailing situation of that time of a person who was in the CBI Vs. Sajjan Kumar & Ors. Page No. 316 of 545 position of a victim with no one to support him and the police was also discouraging and the atmosphere was such that the government machinery was going out of way to support the accused. The poor people could not be expected to stand up against the system. Reliance was also placed on Pieter N. Drost, The Crime of State - Penal Protection for Fundamental Freedoms of Persons and Peoples, 1959. It was thus submitted that the crimes of present nature fell in the category of crimes against humanity and the need was to innovate the law.
224. While there can be no dispute with what was held in the said cases that the cases involving riots had to be dealt with on a different footing than ordinary crimes, the Ld. Counsel for the accused persons had argued that in none of the cases, it was held that the principles of criminal jurisprudence should be given a go by. Reliance in this regard was placed on the judgment in Kailash Gour & Ors. v. State of Assam (2012) 2 SCC 34 wherein it was observed as under:
"43. At any rate the legal proposition formulated by Bedi J. based on the past failures do not appear to us to be the solution to the problem. We say with utmost respect to the erudition of our Brother that we do not share his view that the reports of the Commissions of Enquiry set up in the past can justify a departure from the rules of evidence or the fundamental tenets of the criminal justice system. That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be CBI Vs. Sajjan Kumar & Ors. Page No. 317 of 545 different in cases where the investigation is satisfactory vis-`a-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice.
44. The prosecution it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless whether the crime is committed in the course of communal disturbances or otherwise. In short there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for any thing specially applicable to a particular case or class of cases. Beyond that we do not consider it necessary or proper to say anything.
45. We are conscious of the fact that three innocent persons including two young children have been done to death in the incident in question which needs to be deprecated in the strongest terms but unless proved to be the perpetrators of the crime beyond a reasonable doubt, the appellants cannot be convicted and sentenced for the same."
Thus, it was held in this case that the reports of the Commissions of Enquiry set up in the past cannot justify a departure from the rules of evidence or the fundamental tenets of the criminal justice system. It was reiterated that an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arsing from any such faulty investigation ought to go to the accused and not to the prosecution. It was also held that the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-`a-vis cases in which it is not.
CBI Vs. Sajjan Kumar & Ors. Page No. 318 of 545The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice. It was highlighted that the prosecution must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless whether the crime is committed in the course of communal disturbances or otherwise and that there could only be one set of rules and standards when it came to trials and judgment in criminal cases.
225. The Ld. Counsel for the accused persons had also relied on the judgment in Delhi Administration v. Shakti Singh & Ors. (supra) decided on 10.04.1996 wherein it was observed as under:
"Revolting it is that seven innocent persons were done to death on 02nd November, 1984 by a frenzied mob who was out to take revenge following the rumours spread that Prime Minister Indira Gandhi had been assassinated by her personal guards of Sikh community. The persons who were murdered and whose houses were set ablaze were of Sikh community. No civilized society could tolerate this and should tolerate this. Question, however, is whether the three respondents in this appeal were among those who had perpetrated the aforesaid crimes. Though the trial court felt satisfied about their involvement and convicted them inter alia, under Section 302/149 IPC, on appeal being preferred by them, the High Court has acquitted them. Hence this appeal.
2. It is true that as many as 9 persons appeared in the witness box and deposed about the involvement of the respondents. It is true that as many as 7 persons had died. It is true that they were innocent but then innocent persons cannot be punished for what had happened. This Court has to be satisfied that persons who had really killed consisted, inter CBI Vs. Sajjan Kumar & Ors. Page No. 319 of 545 alia, of the respondents. This, however, the prosecution had failed to establish before the High Court because out of the nine aforesaid witnesses, as many as five, namely, PWs. 2,5,8,9 and 10, had stated before police when they were examined on 16th November, 1984 the occurrence being of 2nd November, 1984 -- that the persons, who had caused, the havoc in their locality, namely A/2, Sultanpuri, were outsider, whereas the respondents, even according to the prosecution are the residents A/2, Sultanpuri itself. This cuts across the prosecution case that the respondents were part of the mob which took to its head to butcher innocent persons. No doubt PWs.3,6 and 7 stated, when they were examined by the police on 25th February, 1985, that the respondents were among the mob who had committed acts of rioting, arson, murder and looting but they also stated that they were not from the locality and they were not known to them. As already noted, the respondents are men of locality. It may be mentioned that PW.6 Durjan Kaur had not made a previous statement, as per the record put up by the police. But then, the High Court has noted in paragraph 8 of its judgment that according to this witness police had come to her 3-4 days after the incident and had made enquiries from her 2 to 4 times. This led the High Court to think, and rightly, that her statement must have been recorded by the police but the same was not coming forth which showed that the statement was being suppressed.
3. In the aforesaid premises, the statement of the witnesses for the first time made in the Court that the respondents were part of the mob who had murdered and done other objectionable acts was rightly not accepted by the High Court to find the respondents guilty or so serious a charge as 302 IPC, which would have visited the respondents the sentence of at least life imprisonment."
Further, in Sajjan Kumar v. CBI 2012 SCC OnLine Del 4027 it was observed as under:
"The objection of prosecution that accused cannot use the previous statements for purpose of contradiction is based on the observation made by Apex Court in Kehar Singh's case, has been sustained by learned Trial Court vide impugned CBI Vs. Sajjan Kumar & Ors. Page No. 320 of 545 order without appreciating the context in which it was so held.
Accused has a right to get a fair trial. It is essential that the accused is given a reasonable opportunity to defend himself in the trial. He is also permitted to confront the witnesses and other evidence that the prosecution is relying upon. Since it is the duty of the court to ensure that accused gets a fair trial, he has to be afforded a reasonable opportunity to defend himself by permitting him to confront the witnesses and other evidence relied upon by the prosecution. Learned Trial court by curtailing this right of the accused had denied him his right to have a fair trial."
Thus, it was held that the accused has a right to get a fair trial and the accused has to be afforded a reasonable opportunity to defend himself by confronting the witnesses and other evidence relied upon by the prosecution. Without doubt, cases such as the present require extraordinary remedies but it is also the settled law that the established principles of criminal jurisprudence cannot be discarded. In fact, even in State through CBI v. Sajjan Kumar and others (supra) the Hon'ble High Court had duly appreciated the evidence that had come on record and thereafter came to a conclusion. The Ld. Counsel for the accused persons had also placed reliance on the judgment in Dilavar Hussain v. State of Gujarat (supra) wherein it was observed as under:
"3. All this generated a little emotion during submissions. But sentiments or emotions, howsoever, strong are neither relevant nor have any place in a court of law. Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so consistent that the, only conclusion which must follow is that the CBI Vs. Sajjan Kumar & Ors. Page No. 321 of 545 accused is guilty. Although guilty should not escape. But on reliable evidence truthful witnesses and honest and fair investigation. No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal norm. Heinousness of crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt.
4. Misgiving, also, prevailed about appreciation of evidence. Without adverting to submissions suffice it to mention that credibility of witnesses has to be measured with same yardstick, whether, it is an ordinary crime or a crime emanating due to communal frenzy. Law does not make any distinction either in leading of evidence or in its assessment. Rule is one and only one namely, if depositions are honest and true... "
Thus, it was held that credibility of the witnesses had to be measured with the same yardstick, whether it was an ordinary crime or a crime emanating due to communal frenzy. In view of the legal position as elaborated, while the Court has to consider the background and the circumstances in which the case arose, it cannot give a go by to the principles of criminal jurisprudence.
Limited use of previous statements
226. The Ld. SPP for CBI had then relied upon several judgments to argue that previous statements of witnesses had only limited use and in this regard he had relied upon the judgment in Narayan Chetanram Chaudhary v. State of Maharashtra (2008) 8 SCC 457 and State of H.P. v. Lekh Raj, (2000) 1 SCC 247 wherein it was held that only such omissions which would amount to contradiction in material particulars could be used to discredit the testimony of the witness and that minor contradictions were bound to happen in the statements of CBI Vs. Sajjan Kumar & Ors. Page No. 322 of 545 truthful witnesses. It was held that even if there was a contradiction in statement of a witness on any material point, that was not a ground to reject the whole of the testimony of such a witness. Discrepancy had to be distinguished from contradiction, contradiction being fatal for the case. It was also laid down that in considering discrepancies, regard was to be given to the social status of the witness and the environment in which the witness was making the statement. Further reliance was placed on the judgment in V.K. Misra v. State of Uttarakhand (2015) 9 SCC 588 wherein it was observed as under:
"Under Section 145 of the Evidence Act, when contradicting the witness by his previous statement reduced into writing, attention is to be called to those parts of it used for contradicting him, before the writing can be used. While recording the deposition, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross- examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved.
Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the I.O. who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted.CBI Vs. Sajjan Kumar & Ors. Page No. 323 of 545
If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction."
Thus, in this judgment, it was laid down how a witness can be contradicted with his previous statement reduced into writing. The Ld. SPP had also cited Shyam Sunder v. State of Chhattisgarh (2002) 8 SCC 39 wherein it was observed that when an incident is narrated by the same person to different persons on different occasions, some difference in the mode of narrating the incident is bound to arise, however, such differences do not militate against the trustworthiness of the narration unless such variations can be held to be so abnormal or unnatural as would not occur if the witness would have really witnessed what he was narrating and State of Uttar Pradesh v. Krishna Master (2010) 12 SCC 324 wherein it was observed that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appeared to have a ring of truth and that minor discrepancies on trivial matters not touching the core of the case would not ordinarily permit rejection of the evidence as a whole and in the deposition of witnesses, there are always normal discrepancies due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to life.
227. The Ld. SPP had further relied on the judgment in State v. Delhi Administration (1985) 4 SCC 476 wherein it was observed as under:
CBI Vs. Sajjan Kumar & Ors. Page No. 324 of 545"Statement recorded by the Police Officer during investigation is inadmissible in evidence and the proper procedure is to confront the witness with the contradictions when they are examined and then ask the investigating officer regarding the contradiction."
Reliance was also placed on the judgment in Jaswant Singh v. State of Haryana (2000) 4 SCC 484 wherein it was observed as under:
"Section 161(2) of the Code requires the person making the statements to answer truly all questions... put to him by such officer... Previously, the law was as enunciated in Tehsildar Singh v. State of Uttar Pradesh AIR 1959 SC 1012: 1959 Supp. (2) SCR 875: 1959 Cri LJ 1231 as omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box. Now the Explanation to Section 162 provides that an omission to state a fact in the statement may amount to contradiction. However, the explanation makes it clear that the omission must be a significant one and otherwise relevant.......and whether any omission amounts to a contradiction in the particular context shall be a question of fact. An omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness.... the Investigating Officer, PW 13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries."
In Vishal Yadav v. State of U.P. Crl. A. 741/2008 (Delhi), it was held as under:
"If the testimony of a witness is to be challenged on the ground that it contains improvements over the statement made by him under Section 161 of the Cr.P.C., it would be essential to question the investigating officers as to whether a question with regard to the same was put by him to the witness or not. In other words, the cross-examination of the CBI Vs. Sajjan Kumar & Ors. Page No. 325 of 545 investigating officer as to whether he had asked the witness about such matter is essential. In case he answers in the affirmative, only thereafter would it be open to the opposite party to successfully challenge a witness's statement as being an improvement over a statement."
In Delhi Administration v. Tribuvan Nath (1996) 8 SCC 250, it was held as under:
"The law is well settled that what a witness had said during investigation, cannot be used to discredit him/her unless that statement had been put to the witness while deposing in the Court. The evidence of PW.4 clearly shows that she had not been asked anything about her police statement regarding killing of Sunder Singh by the mob. The High Court used another police statement of this witness according to which the mob had not killed her son Wazir Singh, who was then around 17, but her younger son aged about 12. This police statement also had not been put to PW.4 when she was in witness box. The High Court, according to us, was not justified in stating that there were "glaring absurdities" in the evidence of PW.4. As for us, we say PW.4 is reliable, far from having made any absurd statement (s)."
In most of the judgments so cited, it has been laid down that minor omissions or discrepancies do not permit rejection of the evidence as a whole. Further, it has been elaborated how a witness can be confronted and contradicted with his previous statement though all the said cases refer to a previous statement recorded by a police officer. It may be mentioned that in the present case, the accused persons have also relied upon statements of some of the witnesses recorded earlier in Court.
228. The Ld. SPP had further cited Manohar Lal v. State (NCT of Delhi) (2000) 2 SCC 92 wherein it was observed as follows:
CBI Vs. Sajjan Kumar & Ors. Page No. 326 of 545"Incorporation of wrong information in affidavit not enough to throw the testimony overboard. She might have unwittingly formed such a wrong impression earlier or that she herself is innocent of that part of the affidavit... apart from the fact that she affixed her signature in the affidavit she did not know what all were written therein. Neither the person who drafted the affidavit nor the typist who typed it has been examined as witness.
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 future 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 the most natural eye-witness of this horrendous crime. Hence we are not persuaded to interfere with the finding that the appellants have committed the acts..."
In this case, the effect of not divulging all the details of the occurrence in the statement to the police was discussed. The Ld. SPP had also relied on the judgment in State v. Manohar Lal (supra) wherein it was observed as under:
"The defence has examined D.W. 1 S.L. Ran Singh. It has been deposed by him that on 17.11.1984 he was posted at P.S. Kalyan Puri; that during the investigation of case FIR No. 426/84 P.S. Kalyan Puri, the witness recorded the statement of Harbai Ex. PW-1/DA and Nankibai Ex. PW-2/DA. In the cross-examination, it has been deposed that he did not record any detailed statement of these prosecution witnesses because they were so nervous that they could hardly speak out about the incident.CBI Vs. Sajjan Kumar & Ors. Page No. 327 of 545
So the witness simply recorded 2/3 lines whatever written in the statements. It may be appreciated that even after the fortnight of the incident in the statements dated 17.11.1984 Ex. PW-1/DA and Ex. PW-2/DA the necessary details regarding the assailants, victims is not to be found. Howsoever, nervous a witness may be, as sought to be suggested by D.W. 1, the bare minimum facts, namely, the killing of one's sons/husband and the names of the assailants would not be missed to be stated when the assailants are of the same area and known to the witnesses much prior to the incident. The very fact that the investigation of the case was required to be reopened by the police at the behest of the various Commissions of Inquiries, constituted by the Government sufficiently indicates the total apathy and inaction on the part of the police during the riots when hundreds of young and old people, bread earners and teenagers, were brutally murdered either by, assault with deadly weapons or setting them on fire. Houses were ransacked, looted and set ablaze. In the atmosphere of absolute panic the surviving persons had to leave their dwellings, separated from their near and dear ones and had to take shelter in the relief camps. There was no safety of person and property. Coupled with police apathy the statements dated 17.11.1984 can not be regarded as statement at all so as to discard the evidence which has a ring of truth, although the witness is none else but the mother whose four sons have been brutally done to death by the mob. Let us appreciate what could be the state of mind of the witnesses on 17.11.1984 when the statements were recorded regarding the incident wherein four sons of P.W. 1 and one of whom also happened to be the husband of P.W. 2 died brutal death. It is in the background of these facts and the situation prevalent on 2.11.1984 and thereafter coupled with police apathy and inaction that the omissions/contradictions in the evidence have to be appreciated. P.W. 1 has stated in her evidence that she had given complete statement but police did not record the same fully and correctly. The faulty investigation can not be an impediment in the course of justice, by giving benefit of the same to the accused.
In the case of Ram Bihari Yadav v. State of Bihar 11 (1998) CCR p: 234 (SC) (2) it has been observed in CBI Vs. Sajjan Kumar & Ors. Page No. 328 of 545 para 13 that "though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused. Yet in a case like the present one ... the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed in favour of the appellants".
Thus, it was held that the acts or omissions of the officers of prosecution should not be taken in favour of the accused. The propositions of law laid down in these judgments are well- established.
Non-examination of certain witnesses
229. It was also the submission of the Ld. SPP for CBI that non- examination of repetitive witnesses was not adverse to the prosecution case and it is the quality and not the quantity of evidence which is relevant. It was submitted that the testimony of a sole witness was enough to secure conviction. It was ultimately the prosecutor who had the discretion to call witnesses to prove his case, and all such requirements had been duly met in the present case. Reliance was also placed on several judgments in this regard, namely, Nirpal Singh v. State of Haryana (1977) 2 SCC 131 wherein it was observed as under:
"16. ...The real question for determination is not as to what is the effect of non-examination of certain witnesses as the question whether the witnesses examined in Court on sworn testimony should be believed or not. Once the witnesses examined by the prosecution are believed by the Court and the Court comes to the conclusion that their evidence is trustworthy, the non-examination of other witnesses CBI Vs. Sajjan Kumar & Ors. Page No. 329 of 545 will not affect the credibility of these witnesses...We might mention that it is not necessary for the prosecution to multiply witnesses after witnesses on the same point. In the instant case, once the evidence of the eyewitnesses is believed, there is an end of the matter."
Further reliance was placed on Manjit Singh v. State of Punjab (2013) 12 SCC 746 wherein it was observed as follows:
"24. ...it is quite clear that it is not the number and quantity, but the quality that is material. It is the duty of the Court to consider the trustworthiness of evidence on record and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of non- examination of other witnesses."
In R. Shaji v. State of Kerala (2013) 14 SCC 266, it was observed:
"39. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/ disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this, does not carry any weight."
It was thus held that evidence must be weighed and not counted and it was not the quantity but the quality of the evidence which was important. Further, in Rohtash Kumar v. State of Haryana (2013) 14 SCC 434 it was held as under:
CBI Vs. Sajjan Kumar & Ors. Page No. 330 of 545"23. Thus, the prosecution is not bound to examine all cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of prosecution and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive."
It was thus held that the prosecution was not bound to examine all the cited witnesses.
230. The Ld. SPP had also submitted that the testimony of even a sole witness was sufficient for conviction and the Ld. Sr. Counsel for the complainant had also made similar submissions. In this regard reliance was placed upon the judgment in Vadivelu Theval v. State of Madras AIR 1957 SC 614 wherein it was observed as under:
"10. ...On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions maybe safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent characters...
Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous characters..."
In Sunil Kumar v. State (2003) 11 SCC 367 it was held as under:
CBI Vs. Sajjan Kumar & Ors. Page No. 331 of 545"9. ...This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
10. ...Merely because of the fact that there were some minor omissions, which are but natural, considering the fact that the examination in court took place years after the occurrence the evidence does not become suspect. Necessarily there cannot be exact and precise reproduction in any mathematical manner. What needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation. It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not...."
Likewise in Chacko v. State of Kerala (2004) 12 SCC 269 it was held as under:
"7. Coming to the question whether on the basis of a solitary evidence conviction can be maintained, a bare reference to Section 134 of the Evidence Act, 1872 would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained..."CBI Vs. Sajjan Kumar & Ors. Page No. 332 of 545
Reliance was also placed on the judgment in State of Madhya Pradesh v. Laakhan (2009) 14 SCC 433 wherein it was observed as under:
"10. Even the evidence of a solitary witness can be sufficient to record conviction if the same is wholly reliable. No particular number of witnesses is necessary to prove any fact, as statutorily provided in Section 134 of the Evidence Act, 1872. It is the quality and not the quantity of the evidence that matters. The court cannot take a closed view in such matters."
231. In Duli Chand v. State (supra) it was observed as follows:
"The contradictions in evidence have, however, to be appreciated in the light of aforesaid peculiar facts and circumstances prevalent at the relevant time. We may also notice that there is no legal bar in basing conviction on the sole testimony of a witness who may be relative of the deceased so long as the testimony of such a witness is credible and there are no material contradictions on vital aspects. In that event it would not be essential to necessarily look for corroboration of the testimony of the relations of the deceased."
The Ld. Counsel for the complainant had placed reliance on the judgment in Namdeo v. State of Maharastra (supra) decided on 13.03.2007 by the Hon'ble Supreme Court to similar effect wherein it was observed as under:
"It is no doubt true that there is only one eye witness who is also a close relative of the deceased, viz. his son. But it is well-settled that it is quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and the emphasis of Courts is always on quality of evidence.
So far as legal position is concerned, it is found in CBI Vs. Sajjan Kumar & Ors. Page No. 333 of 545 the statutory provision in Section 134 of the Evidence Act, 1872 which reads:
134. Number of witnesses. No particular number of witnesses shall in any case be required for the proof of any fact."
Thus, it was held in this judgment that it was the quality of evidence and not the quantity of evidence which was material and that conviction could be based even on the sole testimony of a witness.
232. It was then submitted that the Public Prosecutor has the discretion to examine only such witnesses as are necessary for disclosing the story of the prosecution and reliance was placed on the judgment in Abdul Gani v. State of M.P. AIR 1954 SC 31 wherein it was observed as under:
"20. As regards the omission on the part of the prosecution to examine Subhan and Bashir, this is not of a very serious character. The observations of Lord Porter in Malak Khan v. Emperor (AIR 1946 PC 16) furnish a good answer on the point. The learned Lord observed as follows:
"It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be leveled at the absence of possible witnesses."CBI Vs. Sajjan Kumar & Ors. Page No. 334 of 545
Thus, it was held that it is a matter for the discretion of counsel for the prosecution to call the witnesses though it was also observed that the Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected but it must also adjudge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be leveled at the absence of possible witnesses. In Sardul Singh Caveeshar v. State of Bombay 1958 SCR 161, it was observed as under:
"42. ...It is well settled, however, that the Court cannot normally compel the prosecution to examine a witness which it does not choose to and the duty of a fair prosecutor extends only to examine such of the witnesses who are necessary for the purpose of unfolding the prosecution story in its essentials. ..."
Further, in Masalti v. State of U.P. (1964) 8 SCR 133 it was observed:
"12. ...It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bonafide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice. As we have already seen, the defence did not examine these witnesses and the CBI Vs. Sajjan Kumar & Ors. Page No. 335 of 545 Court, after due deliberation, refused to exercise its power under s. 540. Cr.P.C. That is one aspect of the matter which we have to take into account."
Thus, it was held that the witnesses not examined by the prosecution could always be examined by the defence as their witnesses. Reliance was also placed on Gosu Jayarami Reddy v. State of A.P. (2011) 11 SCC 766 wherein it was held as under:
"45. ...It is well-settled that every witness that the prosecution may have listed in the chargesheet need not be examined. It is entirely in the discretion of the Public Prosecutor to decide as to how he proposes to establish his case and which of the listed witnesses are essential for unfolding the prosecution story. Simply because more than one witnesses have been cited to establish the very same fact is no reason why the prosecution must examine all of them....As a matter of fact once the deposition of the eyewitnesses examined at the trial is accepted as trustworthy the non-examination of other witnesses would become inconsequential."
While the law is settled that it is in the discretion of the prosecution to examine the witnesses it wants to and the prosecution is within its right not to examine all the cited witnesses and it can drop some witnesses but in the present case, it is the contention of the Ld. Counsel for the accused persons that several witnesses who were material had not been examined and detailed submissions were made in that regard which would be dealt with later.
233. It may also be mentioned that the Ld. SPP had submitted that the witnesses in the present case belonged to the poorer sections of the society and were illiterate and rustic and as such their testimony should be appreciated in light of the law laid down with regard to the manner of dealing with a rustic and CBI Vs. Sajjan Kumar & Ors. Page No. 336 of 545 illiterate witness. In this regard, reliance was placed on the judgment in Krishna Mochi v. State of Bihar (supra) wherein it was observed as under:
"31. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored...."
Likewise in State of Madhya Pradesh v. Laakhan (supra) it was observed as under:
"11. It is to be noted that PW 11 was a rustic illiterate lady before whose eyes her only child was killed. There is no particular reason as to why she would falsely implicate the accused. If the accused's version is accepted, she was a total stranger to her. Then the question arises why would such a person falsely implicate the accused?"
In State of Uttar Pradesh v. Krishna Master (supra) it was observed:
"17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften CBI Vs. Sajjan Kumar & Ors. Page No. 337 of 545 that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case.
xxx
23. The first and firm impression which one gathers on reading the testimony of this witness is that he is a rustic witness. A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross- examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross- examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime.
24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness... The rustic witnesses cannot be expected to have an exact sense of time and so cannot be expected to lay down with precision the chain of events."CBI Vs. Sajjan Kumar & Ors. Page No. 338 of 545
Thus, the factors to be considered while appreciating the evidence of a rustic witness were delineated.
234. The Ld. SPP had further relied on the judgment in State of Uttar Pradesh v. Chhotey Lal (2011) 2 SCC 550 wherein it was observed as follows:
"29. ...Although we find that there are certain contradiction and omissions in her testimony, but such omissions and contradictions are minor and on material aspects, her evidence is consistent. The prosecutrix being illiterate and rustic young woman, some contradictions and omissions are natural as her recollection, observance, memory and narration of chain of events may not be precise."
In Shyamal Ghosh v. State of West Bengal (2012) 7 SCC 646 it was observed as under:
"47. The variations pointed out as regards the time of commission of the crime are quite possible in the facts of the present case. Firstly, these witnesses are rickshaw pullers or illiterate or not highly educated persons whose statements have been recorded by the police. Their statements in the court were recorded after more than two years from the date of the incident. It will be unreasonable to attach motive to the witnesses or term the variations of 15- 20 minutes in the timing of a particular event as a material contradiction. It probably may not even be expected of these witnesses to state these events with the relevant timing with great exactitude, in view of the attendant circumstances and the manner in which the incident took place."
Likewise in Sukhwinder Singh v. State of Punjab, (2014) 12 SCC 490 it was observed:
"13. They are rustic witnesses. Their evidence must be read bearing their simple background in mind. PW 2 Labh Singh had lost his daughter. Besides, CBI Vs. Sajjan Kumar & Ors. Page No. 339 of 545 they were deposing in 1994, almost three years after the incident. Hence, allowance must be made for minor discrepancies, if any, in their evidence."
Reliance was also placed on the judgment in Vijay Kumar Kamat v. State 2013 SCC OnLine Del 2020 wherein it was observed as under:
"7. He is illiterate and hails from poor section of the society. The testimony of an illiterate and rustic witness is to be appreciated, ignoring minor discrepancies and contradictions. It appears that attempt was made to win over the witness after his examination on 04.06.2009. Statement of a witness is to be read as a whole in the context in which it is made. Credibility of testimony, oral or circumstantial depends considerably on a judicial evaluation of the totality, not isolated scrutiny."
In Pandra Manjhi v. State of Jharkhand 2013 SCC OnLine Jhar 1839, it was held similarly that the witness was a rustic witness and she was giving her deposition after three years of the incident and deposition in the Court depended on the memory of the witness and reproduction of the incident in the Court and the witness was held to be a reliable and trustworthy witness. The law as to how the testimony of a rustic witness is to be appreciated is well-established.
APPRECIATION OF EVIDENCE
235. In light of the above noted judgments and the principles of appreciation of evidence and how extraordinary situations such as the present have to be looked at with it being the duty of the Court to do justice and to find out the truth, it is to be seen whether the prosecution has been able to establish the guilt of the accused persons beyond reasonable doubt.
CBI Vs. Sajjan Kumar & Ors. Page No. 340 of 545236. In the present case, as noted above, a consolidated charge sheet was filed in respect of RC-7, RC-8 and RC-25 which without dispute were re-registration of FIR No.250/84, FIR No.307/94 and FIR No.347/91 respectively all of PS Sultanpuri. Besides, in the present case, reference has been made to FIR No.252/84 PS Sultanpuri and FIR No.268/84 PS Sultanpuri as well as RC-1 though the facts of the said cases are not in issue in the present case. Appositely, it was submitted on behalf of CBI that while the Nanavati Commission gave directions to investigate all three FIRs, during the framing of charge and its subsequent challenge, the CBI restricted the charge as under:
1. Trial of the accused for the murder of Surjeet Singh arising out of FIR No.347/1991, PS Sultanpuri, in which only an untraced report was filed and there was no trial.
2. Trial of the accused for burning, looting, arson, damaging of Gurudwara in FIR No.307/1994 of PS Sultanpuri, in which only an untraced report was filed and there was no trial.
3. In FIR No.250/1984 of PS Sultanpuri, accused Sajjan Kumar was not tried and hence there arose no bar to proceed against the said accused.
Thus, this Court has to see if the charges in respect of the above are proved in the present case.
237. A perusal of the charge sheet shows that 35 witnesses had been cited and the prosecution in the present case has examined 11 witnesses. The Ld. Counsel for the accused persons had argued at length that several material witnesses had not been examined by the prosecution but as noted above, it lies within the discretion of the prosecution as to which of the witnesses it wishes to examine. Witnesses at No.1 to 12 are public witnesses who would be referred to later. Witness at No.13 was on duty at CBI Vs. Sajjan Kumar & Ors. Page No. 341 of 545 RML Hospital during the relevant period i.e. 1980 to 1988 and he was not examined though it may be mentioned that in his statement under Section 161 Cr.P.C. he had mainly stated that in 1984, PS Sultanpuri cases were being registered at RML Hospital only and that between 31.10.1984 and 04.11.1984, no case of dead body was reported in RML Hospital relating to PS Sultanpuri. He had also stated that during the said period, only 8- 9 cases of dead bodies were reported at RML Hospital and he had also stated about police personnel coming with dead bodies in trucks and asking him that they were leaving dead bodies for final disposal but they did not reveal their identity and took back the dead bodies. In fact the Ld. SPP had also submitted that despite so many deaths occurring, there were no dead bodies and it is not anybody's case that any injured person or deceased pertaining to the present case was brought to RML Hospital. Witness at Sl. No.14 Shri Sukhbir Singh, ACP, Operation Cell, South-West Delhi was the complainant/ IO of Crime No.250/84 PS Sultanpuri.
238. Witnesses at Sl. No.15 to 19 are the then Ld. Metropolitan Magistrates who had recorded the statements of witnesses under Section 164 Cr.P.C. and out of them, the witness at Sl. No.16 had already expired (he had recorded the statement of Smt. Cham Kaur which is Ex.PW6/B). Witnesses at Sl. 18 and 19 were examined as PW8 and PW9. Non-examination of witnesses at Sl. No.15 and 17 is not material as the prosecution has not examined all the public witnesses whose statements were got recorded under Section 164 Cr.P.C. and PW10 had deposed about the statement of Smt. Bhagwani Bai under Section 164 Cr.P.C.
CBI Vs. Sajjan Kumar & Ors. Page No. 342 of 545recorded by the witness at Sl. No.15 Shri Devender Kumar, the then Ld. MM and of Smt. Popri Kaur recorded under Section 164 Cr.P.C. by the witness at Sl. No.17 Shri Naveen Arora, the then Ld. MM. It is relevant that Bhagwani Bai had already expired and Smt. Popri Kaur has not been examined in the present case.
239. PW8 had deposed about recording the statement of Smt. Sheela Kaur under Section 164 Cr.P.C. on an application moved by the IO Insp. R.K. Jha before the Court of Ld. ACMM, KKD Court which was marked to him for recording the statement and the statement is Ex.PW5/D3. The statement of Smt. Sheela Kaur is Ex.PW8/C. The original statement of Smt. Jatni Kaur is Ex.PW8/E though Jatni Kaur has not been examined in the present case. During cross-examination PW8 stated that he had not made any inquiries from the IO to satisfy himself as to why he had brought the witnesses and volunteered the application for recording the statement under Section 164 Cr.P.C. had been marked to him by the Ld. ACMM. Even otherwise, there is no requirement that the Ld. MM should make inquiries from the IO as to why he had brought the witnesses once the application is marked to him by the Ld. ACMM and as per the settled law, it is the prerogative of the IO to get the statement of a witness recorded under Section 164 Cr.P.C. He stated that he had not asked the IO if the witnesses had come to give their statement voluntarily or under force or were tutored and volunteered he had made the said inquiry from the witnesses after the IO had left the chamber and the same was recorded in the statements. A perusal of the statements shows that the satisfaction of the Ld. MM regarding the voluntariness of the statement is there in the CBI Vs. Sajjan Kumar & Ors. Page No. 343 of 545 statement and even otherwise, there is no requirement to make inquiries from the IO as to whether the witnesses had come to give their statement voluntarily or under force and it is the duty of the Court to satisfy itself about the voluntariness of the statement before recording the same by putting specific queries to the witness and what the IO states in this regard would be immaterial. He denied the suggestion that he recorded the statements only at the instance of the IO and volunteered he made preliminary inquiry from the witnesses and thereafter recorded the statement. He had not mentioned the specific questions in the statement which were put to the witnesses in order to satisfy himself that they were giving their statement voluntarily but still the voluntariness of the witness in giving the statement is recorded in the statement. He had not mentioned in the statement that he had told the witnesses that they were not bound to give the statement and volunteered he had told them about the same orally and there is nothing to doubt the same.
240. During further cross-examination PW8 stated that he neither asked the witnesses their relationship with each other nor they told him about the same and he could not say whether they were mother-in-law, daughter-in-law. Even otherwise, it is not incumbent upon the Ld. Magistrate to enquire from the witnesses about their relationship prior to recording the statement under Section 164 Cr.P.C. He did not ask the witnesses if they had earlier given any statement under Section 164 Cr.P.C. or before the Court or before any investigating agency before coming before him but again there was no requirement of the same and if there were more than one statement under Section 164 Cr.P.C. the CBI Vs. Sajjan Kumar & Ors. Page No. 344 of 545 Trial Court would have to appreciate the value of the same as per the well-established principles of law. A suggestion was put to him that he did not satisfy himself about the voluntariness of the witnesses to give the statement before recording their statement and recorded it as a formality which he denied and there is also nothing on record to show the same. Thus, PW8 had recorded the statements of Smt. Sheela Kaur and Smt. Jatni Kaur (though she has not been examined in Court) under Section 164 Cr.P.C. and nothing could be elicited during the cross-examination of PW8 to doubt the said statements recorded by him.
241. PW9 had deposed about recording the statements of witnesses Shri Joginder Singh and Smt. Gopi Kaur under Section 164 Cr.P.C. and the statement of Smt. Gopi Kaur is Ex.PW9/B (though she has not been examined by the prosecution in the present case). The copy of the statement of Joginder Singh is Ex.PW7/B and the original statement is Ex.PW9/E. During cross- examination PW9 stated that he had not made any inquiries/ query from the IO to satisfy himself regarding the voluntariness of the witness to give the statement and that the witness was not forced to give the statement and volunteered the inquiries were made from the witness and not from the IO. As noted above, there was no requirement to make queries from the IO regarding the voluntariness of the witness to give the statement and the queries in that regard have to be put to the witness himself. He did not remember if he had asked both the witnesses why they had come to make the statement but he would have asked. He admitted that the same was not so mentioned in the statement recorded by him though again there is no such requirement when CBI Vs. Sajjan Kumar & Ors. Page No. 345 of 545 the application for recording the statement of the witness is duly marked to the Ld. MM and it is the prerogative of the IO to get the statement of a witness recorded under Section 164 Cr.P.C. He had not mentioned the detailed questions put to the witnesses by him to satisfy himself about the voluntariness of the witnesses but a brief of the same was contained in para 2 of the statement at point X which a perusal of the statement also shows.
242. During further cross-examination PW9 was asked if he recorded in his proceeding whether he made some inquiry from the witnesses whether they had made any statement either to any Agency/Authority/CBI or before the Court prior to the statement in respect of the incident/occurrence which they wanted to depose in their statement under Section 164 Cr.P.C. to which he stated that it was the prerogative of the IO to get the statements under Section 164 Cr.P.C. recorded and even otherwise there is no requirement of making any such inquiry. He admitted that recording a statement under Section 164 Cr.P.C. was not a mere formality. He denied the suggestion that he recorded the statement on the saying of the IO alone without satisfying himself whether the IO had forced the witnesses to come or to depose. He denied the suggestion that he recorded the statements of the witnesses without satisfying himself whether the witnesses were forced or tutored. However, there is nothing to suggest that the statements were recorded forcibly or under coercion.
243. PW10 had also deposed about getting the statements of witnesses recorded under Section 164 Cr.P.C. and he stated that the witnesses Bhagwani Bai, Popari Kaur, Cham Kaur, Jatni CBI Vs. Sajjan Kumar & Ors. Page No. 346 of 545 Kaur, Sheela Kaur, Joginder Singh and Gopi Kaur were got examined under Section 164 Cr.P.C. He had stated that Shri Devender Kumar, the then Ld. MM had recorded the statement of Smt. Bhagwani Bai who had expired during the pendency of the trial and as such could not be examined. The statement is Mark PW10/2. He further stated that the statement of Smt. Cham Kaur was also got recorded and the statement is Ex.PW6/B. The statement of Smt. Popri Kaur was also got recorded under Section 164 Cr.P.C. and the statement is Mark PW10/3 (D-20). During cross-examination PW10 denied the suggestion that the statements of Smt. Sheela Kaur and Smt. Jatni Kaur implicating the accused Shri Sajjan Kumar were taken under coercion or that their statements under Section 164 Cr.P.C. were got recorded so that they would not state the truth before the Court but there is no merit in the said suggestion as the statements were recorded before the Ld. MM who had satisfied himself about the voluntariness of the witnesses in giving the statements.
244. Witnesses at Sl. No.20 (Shri N.J. Thomas, Under Secretary, Government of India, MHA) and 21 were cited to prove that they had forwarded the records to CBI and out of them witness at Sl. No.21 has been examined as PW3 whose testimony has already been adverted to above. Witness at Sl. No.22 (Shri M.K. Dwivedi, SDM, HQ) was cited to prove the list of 1984 riots victims to whom the death ex-gratia was paid but non- examination of the said witness is not of much relevance in the present case. Witnesses at Sl. No.23 (Smt. Papiya Sarkar, Sl. Architect-XIII, CPWD Office) and 24 were cited to prove the site plan and the witness at Sl. No.24 has been examined as PW2 in CBI Vs. Sajjan Kumar & Ors. Page No. 347 of 545 the present case, as such examination of the witness at Sl. No.23 would have been only repetitive. As regards PW2 Sunil Mittal, it is seen that he had deposed about being associated with Senior Architect Papiya Sarkar. He stated that they, with the help of Google site took the view of Sultanpuri, Delhi area to specify and demarcate the boundary and outlines of the affected place as per the present case incident. In 2009 he along with Inspector R.K. Jha visited the Sultanpuri area and he noted the dimensions in Sultanpuri area as per the advice and instructions of Inspector R.K. Jha on rough papers. On the basis of dimensions noted in Sultanpuri area by him, he prepared the site plan with the help of computer and computer printout of the site plan is Ex.PW2/A. He stated that the dimensions noted and then exhibited in the plan were the distances on the site and those distances were point X to X1 700 meters, X1 to X2 300 meters, X2 to X3 200 meters and X3 to X4 890 meters. He also proved the covering letter dated 06.07.2009 signed by Ms. Papiya Sarkar vide which the site plan was given to CBI as Ex.PW2/B. During cross-examination PW2 stated that he was not aware of the details of correspondence between CBI Investigating Officer and Ms. Papiya Sarkar on the subject. He stated that Ms. Papiya Sarkar while assigning him the job of preparing the site plan had given him instruction in writing and that was about four or five days prior to the date he visited the site. Date of month of those events he did not recall. He stated that the Google site printout Ex.PW2/DA had been taken out after he had already physically visited the Sultanpuri area. The website wherefrom the Google printout Ex.PW2/DA was taken out was www.Google. He could not further explain what CBI Vs. Sajjan Kumar & Ors. Page No. 348 of 545 particular other site of Google was or could be wherefrom the printout could be taken. He did not know if Google was a portal or that there were links in the said Google portal. He denied the suggestion that the printout Ex.PW2/DA had not been drawn and taken from Google or that for that reason his signatures and date were not appearing on the said document. He could not answer if Google portal could not have spotted or reflected the site in question in the year 2009. He denied the suggestion that the printout was not a correct document as he was unable to tell from which particular link of Google portal he downloaded it. He could not say if Ex.PW2/DA was a satellite view of a map. Thus, PW2 was questioned on Ex.PW2/DA and though he did not know answers to several questions put to him, he denied the suggestion that the printout was not a correct document. Even otherwise, nothing has been brought on record to doubt the said document nor any contrary document was put to him.
245. During further cross-examination PW2 admitted that Ex.PW2/A nowhere bore his signatures as well date. He admitted that the said document also did not mention at whose instance or instructions it was drawn. However, in his examination-in-chief, PW2 had stated that he noted the dimensions in Sultanpuri area as per the advice and instructions of Inspector R.K. Jha on rough papers and on the basis of dimensions noted in Sultanpuri area by him, he prepared the site plan with the help of computer. He stated that rough notes were destroyed/disposed of as soon the fair plan Ex.PW2/A was prepared and drawn. Those rough notes were destroyed by him. At present there was no document to show and support that the plan Ex.PW2/A was prepared on the CBI Vs. Sajjan Kumar & Ors. Page No. 349 of 545 basis of rough notes. Thus, there was no document to show that the plan Ex.PW2/A was prepared on the basis of rough notes but he also stated that since the dimension notes were noted in the presence of CBI officer, rough notes were not handed over to CBI. He admitted that the significance or purpose of mentioning of dimension in the plan was not mentioned in the said document. He could not comment if the fact of date and place of visit to the site was to be mandatorily mentioned in the plan or that the date on which the plan was prepared was to be mentioned also or that at whose instructions the plan was drawn was also to be mentioned or that unless the Architect, who prepared a plan mentioned specifically that he had drawn that plan, its validity would always be in question. However, he had specifically stated about preparing the site plan on the basis of rough notes though the date of visit to the spot or the date of preparation of the plan were missing from the same. He denied the suggestion that he had not prepared and drawn the plan Ex.PW2/A or that Ms. Papiya Sarkar had not at all given any instructions or directions. However, nothing has come out in cross-examination to doubt the site plan and even no spot was put to him as having been wrongly shown in the site plan.
246. PW10 had also deposed that the witnesses were taken to Sultanpuri area where their family members were killed. After identification of the said spots, a request was made to CPWD for assisting CBI in making a detailed site plan. Accordingly, sketch plan including the location of Sultanpuri area were prepared by Mr. Mittal, draftsman on the instructions of Ms. Papiya Sarkar, Sr. Architect. The sketch plan is Ex.PW2/A which was received CBI Vs. Sajjan Kumar & Ors. Page No. 350 of 545 by CBI vide letter dated 06.07.2009 Ex.PW2/B. They had also provided a detailed Google map covering the said blocks of Sultanpuri area which is Ex.PW2/DA. He had also collected site plan prepared by Delhi Police which is Mark PW10/4. The jurisdictional map of PS Sultanpuri and Mangolpuri as submitted before the Nanavati Commission was also received and the same are Ex.PW10/H (colly) (D17). Thus, the site plan and jurisdictional maps had been placed on record and duly proved.
247. Witness at Sl. No.25 has been examined as PW1 and his testimony has already been dealt with above. Witnesses at Sl. No.26 (Inspector Raj Singh); 27 (Inspector C.S. Rathee) and 28 (Inspector Mam Chand) had been cited to prove the investigation and/ or FIR pertaining to FIR No.250/84, FIR No.307/94 and FIR No.347/91 respectively but they have not been examined by the prosecution as even otherwise, it is the case of the prosecution that the investigation carried out by Delhi Police was farcical and a sham. It is pertinent that the witness at Sl. No.28 was examined by the accused persons as DW2 while even the accused persons have chosen not to call witnesses at Sl. No.26 and 27 in the witness box. Witness at Sl. No.29 (ASI Mujtaba Ali) was listed to prove the records received from the Special Riot Cell but he has not been examined. However, the records are part of the record of the present case and he was not even called in the witness box on behalf of the accused persons. Witness at Sl. No.30 (Registrar, Birth & Death, City Zone, MCD) was cited to prove the death certificate of Smt. Anek Kaur who had filed an affidavit dated 09.09.1985 before the Justice Ranganath Commission but it is not in dispute that she had already expired.
CBI Vs. Sajjan Kumar & Ors. Page No. 351 of 545248. Witnesses at Sl. No.31 to 35 are police officers out of whom witnesses at Sl. No.32 (Shri S.S. Kishore, DSP, CBI) and at Sl. No.35 (Shri R.K. Jha, Inspector, CBI) have been examined as PW11 and PW10 respectively. As per the accused persons themselves, witness at Sl. No.31 Shri S.S. Ali, DSP, CBI had already expired. SI Sanjeev Kumar Khullar, CBI, EOW and Shri Richhpal Singh, Inspector, CBI, SC-III had not been examined. PW10 had stated that after registration of RC-7, it was entrusted to Shri Richhpal Singh, the then Inspector, CBI, SCB-II, New Delhi on 17.11.2005 and he continued with the investigation till 14.08.2008 and then the case was transferred to him (PW10) and as such Shri Richhpal Singh was the IO of RC-7 but he has not been examined in the present case. SI Sanjeev Kumar Khullar was the IO of FIR No.307/94 i.e. RC-8. However, even the Ld. Counsel for the accused persons had not pointed out how their non-examination has caused any prejudice to the accused persons.
249. It is then seen that out of the witnesses at Sl. No.1 to 12, witness at Sl. No.2 Smt. Cham Kaur has been examined as PW6; witness at Sl. No.4 Smt. Sheela Kaur has been examined as PW5; witness at Sl. No.6 Shri Joginder Singh has been examined as PW7 and witness at Sl. No.12 Smt. Prem Kaur has been examined as PW4. Witness at Sl. No.1 Smt. Bhagwani Bai and at Sl. No.8 Smt. Prem Kaur were stated to have expired. Witness at Sl. No.5 Smt. Jatni Kaur and at Sl. No.10 Smt. Kamla Devi were also stated to have expired. Thus, the witnesses who were not examined are those at Sl. No.3 (Smt. Popri Kaur), Sl. No.7 (Smt. Gopi Kaur), Sl. No.9 (Smt. Thakri Devi) and Sl. No.11 (Smt. CBI Vs. Sajjan Kumar & Ors. Page No. 352 of 545 Mishri Kaur) and it was the contention of the Ld. SPP for CBI that they were not examined to avoid repetition as they had already been examined in earlier cases. Four witnesses were not examined i.e. Mishri Kaur, Thakri Kaur, Gopi Kaur and Popri Kaur as they had already been examined in FIR No.252/84 to avoid repetition and also to bring the trial to a conclusion which had started in 2010. PW7 was now no more and was in ailing health when he was examined so in order to avoid repetition and so that the trial saw an end, some of the witnesses were not examined. It was submitted that most of the witnesses were more than 70 years of age and some around 80 years and were not in a position to depose and there was also repetition so they were not examined. Priority was PW7 who was in ailing health when he gave his testimony in Court and then he passed away. It was submitted that the CBI was directed to investigate the case in 2005, when 21 years had already passed. The contemporaneous records and witnesses were either scattered or unavailable, posing a herculean task for CBI. The witnesses had lost all faith and after more than two decades of injustice were scared to utter a word. Many of the witnesses availed witness protection, in fear of their well-being. The CBI could not even cite or examine all the witnesses in the case as they had either died or refused to testify out of fear; or due to the passage of time, certain witnesses were not in a capacity to depose; or the ground realities had changed, where even successfully tracing out the witnesses was an arduous task. The CBI could thus cite and examine only certain witnesses. While it may be that the CBI could not locate all the witnesses, yet out of the witnesses who were cited, several CBI Vs. Sajjan Kumar & Ors. Page No. 353 of 545 witnesses have not been examined, the reason put forth for the same being that the witnesses had either died or to avoid repetition.
250. PW10 had stated about going through the case file containing the investigation carried out by his predecessor and the investigation carried out earlier by the Delhi Police and also the report of the Nanavati Commission as well as the letter dated 24.10.2005 issued by Shri K.P. Singh. He found that there were witnesses namely Bhagwani Bai, Thakri Kaur, Jatni Kaur etc. in the CBI file who were naming Sajjan Kumar for provoking the mob in Sultanpuri area. However, he found no statement making such allegations against Sajjan Kumar in the Delhi Police file. He also found various affidavits filed by the witnesses/ victims before different commissions/ committees constituted after 1984 riots who were also alleging Sajjan Kumar for making provocative speeches to instigate mobs to commit various crimes of arson, looting, killing etc. After analyzing all such evidence on record, he with the help of his predecessor IO prepared the list of remaining witnesses to be traced and examined. He also deposed about camping for several days in Tilak Vihar, Sultanpuri and adjoining areas and contacting various victims and witnesses and sending notices to them through speed post but most of them were returned unserved due to lapse of more than 20 years of the incident and the witnesses had since then shifted from their old addresses. However, he was able to examine Smt. Cham Kaur, Gopi Kaur, Prem Kaur, Popri Devi, Sheela Kaur, Jatni Kaur and many others. Most of the witnesses agreed and gave their consent for getting their statement recorded under Section 164 Cr.P.C.
CBI Vs. Sajjan Kumar & Ors. Page No. 354 of 545however, witnesses namely Thakri Kaur and Kamla Kaur expressed their fear from Sajjan Kumar in giving their statement before the Ld. MM. They were however consistent in their statement under Section 161 Cr.P.C. Thus, PW10 had stated that many victims and witnesses could not be served notices due to lapse of time and as they had shifted their addresses. He had however, examined Smt. Cham Kaur, Gopi Kaur, Prem Kaur, Popri Devi, Sheela Kaur, Jatni Kaur and many others and the said witnesses have been cited at Sl. No.1 to 12 in the list of witnesses though as noted above, 4 of the witnesses had already expired and some of the witnesses were not examined by the prosecution.
251. During cross-examination PW10 denied the suggestion that he had made a false deposition before the Court on 01.11.2021 that he found various affidavits filed by the witnesses/victims who were alleging that Sajjan Kumar was making provoking speeches to instigate the mobs in case FIR No.250/84 or that after taking over the investigation, when he camped for several days in Tilak Vihar, Sultanpuri and adjoining areas and contacted several witnesses/ victims and developed sources to identify such witnesses, none of the victims/ witnesses had stated to him that the killing of their family members/ relatives/ neighbours was never investigated by the investigating agency or not sent for trial. He denied the suggestion that he had made a false statement that the witnesses were consistent or that of all the witnesses whom he had examined in respect of killing of 58 persons out of 60 persons in FIR No.250/84, none had taken the name of accused Sajjan Kumar except Sheela Kaur and Jatni Kaur who had already deposed before the Court earlier in CBI Vs. Sajjan Kumar & Ors. Page No. 355 of 545 respect of the same case and never named Sajjan Kumar. Thus, PW10 had denied the suggestions put to him but even CBI has not examined any witness other than PW4, PW5, PW6 and PW7 in the present case who had taken the name of A1.
252. It was the contention of the Ld. SPP for CBI that some of the witnesses had not been examined to avoid repetition as they had already been examined earlier. The Ld. Counsel for the accused persons had countered by submitting that to prove the guilt of the accused persons, the CBI had cited 35 witnesses out of which witnesses at No.1 to 12 were public witnesses i.e. relatives and known of the victims. Witnesses 1 to 5 and 7 to 10 pertained to RC-7. To prove RC-7, the prosecution had got examined only PW5 and PW6 whereas it had cited 9 witnesses. Witnesses at No.11 and 12 pertained to RC-8 though both had stated that they had not seen the alleged incident and had not supported the case of the prosecution. CBI had got examined only Prem Kaur (PW4) who was not a witness to the alleged incident and did not examine Misri Kaur. Only the witness at Sl. No.6 was examined in support of RC-25. It was also submitted that except PW4, all the witnesses had been examined earlier. The prosecution had got only four witnesses examined and it was submitted that the Ld. SPP had argued that all the witnesses were not examined as some of them had expired (four) or they had already been examined in FIR No.250/1984 and FIR No.252/1984 in order to avoid repetition but if that were so, there was no need to even bring PW5 Sheela Kaur and PW6 Cham Kaur before the Court as they had already been examined earlier in FIR No.250/84 in 'State v. Suresh' and 'State v. Uddal' in FIR CBI Vs. Sajjan Kumar & Ors. Page No. 356 of 545 No.252/84. However, there is no merit in the said contention as quite clearly the charge in the present cases could be proved only on the basis of the evidence led in the present case.
253. As regards the witnesses who were cited but were not examined, in fact extensive arguments were advanced on behalf of the accused persons to show that they had been examined earlier but they had not named A1. It was submitted that the defence had placed on record several judgments to demonstrate that the witnesses cited in the present consolidated charge sheet had already been examined by the concerned competent Courts in respect of the same subject matter i.e. occurrence/ killings of their respective family members/ relatives namely certified copies of judgments and statements of witnesses Ex.PW10/D10; Ex.PW10/D5; Ex.PW10/D4; Ex.PW10/D9; Ex.P10/D12 (in respect of killing of 21 persons); Ex.PW10/D12 (Smt. Prem Kaur cited at Sl. No.8 was earlier examined as PW8 in FIR No.252/1984 and PW9 in RC-1 and she had not been examined in the present case as she was stated to have expired); Mark PW6/DA and Mark PW6/DC (Smt. Cham Kaur cited at Sl. No.2 was earlier examined as PW1); Ex.PW10/D14 (Smt. Popri Kaur cited at Sl. No.3, Smt. Gopi Kaur cited at Sl. No.7, Smt. Thakri Devi cited at Sl. No.9, Smt. Kamla Devi cited at Sl. No.10 were earlier examined in the said case as PW10 (Ex.PW10/D17), PW9 (Ex.PW10/D15), PW11 (Ex.PW10/D19) and PW8 (Ex.PW10/D20) respectively and the said witnesses have not been examined in the present case. Thus, the accused persons had placed on record documents to show that the witnesses at Sl. No.3, 7, 8, 9 and 10 had been examined earlier. It was submitted CBI Vs. Sajjan Kumar & Ors. Page No. 357 of 545 that Jatni Kaur was cited as PW5 in the list of witnesses in the present case but was not examined and in her earlier deposition as PW31 Ex.PW10/D4 she had never named Sajjan Kumar which was confirmed by the IO. It was also submitted that Bhagwani Bai had expired but her husband Sewa Singh had been examined earlier and he had not named A1.
254. A perusal of the record shows that PW10 was extensively cross-examined in this regard. It was the submission of the accused persons that Smt. Popri Devi was cited at Sl. No.3 in the list of witnesses in the present case and she was examined on 31.08.2008 under Section 161 Cr.P.C. and under Section 164 Cr.P.C. on 26.09.2008. Popri Kaur in her statement dated 31.08.2008 to the CBI under Section 161 Cr.P.C. Ex.PW10/D-18 had deposed about the killing of her husband Saroop Singh on 01.11.84 and had admitted making an earlier deposition before the Court in respect of the killing of her husband Ex.PW10/D-17 and she was examined as PW10 in "State v. Gopi and others". She had named all the accused persons in that case but she had not named Sajjan Kumar at all which was confirmed by the IO. She had stated that her husband had gone out and was killed but then she stated that he was killed before her but she did not name Sajjan Kumar ever. It was submitted that a full-fledged trial had taken place in which four sisters Kamla, Popri, Thakri and Gopi had deposed. Reference was made to the judgment Ex.PW10/D- 14 wherein they were examined in "State v. Gopi and others". It was also submitted that they were cited in order to prove RC-7 but they had already been examined and they had stated that their husbands were killed on 02.11.1984 whereas in the present case CBI Vs. Sajjan Kumar & Ors. Page No. 358 of 545 they were made witnesses for the incident of 01.11.1984. PW10 had admitted that in Ex.PW10/D-17 the witness had not named Sajjan Kumar nor attributed any role to him. It was submitted that the IO was representing the State and he was expected to be fair but he was trying to cover up the date of the incident. The witnesses had stated that on 01.11.1984 nothing had happened but in the statement under Section 161 Cr.P.C. to the CBI, it was stated that the incident had taken place on 01.11.1984.
255. During cross-examination PW10 stated that he was not aware that Popri Kaur, Gopi Kaur, Thakri Devi and Kamla Devi who had been cited as prosecution witnesses in the present case are sisters. He admitted that in their statements under Section 161 Cr.P.C. they had stated about the killing of their family members and relatives. He stated that it was a matter of record that the case regarding killing of their family members was decided in SC No.91/90, "State Vs. Gopi and Ors." certified copy of the judgment is Ex.PW10/D-14. Thus, PW10 had admitted that the case regarding the killing of family members of Popri Kaur, Gopi Kaur, Thakri Devi and Kamla Devi had been decided vide Ex.PW10/D-14. Further, PW10 stated that certified copy of the statement of Smt. Popri Devi recorded as PW10 in the said case SC No.91/90, "State Vs. Gopi and Ors." is Ex.PW10/D-17. As such, PW10 had also admitted that Popri Kaur had been examined in SC No.91/90. He admitted that in the said statement, she had not taken the name of accused Sajjan Kumar as one of the accused persons or stated about his involvement and volunteered he had confronted the witness with her said statement and she had stated that her statement was incomplete CBI Vs. Sajjan Kumar & Ors. Page No. 359 of 545 or given under pressure and the said fact had been recorded by him in the case diary and that is why she had volunteered to get her statement recorded under Section 164 Cr.P.C. He stated that he did not want to see the case diary. He did not want to show the same to the Court then. He denied the suggestion that he was giving a false statement before the Court that Popri Devi had stated that her deposition in the Court was not complete statement or that she had stated that she had stated whatever she had to state already or that as the same was not recorded in the case diary so he did not want to show the same to the Court. Thus, PW10 had admitted that in her statement Ex.PW10/D-17, Popri Kaur had not taken the name of accused Sajjan Kumar as one of the accused persons or stated about his involvement. He had volunteered that he had confronted the witness with her said statement and she had stated that her statement was incomplete or given under pressure but once the witness has not been examined in the Court, the said statement given voluntarily by PW10 is of no effect, more so as he stated that the said fact had been recorded by him in the case diary but he did not want to see the case diary or show the same to the Court. He had also stated that was the reason why she had volunteered to get her statement recorded under Section 164 Cr.P.C. but nothing much turns on the same.
256. During further cross-examination PW10 admitted that he had confronted Popri Devi with the record that was with him. He admitted that in her statement dated 03.07.1989 Ex.PW10/D-17 CBI Vs. Sajjan Kumar & Ors. Page No. 360 of 545 Smt. Popri Devi had stated that riots had started on 2nd day whereas in her statement recorded under Section 161 Cr.P.C. by him, he had recorded the date as 1st November. He had not asked her about the difference in the date of killing of her husband and volunteered she was not sure about the date as the incident was of about 20 years prior. The statement recorded under Section 161 Cr.P.C. of Smt. Popri Devi is Ex.PW10/D-18. Thus, PW10 had admitted that in Ex.PW10/D-17 Popri Kaur had stated about the riots starting on 2nd day whereas in her statement under Section 161 Cr.P.C. the date was recorded as 1st November but it is pertinent that he had not asked her about the difference in the date of killing of her husband. He had volunteered that she was not sure about the date as the incident was of about 20 years prior but it is not recorded in Ex.PW10/D-18 that Popri Kaur was not certain about the date due to lapse of time and the date is categorically stated as 01.11.1984. What is relevant is that PW10 had admitted that in Ex.PW10/D-17 i.e. her testimony recorded before the Court, Popri Kaur had not named Sajjan Kumar and she was not examined in the Court qua Ex.PW10/D-18 i.e. the statement under Section 161 Cr.P.C. and the statement under Section 164 Cr.P.C.
257. It was then submitted on behalf of the accused persons that Gopi Kaur was at Sl. No.7 in the list of witnesses but she was not examined by the prosecution and she had not named Sajjan Kumar or other accused in the earlier trial in respect of the killing of her husband but in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. in the present case, she had named Sajjan Kumar alone and had stated that her husband was killed on 01.11.1984.
CBI Vs. Sajjan Kumar & Ors. Page No. 361 of 545Her earlier statement pertaining to the same incident is Ex.PW10/D-15 in Session Case No.91/90 "State v. Gopi & Others" in FIR No.252/1984 and the IO had confirmed that she had not taken the name of A1 as one of the accused persons or stated about his involvement though the names of other accused persons were there in her statement. PW10 had stated that the certified copy of the statement of Smt. Gopi Devi recorded as PW9 in the said case SC No.91/90, "State Vs. Gopi and Ors." is Ex.PW10/D-15. He admitted that in the said statement she had not taken the name of accused Sajjan Kumar as one of the accused persons or stated about his involvement and volunteered he had confronted the witness with her said statement and she had stated that her statement was incomplete or given under pressure and the said fact had been recorded by him in the case diary and that is why she had volunteered to get her statement recorded under Section 164 Cr.P.C. He stated that he did not want to see the case diary and he did not want to show the same to the Court then. He denied the suggestion that he had given a false statement before the court that Gopi Devi had stated that her deposition in the court was not complete statement or that she had stated that she had stated whatever she had to state already or that as the same was not recorded in the case diary so he did not want to show the same to the Court. Thus, PW10, as in the case of Popri Kaur, had admitted that in her statement Ex.PW10/D-15, Gopi Devi had not taken the name of accused Sajjan Kumar as one of the accused persons or stated about his involvement. He had volunteered that he had confronted the witness with her said statement and she had stated that her statement was incomplete CBI Vs. Sajjan Kumar & Ors. Page No. 362 of 545 or given under pressure but once the witness has not been examined in the Court, the said statement given voluntarily by PW10 is of no effect, more so as he stated that the said fact had been recorded by him in the case diary but he did not want to see the case diary or show the same to the Court. He had also stated that was the reason why she had volunteered to get her statement recorded under Section 164 Cr.P.C. but nothing much turns on the same.
258. PW10 further admitted that he had confronted Gopi Devi with the record that was with him. He admitted that in the statement dated 03.07.1989 Ex.PW10/D-15 Smt. Gopi Devi had stated that her husband was killed on 2nd at 11 a.m. whereas in her statement recorded under Section 161 Cr.P.C. by him, he had recorded the date as 1st November. He stated that he had not asked her about the difference in the date of the killing of her husband and volunteered she was not sure about the date as the incident was of about 20 years prior. The statement recorded under Section 161 Cr.P.C. of Smt. Gopi Devi is Ex.PW10/D-16. Thus, PW10 had admitted that in Ex.PW10/D-15 Gopi Devi had stated about her husband being killed on 2nd whereas in her statement under Section 161 Cr.P.C. the date was recorded as 1 st November but it is pertinent that he had not asked her about the difference in the date of killing of her husband. He had volunteered that she was not sure about the date as the incident was of about 20 years prior but it is not recorded in Ex.PW10/D- 16 that Gopi Devi was not certain about the date due to lapse of time and in fact the date in Ex.PW10/D-16 is categorically stated to be 01.11.1984. What is also relevant is that PW10 had CBI Vs. Sajjan Kumar & Ors. Page No. 363 of 545 admitted that in Ex.PW10/D-15 i.e. her testimony recorded before the Court, Gopi Kaur had not named Sajjan Kumar and she was not examined in the Court qua Ex.PW10/D-16 i.e. the statement under Section 161 Cr.P.C. and the statement under Section 164 Cr.P.C.
259. The Ld. Counsel for the accused persons had also referred to the statement of Thakri Devi which is Ex.PW10/D-19 and it was pointed out that she did not name Sajjan Kumar, though she named the other accused persons and now only Sajjan Kumar was being named and not the other accused persons. It was submitted that Smt. Thakri Devi was cited at Sl. No.9 in the list of witnesses in the present case and on 13.03.2008 her statement was recorded under Section 161 Cr.P.C. and she had stated about the killing of her husband Kartar Singh on 01.11.1984. She admitted that she had earlier made deposition before the Court in respect of the killing of her husband which is Ex.PW10/D-19 pertaining to the same incident wherein she was examined as PW11 in Sessions Case No.91/90 "State v. Gopi and others" and she had stated that her husband was killed on 02.11.1984. She had named the accused persons in that case but had never named Sajjan Kumar or shown his involvement in any manner direct or indirect in the alleged occurrence and the IO had confirmed that she had never named Sajjan Kumar and Vedu Pradhan. During cross-examination PW10 had stated that the certified copy of the statement of Smt. Thakri Devi recorded as PW11 in the said case SC No.91/90, "State Vs. Gopi and Ors." is Ex.PW10/D-19. He admitted that in the said statement, she had not taken the name of accused Sajjan Kumar as one of the accused persons or stated CBI Vs. Sajjan Kumar & Ors. Page No. 364 of 545 about his involvement and volunteered the statement of Smt. Thakri Devi under Section 161 Cr.P.C. was recorded by his predecessor. Thus, PW10 had admitted that in Ex.PW10/D-19 Thakri Devi had not taken the name of accused Sajjan Kumar. He had stated that the statement of Thakri Devi under Section 161 Cr.P.C. was recorded by his predecessor but neither the previous IO has been examined nor Thakri Devi.
260. It was then urged on behalf of the accused persons that the statement of Kamla Kaur was Ex.PW10/D-20 and the IO had admitted that she had never named Sajjan Kumar. Smt. Kamla Devi was cited at Sl. No.10 in the list of witnesses in the present case and was examined on 13.03.2008 under Section 161 Cr.P.C. and had alleged the killing of her husband Thakur Singh on 01.11.1984 and she had admitted making an earlier deposition before the Court in respect of the killing of her husband Ex.PW10/D-20 pertaining to the same incident and she was examined as PW8 in "State v. Gopi and others" in FIR No.252/1984 wherein she had stated that her husband was killed on 02.11.1984. She had named the accused persons in that case but she had not named Sajjan Kumar nor shown his involvement which was confirmed by the IO. PW10 had during cross- examination proved the certified copy of the statement of Smt. Kamla Devi recorded as PW8 in the said case as Ex.PW10/D-20. He admitted that in the said statement she had not taken the name of accused Sajjan Kumar as one of the accused persons or stated about his involvement and volunteered the statement of Smt. Kamla Kaur under Section 161 Cr.P.C. was recorded by his predecessor. Thus, PW10 had admitted that in Ex.PW10/D-20 CBI Vs. Sajjan Kumar & Ors. Page No. 365 of 545 Kamla Kaur had not taken the name of accused Sajjan Kumar. He had stated that the statement of Kamla Kaur under Section 161 Cr.P.C. was recorded by his predecessor but the previous IO has been examined and Kamla Devi was stated to have expired.
261. The Ld. Counsel for the accused persons had also submitted that Smt. Prem Kaur was cited at Sl. No.8 in the list of witnesses and was examined on 31.08.2008 under Section 161 Cr.P.C. She had alleged the killing of her husband Roshan Singh and her two sons on 01.11.1984 and she had admitted making an earlier deposition before the Court in respect of the killing of her husband Ex.PW10/D-13 (colly) pertaining to the same incident and she was examined as PW9 and as PW8 in RC-1 (1990) and prior to that in Sessions Case No.32/1990 and 4/1993 "State v. Uddal & others." In FIR No.252/1984, judgment is Ex.PW10/D-
12. She had named the accused persons but she had never named Sajjan Kumar at all which was confirmed by the IO. It was the third case in which Prem Kaur was cited as a witness after FIR No.252/84 and she was also examined in RC-1 and in both the cases Sajjan Kumar was not named before the Court. It was submitted that though the record was not traceable but the judgment Ex.PW10/D-13 (colly) was there and the witness had named everyone except Sajjan Kumar but now only Sajjan Kumar was named. During cross-examination PW10 admitted that Smt. Prem Kaur was examined in Ex.PW10/D-12 as PW8 and she had not raised any accusing finger against the accused Sajjan Kumar in the said statement. The certified copy of the statement of Smt. Prem Kaur recorded in RC-01 (S)/90 on 18.01.2000 and certified copy of the judgment dated 01.12.2002 CBI Vs. Sajjan Kumar & Ors. Page No. 366 of 545 in "CBI Vs. Sajjan Kumar" are Ex.PW10/D-13 (colly).
262. PW10 admitted that in the same, the witness had not made any allegations against the accused Sajjan Kumar and volunteered as far as he remembered, in the said case the witness had taken the name of accused Sajjan Kumar in her statement under Section 161 Cr.P.C. recorded before CBI but later on she turned hostile before the Court, she was also examined before some Commissions where she had named the accused Sajjan Kumar so she was examined in the present case and her statement was recorded under Section 161 Cr.P.C. in which she named the accused Sajjan Kumar. He denied the suggestion that the said witness had not given any statement before any commission or committee nor even before the Nanavati Commission or that she never appeared before the Nanavati Commission. Thus, PW10 admitted that Smt. Prem Kaur was examined in Ex.PW10/D-12 as PW8 and she had not raised any accusing finger against the accused Sajjan Kumar in the said statement nor even in Ex.PW10/D-13, she had made any allegations against the accused Sajjan Kumar. He had volunteered that as far as he remembered, in the said case the witness had taken the name of accused Sajjan Kumar in her statement under Section 161 Cr.P.C. recorded before CBI but later on she turned hostile before the Court, she was also examined before some Commissions where she had named the accused Sajjan Kumar so she was examined in the present case and her statement was recorded under Section 161 Cr.P.C. in which she named the accused Sajjan Kumar but once the witness has not been examined in the Court and was stated to have CBI Vs. Sajjan Kumar & Ors. Page No. 367 of 545 expired, nothing much turns on the same, moreso as the statement made to CBI wherein she had allegedly taken the name of A1 has not been proved on record. It was also submitted that Mishri Kaur was not an eyewitness and it is seen that neither she has been examined nor the IO who had got recorded her statement under Section 164 Cr.P.C.
263. It was then submitted that in the present case Bhagwani Bai (since deceased) who was at Sl. No.1 in the list of witnesses was not examined as she was stated to have expired. The killing of her two sons Hoshiar Singh and Mohan Singh was sent for trial in "State v. Gopi and others" in FIR No.250/84 PS Sultanpuri. Her husband Sewa Singh was examined as PW19 Ex.PW10/D-11 and his two statements dated 10.04.85 and 14.10.92 were also exhibited and he had narrated everything but he did not raise any accusing finger against A1 and did not name Sajjan Kumar at all. Sewa Singh was the father of Mohan Singh and Hoshiar Singh and husband of Bhagwani Bai but he had not named any of the three accused persons and had named the people who had killed his sons as Rajender, Pradeep and others. Reference was made to the statement of Sewa Singh under Section 161 Cr.P.C. and the statement was dated 10.04.1985. It was submitted that the IO had also confirmed that Sewa Singh was examined earlier for the killing of his sons. No member of the family of Bhagwani Bai had stated about the involvement of Sajjan Kumar. So the cases had been duly tried and even the Hon'ble High Court and Hon'ble Supreme Court had referred to the same and it was not a case where no trials took place.
CBI Vs. Sajjan Kumar & Ors. Page No. 368 of 545264. During cross-examination PW10 admitted that Hoshiyar Singh and Mohan Singh were real brothers and Ranjeet Singh was their cousin brother. He admitted that the case of murder of the said three persons was sent for trial in FIR No.250/84 in the case titled as "State Vs. Gopi and Ors." (SC No. 77/90) and volunteered accused Sajjan Kumar was not tried in the said matter. He denied the suggestion that Sajjan Kumar was not tried in the said matter as neither the witnesses had named him during investigation nor before the Court. He did not notice the name of accused Sajjan Kumar in the record of the said case. He admitted that the accused persons in the said case were acquitted by the Ld. ASJ. He admitted that he had received a copy of the said judgment and the certified copy of the judgment dated 30.09.1993 is Ex.PW10/D-9. Certified copy of the judgment dated 23.12.2002 in SC No.34/2004 and SC No.35/2001 is Ex.PW10/D-10. Thus, PW10 had admitted that the accused persons in the trial of Hoshiyar Singh and Mohan Singh were acquitted by the Court and that he did not notice the name of accused Sajjan Kumar in the said case.
265. During further cross-examination PW10 admitted that the name of husband of Bhagwani Bai is Sewa Singh. He did not remember if Sewa Singh appeared as a witness in respect of killing of his children in FIR No.250/84, SC No.77/90 and 29/92. He denied the suggestion that he had stated falsely about not remembering if Sewa Singh had appeared as a witness and the entire record was with him. He could not say if Ex.PW10/D-11 is the statement of Shri Sewa Singh recorded before the Court earlier. He had not examined Sewa Singh but his predecessor CBI Vs. Sajjan Kumar & Ors. Page No. 369 of 545 may have examined him and volunteered he had also examined Bhagwani Bai. He denied the suggestion that he had joined Bhagwani Bai as a false witness or that he had recorded her statement under coercion and volunteered his predecessor had recorded her statement. Thus, PW10 had stated that the statement of Bhagwani Bai had been recorded by his predecessor though the previous IO has not been examined in the present case. He admitted that he was aware that the name of Sajjan Kumar was nowhere reflected by any member of the family of Bhagwani Bai in the statements during investigation or before the Court. He did not remember if the names of the sons of Bhagwani Bai who are alive are Mohan Singh and Babu Singh who were examined in the earlier case. He stated that he had gone to the house of Bhagwani Bai in order to get her statement recorded under Section 164 Cr.P.C. and for pointing out the scene of crime. He denied the suggestion that neither Bhagwani Bai pointed out the scene of crime nor she stated that she had knowledge about the present case. Thus, PW10 admitted that he was aware that the name of Sajjan Kumar was nowhere reflected by any member of the family of Bhagwani Bai in the statements during investigation or before the Court.
266. The Ld. Counsel for the accused persons had argued that Jatni Kaur was cited at Sl. No.5 in the list of witnesses in the present case but was not examined. She was the mother-in-law of PW5 Sheela Kaur. Jatni Kaur was the wife of Basant Singh and mother of Balbir and Balihar Singh. In her earlier deposition as PW31 Ex.PW10/D-4 she had never named Sajjan Kumar which was confirmed by the IO. It was submitted that the prosecution CBI Vs. Sajjan Kumar & Ors. Page No. 370 of 545 was aware that PW5 and her mother-in-law Smt. Jatni Kaur had been examined as PW32 and PW31 respectively in respect of the present subject matter in the earlier trial of FIR No.250/84 (RC-
7) and the CBI had again cited them at Sl. No.3 and 4 in the list of witnesses in the present charge sheet and the same had been admitted by the IO during the cross-examination dated 22.11.2021. PW10 had stated that Jatni Kaur and Sheela Kaur had deposed in the earlier case and he had stated that he had confronted them with the record. It was a case where earlier other accused persons had been named but Sajjan Kumar was not named whereas at present Sajjan Kumar was named and none of the other accused persons had been named and the words were very clear. It was argued that PW10 was trying to justify whereas he should have recorded in the statement under Section 161 Cr.P.C. that part of their statements recorded earlier was correct and the other part was not correct and to suppress one lie four lies were being brought. In RC-1, 54 witnesses were there but none had named Sajjan Kumar.
267. During cross-examination PW10 could not say if Ex.PW10/D-4 was the statement of Smt. Jatni Kaur recorded before the Court earlier with which he had confronted her and volunteered he had confronted her with her statement which was on record. He admitted that in her statement under Section 161 Cr.P.C. and her deposition before the Court she had not stated about the involvement of Sajjan Kumar and volunteered when she was confronted with the said statements during investigation, she stated that part of the said statement was correct and part of the statement was not correct as the said statements did not CBI Vs. Sajjan Kumar & Ors. Page No. 371 of 545 reflect the name of Shri Sajjan Kumar. He stated that he had not mentioned in the statement of Jatni Kaur under Section 161 Cr.P.C. recorded by him that she was confronted with her earlier statement under Section 161 Cr.P.C. and deposition in the Court and volunteered the same was mentioned in the case diary. He did not want to see the case diary to show that the said fact was mentioned therein. He did not want to point out the case diary in the said respect to the Court. He denied the suggestion that he did not want to see or point out the case diaries as Smt. Jatni Kaur remained firm on her statement and stated that five members of her family Smt. Sheela Kaur, her daughter-in-law, Daya Kaur, her daughter-in-law and Smt. Bhagwanti Kaur and Ram Kaur her daughter had deposed before the Court that Sajjan Kumar was not involved in any manner and they could not name him.
268. Thus, PW10 had admitted that in her statement under Section 161 Cr.P.C. and her deposition before the Court Jatni Kaur had not stated about the involvement of Sajjan Kumar. He had volunteered that when she was confronted with the said statements during investigation, she stated that part of the said statement was correct and part of the statement was not correct as the said statements did not reflect the name of Shri Sajjan Kumar but it is pertinent that he had not mentioned in the statement of Jatni Kaur under Section 161 Cr.P.C. recorded by him that she was confronted with her earlier statement under Section 161 Cr.P.C. and deposition in the Court. He had then volunteered that the same was mentioned in the case diary but that does not mean much when he stated that he did not want to see the case diary to show that the said fact was mentioned therein and he also did not CBI Vs. Sajjan Kumar & Ors. Page No. 372 of 545 want to point out the case diary in the said respect to the Court. As such, according to PW10, Jatni Kaur had not named Sajjan Kumar earlier and in the present case, she could not be examined as she had expired.
269. The Ld. Counsel for the accused persons had also submitted that Smt. Bhagwanti Kaur in Ex.PW10/D-7 had named the persons who had fired and with whose shot her relative was killed and that others were killed by lathi blows and Smt. Ram Kaur in her statement Ex.PW10/D-8 had stated that five persons were killed and that Uddal was there and she had also named the accused persons and identified them and as such she had a clear concept as to who and how the people were killed but they had never named Sajjan Kumar in the earlier trial. The judgment Ex.PW10/D-10 also clearly established that Sajjan Kumar was nowhere involved in any manner whatsoever. Reference was also made to the statement of Daya Kaur which is Ex.PW10/D-6 and that statements of relatives were also placed on record and that reference of all the three relatives was there in the statement of PW14 in "State v. Suresh". It was submitted that Daya Kaur, Jatni Kaur and all the others did not name Sajjan Kumar or Vedu. Daya Kaur had identified Brahmanand but did not name A1 or Vedu. It was also submitted that all the said persons were related to Sheela Kaur (who has been examined in the present case) and had stated about the same incident. During cross-examination PW10 was shown certified copies of statements of Smt. Daya Kaur, Smt. Bhagwanti, Smt. Ram Kaur which are Ex.PW10/D-6, Ex.PW10/D-7 and Ex.PW10/D-8 and he stated that the said witnesses were not examined by CBI so he could not comment CBI Vs. Sajjan Kumar & Ors. Page No. 373 of 545 about the said statements. He did not remember if he had read the statements of the said persons from the record. He denied the suggestion that he had stated falsely about not remembering if he had read the statements of the said persons as he had already stated that he had analysed the entire record and the said statements formed part of the record. Thus, PW10 had stated that the said witnesses were not examined by CBI and as such, the testimony of the said witnesses recorded earlier is not of much significance.
270. It is thus seen that the Ld. Counsel for the accused persons had pointed out that all the witnesses who had not been examined in the present case had been examined earlier in different cases and they had not named the accused Sajjan Kumar in any of the said trials. The witness at Sl. No.1 Smt. Bhagwani Bai had expired so she could not be examined but her husband had been examined vide his statement Ex.PW10/D-11; witness at Sl. No.3 Smt. Popri Kaur had been examined vide her statements Ex.PW10/D-17 and D-18; witness at Sl. No.5 Jatni Kaur had also expired but she had been examined earlier vide her statement Ex.PW10/D-4; witness at Sl. No.7 Smt. Gopi Kaur had been examined earlier vide her statements Ex.PW10/D-15 and D-16; witness at Sl. No.8 Smt. Prem Kaur could not be examined as she had expired but she had been examined earlier vide her statement Ex.PW10/D-13 (colly); witness at Sl. No.9 Smt. Thakri Devi had been examined earlier vide her statement Ex.PW10/D-19; witness at Sl. No.10 Smt. Kamla Devi had been examined earlier vide her statement Ex.PW10/D-20 and the relevant judgments were also placed on record but the said witnesses had not named CBI Vs. Sajjan Kumar & Ors. Page No. 374 of 545 Sajjan Kumar or Vedu. The Ld. Counsel had referred to some other witnesses as well but they have not been cited by CBI as witnesses in the present case and even the defence has not brought them in the witness box. Further, it is seen that witnesses Gopi Kaur, Thakri Devi, Kamla Devi and Popri Kaur had essentially stated about the incident of 02.11.1984. Witness at Sl. No.11 Smt. Misri Kaur had not been examined at all.
271. During cross-examination PW10 denied the suggestion that he did not find any independent witness who could support the case of the prosecution in RC-7 so the witnesses who had already deposed in the earlier case pertaining to the same subject matter were joined as witnesses in RC-7 and volunteered all the witnesses had named accused Sajjan Kumar during investigation. He denied the suggestion that the witnesses had not named accused Sajjan Kumar or that he had recorded their false statements naming accused Sajjan Kumar therein or that for the said reason 9 out of 12 witnesses had been dropped and volunteered he came to know that some of the witnesses had died during trial. He denied the suggestion that it was never informed to the Court as to which of the witnesses had expired or that he had given wrong information to the Court that Nanavati Commission had specifically recommended to re-investigate FIR No.250/84 and other cases and that is why the present case was registered. Thus, PW10 had stated about certain witnesses having expired though it was not stated specifically which of the witnesses had expired. It has also come on record that all the witnesses who have been referred to above had been examined earlier except Smt. Misri Kaur and it was also submitted that CBI Vs. Sajjan Kumar & Ors. Page No. 375 of 545 PW4 Smt. Prem Kaur had not been examined earlier. PW10 had volunteered all the witnesses had named accused Sajjan Kumar during investigation but all the witnesses have not been examined in the present case. Be that as may. The prosecution has the discretion to determine which of the witnesses it would examine and the Court, on the basis of the evidence that has come on record has to see whether the guilt of the accused persons stands proved.
Analysis of the evidence of PW4 Smt. Prem Kaur
272. Coming to the testimony of PW4 Smt. Prem Kaur, she had deposed that in 1984 in the month of October-November she was staying at Sultanpuri. At that time, her seven children and her husband used to reside along with her in the said house. On 31.10.1984 Smt. Indira Gandhi was killed. On 01.11.1984, her husband left for plying his feri and since morning there was news that Sikhs were being attacked and killed by the mob. On hearing the news of the said attack, she and her children hid themselves in the residence of their neighbour. They hid themselves for the entire day and night. They came out the following day as the neighbours stated that they should go away, otherwise the neighbours would be put to harm by the mob. On coming out of the neighbours' house, they saw their house looted and burnt. Soon thereafter Anek Kaur came to their house with her husband Wakil Singh on a cot in an injured condition. They stayed in the said house for about 4 to 5 days and thereafter they were taken to camp. She did not recognize the perpetrators who had looted and burnt their house. They would throw some white powder from CBI Vs. Sajjan Kumar & Ors. Page No. 376 of 545 which smoke would emanate, as such they could not see much. She stated that children were saying that Sajjan Kumar, Jai Kishan, Ratan and Gupta Telwala were in the mob. Some other persons inclusive of Sabhai Kaur, Mishri Kaur, Satbari Kaur and Raj Kaur and many others were saying the same thing in the camp. She stated that when they came out of their hiding, they were informed by people that their house was looted and burnt by the said persons. When they came out of their hiding, they saw many houses had been burnt and looted. Apart from her own house, the other houses belonging to Sikhs were burnt.
273. PW4 further deposed that the army took them to the camp. The camp was located near their residence set up by the army. The people in the camp were their neighbours. There were quite a number of other people in the camp and there were quite a number of people whose name she did not know. There were other people from other localities apart from her neighbours whom she did not know. The persons brought were from their community i.e. they were all Sikhs who had been brought to the camp by the army. They were similarly placed. The people would ask them to hide themselves otherwise the mob would come and they would bring them to harm (maar denge). She stated that the children were so petrified that they could not eat. People in the camp used to discuss their tales of horror and miseries suffered by them including looting, burning, killings and rapes etc. She did not report the matter to the police as the Delhi Police did not come to ask them of the said incident nor did they go to the police station. She stated that they did not go to police because it was the police who was also involved in rioting and killing. After CBI Vs. Sajjan Kumar & Ors. Page No. 377 of 545 coming out of the camp, she went to Alwar along with her family out of fear to their relative's house. She returned to Delhi after about a month. She had no information regarding her husband till date. She still did not know what happened to him.
274. Thus, PW4 had deposed that on 01.11.1984, her husband left for plying his feri and since morning there was news that Sikhs were being attacked and killed by the mob. She and her children hid themselves in the residence of their neighbour for the entire day and night. They came out the following day and saw their house looted and burnt. She also stated about Anek Kaur coming to their house with her husband Wakil Singh on a cot in an injured condition. They stayed in the said house for about 4 to 5 days and thereafter they were taken to camp. It is pertinent that she had not deposed about witnessing any incident directly and also stated that she did not recognize the perpetrators who had looted and burnt their house though she had stated that they would throw some white powder from which smoke would emanate, as such they could not see much. She had further stated that children were saying that Sajjan Kumar, Jai Kishan, Ratan and Gupta Telwala were in the mob and some other persons inclusive of Sabhai Kaur, Mishri Kaur, Satbari Kaur and Raj Kaur and many others were saying the same thing in the camp. However, neither the said persons, nor the children who had taken the names of the accused persons have been examined in the present case. She had also stated that when they came out of their hiding, they were informed by people that their house was looted and burnt by the said persons but again she herself was not a witness to the same. She also stated that when they came out of CBI Vs. Sajjan Kumar & Ors. Page No. 378 of 545 their hiding, they saw many houses had been burnt and looted and that the other houses belonging to Sikhs were burnt. She had stated that the persons brought in the camp were from their community i.e. they were all Sikhs who had been brought to the camp by the army. She had stated that she did not report the matter to the police because it was the police who was also involved in rioting and killing. It is thus, not the case that she herself had witnessed any of the said persons committing any act.
275. During cross-examination PW4 admitted that she had come to the Court with Nirpreet Kaur who was present in the Court. She had known Nirpreet Kaur for the previous about 12 years. She met her almost on a daily basis. She admitted that she had discussed (gal baat) with Nirpreet Kaur as to her testimony. She had talked with CBI in regard to the incident in question but there was no recording of her statement at any time (har bar). She denied the suggestion that she was making a false and tutored statement before the Court at the instance of CBI, Nirpreet Kaur and other political opponents of Sajjan Kumar and others or that she had made a false and wrong statement while naming Sajjan Kumar and others in the Court. Thus, PW4 had stated about coming to the Court with Nirpreet Kaur and that she had discussed with her about her testimony. It is pertinent that she had stated that she had talked with CBI in regard to the incident in question but there was no recording of her statement at any time. A suggestion was put to her that since she knew nothing about the incident she did not give any affidavit or statement before any commission or committee which she denied but even nothing has been brought on record to show that she had CBI Vs. Sajjan Kumar & Ors. Page No. 379 of 545 given any affidavit or statement before any commission or committee earlier.
276. A further suggestion was put to PW4 that Mishri Kaur, Raj Kaur, Sabhai Kaur, Satbari Kaur did not disclose to her any such fact as stated by her in her examination-in-chief or that nobody talked to her about the incident in the manner as stated by her in her examination-in-chief which she denied but even if it is so, none of the said persons who had disclosed any such facts to her have been examined in the present case and one Mishri Kaur was cited as a witness in the list of witnesses but she has not been examined in Court. She denied the suggestion that even children had not disclosed any such fact as wrongly and falsely stated by her in her statement or that a new and false story had been cooked up as tutored to her or that she remained silent for such a long period of time as she was having no knowledge about the facts of the case or the alleged incident. Even the names of the children who allegedly disclosed any such facts to PW4 have not been stated nor how they came to know the said names. It is thus seen that during cross-examination only suggestions were put to PW4 which she denied but even otherwise, in her examination- in-chief, she herself had not stated about witnessing any incident or seeing any act being committed. Her testimony would be material only to the extent that she had stated that on hearing the news of the attack, she and her children hid themselves in the residence of their neighbour though she had not witnessed any such attack and that they saw their house looted and burnt but she had not stated who had done the same. She had also stated that Anek Kaur came to their house with her husband Wakil Singh on CBI Vs. Sajjan Kumar & Ors. Page No. 380 of 545 a cot in an injured condition but there is no elaboration before the Court of how Wakil Singh had received injuries. She herself had stated that she did not recognize the perpetrators who had looted and burnt their house though she had stated that they would throw some white powder from which smoke would emanate, as such they could not see much.
277. The Ld. SPP for CBI had submitted that none of her statements were confronted to PW4 and in those circumstances the value of the testimony had to be seen and whether it was hearsay or covered in exception to hearsay would have to be seen. However, even a perusal of her statement under Section 161 Cr.P.C. shows that she had mainly stated about the rioters attacking her house, looting it and putting it on fire and about the incident with Anek Kaur and her husband Wakil Singh whereas in Court she had only stated about Anek Kaur coming to her house with her husband on a cot in an injured condition and remaining at their house for 4-5 days. Even in the statement under Section 161 Cr.P.C. PW4 had stated that she had not seen any rioter with her own eyes and they were concerned about saving their life at that time. She had stated about Anek Kaur taking the name of Sajjan Kumar but she had not deposed in the Court to that effect, rather she had taken names of other persons who had told her about the involvement of Sajjan Kumar. She had also categorically stated in the statement under Section 161 Cr.P.C. that she had not seen Sajjan Kumar and Jai Kishan coming in a jeep. In these circumstances, there was no reason for the accused persons to confront her with her statement.
CBI Vs. Sajjan Kumar & Ors. Page No. 381 of 545278. The Ld. SPP had then submitted that PW4 had clearly stated that only Sikhs were being targeted but there is no such statement and she had only stated that there was news of Sikhs being attacked though she had stated about burning, looting of their houses. It was submitted that she did not say that she had seen the actual incident and maintained her case that she was hiding with her children so she could not recognize the people who had burnt her house and her statement had to be taken at face value for what she had stated and she had not tried to add anything. Though it may show that she was a truthful witness but it does not help the case of the prosecution except to show that her house was looted and burnt and they saw many houses looted and burnt. Moreover, what she had stated in Court about the children and some other persons in the camp taking the name of A1 and others does not find mention in her statement under Section 161 Cr.P.C. It was argued that she could not say if her husband was a casualty in the incident but she disclosed the misery which would come in exception to hearsay but again while the looting and burning of house may be taken note of, she nowhere stated who had done the said acts. The Ld. SPP had submitted that PW4 to 6 focused on burning, looting of Sikh properties and rioting in general, highlighting the abetment to crime through conspiracy and instigation and they had narrated the same facts that A1 was leading the mob and exhorting people and Sikhs were killed but while the testimony of PW4 shows the former part in general, there is nothing in the same to infer abetment to crime through conspiracy and instigation or to show that A1 was leading the mob and exhorting the people. It was CBI Vs. Sajjan Kumar & Ors. Page No. 382 of 545 contended that PW4 had given crucial details about the nature of crime i.e. Sikhs being killed, white powder being thrown from which smoke would emanate, Sikh houses being burnt and looted, all of which went unrebutted but even otherwise, there can be no dispute to the said fact.
279. It was also argued that the defence had miserably failed to show any malice, or ill will or enmity on the part of the witness and there is merit in the said submission but the testimony of PW4 does not establish anything against the accused persons. It was argued that the cross-examination alleging a rival political connection fell apart because the witness had categorically denied all such imaginary suggestions but nothing much turns of the same. It was submitted that PW4 was a natural, probable and truthful witness and a simple person of ordinary means, who suffered toil for a lifetime to put together the bits and pieces of her shattered life and she had honestly deposed that she heard news of Sikhs being attacked and killed by mob. As noted above, there is no reason to doubt that PW4 was a truthful witness but her testimony can have only limited use for the case at hand and only establishes what is not even in dispute i.e. there were riots, looting and burning. It was submitted that the testimony of the said witness proved the indifferent/ callous approach intentionally adopted by Delhi Police while investigating heinous offences which led to the targeted killings of hundreds of Sikh persons and that due procedure was not followed in the investigation done by Delhi Police and that she proved the inaction and involvement of the police during the incident. It is seen that PW4 had stated that she did not report the matter to the CBI Vs. Sajjan Kumar & Ors. Page No. 383 of 545 police as the Delhi Police did not come to ask them of the said incident nor did they go to the police station and they did not go to police because it was the police who was also involved in rioting and killing. While it does show that Delhi Police did not take any active steps, yet even PW4 had not approached any Commission or Committee at any point of time.
280. It may be mentioned that FIR No.307/94 PS Sultanpuri was registered on 14.06.1994 on the basis of an affidavit filed before the Ranganath Misra Commission on 09.09.1995 by Smt. Anek Kaur, wherein she alleged that on 01.11.1984 at about 8.00 a.m. a mob led by one Ratan surrounded the houses of Sikh community and threatened to set them on fire; Sajjan Kumar, MP, and Shri Jai Kishan, Congress leader came to the locality in a jeep and threatened Sikhs to be killed. A closure report had been filed in respect of FIR No.307/94 which was accepted by the Court on 15.01.1999 and thereafter investigation was handed over to CBI which re-registered it as RC-8. However, Smt. Anek Kaur had expired and her death certificate was also placed on record. In the Court in the present case, PW4 had not stated much about the death of Wakil Singh in her testimony in Court and no other witness has been examined in that respect. Even otherwise, the accused persons were not charged for the murder of Wakil Singh and at the most the testimony of PW4 shows that there was rioting and looting and burning of the house of PW4 and of other houses but her deposition cannot be said to establish as to who were the perpetrators or even to show that there was any unlawful assembly or what were the acts committed by the said unlawful assembly or to show the culpability of any of the CBI Vs. Sajjan Kumar & Ors. Page No. 384 of 545 accused persons in the present case. The Ld. Counsel for the accused persons had argued that witnesses at No.11 and 12 pertained to RC-8 though both had stated that they had not seen the alleged incident and had not supported the case of the prosecution and that CBI had got examined only Prem Kaur who was not a witness to the alleged incident and did not examine Misri Kaur. It is significant that PW4 herself had not seen the perpetrators or any incident taking place and Misri Kaur has not been examined in the present case.
281. PW10 was also cross-examined in respect of RC-8 and PW10 admitted that RC-8(S)/2005/CBI/SCB-II was re- registration of FIR No.307/94, PS Sultanpuri. He admitted that he had not examined any witness in respect of the said case. He denied the suggestion that he did not examine any witness in that case as nobody supported the version of the prosecution and volunteered the case was investigated by another IO namely Shri Sanjay Kumar Khullar. He denied the suggestion that he had no knowledge about RC-8 or that he had blindly filed the charge sheet in respect of the said case. He denied the suggestion that he could not tell anything about RC-8 as he did not have any knowledge about the same. Thus, PW10 himself had not examined any witness in RC-8 and the IO who had investigated the said case has not been examined in the present case nor any other material witness has been examined pertaining to the said FIR. It may be mentioned that it was submitted in the written submissions filed on behalf of CBI that in respect of FIR No.307/94, it had restricted the charge to the trial of the accused for burning, looting, arson, damaging the Gurudwara but no CBI Vs. Sajjan Kumar & Ors. Page No. 385 of 545 evidence has come on record of burning of Gurudwara and regarding rioting, looting and burning, there is nothing to establish who were the perpetrators or to connect the accused persons to the same. It would be the contention of CBI that a consolidated charge sheet had been filed in respect of three FIRs and as such even if the charge under Sections 147, 148, 149 was not established in RC-8, the same was established by the testimony of the witnesses in the other cases and it has to be seen whether this is so.
Analysis of the evidence of PW5 Smt. Sheela Kaur
282. The next witness examined by the prosecution was PW5 Smt. Sheela Kaur who deposed that she was married to Shri Balbir Singh three years before the incident in question. She had a son named Amarjeet Singh from the marriage. In the year 1984, she was residing at A-4/177, Sultanpuri Delhi. She stayed there for about three/ four years. In the said house, she was staying with her family Shri Basant Singh, father-in-law, Smt. Jatni Kaur, mother-in-law, two brothers-in-law (devars) Balihar Singh and Gopal Singh and her sister-in- law (nanad) Samna Kaur and her husband (of PW5). She stated that Mrs. Indira Gandhi was assassinated on 31.10.1984 and riots broke out thereafter. On 31.10.1984, she along with her family members was watching riots over television. PW5 further deposed that the next morning on 01.11.1984, she did not remember the time, she heard noise outside her house, she came out of the house and saw huge crowd collected in the park opposite her house. She saw the accused Sajjan Kumar addressing the crowd that the Sikhs had killed their CBI Vs. Sajjan Kumar & Ors. Page No. 386 of 545 mother ('inhone hamari maa ko maar dala'). The crowd started raising slogans. Accused Sajjan Kumar continued to say "sabko jaan se maar dalo, inke gharo me aag laga do". She ran inside her house. The crowd rushed to her house carrying lathis and some youngsters were carrying "ballam". They came inside and assaulted her husband and her father-in-law, who were watching TV after dragging them out of the house. The crowd killed three members of her family i.e. her husband Balbir Singh, her father- in-law Shri Basant Singh and her brother-in-law (devar) Balihar Singh. She had tried to save them. She was however pushed around. She then took shelter in the house of a neighbour opposite her house. She stated that she had known the accused Sajjan Kumar, as he had been visiting Sultanpuri frequently. She identified the accused Sajjan Kumar.
283. PW5 stated that she had lodged complaint and got registered a case regarding killing of three members of her family. She had been making complaints with different authorities but she was not heard and no case was registered. Her statement was recorded by CBI officials when they had come to her to inquire about threats to her life. It was in the year 1984. Again said, she did not remember when CBI officials had come to her. She even did not remember as to how many months and years after the incident they had come to her and volunteered as she was illiterate. The CBI officials had also come to her twice earlier. She was not taken to any Magistrate by the CBI officials. She was shown the file and she stated that she was taken to the Magistrate once. She was shown the statement (Mark A) on the Court file and she stated that she could not identify her thumb CBI Vs. Sajjan Kumar & Ors. Page No. 387 of 545 impression. Thus, PW5 had deposed on 01.11.1984, she did not remember the time, she heard noise outside her house, she came out of the house and saw huge crowd collected in the park opposite her house and she saw the accused Sajjan Kumar addressing the crowd that the Sikhs had killed their mother ('inhone hamari maa ko maar dala') on which the crowd started raising slogans. Accused Sajjan Kumar continued to say "sabko jaan se maar dalo, inke gharo me aag laga do". She had also stated that the crowd rushed to her house carrying lathis and some youngsters were carrying "ballam" and she had stated about the killing of three members of her family i.e. her husband Balbir Singh, her father-in-law Shri Basant Singh and her brother-in-law (devar) Balihar Singh. She was also pushed around. She had also stated that she had known the accused Sajjan Kumar, as he had been visiting Sultanpuri frequently and she identified him. She had stated about getting registered a case regarding the killing of three members of her family. It may be mentioned that though PW5 had named A1, she had not named any of the other accused persons in her testimony, nor attributed any role to any accused person except A1 and had not named the persons who had killed her family members.
284. PW5 was cross-examined on how she had come to the Court and she stated that she had come to the Court on her own. A woman named Nirpreet Kaur who was sitting in the Court had brought the summon. She was served with summon by a police official at her house. The police official was not a Sikh. She was also cross-examined regarding the summons and the courts but nothing much turns on the same. Thus, PW5 had stated about CBI Vs. Sajjan Kumar & Ors. Page No. 388 of 545 coming to the Court on her own though she had stated about Nirpreet Kaur bringing the summon and it may be mentioned that PW4 had come to Court with Nirpreet Kaur. PW5 was extensively cross-examined and during cross-examination PW5 stated that Shri Dharam Singh, husband of her sister-in-law (nanad) Bhagwanti was killed in the riots. Shri Dharam Singh was not the pradhan of local Gurudwara. Shri Dharam Singh lived in house No.A-4/168 which was near to her house. She admitted that Ram Kaur is her sister-in-law (nanad). She admitted that her husband Prem Singh and son Sunil were also killed in those riots. She did not remember if their house number was A-4/162. The said house was however nearby her house. The houses were not in the same street. One Padmini Kaur also used to live in their neighbourhood. She however was not her sister-in- law. She did not remember her house number. She knew one Daya Kaur also. She did not stay in their street but stayed in street at the back of their house. She could not say if her house number was A-4/179. She did not know if she was aunt of Chal Kaur. Her husband was killed but she did not remember his name. She did not remember her house number. She also did not remember if she owned two houses. PW5 stated that her mother- in-law Jatni Kaur stayed in house No.A-4/178. Thus, PW5 was cross-examined regarding her relatives and about the other persons who were killed.
285. During further cross-examination PW5 admitted that Smt. Daya Kaur is her jethani. She did not then recollect whether her jethani was living in H.No.A-4/179, adjacent to her mother-in- law's house as long time had lapsed. She denied the suggestion CBI Vs. Sajjan Kumar & Ors. Page No. 389 of 545 that she was deliberately saying that she did not remember the house number of her jethani. She did not know whether her jethani had appeared as a witness in the case pertaining to the death of her husband Late Shri Balbir Singh, Shri Balihar Singh and Shri Basant Singh. Thus, PW5 stated that she did not know if Daya Kaur had appeared as a witness in the case pertaining to the death of Balbir Sing and others. PW5 admitted that she was examined as a witness in that case. She did not remember whether she was last examined in this case on 10.09.2015. The attention of the witness was drawn to portion A to A1 on page 2 of her cross-examination carried out on 10.09.2015, where it was recorded that "I know one Daya Kaur also. She did not stay in our street but stayed in street at the back of our house." and it was put to her that she had made a wrong statement before the Court on that day to which she replied in the negative and stated that she did not make a wrong statement. Daya Kaur lived in the street at the back of their house. Thus, PW5 reiterated that Daya Kaur lived in the street at the back of their house. It may be mentioned that the Ld. Counsel had submitted that Daya Kaur and Ram Kaur had been examined earlier and the said aspect has been dealt with above.
286. PW5 admitted that on the day of the incident, her relatives and neighbours who were living in A-4 Block, Sultanpuri were also affected. She admitted that her devrani Kaura Kaur lived in the house adjacent to that of Dhoban Kaur. It was put to her that Kaura Kaur w/o Balihar Singh lived in H.No.A-4/176 and Dhoban Kaur lived in H.No.A-4/175 to which she replied that 'Dhoban Kaur thoda dur rehti thi. Mere ghar se thoda dur rehti CBI Vs. Sajjan Kumar & Ors. Page No. 390 of 545 thi'. She did not know about the house numbers. She did not remember whether the house of Kaura Kaur and Dhoban Kaur were adjacent (sate hue the) to each other and it is possible that she may not remember the same after lapse of such a long period. She admitted that her H. No.is A-4/177. She admitted that 'mera ghar Kaura Kaur ke ghar se sata hua hai'. She had already stated that she did not remember whether the house of Kaura Kaur and Dhoban Kaur were adjacent to each other as a long time period had lapsed. She admitted that five brothers and a son of Dhoban Kaur had died in the incident, in which her husband also died. She did not know whether the names of Dhoban Kaur's brothers who died in the incident were Bhajan Singh, Raju Singh, Mukhtiyar Singh, Kaptan Singh and Khandu Singh. She did not remember the name of the son of Dhoban Kaur who died in the incident. She denied the suggestion that she was aware that name of Dhoban Kaur's son who died in the incident was Kuldeep Singh. Thus, PW5 was cross-examined regarding Dhoban Kaur and Kaura Kaur.
287. During further cross-examination PW5 stated that after the riots, she stayed in a camp in Rani Bagh. She stayed there for about 15 days. They were taken to the camp by military. All the women whose names were mentioned above were also taken to the same camp by the military. They all women in the said camp used to interact with each other. None of them ever discussed the names of the persons who were responsible for the riots, except accused Sajjan Kumar. She had never seen other people and therefore, could not discuss their names. It is pertinent that PW5 stated that even in the camp, they had discussed the name of only CBI Vs. Sajjan Kumar & Ors. Page No. 391 of 545 A1 and she categorically stated that she had never seen other people and therefore, could not discuss their names. She admitted that the government had provided facilities for drinking water and food etc. in the camp. Different people visited the camp to make inquiries about the riots and they used to tell them what they knew. Those people did record something but they being illiterate did not know what they had recorded. She had told them the same thing what she had narrated in the Court that day. "The different people who visited the camp included police official, media people". Thus, PW5 had stated about different people visiting the camp to make inquiries about the riots and that they used to tell them the same thing what she had narrated in the Court. PW5 further stated that from the camp they were shifted to Sultanpuri where larger tents were fixed. The police officials and media people visited their Sultanpuri camps/ tents also to make inquiries about the riots. None from Gurudwara ever visited their camp at Rani Bagh or Sultanpuri. As such, according to PW5, police officials and media people had also visited their Sultanpuri camps/ tents but none from the Gurudwara ever visited the camps.
288. PW5 was then cross-examined on her previous statements and she stated that she did not remember whether the police officials had come to her on 10.02.1985. She did not remember if any Raj Singh of Delhi Police had come to her on 10.02.1985 regarding the investigation. She did not remember whether he had recorded her statement (he might have recorded her statement or might not have recorded her statement). She did not remember whether any statement was read over to her. On that CBI Vs. Sajjan Kumar & Ors. Page No. 392 of 545 day, 49 people were killed in her street. Again said, all male people in their street were killed. They could have been 49 in number. She did not remember whether the police had registered any case regarding the killing of the males in her street. The police might have registered some case against people regarding the killing of people in her street and volunteered she did not remember as it was a very old matter. She did not remember if a case FIR No.250/84 was registered by the police "State v. Suresh Chand & Ors." PS Sultanpuri- charge sheet against 10 people. Thus, PW5 did not remember if Raj Singh from Delhi Police had come to her on 10.02.1985 regarding the investigation and whether he had recorded her statement and it is pertinent that after more than 30 years, when she was examined in Court on 10.09.2015, she may not remember the same. However, she had categorically stated that 49 people were killed in her street, again said, all male people in their street were killed and they could have been 49 in number but she did not remember whether the police had registered any case regarding the killing of males in her street. She did not even remember if FIR No.250/84 was registered by the police at PS Sultanpuri. During further cross- examination PW5 stated that she had mentioned the name of Shri Sajjan Kumar during the course of recording of her statement by the police but she did not remember the date, month and year of recording of her statement and volunteered it might have been recorded 3-4 years later. It was put to her specifically that her statement was recorded by SI Raj Singh on 10.02.1985 regarding the same occurrence in question to which she stated that she did not remember. She did not remember about Raj Singh who was CBI Vs. Sajjan Kumar & Ors. Page No. 393 of 545 having two stars. She denied the suggestion that SI Raj Singh had recorded her statement on 10.02.1985 with regard to the incident in question. Thus, she reiterated that she did not remember if her statement was recorded by SI Raj Singh on 10.02.1985 regarding the same occurrence and then she denied the suggestion that SI Raj Singh had recorded her statement on 10.02.1985 with regard to the said incident.
289. The Ld. SPP had argued that the statement dated 10.02.1985 in FIR No.250/1984 of PW5 was not exhibited or marked and the stand of the witness was that she had not named Sajjan Kumar earlier out of fear. The Ld. Counsel for the accused persons on the other hand had argued that suggestions were put to PW5 and she was confronted with her statement recorded in 1985 and she had stated that she had narrated everything to the police but she did not know what was recorded which showed that she was tutored. However, the record shows that though PW5 was cross-examined regarding the statement dated 10.02.1985, PW5 was not confronted with the said statement and it was not exhibited or marked. PW5 had stated about naming A1 in her statement recorded by the police though she did not remember the date of the same and she had not stated that she had not named Sajjan Kumar earlier out of fear. PW5 did not know that the statements of her mother-in-law Jatni Kaur (r/o A4/178), Cham Kaur (r/o A4/175), Prem Kaur (r/o A4/184), Ladki Kaur (r/o A4/172), Banto Kaur (r/o A4/172), Gulbano Kaur (r/o A4/153), Manjeet Kaur (r/o A4/153) were recorded on the same day when her statement was recorded. She did not know whether the name of the policeman who recorded her CBI Vs. Sajjan Kumar & Ors. Page No. 394 of 545 statement was Raj Singh, SI. She did not remember if she was asked by SI Raj Singh to call her devrani Kaura Kaur r/o A4/176A and she had told him that her devrani had already shifted to her parents' place. Thus, PW5 remained consistent that she did not know whether the policeman who recorded her statement was SI Raj Singh. It was suggested to PW5 that she very well remembered that her statement was recorded on 10.02.1985 by SI Raj Singh, Delhi Police, but she denied the same for four reasons: firstly, because she had not named accused Sajjan Kumar in the said statement nor did she assign any direct or indirect role to the accused Sajjan Kumar to which she stated that she did not remember the name of the police officer who recorded her statement. Thus, PW5 stated that she did not remember the name of the police officer who recorded her statement. She stated that she had not named the accused Sajjan Kumar earlier out of fear as they had received a threat. It was put to her that in the earlier statement she did not refer to any meeting of the accused Sajjan Kumar in her area to which she stated that they had narrated the entire happening to the police officer who told that he himself would record everything. It was put to her that in her aforesaid earlier statement she did not mention about any sloganeering by anyone to which she replied that it was told. It was put to her that in her earlier statement she did not mention anything about accused Sajjan Kumar instigating the crowd or about presence of accused Sajjan Kumar anywhere in that area to which she stated that everything was told to the police officer. Thus, various things which were deposed by the PW5 in the present case were put to her as not having been told CBI Vs. Sajjan Kumar & Ors. Page No. 395 of 545 in her earlier statement and she stated that she had stated the said things but even otherwise, PW5 was not confronted with the said earlier statement so not much can be read into the same.
290. PW5 further stated that the police had interrogated her after the incident and she narrated the whole incident to the police. The police had recorded her statement but the same was not read over and explained to her. She was not aware as to whether some more statements were recorded by the police on that day. She was aware about her statement. Thus, PW5 had stated that the police had interrogated her after the incident and she had narrated the whole incident to the police and she was aware about her statement. She was cross-examined on knowing some other ladies and she stated that she knew Smt. Chand Kaur W/o Shri Isher Singh who resided in the same lane of her street. Similarly, she knew Smt. Prem Kaur W/o Shri Roshan Singh who also used to reside in her street (who was cited at Sl. No.8 in the list of witnesses but had expired). She knew all the ladies namely Smt. Ladki Kaur W/o Shri Bacchan Singh, Smt. Gulbano Kaur W/o Shri Sheetal Singh, Smt. Banto Kaur W/o Shri Jagdish Singh, Smt. Manjeet Kaur W/o Shri Jagat Singh who used to reside in her street. She was not aware as to whether the said ladies had also narrated the incident to the police or not. Thus, PW5 knew the ladies whose names were put to her but she was not aware as to whether the said ladies had also narrated the incident to the police or not. It is also not the case put forth by the accused persons that the said ladies had narrated the incident to the police in the presence of PW5 or that there was any reason why she should have been aware of the same.
CBI Vs. Sajjan Kumar & Ors. Page No. 396 of 545291. It was put to PW5 that a tall and fair police officer with two stars namely Shri Sukhbir Singh had visited her on 02.11.1984 which she denied. Thus, PW5 had denied that any officer Sukhbir Singh had visited her on 02.11.1984. It was put to her that SI Sukhbir Singh had even recorded the statements of her mother-in-law namely Jatni Kaur and that of Dhoban Kaur (jethani), Kaura Kaur (devrani), Bindra Kaur, Bhagwanti Kaur (nanad), Ram Kaur (nanad), Narangi Kaur, Padmani Kaur, Ladki Kaur, Sattar Kaur, Shyam Kaur and Manjeet Kaur to which she stated that she had already stated that none came on 02.11.1984 and therefore, there was no occasion for recording of the statements of anyone 'kyunki itna halla gulla to macha hua tha'. She denied the suggestion that she was deliberately denying the said facts of visit by SI Sukhbir Singh and recording of statements of the said persons by him. She denied the suggestion that she was well aware that all the said persons had described whatever they had witnessed and had known about the incident, but was deliberately not accepting the said fact. She denied the suggestion that she was deliberately denying the said facts because at that time, she as well as all the said persons had given the names of the accused persons but had not named accused Sajjan Kumar and had not even mentioned anything about meeting. Thus, she denied that SI Sukhbir Singh had recorded the statements of the persons whose names were put to her. She further stated that she did not know whether the statements of Dhoban Kaur (jethani), Kaura Kaur (her devrani), Bindra Kaur, Bhagwanti Kaur (her nanad), Ram Kaur (her nanad), Narangi Kaur, Padmani Kaur, Ladki Kaur, Sattar Kaur, Shyam Kaur and CBI Vs. Sajjan Kumar & Ors. Page No. 397 of 545 Manjeet Kaur were recorded. She denied the suggestion that she was making a false statement and she was contradicting herself with what she stated at portion B to B1 on page 3 of the cross- examination recorded on 10.09.2015 where it was recorded that "Different people visited the camp to make inquiries about the riots and we used to tell them what we knew. Those people did record something but we being illiterate did not know what they had recorded. I had told them the same thing what I had narrated in the court today." She denied the suggestion that she wrongly stated in portion B to B1 that being illiterate she did not know what was recorded or that she very well knew that whatever was stated by her was recorded and it was even read over to and she stated that she made a right statement in portion B to B1. She denied the suggestion that she made a wrong statement in portion B to B1 that she had told them the same thing which she narrated before the Court in her examination-in- chief and stated that she correctly stated in portion B to B1 that whatever she stated in her examination-in-chief was told to the people who visited. She denied the suggestion that she totally changed her version before the Court in examination-in-chief from what she had told in the years 1984-1985 or in the Court in 1991 and volunteered 'Maine yahan par jo kuch dekha tha sach bataya hai'. She denied the suggestion that she was making a false statement or that she had cooked up a new story before the Court. Thus, various suggestions were put to PW5 which she denied. Moreover, even if she had stated that different people had visited the camp and recorded something, it did not imply that what she had stated that SI Sukhbir had not recorded the CBI Vs. Sajjan Kumar & Ors. Page No. 398 of 545 statements of the persons whose names were put to her was wrong in absence of any such statements being put to her or any such person being examined in the Court on behalf of the accused persons.
292. The Ld. Counsel for the accused persons had submitted that in the first part of the cross-examination, it was tried to be demonstrated that all the members of the family of Sheela Kaur and neighbours were affected in the incident in which she had lost three members of her family. Bhagwanti, Ram Kaur, Padmini Kaur, Daya Kaur, Chal Kaur were all named and were related or neigbours of PW5 and they were named to show that they were also affected by the incident. Jatni Kaur was also likewise named and she had already been examined before the Court. Houses of all the said persons were close to each other and there was a map which showed that these were houses of 25 sq. yds each. From the place of occurrence, they were taken to the camp together and the relatives or neighbours remained together. Government facilities were provided there. Police officials were coming and different agencies were there and quite naturally the witnesses would have been discussing the things but still they had not named A1. In A Block 49 persons had been killed but none of the family members of the persons killed had named Sajjan Kumar. Initially PW5 had stated about going to Tis Hazari Court and Karkardooma Court but not about going to Patiala House Court but then she had stated that she had been to Patiala House Court where the killing of three members of her family was tried. Kaura Kaur was the wife of Balihar who had died but his wife was not examined in the Court though inquiry was made CBI Vs. Sajjan Kumar & Ors. Page No. 399 of 545 from her. Dhoban was also a witness and she had lost four brothers and her son. A-4/177 was of Sheela Kaur, A-4/178 was of her mother-in-law Jatni Kaur, A-4/179 was of Daya Kaur and Daya Kaur was also related but PW5 had only stated that she was living near her house which showed her conduct. From the cross- examination of PW5 it is seen that while she had stated about other family members being affected, she was not aware whether statements of most of the said persons were also recorded or not. However, it has come on record that none of the other relatives of PW5 or witnesses examined in earlier cases had named A1.
293. PW5 was also cross-examined regarding telling the police about the place of incident and she stated that she had categorically told the police about the place of incident. She had also shown the place of incident to the police. She was illiterate. She did not know as to whether the rough sketch of the place of incident was prepared by the police or not. She could not say if the site plan was prepared by the police with regard to the place of incident at her instance. Document No.D29/4 was shown to her and she could not make any comments as she was an illiterate woman. Thus, PW5 had stated about showing the place of incident to the police though she could not say if the site plan was prepared by the police and she could not make any comments regarding D29/4 being illiterate. She denied the suggestion that there were 25 houses situated in the lane of her street at that relevant time and volunteered it may be more. She admitted that all the said houses in her lane of her street were having 25 square yards area each. She also admitted that there were similar number of houses situated in front of lane of her CBI Vs. Sajjan Kumar & Ors. Page No. 400 of 545 house. All the gents who used to reside on both the lanes of the street were killed. The width of the street where she used to reside was 10 feet. Nothing was brought forth to dispute what she had stated about the houses being of 25 square yards each or that the width of the street where she used to reside was 10 feet. It is significant that she had stated that all the gents who used to reside on both the lanes of the street were killed.
294. PW5 stated that she must have pointed out to the police, the places where her husband, her devar, her father-in-law and neighbours were killed. It was put to her that even the other ladies namely Jatni Kaur (r/o A4/178), Cham Kaur (r/o A4/175), Prem Kaur (r/o A4/184), Ladki Kaur (r/o A4/172), Banto Kaur (r/o A4/172), Gulbano Kaur (r/o A4/153), Manjeet Kaur (r/o A4/153) had also pointed out the places of killing of their respective relatives to the police and the police had accordingly prepared the site plan but a similar question had already been put to the witness. She did not remember if the statement of the said ladies was recorded by the police on 10.02.1985 and the site plan was also prepared on the same day but it may be possible that she did not remember the same after lapse of so many years. She denied that she was deliberately not responding truthfully because she had earlier stated to the police that the riots had started in the afternoon of 01.11.1984 and that she along with her husband Late Balbir Singh, devar Late Balihar Singh, father-in- law Late Basant Singh, mother-in-law Jatni Kaur and devrani Kaura Kaur were hiding in A4/178 and she stated that they were not hiding. They were outside the house and the male members were inside the house. Thus, PW5 had stated that they were not CBI Vs. Sajjan Kumar & Ors. Page No. 401 of 545 hiding.
295. PW5 was then cross-examined regarding Anwar Kaur and she stated that she knew Smt. Anwar Kaur w/o Naveen Singh who used to reside in her street. She did not know her house number. She admitted that one case was tried in the Court of law with regard to the death of the husband of Smt. Anwar Kaur. She had relations with Smt. Anwar Kaur being the neighbour. Thus, PW5 had admitted that a case was tried with regard to the death of husband of Smt. Anwar Kaur. She stated that she knew Smt. Salawati Kaur who also used to reside in the same street. The case regarding the death of her husband was not tried in the Patiala House Courts, in fact it was tried at Tis Hazari Courts. As such, PW5 knew that the case of death of husband of Smt. Salawati Kaur was tried in Tis Hazari Courts. She was not aware as to whether the case regarding the death of the husband of Smt. Anwar Kaur was tried along with the case of her husband in the same Court. During attending the proceedings of the case of her husband in Tis Hazari Court, she never met Smt. Anwar Kaur and Smt. Salawati Kaur. She did not remember as to whether the case of death of her husband and the case with regard to the death of the husband of Smt. Anwar Kaur namely Shri Naveen Singh was tried separately in the same Court and decided by the Court at Patiala House on 23.12.2002 by Smt. Manju Goel, the then, Ld. ASJ, Incharge, Patiala House Court. Thus, PW5 did not remember about the decision in the cases so referred. The Ld. Counsel for the accused persons had submitted that PW5 knew about Anwar Kaur's case and PW5 was asked about the same as both the said cases were decided on the same day i.e. FIR CBI Vs. Sajjan Kumar & Ors. Page No. 402 of 545 No.250/84 and RC-1 and both pertained to A4 block and were tried and decided together. However, that is a matter of record.
296. During further cross-examination PW5 stated that she was not able to recollect as to who lived in H. No.A-4/178. She admitted that in H. No.A-4/178 her mother-in-law Smt. Jatni Kaur lived, and then she recollected the same. She admitted that A-4/178 was adjacent to her house. She stated that her husband along with Balihar Singh and Basant Singh died in her mother-in- law's house. The Ld. Counsel for the accused persons had argued that PW5 had stated that death had taken place in the house of her mother-in-law but initially she had stated that she did not know the house of her mother-in-law but nothing much turns on the same considering the long time that had lapsed. PW5 admitted that the case pertaining to their death was tried. That case had not been decided so far. When it was put to her that the said case was decided by Ld. ASJ Ms. Manju Goel on 23.12.2002, she replied in the negative. Thus, PW5 had stated about the death of her husband and others in the house of her mother-in-law. She admitted that the case pertaining to their death had been tried though she replied in the negative that the said case had been decided vide judgment dated 23.12.2002.
297. PW5 was cross-examined regarding her examination in Court and she stated that there was a Court at Patiala House. She had never seen the Court at Patiala House. Again said even if she had seen that Court she did not remember. She might have been to Patiala House Court but she did not remember. She stated that Mrs. Jatni Kaur, her mother-in-law might have gone to CBI Vs. Sajjan Kumar & Ors. Page No. 403 of 545 Patiala House Court with her. Again said she was examined in Patiala House Court. On that day, her mother-in-law Jatni Kaur was with her. Thus, initially PW5 stated that she did not remember about going to Patiala House Court but then she stated that she was examined in Patiala House Court and on that day her mother-in-law Smt. Jatni Kaur was with her. She admitted that she had deposed in the Court regarding the people-the three members of her family who were killed in the riots. In the said court complex, she had come the first time. As such PW5 had stated about being examined in Patiala House Court earlier but also stated that earlier she had stated in her statement that she had already visited once in the Patiala House Courts Complex in the said matter.
298. During further cross-examination PW5 admitted that her mother-in-law was also examined in 1991. She was not examined on the same day when she was examined. She did not remember whether it was 28th October, 1991. She denied the suggestion that Smt. Banto Kaur was also examined on the same day. Again said, she did not remember. It was put to her that Smt. Banto Kaur was examined as PW30, her mother-in-law Smt. Jatni Kaur was examined as PW31 and thereafter, she was examined as PW32, on the same day pertaining to the incident of death of her husband on which she stated that she did not know anything about Smt. Banto Kaur. Her mother-in-law Smt. Jatni Kaur had accompanied her. But she did not know whether she was examined on the same day. It was put to her that Bikly Kaur W/o Ram Karan and Chand Kaur W/o Dalbir Singh had also come with her and were examined on the same day as PW29 and CBI Vs. Sajjan Kumar & Ors. Page No. 404 of 545 PW33 to which she replied that she did not know. It was put to her that all of them i.e. she and Smt. Banto Kaur, Smt. Jatni Kaur, Bikly Kaur W/o Ram Karan and Chand Kaur W/o Dalbir Singh had come together for evidence, three of them were examined prior to lunch break and two were examined after the lunch break and they even had meals together outside the courtroom to which she replied that she did not remember. Thus, PW5 did not remember or did not know several things that were put to her but it may also be so possible due to the long lapse of time as the said examination was stated to be on 28th October, 1991 whereas her cross-examination in this respect was conducted on 15.01.2018.
299. PW5 further stated that she had made a true statement before the Court. But she had got scared that day. She had not told the Ld. Judge saheb that she was scared. She denied the suggestion that she was not scared. She denied the suggestion that she had narrated everything in order to get justice for her husband and volunteered she was scared also because she was threatened that in case they took the name of accused Sajjan Kumar, her children would be killed. Thus, PW5 had stated that she had made a true statement before the Court but she had got scared that day and had volunteered that she was threatened that in case she took the name of A1, her children would be killed. However, she had not told the concerned Court about the threat. PW5 had stated that she had told CBI about the said threat. It was put to her that she never told CBI that she was threatened that in case she took the name of accused Sajjan Kumar, her children would also be killed to which she replied that she had told. She did not remember then whether she told the same or not. When CBI Vs. Sajjan Kumar & Ors. Page No. 405 of 545 asked if she had told the CBI official about the threat received by her and that she was under fear, she stated that she had told the CBI official about everything. PW5 was confronted with her statement dated 31.08.2008 under Section 161 Cr.P.C. Ex.PW5/D1, wherein it was not so recorded. The witness stated that she had told everything to the CBI official, she did not know why he had not recorded. Thus, PW5 had stated about telling about the threat to CBI but then she did not remember whether she told the same or not and she was confronted with Ex.PW5/D1 wherein it was not so stated and she had also stated that she had told everything to the CBI official but she did not know why he had not recorded it.
300. PW5 then admitted that her statement was also recorded by the Ld. Magistrate but she did not remember whether it was recorded on 29.09.2008. She had not told about the said threat being extended to her before the Ld. Magistrate. Thus, she had not even told the Ld. Magistrate about the said threat. The statement of PW5 under Section 164 Cr.P.C., which is Mark A was put to her and the same is Ex.PW5/D3. She was asked if she had stated before the Ld. Magistrate, to whom CBI took her for recording of statement, that she was threatened and was scared to name the accused Sajjan Kumar to which she replied that she had told Sarkaari Vakil everything. She was confronted with Ex.PW5/D3, wherein the same was not recorded. She stated that she had narrated the whole thing. She could not say why it was not recorded. She was asked if she had met the Sarkari Vakil prior to recording of her statement (Ex.PW5/D3) before the Ld. Magistrate to which she replied 'Ham to Kacheriyo main dhakke CBI Vs. Sajjan Kumar & Ors. Page No. 406 of 545 kha rahey hain itne saalo se, aur jo kuch bhi hua tha sab kuch bata diya tha. Main anpad hu. Maini Sajjan Kumar ko dekha tha aur naam bata diya tha'. She stated that she had told everything to the Sarkari Vakil in the Court. She did not remember whether it was Karkardooma or Patiala House or some other Court where she met the Sarkari Vakil. She was asked who was her Sarkari Vakil in this Court to which she replied 'Pahle to they, ab pata nahi.' Thus, even in Ex.PW5/D3, it was not recorded that PW5 was scared so she had not taken the name of A1 and then she had taken the stand that she had told the Sarkari vakil everything but no such Sarkari vakil has been examined in the present case. It also cannot be believed that what PW5 had stated had been left out to be recorded everywhere.
301. It was put to PW5 that in the previous 33 years, she never stated about any threat being extended to her and for the first time that day before the Court, she had stated which she denied and stated that she had informed the police and also CBI about the threat but, she had not told the same to the Court. However, there is nothing on record to show that PW5 had informed the police or the CBI about the threat. She denied the suggestion that she never lodged any complaint nor informed any Court about any such threat because no such threat was ever received by her and volunteered even security was provided to her in view of that threat. It was put to her that security was provided to every witness in the case and not because there was some threat to her to which she replied "Hamko security mili thi kyoki hamko dar tha. Hamne maagi thi." She stated that she had not asked for any security in 1991 as she did not know about the security. Later on CBI Vs. Sajjan Kumar & Ors. Page No. 407 of 545 she came to know about the same and as she was scared, she requested for security. No one told her. But, as she was visiting courts, she came to know about the fact that security could also be provided. She denied the suggestion that there was never a threat and there was no occasion for her to ask for security and that she had been tutored to say so. She denied the suggestion that she had on that day brought up a new story before the Court. It cannot be disputed that security was provided to PW5 but though PW5 had stated about the alleged threat to her due to which she was scared she had never stated about the threat before any Court and there is nothing on record to suggest that she had even told the police or the CBI about it. The Ld. Counsel for the accused persons had argued that it was for the first time in 2018 that PW5 had stated before the Court that she was scared during the trial of the earlier case and that the said statement was made for the first time in 2018 before the Court and that could not be treated as reliable because earlier the witness had not stated anything about being scared and she was confronted with the statement dated 28.10.1991 Ex.PW5/D2 which was her examination-in-chief recorded in the Court earlier. There is merit in the said submission made by the Ld. Counsel for the accused persons and stating about the alleged threat in the Court for the first time is of no effect and in this regard reliance can be placed on the judgment in Delhi Administration v. Shakti Singh & Ors. (supra).
302. PW5 stated that she did not remember whether in her CBI Vs. Sajjan Kumar & Ors. Page No. 408 of 545 examination before the Court in 1991, she had stated that the incident had taken place at about 04:00 p.m. She denied the suggestion that she was deliberately saying that she did not remember because in the present case, she had stated the time of the incident to be that of the morning. Thus, it was put to PW5 that in her statement recorded in the Court in 1991 Ex.PW5/D2 she had stated the time of the incident to be 04.00 p.m. but she did not remember the same whereas in the present case she had stated the time of the incident to be that of the morning. It was further put to PW5 that in her testimony before the Court in the year 1991 she had stated that she came to the Court in a three wheeler along with other witnesses who were standing outside and were still not examined to which she replied that she did not say so. She was confronted with Ex.PW5/D2 her statement recorded on 28.10.1991 as PW32 in SC No.34/2001 in "State vs Suresh Chand" wherein it was so recorded. Thus, PW5 was confronted with her statement Ex.PW5/D2 recorded on 28.10.1991.
303. It was further put to her that in her testimony before the Court in the year 1991 she had taken the names of seven accused persons but had not taken the name of Sajjan Kumar to which she replied that she had taken the name of accused Sajjan Kumar also before the Court. Again said that she was scared and that is why she had not taken the name of the accused Sajjan Kumar. The Ld. defence counsel stated that the witness had answered differently so the recording was played and seen by both the sides as well as by the Court and after playing the recording, the above query was heard as "I had taken the name of accused Sajjan Kumar also CBI Vs. Sajjan Kumar & Ors. Page No. 409 of 545 before the Court. Mujhe nahin pata kya likha ya kya nahi likha. Again said that I was scared and that is why I had not taken the name of accused Sajjan Kumar." She was confronted with her statement recorded on 28.10.1991 as PW32 in SC No.34/2001 in "State vs Suresh Chand" wherein the name of the accused Sajjan Kumar was not recorded. Her statement is Ex.PW5/D2. Thus, in her testimony Ex.PW5/D2 PW5 had taken the name of seven accused persons but in the present case, no name except that of A1 has been taken. Further she had not taken the name of A1 in Ex.PW5/D2 but initially she had stated that she had taken his name but again said that she had not taken him name as she was scared. However, from 1991 till 2018 when PW5 stated about the same in the Court, she had nowhere stated that she had not taken the name of A1 as she was scared.
304. It was put to PW5 that in her testimony before the Court in the year 1991 she had stated that all the accused persons resided near her house to which she replied that she did not say so. She was confronted with Ex.PW5/D2 her statement recorded on 28.10.1991 as PW32 in SC No.34/2001 in "State vs Suresh Chand" where it was so recorded and it is seen that in Ex.PW5/D2, PW5 herein had stated that all the accused persons resided near her house. She was asked if in her testimony before the Court in the year 1991 she stated that a meeting was held by the accused Sajjan Kumar to incite people to which she replied that she did not remember whether she had stated before the Court earlier about any meeting being held by the accused Sajjan Kumar inciting people. Again said she stated the said fact before the Court about two-three years prior. She was confronted with CBI Vs. Sajjan Kumar & Ors. Page No. 410 of 545 her statement given as PW32 in case FIR No.250/84 Ex.PW5/D2. She admitted that there was no mention in the said statement of hers about meeting held by accused Sajjan Kumar inciting people. She denied the suggestion that 2-3 years prior she had not made any statement to the effect that a meeting was held by the accused Sajjan Kumar to incite people. Thus, PW5 had stated that she did not remember if in Ex.PW5/D2, she had stated about a meeting being held by A1 to incite people and she was also confronted with the said statement and she admitted that there was no mention in the same about any meeting held by Sajjan Kumar to incite people. She had stated about stating about a meeting before the Court about two-three years prior and she had denied that she had not stated so but no such statement was pointed out by the prosecution.
305. During further cross-examination PW5 was asked if it was correct that in the year 1991 in the Court she had stated that she could not identify any of the members of the crowd during the riots but she knew the names of certain persons such as Islam, Uddal and she did not remember the names of others to which she replied that she had seen the accused Sajjan Kumar. She denied the suggestion that she had not taken the name of accused Sajjan Kumar and volunteered 'maine har bar liya hai'. She was confronted with her statement as PW32 Ex.PW5/D2. She admitted that name of the accused Sajjan Kumar did not appear in the said statement of hers and volunteered 'Maine toh naam liya tha.' Thus, PW5 had again stated that she had seen the accused Sajjan Kumar and she denied the suggestion that she had not taken his name whereas she herself had stated earlier that she CBI Vs. Sajjan Kumar & Ors. Page No. 411 of 545 had not taken his name as she was scared. She denied the suggestion that she had been tutored to take the name of the accused Sajjan Kumar. She stated that in her aforesaid testimony Ex.PW5/D2, she had not taken the names of Islam and Uddal. She was confronted with her statement as PW32 Ex.PW5/D2 and admitted that names of Islam and Uddal did appear in the said statement of her. PW5 further stated that she did not remember whether in her testimony Ex.PW5/D2, she had given the names of Brahmanand, Jai Bhagwan, Asla Ram and Suresh Chand. It was put to her that in her said statement Ex.PW5/D2 she had even identified the said four persons namely Brahmanand, Jai Bhagwan, Asla Ram and Suresh Chand at the time of killing of her father-in-law, her husband Balbir Singh and her devar Balihar Singh to which she stated that she did not remember and a perusal of Ex.PW5/D2 shows that she had not identified the accused persons. She denied the suggestion that she was deliberately not answering truthfully the said question. It is thus seen that in Ex.PW5/D2, PW5 had taken names of certain persons though she denied that she had taken their names or she did not remember whether she had given their names whereas she had stated about taking the name of A1 but the same was not there in Ex.PW5/D2 and she had also stated that she had not taken his name as she was scared.
306. During further cross-examination PW5 stated that she did not remember whether she had earlier stated to the police that 400 to 500 persons had entered her house after breaking open the door and had taken out her husband, her devar and her father-in- law. She denied having told the police that Uddal Singh r/o CBI Vs. Sajjan Kumar & Ors. Page No. 412 of 545 A4/243 had shot her father-in-law Basant Singh and that other rioters including Dr. Changa @ Suresh Chand r/o A3/336, Brahmanand Gupta and his brother r/o A4/236, Islam r/o A4/220, Asla Ram Gujrati r/o A4/111 had killed her husband Balbir Singh and devar Balihar Singh, by giving lathi and ballam blows. She stated that she did not even know the said persons. Thus, the names of some persons accused earlier were again put to her as having been told to the police but she stated that she did not even know the said persons. It was put to her that she had told the police that the rioters had burnt the bodies of her husband Balbir Singh, her devar Balihar Singh and her father-in-law Basant Singh by putting them together at one place and had also burnt her house to which she replied that they were killed in presence of them and their bodies were burnt and their house was also burnt. As such, PW5 had stated that her family members were killed in her presence and their bodies were burnt and their house was also burnt.
307. PW5 was further asked if she had stated "I heard noise outside my house, I came out of the house and saw huge crowd collected in the park opposite my house. I saw the accused Sajjan Kumar addressing the crowd that the Sikhs had killed our mother (inhone hamari maa ko maar dala). The crowd started raising slogans. Accused Sajjan Kumar continued to say "sabko jaan se maar dalo, inke gharo me aag laga do". I ran inside my house." as stated by her in her examination-in-chief dated 10.9.2015 in her testimony recorded in 1991/Ex. PW5/D2 to which she replied that she did not remember. She denied the suggestion that she was deliberately saying that she did not remember despite CBI Vs. Sajjan Kumar & Ors. Page No. 413 of 545 knowing fully well that she had not stated any such thing before the Court earlier. Thus, PW5 had stated that she did not remember what she had deposed in the present case about A1 addressing a crowd was stated in Ex.PW5/D2 and it is seen that the same is not mentioned therein. It was put to her that neither she nor any of her relatives nor her neighbour ever stated before the Court earlier that she/ her relative/ her neighbour had seen/heard accused Sajjan Kumar addressing the crowd in a park near her house or anywhere nearby to which she replied that she had seen as well as heard the accused Sajjan Kumar addressing the crowd. But she did not remember whether she stated the said fact before the Court earlier, as it had been many years since then. She denied the suggestion that she was deliberately saying that she did not remember. Thus, PW5 had reiterated that she had seen as well heard the accused Sajjan Kumar addressing the crowd but she did not remember whether she had stated the said fact before the Court earlier and no such statement has been pointed out by the prosecution wherein PW5 had so stated earlier. The Ld. Counsel for the accused persons had argued that before the present case, in none of the cases PW5 had stated about a meeting in Sultanpuri by A1 and before this Court she had taken the name of Sajjan Kumar and it was not an omission as the Court record did not say that she could not take the name of Sajjan Kumar earlier and now she was taking it, rather she had stated that she had taken his name earlier which showed that she was tutored to take the name of A1, however as noted above, PW5 had taken different stands in that regard, stating at one point that she had taken the name of A1 always and at another point CBI Vs. Sajjan Kumar & Ors. Page No. 414 of 545 stating that she had not taken his name out of fear.
308. It was put to PW5 that at the instance of CBI, for the first time she took the name of the accused Sajjan Kumar on 31.08.2008 to which she replied 'Pehle bhi liya tha'. It was put to her that in her earlier testimony she took names of seven persons and did not take the name of accused Sajjan Kumar and now she had taken the name of accused Sajjan Kumar only and none else to which she replied 'Jis jis ko dekha waise batate rahe'. She denied the suggestion that she had not named the accused Sajjan Kumar when her statement was recorded by the police in the earlier case (FIR No.250/1984). She denied the suggestion that she very well remembered that her statement was recorded on 10.02.1985 as statements of 8 persons including her family members and neighbours were recorded on that day or that she was deliberately not telling the same. Thus, PW5 had denied the suggestion that she had not named A1 when her statement was recorded by the police but it is seen that even before any Court, there was no statement in which PW5 had taken the name of A1 prior to 31.08.2008.
309. During further cross-examination PW5 denied that she made absolutely wrong statement in Court in her examination-in- chief recorded on 10.09.2015 that "I had been making complaints with different authorities but I was not heard and no case was registered". She did not remember if she made a wrong statement before CBI in her statement under Section 161 Cr.P.C. Ex.PW5/D1, wherein it was recorded that - "maine kisi court ya Magistrate ke samakch koi bayan nahi thee thi". She was shown CBI Vs. Sajjan Kumar & Ors. Page No. 415 of 545 her examination-in-chief recorded on 10.09.2015 wherein it was stated that - "I had lodged complaint and got registered a case regarding killing of three of my family" and she was asked if she had told the said fact to the CBI to which she replied that she did not know about the lodging of the complaint. The Ld. Counsel for the accused persons had argued that initially PW5 had stated that no case was registered whereas in reality she had got the case registered but she was silent about the result of the case and whether it was taken to logical conclusion by the Court. It was submitted that if the accused had been acquitted, it meant the trial had taken place but she did not say so and it was a tactic played by the prosecution to attract the charge against A1 that she was not heard and the complaint was registered but she was silent as to the result of the same. It is true that PW5 had stated that the case in which she had earlier deposed had not been disposed of but that may also be as she was not aware of the same. It was argued that what was there on the record was not there in the arguments advanced on behalf of CBI and A1 had not been tried earlier as he had not been named earlier; till the appointment of the Nanavati Commission or even thereafter, the said complainants had no grievances at all in respect of the complaints lodged by them regarding the killing of their family members; neither during investigation nor during the trial lasting till 2003 were Sajjan Kumar and Vedu named though the matter continued for 19 years from 1984 to 2003. There is merit in the said submission as it is seen that the case "State v. Suresh and others" was disposed of vide judgment dated 23.12.2002 which is Ex.PW10/D-10 and till then none of the witnesses had come CBI Vs. Sajjan Kumar & Ors. Page No. 416 of 545 forward and stated that A1 was also involved in the said incident.
310. PW5 was then asked if she had told CBI about the happening of 31.10.1984 to which she replied that she had told everything to CBI what happened. Her attention was drawn to her statement under Section 161 Cr.P.C. Ex.PW5/D1, wherein there was no mention of anything about 31.10.1984. She denied the suggestion that she had deposed as tutored by the CBI and the political opponents of the accused Sajjan Kumar and volunteered she had told whatever happened. She denied the suggestion that she had never named accused Sajjan Kumar and at the instance of CBI she was falsely naming Sajjan Kumar. She denied the suggestion that she had been tutored to disown certain portions of her earlier statement, so as to implicate the accused Sajjan Kumar or that the accused Sajjan Kumar had not addressed any meeting and that he was not present in that area. Thus, various suggestions were put to PW5 which she denied.
311. It has thus come out in the cross-examination of PW5 that she had not taken the name of A1 prior to 31.08.2008 and she had changed her stance by stating at one point that she had taken his name and at another point stating that she had not taken his name earlier as she was scared. Further, she had not stated about being scared or about any threat being extended to her at any point earlier than her testimony in this Court. It has also come out that she had not stated about any meeting by A1 in her earlier testimony Ex.PW5/D2 and there was also difference in the timing of the incident. Moreover, in Ex.PW5/D2 she had taken names of several accused persons but before this Court, she had denied CBI Vs. Sajjan Kumar & Ors. Page No. 417 of 545 taking their names and she had only taken the name of A1. It has also come out in the testimony of PW5 that she had only named A1 before this Court and had made no allegation whatsoever qua the accused Vedu Pradhan or Brahmanand.
312. PW10 was also cross-examined in respect of the evidence of PW5 and he admitted that the present charge sheet was filed in respect of death of seven persons and volunteered where the involvement of accused Sajjan Kumar had surfaced. He denied the suggestion that he had deposed falsely that the involvement of Sajjan Kumar had surfaced anywhere in respect of the present case. He stated that the present case was not taken up for killing of all the 60 persons as mentioned in FIR No.250/84 but only for the killing of 6 persons as witnesses Smt. Bhagwani Bai, Sheela Kaur and Jatni Kaur had specifically named Sajjan Kumar for making provocative speeches and leading the mob which killed the said six persons and other offences in continuity. He denied the suggestion that he was taking the names of the said three witnesses in order to support a false case whereas they had not taken the name of the accused Sajjan Kumar. However, it is seen that CBI had given a statement that it was not pressing the charge for killing of the said persons. Moreover, Bhagwani Bai and Jatni Kaur were not examined in the present case as they had expired. PW10 admitted that the killing out of seven persons of Basant Singh son of Gulshan Singh, R/o A-4/173, Sultanpuri and his two sons Balbir Singh and Balihar Singh was sent for trial in FIR No.250/84 case titled as "State Vs. Suresh Chand etc. and Jile Singh etc." SC No. 34/2001 and 35/2001 and volunteered accused Sajjan Kumar was not tried for the said killings. He CBI Vs. Sajjan Kumar & Ors. Page No. 418 of 545 admitted that in the said case the victims had nowhere stated about the involvement of accused Sajjan Kumar so he was not charge sheeted by the Delhi Police and the statement of the victims recorded under Section 161 Cr.P.C. and before the Court also did not reflect the involvement of Sajjan Kumar. Thus, PW10 had admitted that in the earlier case, the victims had nowhere stated about the involvement of A1.
313. During further cross-examination PW10 admitted that Jatni Kaur is the mother-in-law and Sheela Kaur is her daughter- in-law. He admitted that they had deposed in the earlier case about the death of their husband, son and brother-in-law and volunteered they were confronted during investigation with the statements made earlier under Section 161 Cr.P.C. and the deposition before the Court. PW10 could not say if Ex.PW10/D5 (which is same as Ex.PW5/D2) was the statement of Smt. Sheela Kaur recorded before the Court earlier with which he had confronted her and volunteered he had confronted her with her statement which was on record. He admitted that in her statement under Section 161 Cr.P.C. and her deposition before the Court she had not stated about the involvement of Sajjan Kumar and volunteered when she was confronted with the said statements during investigation she stated that part of the said statement was correct and part of the statement was not correct as the said statements did not reflect the name of Shri Sajjan Kumar. He had not mentioned in the statement of Sheela Kaur under Section 161 Cr.P.C. recorded by him that she was confronted with her earlier statement under Section 161 Cr.P.C. and deposition in the Court and volunteered the same was mentioned in the case diary. He CBI Vs. Sajjan Kumar & Ors. Page No. 419 of 545 did not want to see the case diary to show that the said fact was mentioned therein. He did not want to point out the case diary in the said respect to the Court. He denied the suggestion that he did not want to see or point out the case diaries as Smt. Sheela Kaur remained firm on her statement and stated that five members of her family Smt. Jatni Kaur, her mother-in-law, Daya Kaur, her sister-in-law and Smt. Bhagwanti Kaur and Ram Kaur her sister- in law had deposed before the Court that Sajjan Kumar was not involved in any manner and they could not name him. Thus, PW10 admitted that in her statement under Section 161 Cr.P.C. and her deposition before the Court PW5 had not stated about the involvement of Sajjan Kumar. He had volunteered that when she was confronted with the said statements during investigation she stated that part of the said statement was correct and part of the statement was not correct as the said statements did not reflect the name of Shri Sajjan Kumar but it was not mentioned in the statement of Sheela Kaur under Section 161 Cr.P.C. recorded by him that she was confronted with her earlier statement under Section 161 Cr.P.C. and deposition in the Court. He had again volunteered that the same was mentioned in the case diary but he neither wanted to see the case diary nor wanted to point out the case diary in the said respect to the Court and as such what PW10 volunteered does not mean much.
314. The Ld. SPP for CBI had submitted that PW5 Sheela Kaur had deposed about Balbir Singh, Basant and Balihar in respect of whose death trial had taken place in FIR No.250/84 "State v. Suresh Chand" and her cross was mainly revolving around showing what she did not know. However, it is seen that she was CBI Vs. Sajjan Kumar & Ors. Page No. 420 of 545 mainly cross-examined regarding her earlier statements and statements of others recorded by the police and in Court and she had stated that she did not remember most of the things which is quite plausible due to the long lapse of time. It was submitted that PW5 and PW6 were witnesses to establish the nature of incidents in the area in that period and the aftermath and both the witnesses confirmed seeing Sajjan Kumar addressing and instigating the mob and PW5 had deposed in the present case about A1 addressing the crowd. It was argued that she had remained consistent about the nature of the incident though she had been subjected to lengthy cross-examination. It is true that PW5 had remained consistent about not knowing the police officer who had recorded her statement but it is seen that she had shifted her stance about naming A1 earlier. At one point she stated that she had named him every time and at another point she had stated that she had not named him out of fear though it is seen that there is nothing on record to show that she had stated about the threat anywhere. It was argued that PW5 was intentionally confused despite being a rustic and illiterate witness, so much so that the Court had to ask the defence to not be repetitive and while it is true that some part of the cross- examination was repetitive, there is nothing to show that the witness did not understand the questions that were put to her. It was argued that being a rustic witness, PW5 remained under a constant fear or threat by the accused Sajjan Kumar and it was submitted that a rustic witness was not expected to remember every small detail of the incident and she was a truthful and wholly reliable witness. Without doubt, PW5 could not be CBI Vs. Sajjan Kumar & Ors. Page No. 421 of 545 expected to remember every detail after lapse of such a long time but it is also seen that there are several things which were deposed by her earlier but not stated now and several things which were deposed by her now but not stated earlier.
315. It was submitted by the Ld. SPP that PW5 had deposed that she saw Sajjan Kumar addressing and instigating the armed mob and she saw the killing of her family members. She proved the presence of Sajjan Kumar in the mob and she also identified him in Court and it was her consistent stand that she had seen Sajjan Kumar on the date of occurrence and she had clearly and categorically deposed that on 01.11.1984 she saw the accused Sajjan Kumar addressing the mob that the Sikhs had killed their mother and the mob started raising slogans and the accused continued to incite them, which eventually erupted in violence and loss of her 3 family members. The defence had chosen not to effectively challenge the status of PW5 as an eyewitness, though the defence had given contradictory suggestions and also tried to show that PW5 was hiding at the time of the occurrence and there is merit in the said submission as no direct suggestion was put to PW5 that she had not witnessed the incident. It was submitted that as regards Ex.PW5/D-1 confrontations were only regarding threats by the accused Sajjan Kumar and as regards Ex.PW5/D-3 and Mark A and Ex.PW8/C, the cross-examination of the defence was only regarding security and it is seen that no suggestion was put to PW5 that what was stated in Ex.PW5/D-3 was not correct but it is pertinent that during her examination-in- chief PW5 herself had not identified her thumb impression on the said statement and it was only marked and thereafter exhibited CBI Vs. Sajjan Kumar & Ors. Page No. 422 of 545 during her cross-examination. It was submitted that the witness/ victim produced by the prosecution was a wholly truthful person who had deposed in sufficient details, despite the long lapse of time and she had proved the presence of Sajjan Kumar in the mob and she had deposed that she remained under constant fear or threat by the accused Sajjan Kumar. It was also pointed out that in the case where she had earlier deposed, Sajjan Kumar was never an accused but quite clearly that was because, he had not been named by the witnesses therein as admitted by PW10.
316. The Ld. Counsel for the complainant had pointed out that the testimony of PW5 proved the indifferent/ callous approach intentionally adopted by Delhi Police while investigating heinous offences which led to the targeted killings of hundreds of Sikh persons and that the said testimony proved that due procedure was not followed in the investigation done by Delhi Police and while there is merit in the said submission, it also needs to be taken note of that even before the Court, when PW5 was examined in 1991, she had not taken the name of A1 nor anywhere else till 2008. The Ld. Counsel for the accused persons on the other hand had argued that to prove RC-7, the prosecution had got examined only PW5 and PW6 whereas it had cited 9 witnesses though it was the submission of the Ld. SPP for CBI that the testimony of PW7 is also relevant in this regard. It was argued that PW5 Sheela Kaur had already been examined earlier in FIR No.250/84 in 'State v. Suresh' and the defence had placed on record the previous statement of PW5 to show the same. It is not in dispute in the present case and has been admitted by the IO as well that PW5 had been examined earlier and did not name CBI Vs. Sajjan Kumar & Ors. Page No. 423 of 545 any of the accused except Brahmanand who had already been acquitted in both the cases i.e. pertaining to Sheela Kaur (FIR No.250/84) and Cham Kaur (FIR No.252/84). The defence had placed on record the judgment dated 23.12.2002 Ex.PW10/D10 in "State v. Suresh and Others" in which PW5 had been examined as PW32 and the accused persons in the said case had been acquitted.
317. It was argued that as per the witness herself Sajjan Kumar was not unknown to her and his identity was not disputed to her and she had identified him in the Court even otherwise he was the MP and the witnesses used to go to him for their work regarding ration card etc. but still he had not been named earlier. Further the IO had admitted that Sheela Kaur was PW32 in the earlier case which was the trial regarding killing of three persons in FIR No.250/84 and all the accused had been acquitted though Section 153A IPC was not there. It was pointed out that the prosecution was aware that PW5 and her mother-in-law Smt. Jatni Kaur had been examined as PW32 and PW31 respectively in respect of the present subject matter in the earlier trial of FIR No.250/84 (RC-7) and the CBI had again cited them at Sl. No.3 and 4 in the list of witnesses in the present charge sheet and the same had been admitted by the IO during the cross-examination dated 22.11.2021 and that she had not stated about the involvement of Sajjan Kumar and there is no dispute about the same. It was highlighted that the defence had placed on record the earlier deposition of PW5 and her relatives in FIR No.250/84 PS Sultanpuri in respect of the killing of her three relatives and a perusal of the same shows that neither PW5 nor her relatives had CBI Vs. Sajjan Kumar & Ors. Page No. 424 of 545 named A1 earlier.
318. The Ld. Counsel for the accused persons had further submitted that PW5 had named Sajjan Kumar first time through her statement recorded under Section 161 Cr.P.C. by CBI on 31.08.2008 i.e. after a gap of 24 years in the present case (Ex.PW5/D-1). Prior to that she had never raised any accusing finger against Sajjan Kumar or Ved Prakash. There was no explanation why after 24 years Sheela Kaur had been brought before the Court as PW5 and before that there was not an iota of evidence that A1 was involved. Sheela Kaur herself had not gone before the Nanavati Commission but only thereafter in 2008 she had named him. She had also made a statement under Section 164 Cr.P.C. on 29.09.2008 Mark A and the defence had cross examined her with regard to her previous deposition. However, it is the contention of the Ld. SPP for CBI that PW5 had not named A1 earlier out of fear. A perusal of the testimony of PW5 shows that she had changed her stance about naming A1 earlier and PW5 had stated at one point that she had named A1 earlier and at another point she had stated that she had not named him earlier out of fear and as regards the question of threat, she had stated about telling about the threat earlier but it is seen that there is no document which shows that PW5 had mentioned about any threat to her earlier and it was during her deposition in this case that she had stated for the first time about threat being extended to her. The Ld. SPP for CBI and the Ld. Counsel for the complainant had argued that there was no witness protection programme in place earlier and looking to the background of the witnesses and the circumstances that the witnesses were placed in, a hyper-
CBI Vs. Sajjan Kumar & Ors. Page No. 425 of 545technical view should not be taken and minor discrepancies should be ignored. The Ld. Sr. Counsel for the complainant in this regard had relied on the judgment in State through CBI v. Sajjan Kumar (supra) wherein it was held as under:
"301. The Court is, therefore, satisfied that the Riot Cell did not carry out any genuine investigation. PW-1 was justified in not joining such an investigation.
xxx
354. At the outset, it requires to be noticed that this is a case where there was an abject failure by the Delhi Police to conduct a proper investigation in the case and this has already been adverted to extensively hereinbefore. The testimonies of PWs 1, 7, and 10 have also been discussed threadbare hereinbefore. Here, it must be added that in a matter such as this involving mass crimes, where witnesses have been living under fear for years on end, while appreciating the testimonies of such witnesses, one cannot get into hyper-technicalities and start dissecting their statements to the point of incredulity. What has to be seen is that there is a consistency in their testimonies on the broad aspects of the prosecution case. Embellishments here and there and some marginal inconsistencies and contradictions would not result in throwing out the entire evidence as a whole and rendering it unbelievable."
The proposition of law laid down in the said judgment cannot be disputed. A perusal of the said judgment shows that the Hon'ble High Court had considered the testimony of the witnesses at length and while analyzing the evidence of PW1, had noted that in her affidavit before the Justice Ranganath Misra Commission, she had not mentioned the role of A1 but in her original affidavit filed before the Justice Nanavati Commission, she had stated about the role of A1 and reference was also made to her CBI Vs. Sajjan Kumar & Ors. Page No. 426 of 545 statement before the Justice Nanavati Commission. It was noted that the documents placed on record about her loss claim made on 13.11.1984 no doubt only indicated the loss of property but that could hardly be said to discredit her testimony. Her other statements were also considered and it was noted that she was cross examined over a considerable period which is also so in the present case. It was held that what came across was that she was a strong witness who was firm in her cross-examination which went on for almost two months and even when grilled under the pressure of cross-examination, the witness had stood firm and had clearly spoken to what, according to her was the truth surrounding the tragic events in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi. It was also observed that there was absolutely no reason why PW5 would substitute the real assailants with the names of others who were totally innocent. However, in the instant case, it is relevant that during her earlier testimony Ex.PW5/D2, PW5 had taken the names of several persons including Brahmanand but had not identified them and before this Court, she had only named A1 and no one else. Further, what is materially different in the present case is that while in the case before the Hon'ble High Court, the witness had been examined only by the police and thereafter she had given an affidavit before the Justice Ranganath Misra Commission and then before the Justice Nanavati Commission, in the present case, PW5 had duly deposed in the Court earlier vide her statement Ex.PW5/D2 which resulted in the judgment Ex.PW10/D10 but had not taken the name of A1 nor even stated about any meeting in which provocative speeches CBI Vs. Sajjan Kumar & Ors. Page No. 427 of 545 were made or that A1 had incited the crowd and in fact had taken the name of A1 for the first time when she was examined by CBI in 2008. Further, she had at no point of time raised the issue that she was under any threat nor made any complaint in that respect. PW5 was examined in the earlier case in 1991 and that case was decided after several years but there is nothing to show that any complaint was made by PW5 that she was under threat or that she had taken the name of A1 but it was not recorded. She remained silent till she was examined by CBI in 2008 and had herself not appeared before any Commission or Committee. The Ld. Counsel for the complainant would argue that the issue wherein a witness had taken the name of the accused after considerable time especially in a situation like the present had been dealt with even internationally and the Court cannot adopt a hyper-technical approach. There is merit in the said submission and without doubt, in cases such as the present, only delay cannot be a factor if the testimony of the witness otherwise inspires confidence. However, in the present the question is not of long delay in taking the name of A1 but that PW5 had been duly examined on oath in a Court of law earlier but had failed to depose what she had stated before this Court and that her testimony amounts to a major improvement over what she had stated in the Court earlier and she had completely turned taciturn on who the accused persons allegedly were. She had also vacillated about whether she had taken the name of A1 earlier and as such it cannot even be regarded that she was consistent during her testimony.
319. It may be reiterated that not only had PW5 not taken the CBI Vs. Sajjan Kumar & Ors. Page No. 428 of 545 name of A1 earlier but she had not even stated about any meeting taking place on 01.11.1984 in her earlier deposition. She had further stated that she had not taken the names of any of the accused persons that were put to her earlier which is contrary to what is recorded in Ex.PW5/D2 though she had not identified them and before this Court she had only taken the name of A1 and as such the same cannot be termed as a simple minor discrepancy. Thus, even if the circumstances are considered, the testimony of PW5 does not inspire confidence so as to be the sole basis to convict A1 and it has to be seen whether there is corroboration of her testimony by other witnesses and in fact the Ld. Counsel for the accused persons had also submitted that it had to be seen whether any corroborating evidence was there or not. It was highlighted that it is the settled law that once a witness is examined as a prosecution witness, one could not be allowed to perjure himself/ herself by resiling from the testimony given earlier in the Court and in the present case, it was on the face of it that she was tutored to support the case of CBI. It was submitted that Smt. Sheela Kaur in her deposition before the Court had given a totally new and concocted version that too totally different from what she had deposed earlier before the Court on 28.10.1991 in regard to the same incident i.e. the subject matter of the present case. It is true that what PW5 has deposed in the present case is an improvement over what she had stated in Ex.PW10/D2 though on that basis she cannot be said to perjure herself.
CBI Vs. Sajjan Kumar & Ors. Page No. 429 of 545Analysis of the evidence of PW6
320. PW6 Smt. Cham Kaur deposed that in 1984, she was living along with her family including her five children and her father at A-4/147, Sultanpuri, Delhi. Her husband at that time was living outside Delhi. Her sons are Surjeet Singh, Kapoor Singh, Madan Singh, Swaran Singh and her daughter is Bishan Kaur. Her father's name was Sardarji Singh. She stated that on 31.10.1984, they were watching TV on the demise of Smt. Indira Gandhi. On 01.11.1984, when she stepped out to look for her goat, she saw the accused Sajjan Kumar addressing the crowd and he was saying "hamari ma mar di. Sardaro ko maar do". She quickly returned home and told the same in the neighbourhood. Then they climbed to the second floor of the house and hid their family and children at night. The whole night they continued to hide themselves. On 02.11.1984, "subah subah hamla aa gaya. Bahut aadmi the." Her son Kapoor Singh and her father Sardarji Singh were pulled out of the hiding place on the second floor, beaten badly and were thrown down from the roof. Other persons who were hiding in the meanwhile, ran helter skelter. Even she was assaulted and had suffered injury on the right side of her forehead and she still had the scar. She was taken to the police station where she found her children.
321. PW6 further deposed that on 03.11.1984, military came to the police station and took them to the camp in Rani Bagh. She stated that she is Sikh by religion. She did not remember if she had given an affidavit after the riots at any point of time. She was shown D-8 affidavit of Smt. Cham Kaur dated 07.09.1985 given CBI Vs. Sajjan Kumar & Ors. Page No. 430 of 545 before Ranganath Misra Commission of Enquiry. After seeing D- 8, she stated that she had given the said affidavit and she identified her signatures on the same. Same is Ex.PW6/A (colly). PW6 stated that she had given a statement before the Ld. Magistrate. She did not remember the date. She was shown D-21 and she stated that the same was her statement and she identified her signatures. Same is Ex.PW6/B. She identified the accused Sajjan Kumar. She stated that she could recognize the accused Sajjan Kumar, as they used to visit him for getting help in making of ration card, passport (as her husband had gone abroad for work) etc. She stated that they used to visit the accused for getting the papers stamped as he was the MP/MLA.
322. Thus, PW6 Smt. Cham Kaur had deposed that on 01.11.1984, when she stepped out to look for her goat, she saw the accused Sajjan Kumar addressing the crowd and he was saying "hamari ma mar di. Sardaro ko maar do". She quickly returned home and told the same in the neighbourhood. Thereafter they hid themselves. On 02.11.1984, "subah subah hamla aa gaya. Bahut aadmi the." She stated about the incident with her son Kapoor Singh and her father Sardarji Singh and even she was assaulted and had suffered injury on the right side of her forehead and she still had the scar. She stated about being taken to the camp in Rani Bagh. After being shown the same, she identified her affidavit dated 07.09.1985 given before Ranganath Misra Commission of Enquiry which is Ex.PW6/A (colly). She also identified her statement given before the Ld. Magistrate which is Ex.PW6/B. She identified the accused Sajjan Kumar. She stated that she could recognize the accused Sajjan Kumar, as CBI Vs. Sajjan Kumar & Ors. Page No. 431 of 545 they used to visit him for getting help. As such, PW6 had stated about what had happened on 02.11.1984 but nothing has come in the deposition of PW6 to directly connect the same with what she stated had happened on 01.11.1984 and there is also nothing to the effect that A1 was present when the incident on 02.11.1984 took place or the crowd was the same on both the days. Further, PW6 did not name either the accused Vedu or the accused Brahmanand. Her testimony which is material for this case is only to the extent that she had stated that she saw the accused Sajjan Kumar addressing the crowd and he was saying "hamari ma mar di. Sardaro ko maar do" and she identified her affidavit and the accused.
323. During cross-examination PW6 stated that a complaint with respect to the incident narrated by her was made to the police. Similar incident had happened in the neighbourhood also. She answered in the affirmative that the incident with the neighbours and relatives happened on the same day i.e. 02.11.1984 and around the same time and stated "Usi time hoya hai". On being asked to name such persons, she named Ali Khan Singh, Bhajan Singh, Khumba Singh, Raju Singh, Shital Singh who was shot dead and the son of Shital Singh etc. On being asked if the said persons/ their relatives also lodged complaint with the police she stated 'Sab ne apne apno ki kee hogi'. She admitted that all of them including her neighbours were taken by police to the police station and thereafter by army to the camp. She stated that they were taken to Rani Bagh camp. Thus, PW6 had stated about making a complaint to the police and she had also affirmed that the incident with the neighbours had happened CBI Vs. Sajjan Kumar & Ors. Page No. 432 of 545 on the same day i.e. 02.11.1984. PW6 did not remember whether SI Kishan Kumar had visited them in the camp and had recorded her statement and that of other persons. She stated that the police had not recorded her statement. She denied that she very well knew that on 14.11.1984, SI Kishan Kumar had visited her camp and had recorded her statement or that at that time, SI Kishan Kumar had also recorded statements of Guddi Kaur w/o Jarnail Singh r/o A-4/144, Sultanpuri, Banto Kaur w/o Inder Singh r/o A-4/149, Sultanpuri, Prem Kaur w/o Roshan Singh r/o A-4/184, Sultanpuri, Laxmi Kaur w/o Ajmer Singh r/o A-4/112, Sultanpuri, Dhanno Kaur w/o Phool Singh r/o A-4/142, Sultanpuri, Harbans Kaur w/o Dilip Singh r/o A-4/174, Sultanpuri, Jot Kuar w/o Manju Singh r/o A-4/133, Sultanpuri, Bagi Bai. She stated 'likha hoyega kya pata, dhyan nahi hai'. Thus, PW6 had denied that SI Kishan Kumar had recorded her statement though she stated that she did not remember if he had recorded the statements of other persons whose names were put to her. On it being suggested to her that SI Kishan Kumar had taken her and the aforesaid persons as named in the previous question to their houses to prepare the site plan, she stated that nobody came. She stated that no police person came to take them to their houses and volunteered "jab police wale hi mar rahe the, to police ne hame kya le jana tha". Thus, she had even denied that she and the other persons were taken to their houses to prepare the site plan.
324. PW6 admitted that she and the other persons in the camp had named 13 persons, who were involved in riots. Those 13 persons named by her and others, were Uddal, Brahmanand CBI Vs. Sajjan Kumar & Ors. Page No. 433 of 545 Gupta, Jai Bhagwan, Hari Om, Suresh, Nathu Islam, Om Prakash, Daya Shankar Bharti, Satbir Halwai, Shahsi Ram Halwai, Ramesh and Mahender Singh Yadav. About Mahender Singh Yadav, she did not remember. On being asked that she/ others had not taken the name of accused Sajjan Kumar or stated about his involvement in any manner she denied that they had not named accused Sajjan Kumar. Thus, PW6 had stated that the persons whose names were put to her were named by her and the other persons in the camp though she did not remember about Mahender Singh Yadav. She had also stated that they had taken the name of the accused Sajjan Kumar but no such statement of PW6 recorded earlier wherein the name of A1 was taken has been pointed out by the prosecution and in fact the case put forth by CBI is that the Delhi Police had tried to shield A1.
325. PW6 stated further that firstly, they visited the police to inform about the assault on her son and father. Thereafter, the police had visited their residence. The police had made enquiries from her and volunteered 'Kuch kagaz vagaz banaye the'. She denied the suggestion that she was deliberately not telling that police had visited them on 14.11.1984. She denied that she was deliberately not telling about the police visiting her on 14.11.1984 because she in her statement to the police made on that day had not made any mention of killing of her son Kapoor Singh and she stated that she had informed about the killing of her son Kapoor Singh and her father Sardarji Singh. She was shown the statement dated 14.11.1984 Mark PW6/DA (mark put for the purposes of identification) to which she stated that she could not read Hindi. The statement was read over to her and she CBI Vs. Sajjan Kumar & Ors. Page No. 434 of 545 stated that she had not given any such statement to the police. She denied the suggestion that she was disowning the said statement as she had not made any mention of the date 01.11.1984 and volunteered she had already stated that she had not given any such statement. Thus, PW6 had denied making the statement Mark PW6/DA which it is seen is a statement recorded by the police on 14.11.1984 and even the person who had recorded the said statement has not been called in the witness box by the accused persons to prove that PW6 had indeed made the said statement. PW6 was asked if the fact that on 02.11.1984, the rioters had killed her tenant Satraji S/o Vir Singh, R/o Punjab was correct, she replied that they did not have any tenant Satraji. She denied that she was disowning her statement Mark PW6/DA because she had never named the accused Sajjan Kumar earlier and she stated that she had named the accused Sajjan Kumar earlier. Thus, PW6 had stated that she had named A1 earlier though there is nothing on record to show the same.
326. PW6 further denied that in none of her earlier statements, she had mentioned about any meeting/crowd being addressed by accused Sajjan Kumar and that he addressed the crowd by saying that "humari ma maar di. Sardaro ko maar do" and stated that she had told the said fact even earlier. Again there is no such statement on record wherein she had stated about the meeting prior to the investigation by CBI. PW6 admitted that she had made a statement before the Court earlier regarding the killing of her family members. She stated that she had stated in her statement recorded in Tis Hazari Court on 24.07.1987 that "on 31.10.1984, we were watching TV on the demise of Smt. Indira CBI Vs. Sajjan Kumar & Ors. Page No. 435 of 545 Gandhi. On 01.11.1984, when I stepped out to look for my goat, I saw accused Sajjan Kumar addressing the crowd and was saying "humari ma maar di. Sardaro ko maar do". She was confronted with photocopy of the typed copy of statement of PW1 Smt. Cham Kaur recorded in FIR No.252/84 P.S. Sultanpuri in SC No.32/90 and SC No.4/93. Same was read over and explained to her in Hindi and she was asked if she gave the statement read out to her to which she stated 'Please record my statement. I can narrate the incident. This is not my complete statement. Ek do batein hain, ek-do nahi hain.' Thus, PW6 had admitted that she had made a statement in Court earlier regarding the killing of her family members and when what she had deposed in this case was put to her and she was confronted with the earlier statement, she stated that it was not her complete statement. It was put to her that her statement by the Court was recorded as per her version to which she replied 'Maine to yahi likhaya ki Sajjan Kumar elan kar raha tha "humari ma maar di. Sardaro ko maar do". However, there can be no merit in what PW6 had stated that the statement given in Court was not the complete statement and there is no reason to believe that what she had stated was not recorded by the Court. It is not even the case put forth by the prosecution that any application was moved before the Court that all that had not been stated by the witness had not been recorded by the Court.
327. It was put to PW6 that the name of accused Sajjan Kumar was not appearing in statement Mark PW6/DB as she never took his name before the Court concerned to which she replied 'Maine to liya tha'. She denied the suggestion that she was falsely stating CBI Vs. Sajjan Kumar & Ors. Page No. 436 of 545 that ek-do batein aapki statement ki nahi likhayi. However, there is no merit in stating that what she had stated was not recorded by the Court. It was put to PW6 that in Mark PW6/DB except mentioning of putting of Gurudwara on fire in Sultanpuri on 01.11.1984, she had not stated about any crowd being addressed by accused Sajjan Kumar to which she stated that she had already stated that accused Sajjan Kumar was telling the crowd "humari ma maar di. Sardaro ko maar do". Her attention was drawn to portion 'A to A1' of Mark PW6/DB wherein it was recorded -
"On 1.11.84, mob of 100-150 persons had set on fire Gurudwara in Sultanpuri, at a distance of 5-6 houses from the park" and the above was not found recorded to which she stated 'maine to court me sarkari vakeel ko bata diya tha. Again said - judge sahab ko bhi bataya tha'. She denied the suggestion that it was not so recorded in Mark PW6/DB, as she did not state so before the Court. Thus, PW6 had stated that she had told the sarkari vakil and again said, she had told the judge but it is seen that the same is not recorded in Mark PW6/DB. It may be mentioned at this stage that the statement Mark PW6/DB was only a photocopy and extensive submissions had been made regarding the record being not available but even if the statement Mark PW6/DB is not taken into consideration, the judgement in Sessions Case No.32/90 and Sessions Case No.4/93 is on record as Ex.PW10/D12 in which the testimony of PW6 who was PW1 therein has been referred to wherein she had stated as under:
"PW-1 Smt. Cham Kaur stated that she was living in house No.A-4/147 for the last 8/9 years and during riots alongwith her family. On 1.11.84 a mob of 100 to 150 persons set a fire the Gurudwara in Sultanpuri and on 2.11.84 she alongwith her CBI Vs. Sajjan Kumar & Ors. Page No. 437 of 545 husband were at her house when the mob attacked their house. On seeing the mob she went inside the house. Members of the mob brought her father outside the house. He was given 5/7 lathi blows and thereafter was set on fire, then her house was looted by the mob. They looted articles such like TV, and other household articles and the mob compelled her to run away, she could not locate her children. She suffered a loss of 70 to 80 thousands. She can identify the persons in the mob. Accused persons were in the mob who looted and murdered her father. After incident she was taken to Police Station then they were shifted to Baratghar. Police did not inquire from her about the incident and opened fire on 1.11.84."
Thus, what was put to PW6 does not find mention in her statement noted in the judgment Ex.PW10/D12.
328. During further cross-examination PW6 stated that she had stated that "On 01.11.1984, when I stepped out to look for my goat, I saw accused Sajjan Kumar addressing the crowd and was saying "hamari ma maar di. Sardaro ko maar do". I quickly returned home and told the same in neighbourhood. Then we climbed to the second floor of the house and hide our family and children at night. The whole night we continued to hide ourselves" in her earlier statement before the Court Mark PW6/DB. She was confronted with the statement Mark PW6/DB, where the said details were not found recorded. She had stated that "On 02.11.1984, "subah subah hamla aa gaya. Bahut aadmi the." My son Kapoor Singh and my father Sardarji Singh were pulled out of the hiding place on the second flooor, beaten badly and were thrown down from the roof" in her earlier statement Mark PW6/DB. She was confronted with Mark PW6/DB where it was not found recorded in the said manner. She was asked that in her statement Mark PW6/DB, she had stated that her house CBI Vs. Sajjan Kumar & Ors. Page No. 438 of 545 consisted of two rooms to which she replied that there were two rooms on the ground floor and one room was on the first floor. She denied the suggestion that there was no floor above the ground floor and volunteered 'Dusri manzil haigi'. Thus, PW6 was further confronted with her statement Mark PW6/DB with what she had stated in the present case but it was not recorded therein and what has been reproduced in the judgment Ex.PW10/D12 has already been noted above.
329. PW6 stated that she did not know whether the statements of Smt. Guddi Kaur and Smt. Banto Kaur were also recorded on the same day i.e. 24.07.1987, the date on which her statement was recorded and that may be so and even no suggestion was put to her that their statements were recorded in her presence. It was put to her that all the witnesses in case FIR No.252/84 SC No.32/90 and 4/93, were either her relatives or neighbours and neither she nor the said witnesses named accused Sajjan Kumar to which she stated that she did not know about other persons whether they named accused Sajjan Kumar or not. Their statements were recorded separately. She denied the suggestion that she had deliberately changed her version before the Court as tutored by the political opponents of the accused Sajjan Kumar. Thus, PW6 had stated that she did not know whether the other persons had named A1 or not and she denied the suggestion that she had changed her version as she was tutored.
330. It was then put to PW6 that on 19.12.1984, SI Prem Nath recorded her statement to which she stated 'Bayan likh ke le gaye the 1984 mein par tarikh mujjhe yaad nahin hai'. She was shown CBI Vs. Sajjan Kumar & Ors. Page No. 439 of 545 copy of statement under Section 161 Cr.P.C. dated 19.12.1984 purportedly recorded by SI Prem Nath, which is Mark PW6/DC and the same was read out in Hindi to her and she stated that she could not read the same. She was asked if she made the said statement to the police on which she replied 'Bayan to diya tha par itna lamba nahi likhaya tha'. Thus, PW6 had stated that SI Prem Nath had recorded her statement but she did not remember the date and she also stated that she had not given such a long statement. She had told the police that her son and her father were dragged from the second floor and killed. It was put to her that in the statement Mark PW6/DC, she had not mentioned about the incident of 01.11.1984 to which she replied 'Kiya tha'. She was confronted with Mark PW6/DC and it was put to her that in the same there was no mention about killing of her son to which she replied that she had told everything to the police including about her son being dragged and killed. It was put to her that in statement Mark PW6/DC she had named only Brahmanand Gupta, Hari Om, Jai Bhagwan, Uddal, Islam, Nathu Pradhan, his nephew Ramesh, Suresh @ Changa, Daya Shankar Bharti, Shish Ram, Satbir Halwai as rioters responsible for killing of her father but had not named accused Sajjan Kumar to which she stated that she had named accused Sajjan Kumar also. 'Har jagah liya tha'. She was confronted with Mark PW6/DC where the name of accused Sajjan Kumar was not found recorded. Thus, even in Mark PW6/DC the name of A1 was not there.
331. PW6 was further confronted with Mark PW6/DC and it was put to PW6 that before the Court on 16.11.2018 she had CBI Vs. Sajjan Kumar & Ors. Page No. 440 of 545 stated that "on 01.11.1984, when I stepped out to look for my goat, I saw accused Sajjan Kumar addressing the crowd and was saying that "humari ma maar di. Sardaro ko maar do" but she had not mentioned the said fact in mark PW6/DC which she denied and she stated that she had told the said fact to the police even earlier. She was confronted with the statement Mark PW6/DC wherein it was not found recorded. It was put to her that before the Court on 16.11.2018 she had stated that - "On 02.11.1984, "subah subah hamla aa gaya. Bahut aadmi the." My son Kapoor Singh and my father Sardarji Singh were pulled out of the hiding place on the second floor, beaten badly and were thrown down from the roof" and she was asked if she had stated so in the statement Mark PW6/DC to which she replied that she had told the said fact to the police. She was confronted with the statement Mark PW6/DC where it was not found so recorded in the said manner. Thus, PW6 was extensively confronted with Mark PW6/DC and she had stated about taking the name of A1 everywhere though it does not find mention in the said statement. However, the said statement was only a photocopy.
332. It was then put to her that in the case of killing of her father, all the accused persons were acquitted vide judgment dated 31.05.1994 and she had not preferred any appeal against the said acquittal to which she stated 'Kisi ko pakda hi nahi tha to appeal kya karte'. Again said 'Naam sabka liya tha par pakda nahi tha'. She denied the suggestion that all the accused used to appear in the Court and volunteered 'Ek do aate the. Kabhi nahi aate the'. She admitted that she had identified the accused persons before the Court. Thus, PW6 had admitted that the CBI Vs. Sajjan Kumar & Ors. Page No. 441 of 545 accused persons had been acquitted in the case of killing of her father and the said judgment is Ex.PW10/D12 and no appeal was filed against it. She had tried to contend that no appeal was filed as no one was caught but she also admitted that she had identified the accused persons before the Court which is also seen from Ex.PW10/D12. It was put to her that since 1984 till prior to 22.08.2008, she had never named the accused Sajjan Kumar and for the first time before CBI on 22.08.2008, she named accused Sajjan Kumar on which she stated that 'Maine Sajjan Kumar ka naam liya tha aur shuru se hi leti aa rahi hoon'. It was put to her that CBI had prepared the statement and given to her and she was asked to state the facts before the Ld. Magistrate according to the said prepared statement and accordingly she deposed before the Ld. Magistrate on the same lines vide Ex.PW6/B (D-21) which she denied and stated that 'Likhaya to humne hi tha'. She denied the suggestion that the CBI had got recorded her statement before the Ld. Magistrate in order to bind her by that statement or that she had deposed falsely at the instance of CBI and the political opponents of the accused. Thus, PW6 had stated that she had been taking the name of A1 from the beginning but even if Mark PW6/DA and Mark PW6/DC are discarded, the judgment Ex.PW10/D12 shows that even before the Court, PW6 had not named A1 nor stated about any meeting and only stated that on 01.11.1984, a Gurudwara was set on fire about which she had not deposed in the present case. Her statement that she had told the Court and still it was not there cannot be accepted as there has to be some sanctity attached to Court proceedings, otherwise it would be very easy to open CBI Vs. Sajjan Kumar & Ors. Page No. 442 of 545 and re-open prosecutions. The Ld. SPP for CBI had tried to contend that earlier the prosecutions were not carried out properly and the Court was handicapped by what little was put before it and as such the statements of the witnesses were cryptic and even the cross-examination was cryptic but if the witness had stated something before a Court, it is for the Court to take note of it and as such the argument of faulty or distorted prosecution would not help to overcome the fact that even before the Court, PW6 had neither taken the name of A1 nor stated about any meeting on 01.11.1984, otherwise the same would have found mention in her testimony before the Court.
333. PW10 was also cross-examined regarding the testimony of PW6 and he admitted that it was written in D-14, internal page -4 column-6 that the case of Cham Kaur was covered in case No.252/84 PS Sultanpuri and the details of the case along with the copy of judgment was with CBI and volunteered he had not written the same. The certified copy of the judgment dated 31.05.94 in the case of "State Vs. Uddal & Ors." in Session case No.32/90 and 4/93 is Ex.PW10/D-12. He admitted that Cham Kaur was examined as PW1 in the said case and that she had not taken the name of Sajjan Kumar in the said case and volunteered the same was matter of record and that the witness Cham Kaur was confronted with her statement under Section 161 Cr.P.C. recorded by Delhi Police and her deposition recorded before the Court at that time during the course of investigation and she stated that the two statements were not her complete statements as the said statements did not contain the name of accused Sajjan Kumar. Thus, PW10 had admitted that PW6 was examined as CBI Vs. Sajjan Kumar & Ors. Page No. 443 of 545 PW1 in the earlier case and that she had not taken the name of A1 in the said case. He had volunteered that she was confronted with her statement recorded under Section 161 Cr.P.C. and her deposition recorded before the Court and she had stated that her two statements were not complete as they did not contain the name of A1 and even before the Court PW6 had stated to the same effect but the version that she had told the Court the name of A1 but the same was not recorded cannot be accepted. PW10 stated that he did not record the said fact in either the statement of Cham Kaur recorded by him under Section 161 Cr.P.C. or in any supplementary statement and volunteered he did not find it necessary to record the same in the statement as he had already recorded the said fact in the case diary. He stated that he did not want to see the case diary. He could show it to the Court. Again said, he did not want to show the same to the Court at that time. Thus, PW10 had stated about recording the fact of confronting PW6 with her earlier statements and what she stated in the case diary but he did not want to show the case diary to the Court and as such nothing much turns on the same. He denied the suggestion that he was giving a false statement before the Court that Cham Kaur had stated that her earlier statement to the Delhi Police under Section 161 Cr.P.C. or her deposition in the Court were not complete statements or that she had stated that she had stated whatever she had to state already or that as the same was not recorded in the case diary so he did not want to show the same to the Court.
334. It may be mentioned that PW6 had identified her affidavit dated 07.09.1985 given before Ranganath Misra Commission of CBI Vs. Sajjan Kumar & Ors. Page No. 444 of 545 Enquiry which is Ex.PW6/A (colly) and an objection was taken to the said affidavit under Section 6 of the Commissions of Enquiry Act by the Ld. Counsel for the accused persons. The Ld. SPP for CBI had submitted that it was dealt in State through CBI v. Sajjan Kumar and others (supra) and also in Sajjan Kumar v. CBI (supra, 2012) about the admissibility of the document and it was said that the said document must be read. It was submitted that the exhibition of the document could not be faulted though the contents may not be gone into and the contents in view of Section 6 of the Act could not be used against the accused is what was the import of Section 6 of the Act. It showed that even in 1985 the witness had named Sajjan Kumar and it was not the first time in 2018 that PW6 had taken the name of Sajjan Kumar or before the CBI and as such his involvement had been pointed out even earlier. Reference may be made to State through CBI v. Sajjan Kumar and others (supra) in which Sajjan Kumar v. CBI (supra, 2012) was referred to and it was observed as under:
"Admissibility of statements made before the Commissions of Inquiry
186. Before proceeding to discuss the evidence of the principal witness PW-1, this Court would like to deal with an issue concerning the admissibility of the statements made before a CoI. In this context, the Court would like to refer to the order passed by the learned Single Judge on 3rd August 2012 in Crl. Rev. P. 328/2012 (Sajjan Kumar v. Central Bureau of Investigation), the Court set aside the following order passed by the trial Court on 2 nd June 2012 which concluded as under:
"Interpretation given to Section 6 of the Act as referred to above in Kehar Singh's judgement leaves no doubt that in the present case bar under section 6 of the Commissions of Inquiry CBI Vs. Sajjan Kumar & Ors. Page No. 445 of 545 Act will be attracted and Section 6 is very much attracted and applicable in this case. Question framed in this order is accordingly answered to the effect that bar under section 6 of the Commissions of Inquiry Act will be attracted so far as witness Smt. Jagdish Kaur has been confronted or sought to be contradicted with her affidavit Ex. PW1/A and Ex. PW1/B and her statement Ex. PW1/C, which was given before Inquiry Commissions."
187. The question had earlier been left open by the trial Court until A-1 filed an application on 15th May 2012, requesting the trial Court to decide the question of the admissibility of the statements made by PW-1 before the CoIs before arguments could proceed. The trial Court sustained the objections of the CBI in view of Section 6 of the CoI Act and the decision of the Supreme Court in Kehar Singh v.
State (Delhi Administration), (1988) 3 SCC 609 and held that A-1 could not be permitted to confront PW- 1 in respect of her statements before the two CoIs (Ex.PW-1/A to C).
188. The learned Single Judge of this Court was of the view that the CBI itself had, along with its charge sheet, placed PW-1's affidavits before the CoIs as part of the documents relied upon by it.
Despite the provisions contained in Section 6 of the CoI Act, PW-1 had herself exclusively referred to her affidavits before the CoIs. The said affidavits have been proved in her examination-in-chief and no objection has been raised by any of the parties regarding the admissibility of Ex. PW-1/A to C, either during examination-in-chief or in cross- examination. The learned Single Judge then proceeded to hold as under:
"Now therefore prosecution is estopped from raising objection regarding cross examination of PW-1 Smt. Jagdish Kaur with respect to Ex. PW1/A to C since this will amount to evidence, which has not been subjected to cross examination being read against the accused. It is settled position of law that no evidence can be read against the accused if not subjected to cross examination. The implication would be that the affidavits Ex. PW1/A & B and statement PW1/C and the deposition to this effect will not CBI Vs. Sajjan Kumar & Ors. Page No. 446 of 545 be read in favour of prosecution and against the accused."
189. This Court accordingly set aside the order dated 2nd June 2012 of the trial Court and directed that whole of the examination-in-chief and cross- examination of PW-1 with respect to Ex. PW-1/A to C will be read in evidence. This order having attained finality, this Court will proceed on that basis while analyzing the evidence of PW-1."
Thus, it is seen that in the said case, the affidavit had been filed and exhibited by the prosecution and then the prosecution had taken objection to the witness being confronted with the same during cross-examination on which it was held that the accused had a right to conduct cross-examination on the same. In the present case, the defence had objected to the very exhibition of the said affidavit on which the Ld. SPP had made the following statement on 24.01.2019:
"I, on behalf of CBI, state that CBI is not placing any reliance upon the contents of affidavit of Smt. Cham Kaur (PW-6) dated 07.09.1985 (D-8). The said affidavit was referred to only for the purposes of recollection of the witness PW-6 that she had filed the affidavit before Ranganath Misra Commission of Enquiry. The reference to the same is only to demonstrate the factum of filing of affidavit by PW6 and nothing beyond that."
Thus, once the Ld. SPP himself had submitted that the CBI was not placing any reliance upon the contents of the affidavit of PW6 dated 07.09.1985 and the same was referred to only for the purposes of recollection of the witness that she had filed the said affidavit, there is no merit in the contention that the said document must be read or that it showed that even in 1985, PW6 had named A1 as that would amount to reading the contents of the affidavit. It was submitted that Ex.PW6/B showed that PW6 CBI Vs. Sajjan Kumar & Ors. Page No. 447 of 545 had submitted an affidavit before the Ranganath Misra Commission as far back as 1985 but there is no dispute about the same. As regards the contention that she had named A1 therein, apart from the fact that the contents of the affidavit cannot be read and consequently there was even no cross-examination on the same, the testimony of PW6 was recorded in Court on 24.07.1987 after the filing of the said affidavit but still she had not named A1 in her testimony in the Court. Moreover, it is pertinent that it is the consistent case of PW6 that she had named A1 earlier though the same does not find mention even in Ex.PW10/D-12 and it is not her case that out of fear she had not named A1.
335. The Ld. SPP for CBI had argued that the cross- examination of the witness was mainly on how many people she knew and how many people were killed and on the previous statements and to show that she was under influence and changing her stand from the earlier testimonies but no fault can be found with the same as only on that basis, the defence can shake the credibility of a prosecution witness and in this case also show that PW6 had not named A1 in any of her earlier statements. It was submitted that PW6 was a witness to establish the nature of incidents in the area in that period and the aftermath and the witness had confirmed seeing Sajjan Kumar addressing and instigating the mob. It was submitted that apart from the contradiction on whether she named the accused, she was consistent about the nature of the incident and had been subjected to lengthy cross-examination and intentionally confused despite being rustic and illiterate witness, so much so that the Court had CBI Vs. Sajjan Kumar & Ors. Page No. 448 of 545 to ask the defence to not be repetitive. In the present case, it is seen that PW6 had essentially stated about A1 addressing and inciting the crowd and had not stated about any incident pursuant to that. She had stated about the incident of 02.11.1984 but there is nothing to establish the nexus of the said incident with the incident of A1 addressing the crowd and there is also nothing to show that the crowd was the same. It was submitted that while appreciating her evidence, the Court must not lose sight of the political pressures and extraordinary situations and even post the CBI taking over the investigation, witness in the case had to be provided protection. No doubt the witnesses in the case had to be provided protection but it is pertinent that PW6 had nowhere in her testimony stated about being under any fear, rather she had stated that she had named A1 everywhere though the name of A1 does not find mention in the testimony of PW6 as reproduced in the judgment in Ex.PW10/D-12. It was also argued that PW6 had deposed that accused Sajjan Kumar was addressing and instigating the mob which eventually erupted in violence and about loss of her family members and she had consistently identified A1 but while PW6 had deposed about the accused Sajjan Kumar addressing the mob, there is nothing in her testimony about the mob erupting in violence and the loss of her family members was in the incident which took place the next day. It was submitted that the defence had miserably failed to show any malice, or ill will or enmity on the part of the witness and it was her consistent stand that she had named A1 at every instance from the beginning and while it is true that there is nothing to show that there was any malice or ill will or enmity on CBI Vs. Sajjan Kumar & Ors. Page No. 449 of 545 the part of PW6 or she had any motive to falsely implicate A1, yet there is no explanation how the name of A1 was not recorded in her testimony before the Court earlier even though the same was after her affidavit Ex.PW6/A. There is however, no dispute that PW6 could recognize A1 and she had also identified him in the Court.
336. It was then submitted that PW6 had unequivocally questioned the role of police regarding the investigation done by them and in not registering the name of accused Sajjan Kumar but that does not explain the absence of the name of A1 even in her testimony in the Court which was recorded earlier and it is not the case put forth by PW6 that while deposing in the Court, she was under any kind of fear. It was submitted that PW6 had denied having made the statement Mark PW6/DA dated 14.11.1984 to the police and stated that the police had not recorded her statement. However, her consistent stand was that she had named Sajjan Kumar earlier. It was pointed out that she had admitted giving the statement dated 19.12.1984 Mark PW6/DC but stated that it was the same as narrated in the Court in the present case, however it is seen that the name of A1 is not mentioned therein and there is no mention of the incident of 01.11.1984 in the same. It was argued that as regards Mark PW6/DB recorded in Court, it was the consistent stand of the witness that she had named A1 but it cannot be accepted to be correct that she had stated the name of A1 in the Court but it was not recorded. It was thus submitted that PW6 was a witness of sterling honesty, besides being the most natural and probable witness to the events but even if it may be so, it is seen that in her CBI Vs. Sajjan Kumar & Ors. Page No. 450 of 545 earlier testimony before the Court PW6 had not taken the name of A1 nor narrated the incident of 01.11.1984 as she had narrated in her examination-in-chief in this Court. It was also submitted that in the case in which she had deposed earlier and the deposition of the case on which the defence had relied heavily, Sajjan Kumar was never an accused but evidently that was because he had not been named as an accused by any of the witnesses. The Ld. Counsel for the complainant had submitted that PW6 may not have been a part of the incident of killing of Surjeet but had narrated the same facts that A1 was leading the mob and exhorting people and Sikhs were killed and had supported the said version but while PW6 had stated about A1 exhorting people, there is nothing about him leading the mob in her testimony.
337. The Ld. Counsel for the accused persons had submitted that the judicial record of FIR No.252/1984, PS Sultanpuri, Sessions Case No.32/1990 and 4/1993 titled as "State v. Uddal"
was not traceable despite all efforts made by the accused persons to trace the record from the various record rooms of different District Courts. It was also submitted that the authenticity of the 4 statements dated 14.11.1984, 24.07.1987, 19.12.1984, 13.11.1991 could not be disputed. The stand of the accused persons was that as the earlier case was a decided case, the statements could be read. The defence had placed on record the statements of PW6 which were available with them being Mark PW6/DA, Mark PW6/DB, Mark PW6/DC, statement dated 13.11.1991 in FIR No.252/1984 and certified copy of the judgment Ex.PW10/D-12. It was submitted that cross-CBI Vs. Sajjan Kumar & Ors. Page No. 451 of 545
examination/ confrontation in respect of the said statements was allowed with the consent of the prosecution (order dated 27.02.2019). However, even if the record was not there, as submitted on behalf of CBI, PW6 had admitted the statement Mark PW6/DC and even if Mark PW6/DB may not be considered, the judgment Ex.PW10/D-12 is there which refers to the deposition of PW6 in that case. It was argued that the question was whether PW6 had named A1 for the first time or at any time prior during investigation or trial and it was on 22.08.2008 that A1 was named in the statement under Section 161 Cr.P.C. to CBI by Cham Kaur and she admitted that she was examined in respect of the said incident in Tis Hazari Court. It was pointed out that she had made the complaint in respect of the killing of her father and son but she had not named A1 or Vedu though she had named Brahmanand and there is merit in the said submission as also the submission that nine accused persons were named out of whom Brahmanand was one and the said case was decided by the then Ld. ASJ vide judgment dated 31.05.1994 which is Ex.PW10/D-12 and all the accused persons were acquitted.
338. The Ld. Counsel for the accused persons had also submitted that in her examination-in-chief PW6 had claimed that the occurrence of killing of her son and father was on 02.11.1984 whereas charge was framed in respect of the incident of 01.11.84 and as such her deposition did not support the case of the prosecution and that in all her earlier/ previous statements during investigation/ judicial proceedings she had deposed the occurrence of 02.11.1984 whereas for the first time in her CBI Vs. Sajjan Kumar & Ors. Page No. 452 of 545 statement under Section 161 Cr.P.C. to CBI, she had stated the occurrence to be of 01.11.84. She had stated that the meeting by A1 was of 01.11.1984 and the hamla had come on 02.11.1984, whereas in her statement under Section 161 Cr.P.C. she had stated that the incident was of 01.11.1984 and on 02.11.1984 she was taken to police chowki which meant that she had been used by CBI to target A1 but there was no examination by the Ld. SPP for CBI regarding the date. It was pointed out that during cross- examination an effort was made to confirm the date of the incident and if it was of 02.11.1984 and whether she had lodged the report or not and she had admitted that the incident had affected the entire area of A-Block. It was urged that the persons who had lodged the report on 01.11.1984 were covered under FIR No.250/84 and those who lodged the report on 02.11.1984 were covered under FIR No.252/84. It was submitted that her stand could not be reconciled and it showed her conduct.
339. In the present case, PW6 had stated about the meeting by A1 of being of 01.11.1984 whereas the hamla had come on 02.11.1984 and the same was her stance in her statement under Section 164 Cr.P.C. Ex.PW6/B though in her testimony recorded and mentioned in Ex.PW10/D-12, qua 01.11.1984, she had stated about the incident of the Gurudwara being set on fire and her family members being killed on 02.11.1984. It was contended that the deposition of PW6 demonstrated on the face of it that she was there with totally fresh allegations which was not permissible as there could be no departure from rules of evidence or fundamental tenets of the criminal justice system and her deposition led to the conclusion that the prosecution story was CBI Vs. Sajjan Kumar & Ors. Page No. 453 of 545 after a good deal of deliberation and inspired no confidence. While the legal position is well-settled in this regard, in the present case, PW6 had given an affidavit before the Justice Ranganath Misra Commission Ex.PW6/A in 1985 itself but the contents of the same could not be read. Thereafter, she was examined in Court after a couple of years of giving her affidavit, though in respect of FIR No.252/84 which resulted in the judgment Ex.PW10/D-12 but she had not named A1 at all in the said testimony even though she had deposed therein as to what had happened on 01.11.1984 and she had not even stated about any crowd being provoked and thereafter she had named A1 when she was examined by the CBI. In her examination-in-chief in the present case, she had stated about a meeting by A1 on 01.11.1984 in which he had incited the crowd to kill the Sikhs but it is seen that the same is a material improvement over what she had stated in Court earlier and further not only had she not stated about the involvement of A1 earlier but she had also not stated about any meeting and had only stated about the setting on fire of a Gurudwara on 01.11.1984 by a mob of about 100 to 150 persons (as recorded in Ex.PW10/D-12) about which she did not depose in the present case. She had also contradicted herself on taking the name of A1 everywhere as the same was not borne out by the record. Further, she had not made any allegations against the accused Vedu Pradhan and Brahmanand in the present case.
Analysis of the evidence of PW7 Joginder Singh
340. PW7 Shri Joginder Singh deposed that he was leading a retired life. In 1984, he lived in Sultanpuri along with his family.
CBI Vs. Sajjan Kumar & Ors. Page No. 454 of 545He was not educated and he only knew to put his signatures. His family included his parents, his six children i.e. 4 daughters and two sons and his wife. On 01.11.1984 at about 10:00 a.m.-11:00 a.m., on hearing noise outside, he came out of his house. When he came out, he saw a police vehicle and he also saw that accused Sajjan Kumar along with many people was there. The accused Sajjan Kumar was saying that no Sikh should be spared, as they had killed their mother ('Unhone hamari maa mari hai, koi sardar bachna nahi chahiye') on which, 'public bhadak kar galiyon mein ghusne lag gayi aur hamari gali mein bhi aa gayi'. Thereafter, his brother Surjeet Singh was pulled out of the house and was assaulted with swords, 'sariya and lathis aur uske tukde-tukde kar ke kerosene daal ke jala diya. Mere baal us samay kate hue the, jab mere bhai ko mara. Mai shuru se mona tha'. He stated that he was present at the spot when his brother was so assaulted and killed. He was in the crowd only but could not be identified as a Sikh because of his cut hair. He also saw the mob killing 15-20 Sikhs. 'Bheed chalti ja rahi thi, maar rahi thi, jala rahi thi, log haath jod rahe the ke humen mat maaro'. He stated that he was helpless in front of the mob.
341. PW7 deposed that at that time, Sajjan Kumar, Nathu Pradhan, Munna, Piriya, Gupta Telwala, Vedu Pradhan and some other persons were also present, whose names he did not remember then. The members of the mob were carrying 'talwar, sariya, dande, mitti ka tel'. He stated that the mob had caused damage to his house also by breaking the doors. At that time, he had a truck, 'jo maine bayana dekar liya tha'. The mob had even burnt his truck. 'Mere pitaji ko bhi dando se maar kar, chaarpai CBI Vs. Sajjan Kumar & Ors. Page No. 455 of 545 se neeche phek kar chale gaye'. He stated 'Teen tarikh ko (03.11.1984) Military dopahar me 02:00 - 02:30 baje aa gai'. On firing by the Military, the mob dispersed and they were taken to police station. From there, they were taken to Rani Bagh Camp. PW7 stated that he had given an affidavit, the year he did not remember. His affidavit was prepared at Tis Hazari where many persons were getting their affidavits prepared. The affidavit is Ex.PW7/A (D-11) which bore his signatures. PW7 stated that CBI had taken him to a Judge Sahib at Karkardooma Court before whom he made a statement which is Ex.PW7/B (D-24). He identified the accused persons.
342. Thus, PW7 had deposed that on 01.11.1984 at about 10:00 a.m.-11:00 a.m., on hearing noise outside, he came out of his house. When he came out, he saw a police vehicle and he also saw that accused Sajjan Kumar along with many people was there and accused Sajjan Kumar was saying that no Sikh should be spared, as they had killed their mother on which the public got provoked and entered the galis and also entered their gali. Thereafter, his brother Surjeet Singh was pulled out of the house and was assaulted with swords burnt and killed. He was in the crowd only but could not be identified as a Sikh because of his cut hair. He also saw the mob killing 15-20 Sikhs. He stated that at that time, Sajjan Kumar, Nathu Pradhan, Munna, Piriya, Gupta Telwala, Vedu Pradhan and some other persons were also present, whose names he did not remember then and the members of the mob were carrying 'talwar, sariya, dande, mitti ka tel'. The mob had caused damage to his house also by breaking the doors and had even burnt his truck and his father CBI Vs. Sajjan Kumar & Ors. Page No. 456 of 545 was also assaulted. He had stated about giving an affidavit.
343. PW7 was extensively cross-examined on behalf of the accused persons and during cross-examination PW7 was questioned about knowing Surjeet and his family and he stated that Shri Surjeet was his mama's son (maternal uncle's son). Smt. Rajwant Kaur was wife of Shri Surjeet. He did not know where she was living presently. Shri Surjeet was living in their gali in Sultanpuri. He was living in their gali since approximately 15-17 years prior to 1984. Prior to Sultanpuri, he (PW7) was living in village Kaithwada in Trans Yamuna on rent. From there they shifted to a jhuggi in Raghubir Nagar. Thereafter, they were given a plot in Sultanpuri and accordingly shifted to Sultanpuri. Shri Surjeet and his wife were living in their neighbourhood in Sultanpuri. He was not living in their neighbourhood either in Trans Yamuna or in Raghubir Nagar. He admitted that Shri Surjeet was living in H. No.309 in Sultanpuri. On being asked if he used to meet Shri Surjeet, he stated 'Thoda bahut aana jana tha. Woh kam par jata tha. Main bhi apne kaam par jata tha'. He admitted that 'Dukh-sukh mein bhi aate jaate the'. Thus, he had stated that they used to visit each other occasionally. PW7 was then cross-examined on knowing whether any complaint was lodged by the wife of deceased Surjeet to which he stated that he did not know whether Smt. Rajwant Kaur w/o Shri Surjeet lodged any complaint of killing of her husband Shri Surjeet. He did not inquire from Smt. Rajwant Kaur whether she made a complaint in the said regard to police or not. He stated that he did not give any advice to Smt. Rajwant Kaur to lodge a complaint about the killing of her husband. He denied that he did not visit CBI Vs. Sajjan Kumar & Ors. Page No. 457 of 545 Smt. Rajwant Kaur to condole the death of Shri Surjeet and stated 'Kisika bhai marega to afsos nahi karega'. Thus, PW7 did not know if the wife of deceased Surjeet had lodged any complaint regarding the killing of her husband and he did not even inquire from her in this regard nor advised her to lodge any such complaint. The prosecution has also not produced any complaint which may have been lodged by Smt. Rajwant Kaur regarding the killing of her husband.
344. PW7 was then asked if he asked Smt. Rajwant Kaur whether she knew how her husband died to which he stated 'Ye to sabko pata hai kaise mara hai.' Therefore, there was no occasion for him to ask her. 'Woh khud dekh rahi thi'. It is pertinent that according to PW7, Smt. Rajwant Kaur was a witness to the killing of her husband Surjeet Singh. On being asked when did he report to the police about the death of Shri Surjeet, he stated that they had visited the police station to lodge the report. 'Par woh Sajjjan Kumar ke baare mein report likhte hi nahi the'. He stated that he had gone to the police station after coming back from the Camp. He did not remember the date when he visited the police station. He denied the suggestion that he never visited the police station to lodge the report and that the police had not refused to register the complaint. Thus, PW7 had stated about going to the police station to lodge a report regarding the killing of Surjeet Singh though he also stated that they did not write a complaint against A1. However, it is the admitted case that FIR No.268/84 was lodged by PW7 regarding the incident of looting etc. It was then put to PW7 that on 20.12.1984 SI Krishan Kumar, PS Sultanpuri had visited him and CBI Vs. Sajjan Kumar & Ors. Page No. 458 of 545 had informed him that he was investigating FIR No.268/84 about the killings in his area to which he stated that Krishan Kumar had come and he had told the name of accused Sajjan Kumar. But he did not know whether he recorded the same or not. Thus, PW7 had admitted that SI Krishan Kumar had come and stated that he had told the name of A1 though he did not know whether he recorded the same or not. It was put to him that he had told SI Krishan Kumar that Rs.5000/-, a trunk containing three tolas of gold and costly clothes were looted; 'Humein nahi maloom kaun le gaya. Humne idhar udhar chup kar apni jaan bachai' which he denied and stated that he had told SI Krishan Kumar that 'mere baal kate hue the. Main sab dekh raha tha. Maine accused Sajjan Kumar aur sabko dekha tha. Main chupa nahi hua tha'. Thus, he denied that he was in hiding and stated that he had seen A1 and everyone else. It was put to him that he did not tell SI Krishan Kumar about the killing of either Shri Surjeet or anyone else, nor he told him anything about the involvement of accused Sajjan Kumar in any manner whatsoever which he denied and stated 'Maine sabka bataya tha. Sabka naam liya tha'. As such, he stated that he had told about the killing of Surjeet and had also taken the name of A1. It was then put to him that before SI Krishan Kumar he did not take the names of any of the accused persons or any other person involved in the riots but he denied the same and reiterated 'Maine sabka naam liya tha. Inhone likha ya nahi likha mujhe malum nahi'. The Ld. SPP for CBI had submitted that PW7 was never confronted with the statement dated 20.12.1984 and it is seen that though PW7 was cross- examined on the same, he was not confronted with the said CBI Vs. Sajjan Kumar & Ors. Page No. 459 of 545 statement nor the said statement was got exhibited or marked.
345. During further cross-examination PW7 stated that he knew very well Nathu Pradhan, Munna, Piriya, Gupta Telwala, Vedu Pradhan 'kyunki ye sab aas paas hi the'. They also knew him well. He was asked if it was correct that most of the residents of his Gali were Sikh to which he stated 'Sardar bhi rehte the par sabke baal kate hue the'. It is pertinent that PW7 stated about knowing the persons he named as they resided in his neighbourhood and he also stated that they knew him well. Moreover, he stated that the hair of all the Sikhs in his gali were cut. He admitted that in his lane, from out of house numbers 301 to 312, Sikh families resided in 10 houses 'Par wo saare mone the. Bacchon ke baal kate hue the par unke pitaji ke kesh the'. PW7 was shown a certified copy of Naksha Mauka Nazri Bagair Scale dated 01.03.1992 in case FIR No.347/91 under Sections 147/148/149/302/201/395/436 IPC, PS Sultanpuri. The same was objected to by the Ld. Special PP CBI on which it was submitted by the Ld. Defence Counsel that the said site plan was filed along with Riot Cell Closure Report and the said report along with the documents was kept in a sealed cover pursuant to the request of CBI. From the Court record, a yellow color envelope sealed with the seal of "SSR" bearing description "Untraced 28/2/04, FIR No.347/91, Unknown, u/S 147/148/149/302IPC" was opened, out of which one file of case bearing FIR No.347/91, PS Sultanpuri, under Sections 147/148/149/302/201/302/355/436 IPC, State Vs. Unknown; DOD 28.02.2004; G. No. 89/Sultanpuri was taken out. The Naksha Mauka Nazri Bagair Scale, certified copy of which was put to the witness by Ld. Defence Counsel is CBI Vs. Sajjan Kumar & Ors. Page No. 460 of 545 Ex.PW7/DA. On it being put to him that in his lane, which was 8 feet wide, there were houses from number 301 to 312 and opposite those houses were house numbers 276 to 287, he stated that he was illiterate. He could not make out from the said site plan. There were houses opposite 301 to 312 but he did not know whether house numbers were 276 to 287. He was asked if it was correct that Sikh families resided in the houses opposite 301 to 312 to which he replied that none of the families in the opposite houses were Sikh. He denied the suggestion that in majority of opposite houses also, Sikh families resided. He admitted that each house was built up on area of 25 square yards. He was asked if it was correct that the house shown at B2/309 in the Naksha Mauka Nazri Bagair Scale was that of Surjeet Singh on which he replied that he had already stated that he did not understand the nakhsa and he could not tell in the naksha. He stated that he could read the figure "309". Thus, a site plan Ex.PW7/DA was got exhibited and while PW7 stated that the houses were of 25 sq. yards, he denied that the Sikh families resided in the houses opposite 301 to 312 and he could not tell from the said document if the house No.B2/309 was of Surjeet Singh. It is material that even as per the accused persons B2/309 was the house of Surjeet Singh and as per the record, PW7 was then residing in B2/301 and Ex.PW7/DA supports the case of the prosecution that the houses of PW7 and of the deceased Surjeet Singh were in the same line. Though it was mentioned in Ex.PW7/DA that the exact spot of death of Surjeet Singh could not be known but it also stated that at the time of riots, the wife of the deceased Rajwant Kaur was residing in B2/309 and the CBI Vs. Sajjan Kumar & Ors. Page No. 461 of 545 person who got the site plan made i.e. Inderjit son of PW7 was residing in B2/301.
346. During cross-examination PW11 stated that Joginder Singh had told him that houses from number 301 to 312 are on one side but he did not tell him that house No.276 to 287 are on the opposite side. A question was put to him that as per the Naksha Mauka Ex.PW7/DA part of charge sheet it was seen that houses number 276 to 287 are on one side and houses No.301 to 312 are on the opposite side which was disallowed as the witness had already stated that his role was limited to examining Joginder Singh. Even otherwise, it has come on record that the deceased lived in B2/309 and PW7 was residing in B2/301.
347. DW2 was cross-examined on behalf of CBI in respect of the site plan and DW2 stated that he did not remember the age of Inderjit when he had prepared the site plan at his instance. As per Mark DW2/2 the age of Inderjit was mentioned as 19 years. He denied the suggestion that he only joined in investigation the son of Joginder Singh namely Inderjit Singh to draw an inconclusive site plan as Inderjit would not have been able to explain being 11 years of age at the time of the incident. There can be no doubt that even as per what was stated by DW2, Inderjit would have been only 11 years old at the time of the incident and apart from showing where Inderjit and the deceased lived, there is no relevance of the site plan as the site plan itself mentioned that the exact spot of death of Surjeet Singh could not be known so there would even have been no need to prepare the said site plan.
CBI Vs. Sajjan Kumar & Ors. Page No. 462 of 545348. PW7 was then asked if Shri Raj Singh, SI (Vigilance, SIC) visited him on 25.01.1985 in respect of FIR No.268/84 regarding killing of Surjeet Singh to which he stated that he did not remember whether any such SI had come or not. It was put to him that on 25.01.1985, SI Raj Singh had not only met him but had also met wife of Surjeet Singh, namely, Smt. Rajwant Kaur to which he stated that he had already stated that he did not remember. He denied the suggestion that he was deliberately not answering the said questions because he knew that he as well as Rajwant Kaur, wife of Surjeet Singh had told SI Raj Singh that Surjeet Singh, his Mama's son had gone out somewhere for work and did not come back nor it was known as to where he was killed and volunteered he was very much there when Surjeet Singh was killed in his presence. It was again put to him that in his presence, Smt. Rajwant Kaur, wife of Surjeet Singh in her own house had told SI Raj Singh that her husband Surjeet Singh had gone for work in the morning and did not come back; she tried to locate him but he was not traceable; his dead body could not be recovered; she also told that it appeared that he was killed somewhere in the riots but, she did not know as to where he was killed which he denied and stated 'Mere saamne hi Surjeet ko ghar se nikala aur mara tha'. Thus, PW7 reiterated that Surjeet was killed in his presence. It is pertinent that as per the said cross-examination of PW7, the police was aware of the killing of Surjeet Singh even on 25.01.1985 i.e. much prior to the affidavit of PW7 Ex.PW7/A though the defence has not got the statement dated 25.01.1985 exhibited nor PW7 was confronted with the same. PW11 was also cross-examined regarding the said CBI Vs. Sajjan Kumar & Ors. Page No. 463 of 545 statement and he did not remember if the present case was examined by Vigilance in 1985 or that the statement of Joginder Singh was recorded by Vigilance on 25.01.1985. He did not remember if the said statement was recorded in the case diary. However, the said statement has not been brought on record.
349. On being asked if he knew one Succha Singh resident of B2/306, PW7 stated 'Usko mai thoda bohot janta tha'. He did not know his house number. He knew that Smt. Talwinder Kaur was the wife of Succha Singh. It was put to him that statement of Smt. Talwinder Kaur wife of Succha Singh was also recorded by the police in his presence to which he stated 'Mere saamne kisi ke bayan nahi likhe police ne'. He stated that he knew Karnail Singh, Shamsher Singh, Lilly Kaur and Kailash, 'Sab aamne- saamne hi rehte the'. It was put to him that statements of Karnail Singh, Shamsher Singh, Lilly Kaur and Kailash were also recorded by the police in his presence on 25.01.1985 to which he stated 'Mere saamne kisi ke bayan nahi likhe police ne. Na hi mujhe pata hai ke unke bayan hue the'. Thus, PW7 had stated that statements of no one were recorded in his presence nor he knew if their statements were recorded. PW7 was asked who was living in B2/303 and he took the name of Mahender Singh. He was asked who lived in B2/304 and B2/305 and he took the name of Inder Singh. It was put to him that in B2/305, Shri Sewa Singh used to live to which he stated that he did not remember. It was put to him that none of the said residents, namely, Inder Singh, Mahender Singh, Karnail Singh, Shamsher Singh, Lilly Kaur, Kailash, Smt. Talwinder Kaur, Smt. Rajwant Kaur and Shri Sewa Singh stated that Surjeet Singh was killed in the gali to which he CBI Vs. Sajjan Kumar & Ors. Page No. 464 of 545 stated that he did know whether they said or did not say. It was put to him that he very well knew that neither he nor any of the said residents, namely, Inder Singh, Mahender Singh, Karnail Singh, Shamsher Singh, Lilly Kaur, Kailash, Smt. Talwinder Kaur, Smt. Rajwant Kaur and Shri Sewa Singh stated anything about involvement of accused Sajjan Kumar or other accused persons (in the present case) in the riots in that area, in any manner to which he stated that he had named the accused persons. But he did not know whether the police recorded the same or not. He did not know whether other persons stated anything or not. Thus, PW7 stated that he did not know whether the persons whose names were put to him had stated that Surjeet Singh was killed in the gali and he did not know whether they had stated about the involvement of A1 or not. He reiterated that he had named the accused persons though he did not know if the police had recorded or not. However, even the defence has neither produced the statements of the said persons that may have been recorded nor has produced any of the said persons in the witness box.
350. It was further put to PW7 that on 13.03.1985, SI Ram Prakash, PS Sultanpuri had visited him with respect to the killing of Surjeet Singh in case FIR No.268/84 under Sections 147/148/149/364/395/427/436 IPC, PS Sultanpuri to which he stated that SI Ram Prakash had visited him but he did not remember the date. It was put to him that SI Ram Prakash had made inquiries from him and he had joined the investigation of FIR registered in 1984 with respect to the killing of Surjeet Singh and his statement was recorded by him to which he stated that CBI Vs. Sajjan Kumar & Ors. Page No. 465 of 545 inquiries were made from him and his statement was recorded. 'Maine jo dekha tha vo bata diya tha'. Thus, PW7 had stated about SI Ram Prakash visiting him with respect to the killing of Surjeet Singh and about making inquiries from him and recording his statement. His attention was drawn to copy of statement recorded on 13.03.1985 (in case FIR No.268/84 under Sections 147/148/149/364/395/427/436 IPC, PS Sultanpuri), imputed to him, from the record taken out of the sealed envelope sealed with the seal of "SSR" having description "Untraced 28/02/04". The said statement was read out to the witness in Hindi:
"Bayan kiya hai mai aaj aapke sath shamil taftish raha hun jo morkha 01-11-84 ko jhagde vagarah hue the. Us din mere ghar ka samaan loot liya jo trunk ke andar 3 tole sona, keemti kapde aur nagad 570 rupee bhi loot liyo jo main bhaag kar apni bachai. Mujhe maloom nahi kisne hamara samaan loot liya hai. Kaafi log the mai kisi ko pehchaan nahi sakta. Bayaan sun liya hai."
PW7 stated that 'mere baal kate hue the. Mai ghar se kahin bhaga nahi tha'. But, he admitted that 'mere ghar ka samaan loot liya tha'. Thus, PW7 stated that he had not run away from home and he admitted that his house-hold articles had been stolen. The said statement is Ex.PW7/DB. It was put to him that in the said statement, he had not stated anything about the killing of Surjeet Singh to which he replied that he had told everything. But, he did not know 'ke vo likhi ke nahi likhi'. It was put to him that he specifically stated in the said statement that 'kaafi log the, mai kisi ko pehchaan nahi sakta' which he denied and stated 'Mai sabko jaanta tha, Sajjan Kumar ko'. It was put to him that in the said statement, he had not named accused Sajjan Kumar, CBI Vs. Sajjan Kumar & Ors. Page No. 466 of 545 nor had he stated anything about his involvement in riots to which he stated 'Maine Sajjan Kumar aur sabke naam liye the aur sab kuch bataya tha'. Thus, PW7 had reiterated that he had told everything and that he had taken the name of A1 and that they were not writing the same. He denied that he did not have any knowledge of the killing of Surjeet Singh and where he died as he was not present at that time and the fact that he was then making the said statement showed that he had been tutored and stated 'Surjeet Singh ke marne ke baare me maine sab kuch likhaya tha'. He denied that he made a false statement which was evident from the fact that there was no mention of the name of Surjeet Singh in the statement Ex.PW7/DB and he stated that he had duly mentioned the same.
351. During cross-examination PW11 did not remember if the investigation of the present case was also a part of investigation of FIR No.268/84, PS Sultanpuri. He did not remember at present whether Joginder Singh was examined by SI Ram Prakash in FIR No.268/84 PS Sultanpuri (Ex.PW7/DB). After reading the statement, the witness stated that the said statement was recorded and was part of the record and volunteered Joginder Singh was very scared and also illiterate and after he was counseled and given confidence he started opening up. He did not remember if it was recorded in the case diary that "Joginder Singh was very scared and also illiterate and after he was counseled and given confidence he started opening up". It was not so noted in any other proceedings. He denied the suggestion that he had deposed absolutely falsely that Joginder Singh was very scared and also illiterate and after he was counseled and given confidence he CBI Vs. Sajjan Kumar & Ors. Page No. 467 of 545 started opening up or that Joginder Singh had given the statement voluntarily. Thus, PW11 had admitted that the statement Ex.PW7/DB was recorded and was part of the record though he tried to contend that PW7 was very scared and also illiterate and when he was counseled he started opening up but the same was not noted in any proceedings.
352. It was then the contention of the accused persons that PW7 was aware of the Ranganath Misra Commission but he had not approached the same. It was put to PW7 that Ranganath Commission was constituted in 1985 in respect of 1984 riots and he was asked if he had made any statement or filed any affidavit or any complaint before that Commission regarding the killing of Surjeet Singh to which he replied 'mujhe Ranganath Commission ke bare me pata nahi hai. Par maine har jagah bayan diye the. Mujhe pata nahi hai ki likha ya nahi likha'. It was put to him that setting up of Ranganath Commission was widely publicized by way of publication in newspaper, announcements in TV, Radio and even in Gurudwaras and also particularly in Resettlement Camps of the victims of 1984 riots, calling upon people to come forward to lodge complaints/ report about any mishappening during riots to which he replied 'Mujhe pata nahi hai. Na hi maine TV me dekha'. He stated that he did visit Gurudwaras. It was put to him that the members of Gurudwara Prabandhak Committee, Government Officers visited his area informing people about the setting up of Ranganath Commission, where aggrieved persons could lodge complaints/report about any mishappening during the riots to which he stated 'Aaye the ya nahi aaye the mujhe pata nahi. Par CBI Vs. Sajjan Kumar & Ors. Page No. 468 of 545 maine complaint likhvai thi'. He denied the suggestion that he was deliberately not answering correctly regarding his knowledge about Ranganath Commission, as he had no knowledge about the incident in the present case. Thus, PW7 had categorically stated that he did not know about the Ranganath Misra Commission.
353. PW7 was then cross-examined regarding his affidavit Ex.PW7/A and he stated that he had got typed his complaint in Tis Hazari and had filed at ITO. He was shown Ex.PW7/A (D-
11) from the record and he stated that the said affidavit was got typed at Tis Hazari and was given at ITO. He was asked if any action was taken on the affidavit Ex.PW7/A (D-11) to which he replied that he had given the said affidavit. He did not know whether thereafter any action was taken on the said affidavit. Thus, PW7 had stated about getting Ex.PW7/A typed at Tis Hazari and giving it at ITO though he did not know whether any action was taken on the same or not. PW7 stated that CBI had recorded his statement and volunteered his statement was also recorded in Karkardooma. It was put to him that he had made a statement to CBI on 08.03.2009 to which he replied that CBI ko maine bayan diya tha. Tarikh ka mujhe pata nahi. He had made the statement before CBI thrice and volunteered on every occasion he had told about the involvement of accused Sajjan Kumar. He did not remember the dates when he made a statement before CBI. CBI had recorded his statement at a place somewhere near India Gate. Thus, PW7 had stated that he had made the statement before CBI thrice and volunteered that on every occasion he had told about the involvement of A1. It was CBI Vs. Sajjan Kumar & Ors. Page No. 469 of 545 put to him that before CBI on 08.03.2009, he stated that he submitted his affidavit in the camp and that the affidavit was got typed in the camp itself and he had also stated that he lived in the camp from fifteen days to one month to which he replied that he had not got his affidavit typed in the camp. He had already stated that it was typed in Tis Hazari and was filed at ITO. He stated that they had lived in Rani Bagh camp for about 7-8 days. Thereafter, he had returned home. He denied the suggestion that he had deposed falsely in the said respect. He was confronted with the statement under Section 161 Cr.P.C. dated 08.03.2009 imputed to him which is Ex.PW7/DC and his attention was drawn to the portion of the statement wherein it was recorded that "maine dange ke samay apna affidavit camp mein jama karvaya tha. Stamp paper Tis Hazari se meri gharwali kharid layi thi. Type bhi maine camp ke andar hi karvaya tha. Affidavit mein likhi batein maine likhvayi thi. Yeh kisne likha tha yeh mujhe nahi malum hai. Camp mein main karib 15 din se ek mahina tak raha tha" and it was put to him that he had appeared before Shri M.L. Jain and Shri A.K. Banerjee Committee and on his affidavit, FIR No.347/1991 dated 13.12.1991 was registered in PS Sultanpuri and therefore, he had made a false statement before the Court that no action on his affidavit was taken to which he replied 'maine koi FIR nahi likhai. Maine to bayan diye the sab jagah iss ghatna ke bare main'.
354. Thus, in Ex.PW7/DC PW7 had stated about getting the affidavit typed in the camp and depositing it in the camp whereas in the Court he had stated that he had got the affidavit typed in Tis Hazari and deposited the same at ITO but nothing much turns CBI Vs. Sajjan Kumar & Ors. Page No. 470 of 545 on the same as it cannot be lost sight of that a long time had lapsed since the affidavit given in 1987 and till the deposition of PW7 in Court. Further, he had stated that he had not got registered any FIR and he had only given a statement and it is not in dispute that based on the affidavit of PW7, on the recommendation of the Shri M.L. Jain and Shri A.K. Banerjee Committee, FIR No.347/91 was got registered and it is not as if PW7 had directly got the FIR registered. In fact it was pointed out by the Ld. SPP for CBI that the FIR was lodged only pursuant to the letter of the administrator dated 09.10.1991. PW7 was then asked if he was aware that any FIR No.347/1991 was registered at PS Sultanpuri with respect to the killing of Surjeet Singh to which he replied 'Maine koi FIR nahi likhai. Maine to bayan diye the, affidavit diya tha iss ghatna ke bare main'. He denied the suggestion that he was deliberately making a false deposition of his ignorance about registration of FIR No.347/1991, PS Sultanpuri with respect to the killing of Surjeet Singh. However, it cannot be said that PW7 had deposed falsely about not getting any FIR registered with respect to the killing of Surjeet Singh in light of what has been noted above. PW11 was also cross-examined regarding the affidavit and he did not remember if Joginder Singh had stated that his signatures had been taken but he did not know what was written in the affidavit and that all the names stated were incorrect or that even the name of Sajjan Kumar had been taken wrongly or that he had not seen him. He did not remember if as per the record Joginder Singh had so stated even before the Jain Aggarwal Committee. Thus, PW11 did not remember what was put to him in this regard. DW2 also CBI Vs. Sajjan Kumar & Ors. Page No. 471 of 545 did not remember if he had read the statements of Joginder Singh recorded before Jain Aggarwal Committee dated 11.07.1991.
355. PW7 was then asked if it was correct that Inspector Mam Chand, Riot Cell on 01.03.1992 had visited his house regarding FIR No.347/1991 to which he replied that Inspector Mam Chand had visited his house. But he did not remember the date and he had told the names of accused Sajjan Kumar, Nathu Pradhan, Piriya Sansi, Vedu, Brahmanand Gupta and others whose name he did not remember. Thus, PW7 had categorically stated about Inspector Mam Chand visiting his house and that he had told the names of the accused persons. He denied that when Inspector Mam Chand visited his house, he was not at home and therefore, he had made a false deposition of naming the said persons before Inspector Mam Chand as tutored. He stated that he was very much at home. Thus, he reiterated that he was at home. PW7 stated that rather, he was offered money not to make any statement against accused Sajjan Kumar and others. He was asked if he told CBI that he was offered money not to make any statement against the accused Sajjan Kumar and others when Inspector Mam Chand visited his house to which he replied 'Maine sabko bataya tha. Mujhe pata nahi unhone likha hai ya nahi'. He was confronted with his statement under Section 164 Cr.P.C. Ex.PW7/B, statement under Section 161 Cr.P.C. Ex.PW7/DC and affidavit Ex.PW7/A wherein it was not so found recorded. It was put to him that for the first time in the Court that day, he had stated that he was offered money for not naming the accused Sajjan Kumar and others to which he replied 'maine sabko bataya tha. Mujhe pata nahi unhone likha hai ya CBI Vs. Sajjan Kumar & Ors. Page No. 472 of 545 nahi'. He denied the suggestion that he had stated so in his cross- examination as he was tutored to say so. It is to be noted that in none of his statements recorded earlier either before the Court or by the CBI had PW7 stated about any money being offered by Inspector Mam Chand to him for not naming A1 nor there is anything to show that he had made any complaint in this regard. Quite clearly, the same could not be there in his affidavit Ex.PW7/A but if such an incident had taken place, the same ought to have found mention in Ex.PW7/B and Ex.PW7/DC and it cannot be believed that neither the Ld. Magistrate, nor the CBI recorded the same. Thus, the deposition to this effect, made for the first time in Court is of no effect.
356. It is the case of the accused persons that when Inspector Mam Chand had visited the house of PW7 to record his statement, he was not at home and the statement of his son was recorded who had stated that his father was in Kolkata and that the incident had not happened in their gali. During cross- examination PW7 stated that Inderjit Singh is his son. Malkiyat Kaur is his wife. He denied that when Inspector Mam Chand visited his house, his son Inderjit and his wife Malkiyat Kaur met Inspector Mam Chand and informed him that he had gone to Kolkata with a truck on duty on which Inspector Mam Chand had informed his son that he had come to record his statement and his son then contacted him at Kolkata over phone and informed him about the visit of Inspector Mam Chand and he had instructed his son to inform Inspector Mam Chand about the happening as he was aware about the same and because it was to take him some time in Kolkata. He stated that he was very much at home. Only CBI Vs. Sajjan Kumar & Ors. Page No. 473 of 545 when he was asked about the work he did, he had told that he drove truck. He stated that there was no occasion for any phone call to him by his son at Kolkata as he was very much at home. Thus, PW7 had reiterated that he was at home when Inspector Mam Chand visited his house. The Ld. SPP for CBI had also argued that in 1992, there was no question of a phone call being made and there is merit in the said submission, more so in light of the fact that PW7 had categorically stated that he was at home at that time. PW7 denied that his son Inderjit Singh had told Inspector Mam Chand that Smt. Rajwant Kaur w/o of Surjeet Singh lived in C-22-C, Raja Garden, Near Shivaji College and that his chacha was got killed near railway phatak by the mob in 1984 riots which was informed by a person who worked with him. He stated that his son had no knowledge where Smt. Rajwant Kaur lived. He had already stated that Surjeet Singh was killed after being pulled out from his house. He denied the suggestion that his son Inderjit Singh had made a statement to the said effect before Inspector Mam Chand and volunteered what did his son know about all this. He was very much at home and had informed about the whole incident. He denied that his son had even made a statement that no riot took place in his gali and therefore, he could not see anybody or identify anyone. It is pertinent that as per the record, Inderjit was 19 years old on 01.03.1992 as recorded in Mark DW2/2 so he would have been only 11 years old in 1984 though PW7 had stated the age of Inderjit to be 9 years in 1984 in Ex.PW7/DC. Moreover, PW7 was consistent that he was very much at home when Inspector Mam Chand came there.
CBI Vs. Sajjan Kumar & Ors. Page No. 474 of 545357. During cross-examination PW11 admitted that the name of the son of Joginder Singh is Inderjit. He did not remember if the statement of Inderjit dated 01.03.1992 was also part of the judicial record. He was shown the judicial record and he still stated that he did not remember if the said statement was part of the judicial record. He denied the suggestion that he was deliberately stating that he did not remember if the statement of Inderjit was part of the judicial record as he had told them the address of Rajwant Kaur of Raja Garden and had also stated that Surjeet Singh was his uncle (chacha) who was killed near Railway Phatak, Nangloi and Joginder Singh had not seen the killing of Surjeet Singh as he was in hiding. He denied the suggestion that he was deliberately denying the judicial record as no one had stated that Surjeet Singh was killed in the gali or that area. Thus, PW11 did not remember if the statement of Inderjit Singh dated 01.03.1992 was part of the judicial record and even PW7 had denied what was put to him regarding the statement allegedly made by his son but it is seen that Inderjit Singh has not been produced as a defence witness to support the case of the accused persons.
358. PW7 was asked if he was aware that Smt. Rajwant Kaur lived at C-22-C, Raja Garden, Near Shivaji College to which he replied that Smt. Rajwant Kaur lived near Shivaji College but he could not tell her exact address. He admitted that Smt. Rajwant Kaur had got re-married. He did not know the person's name to whom she had got re-married. He denied that Smt. Rajwant Kaur had got re-married to her devar but he did not know to whom she had got re-married. It was argued on behalf of the accused CBI Vs. Sajjan Kumar & Ors. Page No. 475 of 545 persons that it could not be believed that PW7 did not know the address of Smt. Rajwant Kaur, nor to whom she had got married though he had got the case registered in respect of the killing of husband of Rajwant Kaur. It does appear strange that PW7 would not know to whom Smt. Rajwant Kaur had got married moreso as it is stated that she had got married to her devar and looking to that, the devar of Smt. Rajwant Kaur would also be a cousin of PW7. He stated that Ms. Rajwant Kaur w/o Shri Surjeet Singh did not meet him. He denied the suggestion that Ms. Rajwant Kaur met him and had a talk with him and he also met her.
359. It was put to PW7 that it was very much in his knowledge that Inspector Ram Kishan met Smt. Rajwant Kaur w/o Shri Surjeet Singh in his presence in respect of the investigation of killing of her husband Shri Surjeet Singh and Inspector Ram Kishan recorded her statement on that day i.e. 08.01.1992 to which he stated that he had not met Smt. Rajwant Kaur. Even he did not know about the facts mentioned in the question. It was put to him that he was denying the said fact because he knew that in his presence, she told the said Inspector Ram Kishan that her husband Shri Surjeet Singh used to do some labour job and he had gone in the morning from the house and did not come back to which he stated that Shri Surjeet Singh was in his house at that moment on 01.11.84 at about 10-11 a.m. and the public pulled him out of his house and killed him when the accused Sajjan Kumar was also present and exhorting that "72 ghante diye gaye hain or sabhi sardaron ko nikal ke mar do". He denied the suggestion that there was no allegation against the accused Sajjan Kumar that he was exhorting that "72 ghante diye gaye hain or CBI Vs. Sajjan Kumar & Ors. Page No. 476 of 545 sabhi sardaron ko nikal ke mar do" and volunteered he had stated about the said allegation against the accused Sajjan Kumar at various courts i.e. Tis Hazari, Karkardoom and Patiala House Court. He denied the suggestion that he had not made the said allegation against the accused Sajjan Kumar in any of the said courts. He denied the suggestion that he was denying the fact of the statement of Smt. Rajwant Kaur being recorded because she categorically stated that her husband was not killed in his house or in the gali but he was killed near Sultanpuri nala and some other persons told her that he was killed near railway crossing Sultanpuri but she did not know the correct place where he was killed and volunteered he was mona at that time and he was present outside the house of Shri Surjeet Singh at that time when he was dragged from his house and was killed by the mob. Thus, PW7 had stuck to his stand that he was not aware of the recording of the statement of Smt. Rajwant Kaur on 08.01.1992.
360. PW7 denied that he had intentionally and deliberately made a wrong deposition that he never met his bhabhi Smt. Rajwant Kaur or that his bhabhi never met who was living adjacent to his house in the same gali or that he was naming Shri Surjeet Singh as he was tutored to do so. He denied that he was denying the said statement of his bhabhi because his bhabhi had specifically told the Inspector in the question asked about Sajjan Kumar and she had categorically denied while saying that Sajjan Kumar had nothing to do with the killing of Shri Surjeet Singh and in the area. Though the statement of Smt. Rajwant Kaur dated 08.01.1992 is Mark DW2/1 but there is nothing to show that PW7 was present at the time of recording of the same and CBI Vs. Sajjan Kumar & Ors. Page No. 477 of 545 Rajwant Kaur has not been produced in the witness box on behalf of the defence. PW7 had also stated about the statement made by A1 and that he had stated the same everywhere though he had not stated to that effect in his examination-in-chief. PW7 further stated that there were a number of dead bodies of sardars in the gali. He stated that he did not know the name of other sardars who were killed in the gali at that time. He only knew the name of Shri Surjeet Singh but he was not aware of the names of other sardars who got killed in the gali. Thus, PW7 was not aware of the names of the other sardars who got killed in the gali which appears a little unbelievable as it is not the case that Sikhs from outside were brought and killed in the gali and it cannot be that PW7 did not know the Sikhs in his gali. A suggestion was put to PW7 that no riots took place in his gali and no sardar including Shri Surjeet Singh was killed in the gali which he denied and while the question of Surjeet Singh being killed in his gali is before the Court, it does not appear to be a situation where no riots took place in the gali.
361. It was then put to PW7 that Shri Rajiv Ranjan, the then ACP who was investigating the case and then the Joint Commissioner of Police met him and his wife Smt. Malkiyat Kaur in the year 1992 to which he stated that they went to ITO and apprised about the incident of the said killing of sardars and also of Shri Surjeet Singh i.e. maar kaat to the highest rank police officer. He did not know if Shri Rajiv Ranjan was the highest rank officer of the case. He did not know if Shri Rajiv Ranjan, the then ACP recorded his statement or the statement of his wife on 14.05.1992. From the yellow color envelope sealed CBI Vs. Sajjan Kumar & Ors. Page No. 478 of 545 with the seal of "SSR" bearing description "Untraced 28/2/04, FIR No. 347/91, Unknown, u/S 147/148/149/302IPC" one file was taken out in which on page 103, there is a statement of Shri Joginder Singh dated 14.05.1992 which is Ex.PW7/DD. The same was objected to by the Ld. Special PP stating that the witness was not the author of the document and he had already stated that he could not read or understand the document. It was also a part of case diary and not from the charge sheet. The Ld. Counsel for the accused persons had stated that the said statement was part of the judicial records and there is merit in the said contention as though only a photocopy was there but the said statement was part of the judicial record of FIR No.347/91 which had been got from the concerned Court. Moreover, though PW7 may not have been the author of the said statement, it was mentioned to be his statement recorded under Section 161 Cr.P.C. It was put to PW7 that he had stated to Shri Rajiv Ranjan, ACP/IO of the case in his statement Ex.PW7/DD that the riots started on 01.11.1984 at about 10'o clock, many persons from outside were roaming in the galis in the area by forming different groups and were saying that sabhi sardaron ko bahar nikalo and started throwing stones to which he stated that many persons roaming in the galis were having swords, dandas, iron rods with them and they were killing sardars "maar kaat kar rahe the", but they were not throwing stones. Thus, PW7 had denied about the rioters throwing stones though he did not deny the remaining part of what was put to him.
362. It was further put to PW7 that he had stated in Ex.PW7/DD that he was a mona Sikh, he was present at his CBI Vs. Sajjan Kumar & Ors. Page No. 479 of 545 house at that time, the mob was carrying dandas, iron rod and oil container and they appeared to be outsiders and he could not identify anybody in the mob to which he stated that he was mona Sikh at that time and he knew the names of the persons who had been named in the present case and they were carrying dandas, iron rod, oil container and swords. He was confronted with Ex.PW7/DD wherein it was recorded that 'maine bhid main se kisi ko nahi pehchana kyonki sabhi log bahar ke malum padte they'. Thus, in Ex.PW7/DD it was recorded that he did not recognize anyone from the crowd whereas in the Court he had stated about knowing the names of the persons who had been named in the case. The statement Ex.PW7/DD "bhid ke log kai bar meri gali mein aaye aur halla gulla karte hue wa sardaron ko gali nikalte hue gujare. Main bhid ko dekh kar dar gaya aur apne ghar se nikal kar dusri gali main ek hindu ke ghar main ja kar chip gaya" was confronted to the witness which he denied. It was put to him that he had stated in Ex.PW7/DD that he had come to know after forenoon that there were killings in the area and his wife and children remained at home but he kept hiding there to which he stated that he was not hiding at home at that time. He was confronted with the statement Ex.PW7/DD wherein it was so recorded. He was asked if it was correct that he had stated in Ex.PW7/DD that on 02.11.1984 he kept hiding in the house and was hearing the voice of the people that to trace out all the Sikhs and kill them and he was confronted with the statement Ex.PW7/DD wherein it was so recorded to which he stated that he had already stated that he was not hiding at home and 'mere baal kate hue the'. PW7 was asked if it was correct CBI Vs. Sajjan Kumar & Ors. Page No. 480 of 545 that he had stated in Ex.PW7/DD that later on he came to know that his brother in relation Surjeet Singh r/o B-2/309, Sultanpuri was killed by the mob near Nangloi Phatak but his dead body was not traced and he was confronted with the statement Ex.PW7/DD wherein it was so recorded and he stated that he (Surjeet Singh) was dragged from his house by the mob and he was cut into pieces and also was burnt with the kerosene oil. He was also asked if it was correct that he had stated in Ex.PW7/DD that he lodged a report with the police but he could not know the result of the report, the mob had looted the articles of his house and he was confronted with the statement Ex.PW7/DD wherein it was so recorded to which he stated that he had already stated to Shri Rajiv Ranjan and also said to everyone who asked him about the looting of his articles and volunteered 'Mujhe nahi pata Rajiv Ranjan kaun hai'.
363. PW7 further denied that he had stated in Ex.PW7/DD that on 03.11.1984 military had come in the area and they all went to Rani Bagh Camp and there itself, Babbar Saab and some persons from the Committee made him to sign an affidavit which was not read over to him. He was confronted with the statement Ex.PW7/DD wherein it was so recorded and he volunteered such affidavit was not got signed by him at Rani Bagh Camp. He was asked if it was correct that he had stated in Ex.PW7/DD that the previous year his statement was recorded at Vikas Minar, aaj aapne mujhe mera shapath patra jis par mere Hindi mein hastakshar hain aapne dikhaya hai, jisko mein pehchanta hoon, yeh wohi shapath patra hai jo maine camp mein diya tha, iss shapath patra ka aapne Hindi mein tarjuma kar ke sunaya hai CBI Vs. Sajjan Kumar & Ors. Page No. 481 of 545 and he was confronted with the statement Ex.PW7/DD wherein it was so recorded to which he stated 'Yeh thik hai ki maine shapath patra apna pehchana tha aur us par mere sign they lekin maine Rani Bagh Camp mein koi affidavit nahi diya tha'. He denied that he had stated in Ex.PW7/DD that names of Sajjan Kumar, MP, Nathu Pradhan, Ramesh, Bira Sansi, Vicky Mistri, Tara Chand Bhaskar, Arjun, Mahendra Jallad and Munna etc. written in the affidavit "sab galat hai". He was confronted with the statement Ex.PW7/DD wherein it was so recorded and volunteered 'Maine sabko apni aankhon se dekha hai aur sabke naam thik likhwaye hain'. He admitted that he got the said names written in the statement Ex.PW7/DD and he was confronted with the statement Ex.PW7/DD wherein it was not so recorded. PW7 denied that he had stated in Ex.PW7/DD that he had not seen anybody in the crowd during the riots because he was hiding in another house for 2-3 days to save his life, he had not seen them at all in the mob and he did not know who had written the said names in the affidavit, he was made to sign by Babbar Saab without being read over to him and he was confronted with the statement Ex.PW7/DD wherein it was so recorded. He stated that he was not hiding and maine hi naam likhwaye hain. He was confronted with the statement Ex.PW7/DD wherein it was not so recorded.
364. PW7 was asked if it was correct that in his statement Ex.PW7/DD dated 14.05.1992, the then ACP Rajiv Ranjan asked him a question "aaj se phele aapka bayan pichle saal Vikas Minar Committee walon ne likha tha. Uss samay aap ne uprokt batein unko nahi batlayi. Aisa kyon." Aap ne jawab diya ki "jab CBI Vs. Sajjan Kumar & Ors. Page No. 482 of 545 unhone musammi Sajjan Kumar va anaya vyakti ke naam padh kar sunaye they to maine kaha tha ki inme se maine bheed main kisi ko nahi dekha tha" and he was confronted with the statement Ex.PW7/DD wherein it was so recorded and he stated that he did not know about Rajiv Ranjan and whatever was recorded at that time, he stated names of everyone and he saw the said people "maar kaat karte hue" and he was "mona" at that time. Thereafter he stated "yes" he did tell the officer about the names as asked in the said question. He denied that he did not name the accused persons in his statement Ex.PW7/DD. He denied that in his statement Ex.PW7/DD he had stated that 'ki mujhe malum nahi hai ki mai 1984 ke dango ke dauran 2-3 din tak kaun se makan me chupa raha'. He was confronted with Ex.PW7/DD wherein it is so recorded. Thus, PW7 was extensively confronted with the statement Ex.PW7/DD. PW7 had stated that he did not know Rajiv Ranjan and he had denied most of the things that were put to him and he had consistently stated that he had got the names of the accused persons written. He had also denied that he had given the affidavit at the camp or that Babbar Saab and some persons from the Committee made him sign the affidavit.
365. PW11 was also cross-examined regarding Ex.PW7/DD and he stated that he did not meet SI Mam Chand, IO. He did not remember if he had seen the statement of Joginder Singh recorded by ACP Rajiv Ranjan. The statement was shown to the witness (Ex.PW7/DD) but he still stated that he did not remember. He denied the suggestion that he was deliberately stating that he did not remember the said statement as in the said statement Joginder Singh had stated that he was scared and he CBI Vs. Sajjan Kumar & Ors. Page No. 483 of 545 had hidden himself in another Gali till 02.11.1984 or that later he came to know that Surjeet Singh had been killed near the Nangloi Phatak. Thus, PW11 did not remember if he had seen the statement Ex.PW7/DD.
366. During further cross-examination PW7 admitted that Smt. Malkiyat Kaur is his wife. The statement dated 14.05.1992 Mark A page No.113 of his wife was not recorded at that time and only his statement was recorded. Thus, PW7 had stated that the statement of his wife was not recorded though his statement was recorded on 14.05.1992. He denied the suggestion that on 14.05.1992 the statement of his wife was recorded and he was intentionally making a wrong statement that his wife did not make any statement to Shri Rajiv Ranjan on 14.05.1992. He denied the suggestion that he was deliberately denying the statement of his wife on 14.05.1992 because she also stated the same thing to Shri Rajiv Ranjan what he had stated. He further denied the suggestion that it was to his knowledge that his wife Smt. Malkiyat Kaur stated that Shri Surjeet Singh was killed near Nangloi Phatak during riots. He also denied the suggestion that she stated that he was hiding in another gali and remained hidden there for two days or that she stated to Shri Rajiv Ranjan in her statement that the mob consisted of outsiders and none was from gali mohalla or she stated that she could not identify any person from the mob. Thus, PW7 had denied the suggestions about what his wife had allegedly stated in the statement dated 14.05.1992 but she has herself not been produced in the witness box.
CBI Vs. Sajjan Kumar & Ors. Page No. 484 of 545367. During cross-examination PW11 admitted that the name of wife of Joginder Singh is Malkiyat Kaur. He denied the suggestion that she had told him that there was no role of accused Sajjan Kumar or that Surjeet Singh was not killed in the Gali or in that area or that he was killed near Railway Phatak. He did not remember if the statement of Malkiyat Kaur dated 14.05.1992 formed part of the judicial record (Mark A). He did not remember if the statement of Malkiyat Kaur was recorded by Shri Rajiv Ranjan who was then ACP. He was shown the statement but he still stated that he did not remember. Thus, PW11 did not remember about the statement of Malkiyat Kaur.
368. PW11 was then cross-examined on the statement of PW7 recorded before the Ld. Magistrate under Section 164 Cr.P.C. in FIR No.347/91. During cross-examination PW11 did not remember if ACP Rajiv Ranjan had made an application before the Court for recording the statement of Joginder Singh under Section 164 Cr.P.C. as he had given an affidavit and then resiled from the same during investigation and thereafter stated something else so that the truth would come out before the Court. He did not remember if the statement of Joginder Singh was recorded under Section 164 Cr.P.C. by Shri Om Prakash the Ld. MM, Tis Hazari Court (Ex.PW7/DF). He admitted that closure report was filed in FIR No.347/91, PS Sultanpuri and the same was accepted by the Court as untraced. He did not remember if the closure report was accepted on the statement of Shri Joginder Singh which is Ex.PW7/DF. He denied the suggestion that he had deliberately stated that he did not remember as Joginder Singh in the said statement before the Court had stated that he remained CBI Vs. Sajjan Kumar & Ors. Page No. 485 of 545 hidden in his house and he could not tell what had happened outside the house and he came out of the house on the day when the defence forces came to take them outside the locality or that the affidavit Ex.PW7/A was absolutely incorrect or that he had signed the same at the instance of Atma Singh who told him that it pertained to demand for compensation in lieu of the damages caused or that the names stated in the affidavit were incorrect. Thus, PW11 did not remember if the statement of PW7 was recorded under Section 164 Cr.P.C. or the closure report was accepted on the basis of the said statement. During cross- examination DW2 was shown Ex.DW2/D and he stated that the politician mentioned in the said application was the accused Sajjan Kumar. The SHO mentioned in the same was Insp. Rampal Rana. Again said, in the said case, the SHO was Insp. Hari Ram Bhati. Thus, DW2 had stated about the application for recording of statement of PW7 under Section 164 Cr.P.C.
369. PW7 was cross-examined regarding his statement under Section 164 Cr.P.C. recorded in FIR No.347/91 and he admitted that on 22.08.1992 he was produced before Shri Om Prakash, the then Ld. MM in Tis Hazari Courts with the purpose to depose whatever he wanted to depose in respect of the incident. He was asked if it was correct that on 22.08.1992, the Ld. Presiding Officer at Tis Hazari Courts asked him several questions to satisfy himself that he was making his statement voluntarily and then on oath he deposed before the Court in respect of the same incident for which he was deposing that day to which he replied that whatever he saw and heard, he got the names recorded before the Ld. Judge at Tis Hazari Courts on 22.08.1992. His CBI Vs. Sajjan Kumar & Ors. Page No. 486 of 545 statement recorded on 22.08.1992 before Shri Om Prakash, the then Ld. MM in Tis Hazari Courts placed in the file bearing description "Untraced 28/2/04, FIR No. 347/91, Unknown, u/S 147/148/149/302IPC" at page No.85 was shown to the witness and is Ex.PW7/DE and the portion at point A was asked from the witness "ki judge saab ne likha ki ye aapke signature hain"
to which he answered "ki ye sign mere nahi hain, main anpadh hoon mujhe sign nahi aatey." On being reminded that he knew how to put his signatures, he stated that he did not know how to put his signatures. Thus, PW7 had denied his signatures which were in English in Ex.PW7/DE.
370. PW7 was then shown his signatures in Hindi on the statement recorded by the then Ld. Metropolitan Magistrate under Section 164 Cr.P.C. dated 22.08.1992 and he identified his signatures at point A on the statement Ex.PW7/DF. It was put to him that in the statement recorded on 22.08.1992 Ex.PW7/DF, he had not named any of the accused persons to which he replied that he had duly named Sajjan Kumar, Nathu Pradhan and Jai Kishan in his statement dated 22.08.1992 Ex.PW7/DF. He was confronted with Ex.PW7/DF where the names of Sajjan Kumar, Nathu Pradhan and Jai Kishan did not appear. It was put to him that in the statement dated 22.08.1992 Ex.PW7/DF he had stated before the Court that on 01.11.1984 he was present at his house and heard the noise of the people and did not come out of the house for three days and therefore he did not know what was happening which he denied and stated that his hair were cut at that time. He was outside and he saw Sajjan Kumar and other people were killing the Sikhs and looting their properties. He was CBI Vs. Sajjan Kumar & Ors. Page No. 487 of 545 confronted with Ex.PW7/DF wherein it was stated that "on 01.11.1984 at about 11/11.30 a.m. I was present at my house mentioned above. I heard the noise of people outside my house. I remained in my house and did not come out. I did not come out from my house for the last three days. I cannot tell as to what happened outside the house." He denied that in the statement dated 22.08.1992 Ex.PW7/DF, he had stated that he came out from the house only on the day when the defence forces had come to take him out of the locality and stated that he was outside only and was not concealing himself in the house. He was confronted with Ex.PW7/DF wherein it was recorded that "I came out from the house on the day when the defence force came to take us outside the locality." He denied that in the statement dated 22.08.1992 Ex.PW7/DF, he had stated that he had not seen any person in the mob nor he could identify them. He stated that he had stated before the Court that he had seen all the persons, knew their names and could identify them. He was confronted with Ex.PW7/DF wherein it was recorded that "I had not seen any person in the mob nor I can identify." He denied that in the statement dated 22.08.1992 Ex.PW7/DF, he had stated that the affidavit dated 23.07.1987 (Ex.PW7/A) filed by him was absolutely incorrect and he stated that the affidavit Ex.PW7/A dated 23.07.1987 was absolutely correct. He was confronted with Ex.PW7/DF wherein it was recorded that "the affidavit dated 23.07.1987 filed by me is absolutely incorrect".
371. PW7 further stated that he knew Atma Singh and he identified him. He denied that in the statement dated 22.08.1992 Ex.PW7/DF he had stated that he had signed on the said affidavit CBI Vs. Sajjan Kumar & Ors. Page No. 488 of 545 at the instance of Atma Singh under the impression that he would get compensation in lieu of damages caused in 1984 riots. He stated that he had himself gone to Tis Hazari and got the affidavit prepared and submitted it at ITO. He had not signed at the instance of Atma Singh nor did he know Atma Singh at that time. He was confronted with Ex.PW7/DF wherein it was recorded that "I had signed on the affidavit at the instance of Atma Singh who had told me to sign on the affidavit as it pertains to the demand of compensation in lieu of my damage caused by the mob during the 1984 riots." He denied that in the statement dated 22.08.1992 Ex.PW7/DF he had stated that he had no personal knowledge about the names mentioned in para 2 of the affidavit Ex.PW7/A nor he had seen them during the 1984 riots. He stated that he had seen them during the 1984 riots. He was confronted with Ex.PW7/DF wherein it was recorded that "I have no personal knowledge about the names mentioned in para 2 of the affidavit nor I had seen them during the riots 1984." It was put to him that in the statement dated 22.08.1992 Ex.PW7/DF he had stated that he was illiterate and did not know as to what was written in the affidavit to which he stated that he had gone to the Typist and the Typist prepared the affidavit at his dictation. He was confronted with Ex.PW7/DF wherein it was recorded that "I am illiterate and did not know as to what had been written in the affidavit" Thus, PW7 was extensively confronted with the statement Ex.PW7/DF recorded by the Ld. Magistrate and he maintained that he had stated before the Court that he had seen all the persons, knew their names and could identify them. However, the names do not find mention in Ex.PW7/DF and in CBI Vs. Sajjan Kumar & Ors. Page No. 489 of 545 fact PW7 had denied coming out of his house and witnessing the incident in Ex.PW7DF and it cannot be accepted that what was recorded in the said statement was not according to what was stated by PW7 as a statement recorded before the Ld. Magistrate under Section 164 Cr.P.C. on oath cannot be discarded merely on the basis of what the witness states later.
372. PW7 was then cross-examined regarding Ex.PW7/DG and he admitted that his signatures appeared on Ex.PW7/DG which was an intimation regarding the closure of investigation in FIR No.347/91 registered on the basis of his affidavit. Thus, PW7 had information that the investigation in the case was closed and as per the judicial record, PW7 had also appeared in Court on 31.5.2003 and submitted that he had already made statement on oath and it was noted that his statement was recorded on 22.08.1992. Thereafter the closure report was accepted vide order dated 28.02.2004 and in the said case, the statement of Smt. Rajwant Kaur was also recorded on 15.03.2003. During cross- examination PW11 admitted that as per the documents, the name of the wife of the deceased Surjeet Singh was Rajwant Kaur and volunteered they searched for her but she could not be found. He denied the suggestion that he met Rajwant Kaur in her flat in Raja Garden, C22-C or that she stated that she had already given her statement in the Court that her husband had left in the morning and did not come back and she did not know where he was killed. He denied the suggestion that Rajwant Kaur also stated that she had got married to her devar and she had no knowledge about the case and she should not be asked to give a false statement. He denied the suggestion that as Rajwant Kaur CBI Vs. Sajjan Kumar & Ors. Page No. 490 of 545 did not listen to them and did not state about the role of accused Sajjan Kumar so she was not cited as a witness in the present case. He did not remember whether Rajwant Kaur had given a statement on 15.03.2003 as complainant in FIR No.347/91, PS Sultanpuri that her husband had gone to answer call of nature and he did not come back and later somebody told her that he was killed near the Nala. He was shown the statement but he still stated that he did not remember if such a statement was recorded. The said statement is Mark PW11/D2. He did not remember if Rajwant Kaur had given a comprehensive statement on 08.01.1992 to Insp. Ram Kishan stating that her husband was not killed in the Gali but was killed in a crossing at Sultanpuri Nala. He was shown the said statement dated 08.01.1992 but he stated that he did not remember if it formed part of the record. He denied the suggestion that he was deliberately stating that he did not remember even when he had been shown the statement from the judicial record. It is pertinent that Smt. Rajwant Kaur has not been examined in the present case though PW7 had stated during cross-examination that she had witnessed the incident and the proceedings before the Court in respect of the closure report had continued from 1995 till 2004 and there is nothing to show that any statement was made by PW7 in between that he was not satisfied with the investigation or to show that he had filed any protest petition or lodged any grievance in respect of the closure of the case or even in respect of his statements having not been recorded properly. As per the contention of CBI, Nanavati Commission was set up in 2000 and the fear factor was gone but even then PW7 had appeared in the Court on 31.05.2003 and had CBI Vs. Sajjan Kumar & Ors. Page No. 491 of 545 reiterated his statement recorded under Section 164 Cr.P.C. which is Ex.PW7/DF.
373. It is the contention of the accused persons that on the basis of the statement of Joginder Singh Ex.PW7/DF and the statement of Rajwant Kaur recorded before the Court, the closure report was accepted by the Court and the said fact is not in dispute and also finds mention in the charge sheet of the present case and the judicial record of FIR No.347/91 also depicts the same. The Ld. SPP had made extensive submissions regarding the closure report and it was submitted that ACP Rajiv Ranjan had written the closure report and Mam Chand had acted under his dictation. The officers were meeting the witnesses again and again, yet there was only one statement and efforts were going on to shield someone which was clear from the application made by Mam Chand on the instructions of Rajiv Ranjan for recording of statement of the witness under Section 164 Cr.P.C. which is Ex.DW2/D. It was contended that in the statement under Section 161 Cr.P.C., there was no mention of any politician and SHO so there was no reason why the same were mentioned in Ex.DW2/D, which application was written by Mam Chand and signed by ACP Rajiv Ranjan and they admitted that the politician referred to was Sajjan Kumar and SHO was Hari Ram Bhati. It was submitted that the Delhi Police had filed an untraced report in FIR No.347/91 which was specifically with regard to the killing of Surjeet Singh and it needed to be seen as to what kind of evidence was sought to be collected and closure was filed and whether effort was made to shield someone. It is true that the application Ex.DW2/D referred to a politician and the said CBI Vs. Sajjan Kumar & Ors. Page No. 492 of 545 politician was clearly A1 but then it cannot be contended that the statement which was thereafter recorded by the Ld. Magistrate was also under the influence of the IO and the said statement would be as per what the witness stated and PW7 himself had not stated that he was under fear or under the influence of anyone. In Ex.PW7/DC which is the statement of PW7 under Section 161 Cr.P.C. recorded by CBI, PW7 had stated that he had given his statement before the Ld. Magistrate in Tis Hazari Court and he had stated about not recognizing anyone in the same and as such he himself had admitted that he had stated about not recognizing anyone in the said statement.
374. DW2 was extensively cross-examined regarding the closure report and DW2 stated that he had also investigated FIR No.458/91, PS Saraswati Vihar, while posted in the Anti-Riot Cell. He had also investigated several other cases but he did not remember the number. He admitted that he had recently deposed in FIR No.458/91 and volunteered that is why he remembered the same. It was mentioned in the summon that he had to depose in respect of FIR No.347/91. (The same was also seen from the summons sent to the witness). He did not remember the facts of the case from the FIR number except one or two things and volunteered he had deposed after seeing the file. He had filed the closure report in FIR No.458/91 but in FIR No.347/91 the closure report was filed by the then ACP. Thus, DW2 stated that the closure report in FIR No.347/91 was filed by the then ACP. He stated that he had sent two cases of Nand Nagri for trial but he did not remember the number of the said cases. He was not aware as to the outcome of the said cases. He did not remember CBI Vs. Sajjan Kumar & Ors. Page No. 493 of 545 if he had deposed in the said cases. He did not even remember if he had participated in any proceedings in the said cases after the challan was filed. He did not even remember if, other than in the said two cases he had filed closure reports or what happened in the said cases. He did not remember if he had arrested anyone in any of the cases investigated by him. He stated that many persons were arrested by the Riot Cell and volunteered there were 350- 400 cases and even more and in some of the cases the accused persons were arrested. Thus, DW2 had stated about arrests in other cases though in FIR No.347/91 a closure report was filed.
375. DW2 further stated that the investigation of the present case was entrusted to him after Insp. Ram Kishan but he did not remember the date. He did not interrogate or record statement of Joginder Singh even once in the present case and volunteered he was interrogated by ACP Rajiv Ranjan. Thus, DW2 had also stated that he did not interrogate PW7 and PW7 was interrogated by ACP Rajiv Ranjan. He had interrogated from some neighbours and local inquiries were conducted but he did not remember their name and volunteered the names may be mentioned in the CD. He was shown the judicial file but there was no mention of any such witness in the same and volunteered the same may be mentioned in the CD which contained the entire details. He had not recorded the statement of any person under Section 161 Cr.P.C. other than family members but he had made inquiries and volunteered the investigation remained with him for a very short period and thereafter the IO was ACP Rajiv Ranjan. He remained associated with the case till the end though he was not the IO. Thus, DW2 had stated that he remained associated with the case CBI Vs. Sajjan Kumar & Ors. Page No. 494 of 545 till the end though he stated that the investigation remained with him for a very short period and thereafter the IO was ACP Rajiv Ranjan. In the untraced report Ex.DW2/B there was no mention of witnesses whose statements were recorded under Section 161 Cr.P.C. and volunteered the same was an untraced report and it did not contain mention of the same and the names of witnesses are mentioned in the challan. He was shown Ex.DW2/B where it was mentioned that statements of six witnesses under Section 161 Cr.P.C. were annexed with the report to which the witness stated that the said statements would be on the record. He denied the suggestion that he was trying to evade the questions.
376. DW2 further stated that he had made local inquiries whether postmortem of any dead body was got conducted or not and volunteered nothing could be found. He did not inquire from any hospital whether postmortem was got conducted or not and volunteered the case remained with him for a very short period. There was no mention of any postmortem report in the Index Ex.DW2/C. Thus, there was no mention of any postmortem report in the index of Ex.DW2/C and DW2 had stated that he did not inquire from any hospital whether postmortem was got conducted or not. He did not know the exact figure of the number of people who died in the riots so he did not inquire as to where the said dead bodies had disappeared. He had inquired as to how the relative of Joginder Singh i.e. Surjeet Singh had expired and it was informed that he had expired at the railway phatak and he did not come to know how he had died. DW2 stated that he had gone to Sultanpuri area during the investigation of the case. He was accompanied by Constables and Senior officers and officers CBI Vs. Sajjan Kumar & Ors. Page No. 495 of 545 who were conducting investigation in other cases. He must have made entry in the case diary regarding the visits. He stated that he knew Sajjan Kumar. He had inquired from him once or twice but not in the present case. As far as he remembered, no officer from the Riot Cell had called Sajjan Kumar for investigation in the present case. Thus, DW2 had stated about being informed that Surjeet Singh had died at the railway phatak and that he did not come to know how he had died. That is also the case put up by the accused persons but DW2 had also stated that he had not inquired from Sajjan Kumar in the present case. He had stated that as far as he remembered, no officer from the Riot Cell had called Sajjan Kumar for investigation in the present case. Once FIR No.347/91 was registered on the basis of the affidavit of PW7 in which A1 was named, it does not stand to reason why A1 was never called for investigation. The Ld. SPP for CBI had submitted that it also showed the clout wielded by A1 at that time and there is clearly merit in the said submission and as noted above, the Hon'ble High Court had also taken note of it in State through CBI v. Sajjan Kumar (supra). However, merely on that basis, findings cannot be returned against A1 and the entire evidence has to be considered.
377. DW2 denied the suggestion that no investigation was done, rather the effort was made to scare the witness to not name the actual assailants including Sajjan Kumar and thereby file untraced reports. He denied the suggestion that he had tried to cover up the role of Delhi Police and he had given a tainted version of the incident at the behest of the accused persons. Thus, without doubt, the investigation had not been carried out properly CBI Vs. Sajjan Kumar & Ors. Page No. 496 of 545 though DW2 had also stated that the investigation remained with him for a short while only but it is also relevant that the closure report was accepted on the basis of the statement given by PW7 under Section 164 Cr.P.C. and the statement made by Rajwant Kaur before the Court as reflected in the order accepting the closure report.
378. The Ld. SPP had submitted that whatever was there in the closure report was put to PW11 and he stated that he did not remember as he was there for a very short time and the same was also clear from the first page of his deposition that he had been given investigation just before the challan was filed. In the cross- examination of DW2 Mam Chand, it had come that there were 468 deaths in Sultanpuri. Reference was made to the untraced report Ex.DW2/A and that there were six statements under Section 161 Cr.P.C., case was registered on 13.12.1991, statement of Rajwant W/o Surjeet Singh (deceased) was recorded on 08.01.1992 and after one month, the file reached Mam Chand, who recorded the statement of Inderjit. ACP Rajiv Ranjan had only investigated Joginder Singh and Malkiyat Kaur and two Ld. MMs were witnesses and other than that, there was no investigation and the untraced report was filed only on 08.02.1994 when lastly something was done on 25.09.1992, nothing was done in 1993 and then the untraced report was filed in 1994, which showed the kind of investigation that was done. The investigation was done only for 9 months and there was nothing to show why the application for recording statement under Section 164 Cr.P.C. required the mentioning of the politician or the SHO. It was submitted that the Riot Cell took up CBI Vs. Sajjan Kumar & Ors. Page No. 497 of 545 the investigation of murder of Surjeet Singh in 1991 but in September 1992, the investigation was closed based on the statement of son of Joginder Singh who was then 11 years old who stated that his father was in hiding and the place of death was changed and thereafter the case stood closed in 1994. Despite Sajjan Kumar being named immediately after the riots, he was never tried by the Delhi Police. The timeline of investigation by Delhi Police highlighted the facade of investigation that was attempted to be created and that an untraced report was filed with absolutely no investigation as was evident from the index. DW2 who was the Inspector of the Riot Cell admitted to never calling Sajjan Kumar for even questioning and claimed ignorance of all the Commissions/ Committees which looked into the matter. It was submitted that he was a partisan witness, showing complicity of Delhi Police in the case, in as much as he offered money to PW7 to not narrate the true sequence of events.
379. A perusal of the judicial record of FIR No.347/91 shows that the untraced report was dated 08.02.1994 and there is nothing much in the judicial record of FIR No.347/91 to show by way of investigation. The untraced report was filed in the Court on 02.08.1995. However, the closure report was filed after the statement of PW7, on the basis of whose affidavit the said FIR was registered, was recorded under Section 164 Cr.P.C. in which he had disowned the affidavit and it has also come on record that it was the first time in the Court that PW7 had stated about any money being offered to him by DW2. Moreover, the closure report was accepted based on the statement of PW7 under CBI Vs. Sajjan Kumar & Ors. Page No. 498 of 545 Section 164 Cr.P.C. Ex.PW7/DF which was reiterated by him on 31.05.2003 when he appeared before the Court and on the basis of the statement of Smt. Rajwant Kaur vide order dated 28.02.2004. It was sought to be contended on behalf of the CBI that nothing was done for so many years but then urgency was shown as the Nanavati Commission was set up and effort was made to get the closure report accepted. However, it is seen that the closure report was filed in the Court on 02.08.1995 and then it remained pending as PW7 was not appearing and when it was accepted, it was not as if it was accepted immediately after the Nanavati Commission was set up. Moreover, the closure report was accepted by a judicial order.
380. PW7 was then asked whether before his statement recorded on 11.11.2008 in the Court under Section 164 Cr.P.C. Ex.PW7/B, the CBI officers had recorded his statement to which he stated that the CBI officers had come to him and had inquired from him about the incident of 01.11.1984 and recorded his statement. The statement of Shri Joginder Singh dated 08.03.2009 is Ex.PW7/DC. He was asked if he had stated in his statement recorded on 28.03.2019 that "the accused Sajjan Kumar was saying that no Sikh should be spared, as they have killed their mother (unhone hamari maa mari hai, koi sardar bachna nahi chahiye). On which public 'bhadak' kar galiyo main ghusne lag gayi or hamari gali main bhee aa gayee" in his statement under Section 164 Cr.P.C. to which he stated that he had stated so before the Court in Ex.PW7/B. He was confronted with Ex.PW7/B wherein it was not so recorded. However, in the statement, it was recorded that "maine Sajjan Kumar (MP) ko CBI Vs. Sajjan Kumar & Ors. Page No. 499 of 545 public ko yeh kehte suna kee tumhare pass 72 ghante hain, jitne bhee sardar mile maar do kaat do." He was asked if he had stated in his statement Ex.PW7/B that "I also saw the mob killing 15-20 Sikhs, bheed chali jaa rahi thee, maar rahi thee, jala rahee thee, log hath jod rahe thai ke hamey mat maaro" to which he stated that he had stated that 15-20 Sikhs were killed and there were many dead bodies of Sikhs lying on the roads. He was confronted with Ex.PW7/B wherein it was not so recorded. He stated that he had stated in his statement Ex.PW7/B that on 03.11.1984, military came and on firing by the military, the mob dispersed and they were taken to police station and from there, they were taken to Rani Bagh Camp. He was confronted with Ex.PW7/B wherein it was not so recorded. He did not state in his statement Ex.PW7/B that his affidavit was prepared at Tis Hazari where many persons were getting the affidavits prepared (he did not tell so before the Court). Thus, PW7 was confronted with his statement under Section 164 Cr.P.C. got recorded by CBI which is Ex.PW7/B on several aspects.
381. PW7 was further cross-examined regarding the statement under Section 161 Cr.P.C. made to CBI which is Ex.PW7/DC and he stated that he had stated in his statement before CBI Ex. PW7/DC that on 01.11.1984 at about 10 to 11 a.m. on hearing noise he came out of the house and he saw that the accused Sajjan Kumar along with many people was there and the accused Sajjan Kumar was saying that no Sikh should be spared as they had killed their mother. He was confronted with Ex.PW7/DC wherein it was recorded that on 01.11.1984, a mob came and the mob was led by a police vehicle and it was followed by vehicle CBI Vs. Sajjan Kumar & Ors. Page No. 500 of 545 of Sajjan Kumar. In the mob, there were Nathu Pradhan, Jai Kishan Pradhan and Vedu Pradhan and Gupta Telwala, Peeria, Mehender Jallad and Munna. There were many people in the mob and they were holding iron rod, kerosene oil, chemical and tyre and they were telling everybody that there are 72 hours to kill the Sikhs. He stated that he had stated in his statement before the police that his father was beaten with danda and he was thrown out of the cot. He was confronted with Ex.PW7/DC wherein it was not so recorded. Thus, PW7 was even confronted with Ex.PW7/DC on many aspects. PW7 denied the suggestion that he had deposed falsely at the instance of CBI to implicate the accused persons falsely or he had been repeatedly tutored to make the false statement before the Court. He denied the suggestion that the present case was attributed to the political vendetta against accused Sajjan Kumar and he had been used as a tool for the same or that he had falsely deposed against the remaining accused persons or that he was not an eyewitness of the present case. Thus, PW7 denied the suggestions that were put to him.
382. PW11 was also cross-examined on recording the statement of PW7 under Section 161 Cr.P.C. and in fact it was the contention of the Ld. Counsel for the accused persons that CBI had got recorded the statement of PW7 under Section 161 Cr.P.C. after getting his statement recorded under Section 164 Cr.P.C. which had no meaning and that the application for recording the statement under Section 164 Cr.P.C. showed that earlier the statement of PW7 had been got recorded by CBI under Section 161 Cr.P.C. but the same had not been produced on record and CBI Vs. Sajjan Kumar & Ors. Page No. 501 of 545 had been deliberately concealed. During cross-examination PW11 denied the suggestion that Joginder Singh had told him that his statement had already been recorded by CBI on 11.11.2008 and why he was recording the statement again. It may be that the statement of Joginder Singh was recorded by CBI on 11.11.2008 which was accepted by CBI while moving the application (Ex.PW9/D) for recording of statement of Joginder Singh under Section 164 Cr.P.C. but his examination of Joginder Singh was different and volunteered only R.K. Jha could state about the earlier statement. As per the judicial record, the statement under Section 161 Cr.P.C. recorded by him was the only statement of Joginder Singh recorded under Section 161 Cr.P.C. (Ex.PW7/DC). He denied the suggestion that Joginder Singh had stated to him that his statement had been recorded by CBI earlier wherein he had not named anyone or that he was deliberately denying the same as Joginder Singh had not stated the name of accused Sajjan Kumar or about his involvement. Thus, PW11 had stated that the statement under Section 161 Cr.P.C. recorded by him of PW7 was the only statement of Joginder Singh recorded under Section 161 Cr.P.C. by CBI but a perusal of Ex.PW7/DC also shows that PW7 had stated therein about giving a statement to the CBI earlier though he had stated about being scared at that time.
383. It was further put to PW11 that there was no need to get the statement of Joginder Singh recorded under Section 164 Cr.P.C. as Joginder Singh had already stated that he had not named anyone to which he stated that R.K. Jha had got the statement recorded under Section 164 Cr.P.C. He stated that he CBI Vs. Sajjan Kumar & Ors. Page No. 502 of 545 had investigated many cases. He was asked if there was any instance where the statement under Section 161 Cr.P.C. was recorded after the statement under Section 164 Cr.P.C. as per his knowledge to which he replied that he had recorded the statement of Joginder Singh in RC-25 whereas R.K. Jha had got recorded the statement under Section 164 Cr.P.C. in RC-7 and RC-8. After seeing the record, he denied the suggestion that he had stated falsely or that the statement of Joginder Singh under Section 164 Cr.P.C. was got recorded in RC-25. A perusal of Ex.PW9/D which is the application for getting the statement of PW7 recorded under Section 164 Cr.P.C. shows that the statement of PW7 under Section 164 Cr.P.C. was got recorded in RC-7 though it is not the specific case that PW7 was a witness in RC-7. PW11 denied the suggestion that RC-7 and RC-8 had no relation to RC- 25 and volunteered RC-7, RC-8 and RC-25 pertained to the same locality, PS and same mob. He denied the suggestion that RC-7 had no relation to RC-25 as in that case 50 persons had been killed and the matter was tried and accused Sajjan Kumar and others were acquitted in the said case in 2003 holding that accused Sajjan Kumar was neither present in the Sultanpuri area nor was involved in any manner and volunteered RC-7 and R-25 pertained to the same locality. He denied the suggestion that RC- 7 and RC-25 pertained to different blocks or that RC-8 had no relation with RC-25 or RC-7 as in RC-8 no witness was found and the case was not pursued and volunteered all the cases related to the same locality, PS and mob. Thus, PW11 had stated that RC-7 and RC-25 pertained to the same locality. It was then put to him that Joginder Singh had not stated anything to him CBI Vs. Sajjan Kumar & Ors. Page No. 503 of 545 about the incidents in RC-7 and RC-8 even to the extent of having knowledge of the said cases to which he stated that Joginder Singh had stated about the incident and the moving mob in his locality. He denied the suggestion that Joginder Singh had no relation whatsoever to RC-7 and RC-8 and he was a witness only for RC-25. Thus, PW11 had denied that PW7 had no relation with RC-7 or RC-8. It was put to him that CBI had got the statement under Section 164 Cr.P.C. recorded as it had no faith in Joginder Singh, therefore CBI took the support of judicial process to bound him with a view that he may not resile to which he stated that he did not get the statement under Section 164 Cr.P.C. recorded. He could not admit or deny the suggestion that no new evidence oral or documentary from any person or source was found during his investigation and he volunteered that his role was only to examine Joginder Singh. He denied the suggestion that CBI purposely made a false case to implicate accused Sajjan Kumar and others despite knowing fully well that none of the witnesses had named Sajjan Kumar. Thus, PW11 had maintained throughout that his role was only to examine PW7.
384. It is thus seen that PW7 was cross examined at length on the affidavit Ex.PW7/A and his different statements that were recorded. The record shows that several statements of PW7 were recorded. First of all, PW7 had got lodged FIR No.268/84 and it is the admitted case that the same mentioned only looting etc. and did not mention the killing of Surjeet Singh. PW7 had stated that he had told about the killing of Surjeet Singh and involvement of A1 but the police had not recorded the same. It would be argued on behalf of the accused persons that it may be CBI Vs. Sajjan Kumar & Ors. Page No. 504 of 545 believed that the police had not recorded about the involvement of A1 due to the alleged clout he wielded but that they had not recorded about the incident of killing of Surjeet Singh despite being told about the same cannot be believed. On the other hand, it would be the contention of CBI that the death of Surjeet Singh was not recorded in FIR No.268/84 as the police had deliberately attempted to change the narrative of the case and had recorded only about looting rather than the killing of any person, they had tried to change the place and to shield the accused persons. Given the circumstances, the fact that the killing of Surjeet Singh was not recorded in FIR No.268/84 cannot be taken to discredit the testimony of PW7 as was also noted in respect of PW1 in State through CBI v. Sajjan Kumar (supra). However, it is not the case that FIRs had not been registered in respect of deaths of persons in Sultanpuri area and admittedly in FIR No.250/84 and FIR No.252/84, death of several persons was sent up for trial. As such, even if the killing of Surjeet Singh was not recorded in FIR No.268/84, there is also nothing to show that the wife of deceased Rajwant Kaur had got lodged any report in that respect and rather PW7 had stated during cross-examination that he was not even aware whether she had lodged any such report, nor he had advised her in that regard. It may be reiterated that during cross-examination PW7 had stated that Rajwant Kaur had seen the incident taking place but she has not been examined in the present case, rather it was stated that she could not be found.
385. Then there were certain statements that were put to PW7 during cross-examination but which were not exhibited and only CBI Vs. Sajjan Kumar & Ors. Page No. 505 of 545 questions were put and there was no confrontation and it is seen that PW7 was cross-examined on the statement allegedly recorded on 20.12.1984 in FIR No.268/84 and the statement dated 25.01.1985 in FIR No.268/84 but he was not confronted with the same nor were the said statements got exhibited or even marked. PW7 had stated about naming A1 in the former though he did not remember the latter. However, the said statements have not even been produced by the prosecution. It was submitted on behalf of the accused persons that the first recorded statement of PW7 was only in respect of loss which is Ex.PW7/DB and it is seen that Ex.PW7/DB is the statement of PW7 recorded on 13.03.1985 in FIR No.268/84 and as submitted by the Ld. SPP as well, the same was only regarding loss. PW7 was duly confronted with the said statement but there was no mention of death of Surjeet Singh in the same though he had stated that his house-hold articles had been looted. PW7 had taken the stand that he had taken the name of A1 and he had stated the entire incident but the same does not find mention in Ex.PW7/DB. While given the circumstances, it can be believed that the name of A1 might not have been recorded, it appears a little unbelievable that even the incident of killing of Surjeet Singh would not be recorded if PW7 had stated about it and as such not only in FIR No.268/84 but even in Ex.PW7/DB the incident of killing of Surjeet Singh was not mentioned. It was also the contention of the accused persons that PW7 had not even approached the Ranganath Misra Commission but PW7 had stated that he did not know about the said Commission.
CBI Vs. Sajjan Kumar & Ors. Page No. 506 of 545386. PW7 had then given an affidavit which is Ex.PW7/A wherein he had stated as under:
"I Joginder Singh son of Ror Singh aged about 28 years, r/o Tilak Vihar Camp, New Delhi, do hereby solemnly affirm and declare as under:
1. That I was residing at B-2/301, Sultanpuri, New Delhi prior to 3.11.1984.
2. That on 1.11.1984 our Member of Parliament Sajjan Kumar brought a mob of ruffians laced with Lathis, rods, kerosene patrol etc. called Nathu Pradhan, Ramesh, Peeru, Sansi Viki, Mistri, Tara Chand Bhaskar, Arjun, Mohinder Jalau, Munna, and told them that they had 72 hrs., freedom to kill Sikhs and no Sikh should escape S.H.O who was accompanying them fired and killed three Sikhs, My brother Surjeet Singh aged 32 years, was dragged out and burnt alive. I was not allowed to save my brother and pushed away by the assassinates.
3. That I fully know Nathu Pradhan, Ramesh, Peeru, Sansi Vicki, Mistri, Tara Chand Bhaskar, Arjun, Mohinder Jalau, Munna, and others being known figure of the locality who led the mob which committed violence, murdered my brother and set my house on fire.
4. That on 3.11.1984, military rescued us to took us to Rani Bagh Camp from where we were forcibly turned out on 12.11.1984, to fend for ourselves, the camp having been declared closed.
5. That my statement was not recorded by police and instead they just handed over a paper purported to be a copy of the police report. This was merely a statement of loss to apprehend the culprits nothing was done.
6. That I pointed out the grave lapse is not correctly recording the statement and narration of events but was curtly turned away by the police.
7. That no investigation whatsoever has been made in the murder of my husband and burning of my house and those whom committed the heinous crimes are freely roaming about in the area.CBI Vs. Sajjan Kumar & Ors. Page No. 507 of 545
8. That my above stated deposition has been recorded as per my instructions the same has been translated and read out to me in vernacular. I understand the same fully and is correct."
Thus, PW7 had stated in the affidavit that on 1.11.1984 A1 had brought a mob of ruffians laced with lathis, rods, kerosene petrol etc. He called Nathu Pradhan, Ramesh, Peeru, Sansi Viki, Mistri, Tara Chand Bhaskar, Arjun, Mohinder Jalau, Munna, and told them that they had 72 hrs. freedom to kill Sikhs and no Sikh should escape. S.H.O who was accompanying them fired and killed three Sikhs, his brother Surjeet Singh aged 32 years, was dragged out and burnt alive. He stated that he was not allowed to save his brother and pushed away by the assassinates. He had also stated that he fully knew Nathu Pradhan, Ramesh, Peeru, Sansi Vicki, Mistri, Tara Chand Bhaskar, Arjun, Mohinder Jalau, Munna, and others being known figures of the locality who led the mob which committed violence, murdered his brother and set his house on fire. He had also stated that the police had not correctly recorded his statement despite his pointing out the same and no investigation had been carried out regarding the murder of his brother. It may be mentioned that in the said affidavit, there is no mention by name of the accused Brahmanand and Vedu Pradhan who had been named by PW7 in his examination-in- chief.
387. It was on the basis of the said affidavit that FIR No.347/91 came to be registered. PW7 had stated that he had not got any FIR lodged but it is also on record that the said FIR came to be registered on the basis of the letter of the administrator dated 09.10.1991. The prosecution had relied heavily on the said CBI Vs. Sajjan Kumar & Ors. Page No. 508 of 545 affidavit of PW7 to contend that he had named A1 at least as far back as 1987. The Ld. Counsel for the accused persons had on the other hand contended that before the Court, PW7 had stated that he had got the affidavit typed at Tis Hazari and deposited the same at ITO whereas in his statement dated 08.03.2009 to CBI Ex.PW7/DC, he had stated that he had got the affidavit typed in the camp itself but that can be ignored being a minor discrepancy and looking to the long gap between the examination of PW7 in Court and when his statement was recorded on 08.03.2009 and it does not go to the root of the case. At the same time, it is material that in his subsequent statement under Section 164 Cr.P.C. PW7 had disowned the said affidavit. A perusal of Ex.PW7/DF dated 22.08.1992 shows that PW7 had stated therein as under:
"ON S.A. On 1.11.84, at about 11/11:30 a.m I was present at my house mention above. I had heard the noise of people outside my house. I remained in my house and did not come out. I did not come out from my house for the last three days. I cannot tell as to what happened outside the house. I came out from the house on the day when the defence force came to take us outside the locality. The mob had broken the door of my house and almirah inside and caused damage to my house. The ornaments of my daughter was also taken away by the mob. I had not seen any person in mob nor I can identify them.
The affidavit dated 23.7.87 filed by me is absolutely incorrect. I had signed on the affidavit at the instance of Atma Singh who had told me to sign on the affidavit as it pertains to the demand of compensation in lieu of my damage caused by the mob during the 1984 riots. I had signed on the affidavit under the impression that the same related to the compensation of the damage caused to me. I have no personal knowledge about the name mentioned in para-2 of affidavit nor I had seen them CBI Vs. Sajjan Kumar & Ors. Page No. 509 of 545 during the riots 1984. I am illiterate and did not know as to what had been written in the affidavit."
Thus, PW7 had categorically stated that he had not come out of his house and he did not come out for three days. He had stated that the mob had broken the door of his house and almirah and caused damage to his house and the ornaments of his daughter were taken by the mob and he had not seen anybody. In a way PW7 had reiterated what he had stated earlier about the looting of articles. The Ld. Counsel for the complainant had argued that if PW7 had remained inside the house for 3 days he would have been killed as the houses of Sikhs were identified but PW7 himself had stated that he came out of the house after 3 days. He further stated that the affidavit dated 23.07.1987 filed by him was absolutely incorrect and he had signed on the affidavit at the instance of Atma Singh who told him to sign the affidavit as it pertained to the demand of compensation in lieu of damage caused by the mob during the 1984 riots. He had also stated that he had signed the affidavit under the impression that the same related to compensation of the damage caused to him and he had no personal knowledge of the names mentioned in the affidavit nor he had seen them during the riots. Thus, PW7 had categorically stated that the affidavit was incorrect and he had signed it at the instance of Atma Singh in order to get compensation and he had no personal knowledge of the names mentioned therein. There is nothing to show that there was any compulsion on PW7 to resile from the affidavit nor he had stated so before this Court. While PW7 had admitted that he had filed the affidavit dated 23.07.1987, he had stated that it was absolutely incorrect. PW7 was also cross-examined in this regard CBI Vs. Sajjan Kumar & Ors. Page No. 510 of 545 and he had maintained that whatever he saw and heard, he got the names recorded on 22.08.1992 and that he had duly named A1 but the same does not find mention in Ex.PW7DF. It is pertinent that PW7 had not denied Ex.PW7/DF and it was duly recorded on oath before the Ld. Magistrate and as such by the said statement, PW7 had disowned the affidavit. Moreover, rather than giving any explanation as to why what was there in Ex.PW7/DF got recorded, PW7 had taken the stand that he had got recorded the name of A1 which is contrary to the contents of Ex.PW7/DF. Not only this, PW7 had after a gap of nearly 13 years, on 31.05.2003 appeared before the Court in FIR No.347/91 and stated that he had already made the statement on 22.08.1992 on SA. There is nothing to show that from 1992 to 2005, PW7 had raised any grievance about Ex.PW7/DF. The closure report was accepted and even in respect of the same, no protest petition was filed by PW7 nor any grievance was raised by him.
388. Then in 2008, the statement of PW7 under Section 164 Cr.P.C. was got recorded by CBI which is Ex.PW7/B wherein he had stated that on 01.11.1984, at around 10:00 am in the morning, hearing commotion outside, he came to the street and saw that a police jeep was going on the road in the front and Sajjan Kumar was going behind with a lot of public. People had sariyas in their hands, kerosene oil, swords, dandas and people started entering the streets and also came into their street. The public dragged his brother Surjeet Singh out of the house, hit him with rods, cut him into pieces with swords and burnt him after pouring kerosene on him and threw his father on the cot. There CBI Vs. Sajjan Kumar & Ors. Page No. 511 of 545 were also people, who were residing around them in that public, one of them was Nathu Pradhan, Munna Mahinder @ Jalaad, Piria Sansi, Gupta Tel Wala were also there and Vedu was there too. Because his hair was already cut, that is why he was saved from the public. The public looted the houses and also burnt the truck which he had bought on earnest/token money. He heard, Sajjan Kumar was telling the public that you have 72 hours to kill and cut down all the Sikhs. Because his hair was cut, he was also with the public and saw them burning the Sikhs and looting the houses. Thus, PW7 in the said statement under Section 164 Cr.P.C. had stated about the incident of 01.11.1984 but in the said statement he had stated about a police jeep and A1 following the same with the public whereas in Ex.PW7/A he had not stated about any jeep. Further, he did not state in Ex.PW7/B about the SHO firing on the public and killing 3 Sikhs. In Ex.PW7/A he had stated that his brother was dragged out and burnt whereas in Ex.PW7/B he stated that the public dragged his brother Surjeet Singh out of the house, hit him with rods, cut him into pieces with swords and burnt him after pouring kerosene on him. Further, in Ex.PW7/B, PW7 had named Brahmanand and Vedu who were not named in Ex.PW7/A. While the said discrepancies may be ignored as 'pebbles' it is still pertinent that in Ex.PW7/DF PW7 had disowned the affidavit Ex.PW7/A.
389. The statement of PW7 was further got recorded under Section 161 Cr.P.C. by CBI which is Ex.PW7/DC. In the said statement PW7 had stated that on 01.11.184, a crowd came and the police vehicle was at the front and behind that was the vehicle of A1. He had named the other accused persons and that CBI Vs. Sajjan Kumar & Ors. Page No. 512 of 545 they were carrying sarias, kerosene oil, chemicals and tyres etc. and the said persons were telling everyone that they had time of 72 hours to kill the Sikhs. SHO Bhati and other police persons were also with them. While in Ex.PW7/A, PW7 had stated that A1 had told the said persons that they had 72 hours freedom to kill the Sikhs, in Ex.PW7/DC he had stated that the said persons were telling everyone that they had 72 hours to kill the Sikhs. Further, he had stated that the crowd caught hold of his brother Surjeet Singh from the gali and dragged him towards the road. His hair were cut and he was also there in the crowd and saw everything and he was walking behind the crowd. However, he had not seen where the crowd had taken Surjeet Singh and that A1 had himself not killed Surjeet Singh but had given the order to kill the Sikhs. He could not tell who from amongst the crowd had dragged and killed Surjeet Singh and he did not identify him. He had stated how he recognised A1.
390. It is significant that in Ex.PW7/DC PW7 had stated that the wife of deceased was inside the house so she did not know what happened whereas in Court, PW7 had stated that she had seen everything. He had also stated about depositing his affidavit in the camp which issue has already been adverted to above. He had himself stated that he had given a statement before the Ld. Magistrate in Tis Hazari but he had not identified anyone but he had not given any reason for not recognising anyone and he had also not stated any reason for disowning his affidavit. In fact during cross-examination in the present case, PW7 had taken the stand that he had got everything written. He had stated that he had deposed before Aggarwal Jain Committee that he did not CBI Vs. Sajjan Kumar & Ors. Page No. 513 of 545 identify the persons who had killed out of fear of the people in the crowd but the said statement is not even before this Court. It is relevant that PW7 had also stated that the people knew him that he was a 'mona sardar' so to save himself he left but this demolishes the entire case set up by the prosecution and the Ld. Counsel for the complainant that PW7 could be saved and he could witness the incident as he was mona and thus could not be identified. Not only in the Court had PW7 stated about the persons he named knowing him well but even in Ex.PW7/DC, he had stated that people knew that he was a 'mona sardar'. He had stated that he had only seen Surjeet Singh being hit by dandas/ sariyas but he had not stated about Surjeet Singh being cut to pieces or being burnt. PW7 had also stated that he had given a statement to CBI but he was scared and he had not so stated then. However, no such statement recorded earlier has been produced on record and even the Ld. SPP had confirmed that CBI was not in possession of any such statement.
391. It is thus seen that PW7 had given different versions at different times and in Ex.PW7/A he had stated about Surjeet Singh being dragged out and burnt alive, in Ex.PW7/B he had stated that the public dragged his brother Surjeet Singh out of the house, hit him with rods, cut him into pieces with swords and burnt him after pouring kerosene on him and in Ex.PW7/DC he only stated about his brother being dragged and that he had seen him being hit with dandas/ sariyas. In Ex.PW7/DF he had not stated about the killing of Surjeet Singh. In Ex.PW7/DC he had stated that Surjeet Singh was caught in the gali whereas in Ex.PW7/B he had stated about Surjeet Singh being dragged out CBI Vs. Sajjan Kumar & Ors. Page No. 514 of 545 of the house. Further in Ex.PW7/DC he had not stated about seeing Surjeet Singh being cut to pieces and then being burnt. Before the Court, in his testimoy, PW7 had stated that Surjeet Singh was pulled out of the house and was assaulted with swords, sariya and lathis and he was cut to pieces and kerosene oil was put and he was burnt. He had stated that he had seen the mob killing 15-20 Sikhs whereas in none of his earlier statements he had so stated and in Ex.PW7/DC he had stated about escaping from the side. Further, in the Court he had not stated about A1 stating about 72 hours to kill the Sikhs and had rather stated that A1 had stated that no Sikh should be spared as they had killed their mother and it was only during cross-examination that he had stated about A1 stating that they had 72 hours to kill the Sikhs. He had stated about the mob causing damage to his house and burning his truck. PW7 was also confronted with all his statements. While minor discrepancies may be ignored, but it is seen that PW7 has given different versions at different points of time. He had been consistent in Court during cross-examination that he had taken the name of A1 earlier but the same finds mention in only Ex.PW7/A for the first time and that affidavit he had disowned in Ex.PW7/DF. It may be mentioned that a statement under Section 164 Cr.P.C. is certainly on a higher pedestal than a statement recorded under Section 161 Cr.P.C. being recorded on oath before the Ld. Magistrate and in the present case, PW7 had further accepted the said statement in Court on 31.5.2003 when he had appeared in FIR No.347/91.
392. The Ld. SPP had submitted that PW7 was a solitary witness to the murder of Surjeet Singh and the accompanying CBI Vs. Sajjan Kumar & Ors. Page No. 515 of 545 mayhem that happened. He was a mona, that is a cut Sikh so he was not identified as a Sikh and not killed. The persons were identified as they were found in the house as in the crowd, it could not be said to which caste, clan, religion they belonged merely on the basis of their clothes. It was also submitted that it was impossible in those days that someone could be identified and he could have escaped being killed. It was submitted that PW7 was the witness to the murder of Surjeet Singh and being a mona, he was a natural witness to the crime when all other family members i.e. women and children were hiding inside the house and not in a position to attest to the killings outside. In the present case there was one direct eyewitness which was rare and he had to be given sanctity and reference was made to the judgment in State v. Manohar Lal (supra) and it was submitted that the circumstances were similar in the present case. Even during cross-examination, the defence had not disputed that he was a mona or that Surjeet Singh was killed. It was highlighted that PW7 was a star witness of the prosecution with respect to the murder of Surjeet Singh, while also seeing Sajjan Kumar provoke and instigate the crowd. He had been clear and consistent on the murder of Surjeet Singh and on the role of Sajjan Kumar in addressing the mob. His statements were consistent across forums, except the period when the Delhi Police was dealing with the case. He also named other accused persons and explained their role, for which no effective cross- examination had been conducted. For the Delhi Police investigation, he demolished the entire case being set up by defence when he highlighted the money being offered to him to CBI Vs. Sajjan Kumar & Ors. Page No. 516 of 545 not name Sajjan Kumar. He had withstood lengthy cross- examination and was a reliable witness and his evidence was of sterling quality. It is seen that during his entire testimony PW7 had stated time and again that he was a mona and even the CBI had contended that as he was a mona, he was not identified as a Sikh and he could be saved but it is also there in the cross- examination of PW7 that he knew the persons named by him as the accused and that the said persons named by him knew him well. He had also stated at another point that most of the Sikhs in his gali were mona and further in Ex.PW7/DC he had stated that he escaped from the spot as the people in the crowd knew that he was a 'mona sardar'. As such, it did not matter whether PW7 was a mona or not and if the accused persons knew him well and he was there amongst the crowd, he would not have been spared. As such there is no merit in the contention that PW7 was saved as he was a mona.
393. As per the case of CBI itself PW7 Joginder Singh was the solitary witness of the case. Reference was made to the affidavit D-11 (of 1987) Ex.PW7/A and the statement of Joginder Singh recorded under Section 164 Cr.P.C. and it was submitted that the Court must ignore technicalities and there was no material difference between what the witness PW7 had said before and during the course of trial. However, a perusal of the evidence of PW7 does not reflect the same as discussed above. No doubt PW7 had withstood the cross-examination and had also taken the consistent stand that he had named A1 everywhere but the said consistency gets belied when confronted with what he had stated in Ex.PW7/DF earlier and his oral testimony cannot be CBI Vs. Sajjan Kumar & Ors. Page No. 517 of 545 considered over what he had stated in Ex.PW7/DF and there are many discrepancies in the different statements of PW7 that were recorded. It was then argued that PW11 had recorded the statement of PW7 and he had confirmed that Joginder Singh was scared and had to be comforted. However, in the instant case, the stand of PW7 is not that he could not name A1 due to fear but that he had named him everywhere and if he was scared, he would not have named A1 everywhere. PW7 had also stated that he was offered money by DW2 and the same had been glossed over by the prosecution but as noted above, saying so for the first time in the Court does not hold much weight.
394. It was then submitted that Mam Chand who was a defence witness in the present case had stated about contacting the witness on phone but in 1992 it could not have been possible; the son of PW7 Inderjit was 11 years old at the time of the incident and 19 years old in 1992 and efforts were made to put words into his mouth and there is merit in the said submissions and the same have already been adverted to above. It was contended that Rajwant Kaur was not produced as a defence witness and while she has not been produced as a prosecution witness though PW7 had stated that she had witnessed the incident, she has also not been produced by the accused persons in their defence. It was submitted that PW7 was confronted with third party statements recorded by Delhi Police, which should be ignored as Delhi Police itself was an accused in the present case but even if the statements recorded by Delhi Police are ignored, the statement of PW7 recorded under Section 164 Cr.P.C. on 28.08.1992 Ex.PW7/DF cannot be ignored and therein PW7 had denied his CBI Vs. Sajjan Kumar & Ors. Page No. 518 of 545 affidavit Ex.PW7/A. The Ld. SPP had then submitted that PW7 had died after his evidence was recorded. After 35 years he had deposed in Court, it had to be considered that he had faced tragedy of different proportions and was not getting justice and was living in fear. There were so many people who were victims and different people were involved. The test to be adopted was whether PW7 was consistent and in the present case PW7 had remained consistent and the Court should take his statement as sacrosanct as it should be. It is true that PW7 had faced tragedy and was called upon to depose in the Court after the lapse of nearly 35 years when he was in his old age. Further, during his cross-examination he had remained consistent that he had named A1 everywhere but in his different statements that were recorded, he had not remained consistent and he had oscillated from one version to the other. Moreover, the statement of PW7 was duly recorded before the Ld. Magistrate under Section 164 Cr.P.C. on oath in which he had disowned the affidavit and thereafter he had appeared in the Court on 31.5.2003 and accepted the said statement and as such he cannot be allowed to blow hot and cold in the same breath.
395. It was argued that nothing emerged in the cross- examination of PW7 to doubt his presence at the spot at the time of incident and he was the witness who saw the happenings at crucial places at the relevant point of time. It was submitted that the witness had taken a consistent stand regarding the occurrence and the presence of the accused. The affidavit Ex.PW7/A wherein PW7 had named Sajjan Kumar and others had been admitted and the witness was cross examined on the same. It may be CBI Vs. Sajjan Kumar & Ors. Page No. 519 of 545 mentioned that the Ld. Counsel for the accused persons had taken an objection that CBI was estopped from referring to/ placing on record the affidavit and getting it exhibited, as the witness had disowned the affidavit twice before the concerned courts, i.e. on 22.08.1992, before the Court of Shri Om Prakash, Ld. MM, Tis Hazari Courts and second time, on 31.05.2003 before the Court of Shri G.P. Singh, Ld. MM, Rohini Courts, Delhi pursuant to which, the case was sent for closure on 28.02.2004 and in the light of Section 115 Indian Evidence Act. However, the said issues have already been dealt with in the cross-examination which had taken place. Secondly, it was submitted that the Committee, wherein the said affidavit was filed was follow-up of the Ranganath Misra Commission of Enquiry, constituted by the Administrator of U.T. Of Delhi with the approval of Ministry of Home Affairs, Govt. of India vide Notification No. F./P.S./H.S.87/1227-1244. The said Committee was constituted to finish the unfinished work of Ranganath Misra Commission on the same terms and conditions. However, nothing much turns on the same now as the witness was also cross-examined on the affidavit and his subsequent statements. The Ld. SPP had submitted that PW7 was a witness of sterling truth, who had survived to tell the gory tale of the heinous crime. His testimony had a ring of truth and he was a wholly reliable witness and he was a witness who saw Sajjan Kumar leading and instigating the violent mob. He had himself seen the killing of Surjeet Singh by the mob. It was reiterated that he had remained consistent throughout his evidence regarding naming the accused Sajjan Kumar and the other accused persons. However, the evidence of CBI Vs. Sajjan Kumar & Ors. Page No. 520 of 545 PW7 has to be seen in totality and it cannot be said that his testimony was of such sterling quality as would merit the conviction of the accused persons only on the basis of the same.
396. The Ld. Sr. Counsel for the complainant had argued that the present case was on a better footing than State through CBI v. Sajjan Kumar and others (supra) as in that case, the prosecution witness Jagdish Kaur had not named A1 in the affidavit whereas in the present case PW7 had named A1 at the first instance. However, naming A1 at the first instance is not borne out by the record and even if the statements given to police are taken with a pinch of salt, the incident of killing of Surjeet Singh did not find mention in FIR No.268/84 which was got lodged by PW7. Further, PW7 had later disowned the affidavit in which he had named A1 and thereafter owned it when his statement was recorded by CBI showing thereby that he had been changing his version. Moreover, in the case before the Hon'ble High Court, there was no statement of the witness before the Court on the basis of which the closure report was accepted. It was submitted that the chief examination of PW7 covered everything, it covered the incident of killing, what took place after the killing and there was the affidavit and the statement under Section 164 Cr.P.C. but the said aspects have already been dealt with above. It was urged that the affidavit of PW7 was the bone of contention and PW7 had never stated that he had not signed the affidavit and the story was the same everywhere and could be read in complete continuation and he did not change his version at all. The affidavit was given after three years of the incident and still he had given a similar statement under Section CBI Vs. Sajjan Kumar & Ors. Page No. 521 of 545 164 Cr.P.C. and before the Court. It is true that PW7 had not denied signing the affidavit at any point of time but he had disowned the same in his statement Ex.PW7/DF and stated that the same had been given at the instance of Atma Singh in order to get compensation. It was submitted that the last suggestion put to PW7 was that he was not an eyewitness and that he had not come out of the house whereas PW7 had categorically stated that 15-20 people were killed in his presence and his brother was dragged out, cut and burnt. However, in Ex.PW7/DF, PW7 himself had stated that he had not come out of the house while in Ex.PW7/DC he had stated about seeing only part of the incident and that he had escaped in order to save his life though in Ex.PW7/B he had stated about being with the crowd.
397. It was further submitted on behalf of the complainant that PW7 did not change his statement and when he found the environment of security he came forward and earlier there was no witness protection programme. While it has been noticed earlier that there was no witness protection plan in place at the relevant time, it is also seen that PW7 had been changing his stance and if there was an atmosphere of fear as tried to be contended, PW7 could not have named A1 even in Ex.PW7/A. In fact in Ex.PW7/DC PW7 had stated about being scared when he had given his statement to CBI earlier. It was submitted that there was no way that the wife of the deceased Surjeet Singh would know where he was killed as the endeavor was to change the spot and the body was removed but PW7 had stated during cross- examination that she had witnessed the incident though in Ex.PW7/DC he had stated that she was in the house. It was CBI Vs. Sajjan Kumar & Ors. Page No. 522 of 545 argued that PW7 had no animosity with the five persons whose names were taken and he could have taken other names but he took the names as mentioned and PW7 had no ulterior motive to derive from A1 and he had stated that he was not hiding. There is merit in the said submission as no motive has been shown for PW7 to falsely implicate the accused persons but only on that basis the accused persons cannot be convicted. It was also argued that as MP, it was the responsibility of A1 to protect the people but there was nothing to show that A1 had got any DD entry lodged or asked the police to come and save the people and there was nothing to show that he had done anything to save the people or made a call on 100 number but only on that basis, a finding of guilt cannot be returned against the accused.
398. It was submitted that the accused persons were taking a contradictory stand that PW7 was in his house or was not present and nothing was put to him except the frivolous investigation by Delhi Police. However, even the statements recorded under Section 164 Cr.P.C. were put to PW7. It was then the contention that the accused persons tried to harass the witnesses but they did not succeed and no alibi was put forth as to what the accused persons were doing - whether they were in some other meeting or what they were doing. DW1 had fumbled when he was asked about the CBI. It was argued that when the accused persons did not have an alibi they could not discredit a witness who had spoken up after so many years. However, merely because the accused persons had not taken the defence of alibi, it cannot be accepted that they were present at the spot and committed the offences for which they have been charged and as submitted by CBI Vs. Sajjan Kumar & Ors. Page No. 523 of 545 the Ld. Counsel for the accused persons, the burden is on the prosecution to prove its case beyond reasonable doubt. It was also argued that the provocative and fiery speeches delivered by accused Sajjan Kumar, who was an MP and a leader of mass appeal at the relevant time, evoked the emotions of the mob. He addressed the then Late Prime Minister, Smt. Indira Gandhi as "Maa", thereby evoking the emotions of an angry mob and instigated and provoked the mob and incited them that their "Maa" had been killed and that no Sikh should be spared. This was not a heard theory but a seen theory wherein as a result of this instigation, the mob picked and chose only Sikh persons with a clear intention to only target and kill Sikh population of the area. However, it is seen that in none of the statements made by PW7 before his deposition in the Court had he stated about A1 exhorting the people by saying that 'Maa' had been killed and he had only stated about A1 saying that the people had 72 hours to kill the Sikhs.
399. The Ld. Counsel for the accused persons had submitted that Joginder Singh was the complainant and the sole witness in the present case claiming to have witnessed the killing of deceased Surjeet Singh. The prosecution had conceded before the Court that it was pursuing the case of killing of Surjeet Singh alone. He had first time, lodged the report of killing of Surjeet Singh through affidavit dated 23.07.1987 Ex.PW7/A and had named A1 through the said affidavit. Prior to that, Joginder Singh had not taken any step or lodged the report in respect of the occurrence of the killing of Surjeet Singh or raised any accusing finger about the involvement of accused Sajjan Kumar and others CBI Vs. Sajjan Kumar & Ors. Page No. 524 of 545 in any manner whatsoever i.e. for a period of around 2 years and 9 months approximately. It is true that there is nothing on record to show that PW7 had lodged any complaint regarding the killing of Surjeet Singh prior to the affidavit Ex.PW7/A but it was the stand of PW7 that he had so stated everywhere though the record does not show the same. It was then argued that Joginder Singh had not explained why and who authorized him from the family of the deceased to file the case. In cross-examination, he was specifically asked whether Smt. Rajwant Kaur, the wife of the deceased had lodged some report in respect of the killing of her husband. His reply was that he did not know. The question arose when Joginder Singh did not know or had no knowledge whether Smt. Rajwant Kaur, wife of the deceased or other members of his family had lodged the report or not and if lodged, what was the result of the same, his filing the affidavit was without any substance and his behaviour was unnatural which could not be accepted by a person of common prudence. However, if PW7 had witnessed the incident of killing of Surjeet Singh, there was nothing which precluded him from lodging a complaint in that regard and there would be no need of authorisation from anyone. In the instant case, it is not in dispute that Surjeet Singh was killed but it is the case of the accused persons that he was not killed as stated by PW7, rather he was killed near the railway phatak and that the accused persons had no role in the same.
400. It is not in dispute that FIR No.347/91 of PS Sultanpuri was registered consequent to the affidavit Ex.PW7/A filed by Joginder Singh before the Jain Banerjee Committee. It was also the admitted case, in the charge sheet of the CBI at page 19, para CBI Vs. Sajjan Kumar & Ors. Page No. 525 of 545
(iv) that after the investigation of the case, closure report was filed on 08.02.2004 (Ex.DW2/A) which was accepted by the concerned Court on 28.02.2004. Submissions were made regarding not handing over the judicial record of the said case but that need not be gone into. It was submitted that the affidavit Ex.PW7/A was disowned by PW7 twice before the concerned competent Court where the case was sent for closure i.e. on 22.08.1992, in his statement recorded under Section 164 Cr.P.C. and on 31.05.2003, in his statement before the Court and the said aspect has already been adverted to. The Ld. Counsel for the accused persons had referred to the statement of Smt. Rajwant Kaur dated 08.08.91 before Justice J.D. Jain and D.K. Aggarwal Committee and dated 08.01.92 Mark DW2/1 recorded under Section 161 Cr.P.C. and submitted that she was also examined before the Court vide statement Mark PW11/B2 but the said witness has not been examined and the statements were not duly proved. It was submitted that Malkiyat Kaur was also examined on 14.05.92 and her statement is Mark A and Inderjit Singh who was living with PW7 and Malkiyat Kaur and other brothers and sisters were examined under Section 161 Cr.P.C. and his statement is Mark DW2/2 but again the said witnesses have not been examined nor produced in the witness box by the accused persons. It was further submitted that PW7 was confronted with all his previous statements during cross-examination and the record shows the same. It was contended that the prosecution had not denied the site plan Ex.PW7/DA and that in the site plan, the place of killing of Surjeet Singh was not shown and that was because none, either from the family of the deceased or the CBI Vs. Sajjan Kumar & Ors. Page No. 526 of 545 complainant or from the neighbourhood had ever said that the killing took place in the Gali where the deceased Surjeet Singh and his wife Smt. Rajwant Kaur along with their family were living but logically a site plan would be prepared to show the spot of incident and not to show that the spot of incident was not clear. It was submitted that Mam Chand DW2 who was one of the IOs of the present case had given comprehensive details in his deposition before the Court which confirmed the case of the defence. The prosecution despite much efforts could not even give an iota of dent to his deposition but nothing substantial has come out in the examination of DW2.
401. It was argued that CBI had deliberately not cited Smt. Rajwant Kaur, Smt. Malkiyat Kaur and Inderjit Singh and the witnesses available in the neighbourhood as they did not support the version of Joginder Singh that Surjeet Singh was killed in the Gali. The IO had given evasive answers regarding the statements of Rajwant Kaur, Inderjit Singh, Malkiyat Kaur and when asked about the earlier statement of Joginder Singh recorded by CBI, PW11 stated that PW10 could answer and his role was confined to only examining PW7. It was argued that it was the admitted case of the prosecution that FIR No.347/91 dated 13.12.91 was earlier investigated by Anti Riot cell and sent for closure and the closure report was accepted by the concerned competent Court vide order dated 28.02.04 and the prosecution had sought permission for further investigation. The question that arose was whether the prosecution had conducted further investigation in respect of the killing of Surjeet Singh or not but the prosecution was unable to tell who had conducted the investigation of RC-25 CBI Vs. Sajjan Kumar & Ors. Page No. 527 of 545 which raised a serious doubt. It was submitted that the evidence of PW7 was modulated to suit a particular prosecution theory for the purpose of securing conviction and such a witness could not be relied upon. It was submitted that there was no evidence on record, direct or indirect which proved the presence of the accused and the witness was a planted one and his evidence was trumped by the prosecution and even the credibility of the witness was doubtful and the conduct/ behaviour of the witness was unnatural and grossly against the normal conduct, that itself was a strong circumstance in doubting the story projected by him. It was contended that the deposition of Joginder Singh, solitary eyewitness was wholly unreliable having regard to the attendant circumstances and was full of embellishment and fabrications. It was submitted that there was no independent corroborating evidence showing existence of the alleged occurrence at the place/ spot allegedly claimed by Joginder Singh or involvement of the accused. While there is merit in the contention of the Ld. Counsel for the accused persons that Joginder Singh had changed his version several times on such a vital matter but it cannot also be said that his testimony is liable to be thrown out altogether. It is true that conviction can be based even on the testimony of a solitary witness but in view of the evidence that has come on record, it would well nigh be impossible to convict the accused persons only on the basis of testimony of PW7 and it would be of immense importance that there is corroboration. However, the same is sadly lacking in the present case and admittedly PW7 was the solitary witness in respect of RC-7.
CBI Vs. Sajjan Kumar & Ors. Page No. 528 of 545402. It is seen that even no IO has been examined who could depose about the investigation in the present case and the Ld. Counsel for the accused persons had also submitted to that effect. It was submitted that it was not even stated who was the IO of the said RC as PW10 stated that he was not the IO and he had only dealt with RC-7. For all the cases there were separate IOs though the charge sheet was filed by PW10. Reference was made to the testimony of PW11 S.S. Kishor. As such there was no one to prove the investigation of RC-25 and PW10 was blank on RC- 25 and had only stated about RC-7. According to PW10, PW11 was dealing with the case but PW11 had stated that he was not the IO and he was only asked to examine PW7 Joginder Singh. Reference was made to the cross-examination of PW11 and as such the question arose as to who was the IO of RC-25. PW11 did not remember if he was given a written order to examine PW7 and there could not have been a verbal order. It was pointed out that Syed Sajid Ali was actually the IO of RC-25. It was submitted that PW10 had filed the present composite charge sheet. But both PW10 and PW11 had denied their role as IO of RC-25 and had categorically deposed that none of them conducted the investigation of the said case. PW10 also stated that he could not answer regarding the record and investigation of the case except that he got the statement of Joginder Singh recorded under Section 164 Cr.P.C. PW11, the other IO had also repeatedly stated that though the investigation of the case was entrusted to him on 06.03.2009, he was asked to examine the witness Joginder Singh and he examined him and recorded his statement under Section 161 Cr.P.C. Ex.PW7/DC.
CBI Vs. Sajjan Kumar & Ors. Page No. 529 of 545403. During cross-examination PW10 admitted that RC- 25(S)/05/SCU-I/SCR-I/DLI was re-registration of FIR No.347/91, PS Sultanpuri. The said case was investigated by some other IO. He admitted that he could not answer regarding the investigation of the said case and volunteered he had got the statement of Shri Joginder Singh recorded under Section 164 Cr.P.C. in his case which was shared with the other IO. Thus, PW10 had stated that he was not the IO of RC-25 and he had got the statement of Joginder Singh recorded under Section 164 Cr.P.C. which it is seen was got recorded in RC-7. During cross- examination PW11 admitted that he had stated in his examination-in-chief that the investigation of the present case was entrusted to him on 06.03.2009 and volunteered it was limited to examination of Shri Joginder Singh. He admitted that in RC-25, the only witness was Shri Joginder Singh. He denied the suggestion that he was supposed to examine the role of Joginder Singh and volunteered he was only asked to examine Joginder Singh. The direction to examine Joginder Singh was given to him by the then SP CBI perhaps Shri Ratna Sanjay or Shri Zaki Ahmed. He did not remember whether any written order was given to him to examine Shri Joginder Singh. He denied the suggestion that he was deliberately giving an evasive reply to negate the basic issue or that the entire investigation was entrusted to him. PW11 stated that the main IO of the case was Syed Sajid Ali. He admitted that he was the IO after Syed Sajid Ali and volunteered his role was only to examine Joginder Singh. He denied the suggestion that he was entrusted the investigation of the present case after the death of Syed Sajid Ali. Thus, PW11 CBI Vs. Sajjan Kumar & Ors. Page No. 530 of 545 stated that his role was only to examine Joginder Singh. Two investigating officers were examined in the present case and PW10 who had also filed the charge sheet had stated that his role was only to get statement of Joginder Singh recorded under Section 164 Cr.P.C. whereas PW11 had stated that his role was only to examine Joginder Singh. They had themselves not stated who was the IO of the case and during cross-examination only PW11 had stated that he was the IO after Syed Sajid Ali. In these circumstances, no witness has been examined who could state what investigation had been carried out in respect of RC-25 and PW10 had stated that the investigation of the three cases was carried out by different IOs and only PW7 has been examined in respect of RC-25.
404. It is thus seen that no public witness has been examined who could corroborate the testimony of PW7 and even no IO had been examined who could corroborate what was stated by PW7 or to prove the investigation in RC-25. In these circumstances, it would be next to impossible to convict the accused persons only on the basis of the testimony of PW7.
405. DW2 was also cross-examined on behalf of CBI and he stated that he was not aware why the cases were marked to the Riot Cell. He could not tell which all commissions/ committees had looked into the matters before the investigation was entrusted to him and volunteered he had read in newspaper about Ranganath Misra Commission, Jain Committee and Banerjee Committee. He had not read the report of any such Commission or Committee. He stated that there were about 40 to 50 deaths in CBI Vs. Sajjan Kumar & Ors. Page No. 531 of 545 the area of Sultanpuri and there could be more than that and FIR No.250/84 and 252/84 were registered in which the local police had filed challans. He admitted that FIR No.251/84 and 258/84 were also registered in this respect. He could not admit or deny the suggestion that there were more than 500 deaths in the area of Sultanpuri. Thus, DW2 had denied reading the reports of any Commission or Committee and he could not admit or deny the suggestion that there were more than 500 deaths in the area of Sultanpuri. The Ld. SPP had submitted that there were 491 deaths in Sultanpuri area and there were no trials in respect of all the deaths and from the testimony of DW2, the same is evident. DW2 further stated that he had read in the newspapers that after the investigation done by the Riot Cell, the government had constituted Nanavati Commission and volunteered he had also read about SIT being constituted. He was not aware that the Nanavati Commission had passed scathing remarks regarding the role and investigation by Delhi Police. He was not aware that FIR No.347/91 was recommended to be re-investigated and volunteered he was called by the SIT once. Thus, DW2 was not aware that the Nanavati Commission had passed scathing remarks regarding the role and investigation by Delhi Police or had recommended that FIR No.347/91 to be re-investigated but nothing much turns on the same and the extracts from the Report of the Nanavati Commission are before this Court.
406. The Ld. SPP for CBI had then submitted that the cases had peculiar similarities in that only Sikh establishments and commercial places and males were targets and not even a single Hindu establishment or house was touched which showed the CBI Vs. Sajjan Kumar & Ors. Page No. 532 of 545 precise conspiracy which was not possible unless the administration was with the rioters. During cross-examination, on it being put to DW2 if it was correct that in the riots which took place in the area of Sultanpuri, only the houses of Sikh persons were looted and burnt and only Sikh persons were killed, he stated that in the area of Sultanpuri, mostly Sikh persons were killed and their houses were looted. He could not say if any Hindu or any person other than a Sikh was also killed in the riots. He denied the suggestion that he had not done even a semblance of investigation so he could not give a straight answer. Thus, DW2 stated that in the area of Sultanpuri mostly Sikh persons were killed and their houses were looted and even otherwise there is nothing to the effect that Hindu establishments were also burnt or Hindus were also killed. It may be mentioned that it has come on record that the rioters included local people in that in the trials which have taken place, mostly local people were named though in some cases outsiders were also there and even Brahmanand was a resident of the same area and even PW7 had stated that he knew the persons named by him very well and they also knew him very well so it could well be that as they knew each other, it was easier to identify the houses of Sikhs and attack them and to kill the Sikhs.
407. A perusal of the evidence and material that has come on record shows that the prosecution had examined four witnesses. The Ld. Counsel for the accused persons had argued at length that several of the witnesses who were cited in the charge sheet had not been examined but as noted above, the Ld. SPP for CBI had submitted that some of the witnesses had expired and so CBI Vs. Sajjan Kumar & Ors. Page No. 533 of 545 could not be examined while some of the witnesses were not examined being of a repetitive nature as they had deposed in earlier cases. The defence had produced the statements of the said witnesses i.e. Popri Kaur, Jatni Kaur, Kamla Devi, Gopi Kaur, Thakri Devi and Prem Kaur which were recorded in the earlier trials and of the husband of witness at serial No.1 Smt. Bhagwani Bai and submitted that none of the said witnesses had named Sajjan Kumar earlier at any point of time. The statements which were exhibited through PW10 as well as the judgments which were passed in the said cases do show that A1 was not named therein, yet the present case has to be decided on the basis of the evidence of the witnesses who have deposed herein and the material that has come on record. It may also be mentioned that A1 was earlier named only in one case i.e. RC-1 in respect of Sultanpuri area which had ended in acquittal.
408. PW4 Smt. Prem Kaur had been examined and she had stated about the incident wherein Smt. Anek Kaur had come to her home with her husband on a cot but Anek Kaur who had given an affidavit on the basis of which FIR No.307/94 was lodged which was re-registered as RC-8 had already expired in 2000. PW4 herself had not stated about witnessing the incident or seeing the perpetrators. She had stated that the children and the people in the camp were taking the name of Sajjan Kumar and Brahmanand Gupta amongst others but she herself had not seen them committing any act. She had not named Vedu Pradhan at all. In these circumstances her testimony is material only to the extent that she had stated about her house being looted and burnt and about other houses being looted and burnt. There is no other CBI Vs. Sajjan Kumar & Ors. Page No. 534 of 545 witness who had deposed about the killing of the husband of Anek Kaur and even no charge was framed in that respect. Misri Kaur who was also stated to be a witness in respect of the said FIR had not been examined.
409. As regards PW5, she had deposed about a crowd having collected in the park opposite her house on 01.11.1984 wherein A1 was inciting the mob, which started raising slogans and the mob was armed with lathis and some youngsters were carrying ballam and thereafter the mob assaulted her family members and had dragged them out of the house and killed them. It is pertinent that the trial in respect of the killing of her family members had already taken place in FIR No.250/84, which had resulted in the acquittal of the accused persons therein vide judgment Ex.PW10/D10 and throughout the trial A1 had not been named at all. Not only had A1 not been named but even PW5 in her statement recorded earlier (Ex.PW5/D2) had not stated about any meeting as deposed by her in the Court or about A1 addressing the crowd and had only stated about a mob coming armed with lathis etc. During cross-examination, she had stated that she had taken the name of Sajjan Kumar everywhere but she had also stated that she had not taken the name of Sajjan Kumar out of fear but when questioned specifically as to whether she had informed anyone about the threat, she had stated that she had informed the CBI and Ld. Magistrate but her statements recorded by CBI and the Ld. Magistrate do not mention any such threat. As such, she had stated about the threat in the Court for the first time. Thus, not only was her testimony recorded in Court a major improvement over what she had stated in Ex.PW5/D2 but she CBI Vs. Sajjan Kumar & Ors. Page No. 535 of 545 had also not been consistent in what she had stated.
410. Coming to the testimony of PW6, she had stated about a meeting on 01.11.1984, wherein A1 was addressing the crowd with provocative words but thereafter she had stated about hiding herself and about the incident of 02.11.1984. The incident of 02.11.1984 is not in trial before this Court and has already been tried earlier and even from her testimony there is nothing to show any co-relation or nexus or linkage between the speech of A1 on 01.11.1984 and the incident of 02.11.1984 nor even to show that the crowd which attended the meeting addressed by A1 was the same which carried out the hamla on 02.11.1984 besides there being nothing to show that A1 was present at the time of the incident on 02.11.1984. Even as regards what she had deposed in this Court about the incident of 01.11.1984, the same does not find mention in her testimony given in the earlier trial as recorded in the judgment Ex.PW10/D12 and in that she had only stated about a Gurudwara being burnt on 01.11.1984 and she had not named A1 at all.
411. The Ld. SPP for CBI had contended that looking to the circumstances and the extraordinary situation of riots the Court had to innovate the law and extraordinary remedies were needed but there is no order in the present case by which the previous investigation or trial could be ignored or the previous statements of the witnesses that were recorded before a competent Court could be sidelined. Even if the contention of the Ld. SPP that the police investigation was defective is accepted and that the prosecution had not been carried out properly, there was nothing CBI Vs. Sajjan Kumar & Ors. Page No. 536 of 545 which prevented the witnesses from bringing the entire facts before the Court in the earlier trial and in any case the witnesses are supposed to depose all that they know about the incident before the Court. In fact, in Ex.PW10/D12 the trial continued for several years but there is nothing to show that PW6 had ever raised any grievance that her statement had not been recorded properly and even PW5 at any point of time had not raised any grievance that what she had deposed had not been recorded or that they both had taken the name of A1 but the same was not recorded in their statements. If the statements recorded by the competent Courts are to be given a go by, it would set a wrong precedent whereby any case could be re-opened at any point of time on the allegations that the statements recorded on oath and duly read over to the witnesses were not recorded properly before the Court (also considering the fact that the said judgments had not been set aside till date though revisions in some of the cases are stated to be pending) which cannot be allowed and due sanctity has to be attached to the Court proceedings. In these circumstances, it is seen that only when the statements of witnesses were recorded by the CBI was the name of A1 taken for the first time though PW6 had also given an affidavit earlier, the contents of which could not be looked into due to the bar created by Section 6 of the Commissions of Enquiry Act. Another aspect needs consideration which is that when the statement of PW5 was recorded in the earlier trial, names of certain accused persons were mentioned including Brahmanand but when, PW5 was examined before this Court, she did not take the names of any of the said persons and only took the name of CBI Vs. Sajjan Kumar & Ors. Page No. 537 of 545 A1. Likewise PW6 also took only the name of A1 before this Court. As such it was a situation, as contended by the Ld. Counsel for the accused persons wherein earlier the others were named but A1 was not named whereas now only A1 was named. Both PW5 and PW6 had not stated anything about the involvement of Brahmanand or Vedu Pradhan. Besides PW-5 had taken an inconsistent stand about naming A1 earlier and while PW-6 had stated about naming A1 earlier at every occasion, the same is not borne out by the record.
412. Coming to the testimony of PW7, his statement had been recorded several times. The prosecution had tried to contend that he was also a witness to the incident of A1 giving provocative speeches and leading the mob which committed looting, arson, burning and other acts but from his deposition, it is evident that he had not stated about the meeting which was referred to by PW5 and PW6 and had rather referred to the incident whereby A1 was leading a mob and therein he was exhorting the mob to kill the Sikhs. As such, both the incidents cannot be combined to prove the charge under Sections 147, 148, 149, 295, 436 and 302 IPC and the two were separate and disparate incidents and corroboration for one cannot be found from the other. In these circumstances, even if the earlier testimonies are, for the sake of arguments not considered, at best it can be taken that PW5 and PW6 had stated about the meeting which was addressed by A1 on 01.11.1984 but PW6 had only stated about A1 addressing the crowd and exhorting the crowd to kill the Sikhs but had not stated about any further incident on the said date while PW5 had stated about the acts pursuant to the exhortation by A1. None of the said witnesses had stated about Gurudwara of Budh Vihar CBI Vs. Sajjan Kumar & Ors. Page No. 538 of 545 being set on fire and PW4 had not stated who had looted and burnt her house and PW6 had also not specifically deposed about burning of any dwelling and PW5 had also not specifically deposed in her examination about any incident of looting and burning. Further, there is no corroboration of their testimony by any other witness which became vital in light of the fact that their testimonies by themselves do not inspire confidence such as to convict the accused persons on the basis of the same and they did not even corroborate each other on material respects, besides, what they had deposed in this Court being an improvement over what they had deposed in their earlier testimonies in cases which had ended in acquittal of the persons accused therein.
413. Even as regards PW7 it is seen that he had approbated and reprobated and in the affidavit Ex.PW7/A he had stated that he had seen his brother being pulled out and burnt but thereafter in his statement under Section 164 Cr.P.C. Ex.PW7/DF he had denied the affidavit and on the basis of the said statement, which was reiterated by him before the Court on 31.05.2003 stating that he had already given the statement under Section 164 Cr.P.C., closure report was accepted in FIR No.347/91. However, when CBI again came into the picture, he owned up to the affidavit, though from 1987 to 2008, he had not reiterated the version given in the affidavit anywhere. In fact the closure report was also accepted only in 2004 and PW7 had appeared before the Court in 2003 but he had not stated that his statement under Section 164 Cr.P.C. was not correct and he had also not filed any protest petition. Even if the Court were to ignore as 'pebbles' some of the discrepancies in his different statements but all the CBI Vs. Sajjan Kumar & Ors. Page No. 539 of 545 different versions cannot be discarded as discussed above. As such, it would not be safe to convict on the basis of the sole testimony of PW7 without corroboration but in the instant case, there is no corroboration of the testimony of PW7 by any other witness. Admittedly no dead bodies were found, there were no postmortem reports and even the circumstances and the investigation by Delhi Police cannot be read against the prosecution. However, it is unfortunate that despite CBI carrying out investigation from 2005 to 2010, no other witness could be found, who could corroborate what PW7 had deposed or even what PW5 and PW6 had deposed and all the witnesses except PW4 who had been cited or examined were those who had already been examined. It was contended that finding an eye- witness was a rarity and that too given the circumstances but in the circumstances wherein PW7 had not stuck to his statement and had blown hot and cold in the same breath, his evidence cannot be regarded to be of such sterling quality as to base the conviction on the same. The Ld. SPP had argued that CBI investigation commenced in 2005, 21 years after the riots. The witnesses had lost all faith and after more than two decades of injustice were scared to utter a word. Many of the witnesses availed witness protection, in fear of their well-being. The CBI could not even cite or examine all the witnesses in the case as they had either died or refused to testify out of fear; or due to the passage of time, certain witnesses were not in a capacity to depose; or the ground realities had changed, where even successfully tracing out the witnesses was an arduous task. The CBI could thus cite and examine only certain witnesses. While CBI Vs. Sajjan Kumar & Ors. Page No. 540 of 545 there is merit in the said submissions of the Ld. SPP that CBI was weighed in by the efflux of time, that cannot be read against the accused persons so as to convict them on the basis of the statements of witnesses who have been examined.
414. The Ld. Counsel for the complainant had relied on the judgment of the Hon'ble High Court in State through CBI v. Sajjan Kumar (supra) wherein it was observed as under:
"114. The second category was with regard to statements which were made to the Delhi Police and Riot Cell on 20th January 1985 and 31st December 1992 respectively which subsequently were denied by PW-1. Making reference to various portions of the evidence in this regard, Mr. Sibal maintained that said statements were genuine and were indeed made by PW-1 in the course of investigations carried out by the Delhi Police and the Riot Cell. xxx
118. Mr. Sibal then went on to discuss the affidavit sworn by PW-1 before the Justice Ranganath Misra Commission (Ex.PW-1/A). He pointed out that there was no suggestion made therein that any meeting was held in the affected area on 2nd November 1984. Furthermore, he drew attention to the fact that the name of A-1 was not mentioned in any manner whatsoever nor any role, direct or indirect, attributed to him. It is his submission that she gave this statement at a time when the situation in Punjab was under control and she was employed at that time at the stitching/sewing centre run by the Government. She had also stated that she was not scared or under any threat or pressure from any corner whatsoever.
xxx
222. Thus, the legal position which emerges from the decisions of the Supreme Court cited above is that in evaluating the evidence of an interested witness, the Court must scrutinise their evidence carefully so as to ascertain whether it has the ring of truth. While their testimony is not to be viewed with suspicion merely because of their relationship with the victim, CBI Vs. Sajjan Kumar & Ors. Page No. 541 of 545 the Court must be satisfied that it is consistent and cogent.
xxx
233. Therefore, even when grilled under the pressure of cross-examination, this witness has stood firm and has clearly spoken to what, according to her, was the truth surrounding the tragic events in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi.
xxx
239. To this Court, PW-1 comes across as a fearless and truthful witness. Till she was absolutely certain that her making statements will serve a purpose, she did not come forward to do so. This is understandable given the fact that all previous attempts at securing justice for the victims had failed. The large number of acquittals in the cases demonstrated how the investigation was completely botched-up. It also demonstrated the power and influence of the accused and how witnesses could easily be won over. The atmosphere of distrust created as a result of these developments would have dissuaded the victims from coming forward to speak about what they knew.
xxx
240. In the context of these cases, the factum of delay cannot be used to the advantage of the accused but would, in fact, explain the minor contradictions and inconsistencies in the statements of the key eye-witnesses in the present case. Nothing in the deposition of PW-1 points to either untruthfulness or unreliability. Her evidence deserves acceptance.
xxx
262. The Court fails to understand why PW-6 would falsely implicate A-1. These are persons who had suffered tragedies and had no reason to falsely implicate anyone. It is also not as if they were naming all of the accused in a blanket manner. These witnesses have named only the accused to whom they can attribute a discernible role. Their testimony comes across as natural and believable and has been rightly relied upon by the trial Court in convicting A-2 to A-6. However, inexplicably, the trial Court leaves out material portions of such CBI Vs. Sajjan Kumar & Ors. Page No. 542 of 545 evidence and has, therefore, wrongly acquitted A-1."
While the said observations are significant but the circumstances of the present case are clearly different. The Ld. Counsel for the complainant had further relied upon the judgment in Sherey & Ors. v. State of U.P. 1991 Supp. (2) SCC 437 and 1991 SCC (Cri) 1059, wherein it was held that it would be safe to convict the appellants who were consistently mentioned as having participated in the attack from the stage of the earliest report and also to whom overt acts were attributed and it was contended that A1 had been named from the earliest moment but in light of what has been discussed above, there is no merit in the said submission. The Ld. Counsel had further relied on the judgment in Ranganayaki v. State by Inspector of Police (2004) 12 SCC 521 and 2004 SCC OnLine SC 1312 on Section 109 IPC and on the judgment in Somusundaram @ Somu v. State Represented by the Deputy Commissioner of Police (2020) 7 SCC 722:
(2020) 3 SCC (Cri) 465 and 2020 SCC OnLine SC 480, with regard to Section 149 IPC but in the present case, the testimony of the witnesses is not sufficient to categorically link the accused persons to the alleged offences.
415. Thus, the accused Vedu Pradhan had not been named by PW4, PW5 or PW6 and only PW7 had named him but there is no corroboration of the testimony of PW7. The accused Brahmanand had been named by PW4 but there is not much in her testimony to establish any of the offences. He was not named by PW5 or PW6 but PW7 had named him but again no conviction can be based only on the testimony of PW7. As CBI Vs. Sajjan Kumar & Ors. Page No. 543 of 545 regards A1, he had been named by PW4 but as discussed above, her testimony does not establish much as she herself had not seen him. PW5 and PW6 had also named him but their testimony does not establish the guilt of A1 beyond reasonable doubt in light of what has been discussed above. PW7 had also named A1 but in absence of corroboration, no conviction can be based on the testimony of PW7 alone. It is indeed sad that even after so many years, the killing of Surjeet Singh has to end in an acquittal but in the absence of cogent and clinching evidence, the hands of the Court are tied and it cannot convict the accused persons against the canons of criminal jurisprudence. No doubt extraordinary situations require extraordinary remedies and the Anti-Sikh riots of 1984 are what would be termed as an extraordinary situation which saw large scale killing of Sikhs but in the light of what has been discussed above, no conviction can be based on the material that has come on record.
CONCLUSION
416. From the aforesaid discussion, it is evident that the prosecution has failed to prove the charge against the accused persons beyond reasonable doubt. Accordingly, the accused Sajjan Kumar is given benefit of doubt and acquitted for the offences under Section 109 IPC read with Sections 147, 148, 149, 153A, 295, 302, 436 IPC and also for the offence under Section 153A IPC. The accused Ved Prakash Pial @ Veedu Pradhan and Brahmanand Gupta @ Gupta Telwala are acquitted for the offences under Section 109 read with Sections 147, 148, 149, 153A, 295, 302 and 436 IPC and also for the substantive CBI Vs. Sajjan Kumar & Ors. Page No. 544 of 545 offences under Sections 147, 148, 149 IPC and under Section 436 read with Section 149 IPC; Section 295 read with Section 149 IPC and Section 302 read with Section 149 IPC.
417. The accused Sajjan Kumar is in custody though on bail in this case. The accused persons are directed to furnish a bond under the provisions of Section 437A Cr.P.C.
ANNOUNCED IN THE OPEN COURT (GEETANJLI GOEL) ON 20th day of September, 2023 ASJ/SPL. JUDGE (PC ACT) (CBI)-24 ROUSE AVENUE DISTRICT COURT NEW DELHI CBI Vs. Sajjan Kumar & Ors. Page No. 545 of 545