It has to be stated right at the outset that in a landmark judgment titled Rajendra Pralhadrao Wasnik v State of Maharashtra in Review Petition (Criminal) Nos. 306-307 of 2013 in Criminal Appeal Nos. 145-146 of 2011 delivered on December 12, 2018 which is certainly going to be a trendsetter in the time to come, a three Judge Bench of the Supreme Court comprising of Justice Madan B Lokur while authoring this landmark judgment for himself, Justice S Abdul Nazeer and Justice Deepak Gupta clearly and convincingly held that criminals are also entitled to life of dignity and probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. We thus see that pertinent issues are discussed on ‘sentencing’ which shall be discussed indepth now in the coming paragraphs. It will help us better understand and appreciate the intricacies of law!

                                    To be sure, this landmark and laudable judgment begins at the outset by first and foremost stating explicitly in para 1 that, “ ‘Sentenced to death’ – these few words would have a chilling effect on anyone, including a hardened criminal. Our society demands such a sentence on grounds of its deterrent effect, although there is no conclusive study on its deterrent impact. Our society also demands death sentence as retribution for a ghastly crime having been committed, although again there is no conclusive study whether retribution by itself satisfies society. On the other hand, there are views that suggest that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored. There is also a view that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime.” Absolutely right! What wrong has the top court said? Nothing wrong!

                                      While buttressing its stand as spelt out in para 1 and going ahead, it is then observed in para 2 that, “These conflicting views make it very difficult for courts to take a decision and without expert evidence on the subject, courts are ill-equipped to form an objective opinion. But, a Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684 has thrown its weight behind a humanitarian approach and mandated consideration of the probability of reform or rehabilitation of the criminal and required the prosecution to prove that it was not possible for the convict to be reformed or rehabilitated. However, the Constitution Bench left open a corridor of uncertainty thereby permitting, in the rarest of rare cases, the pronouncement of a sentence of death. It is this paradigm that confronts us in these petitions.”  

                            Background

                                  Going forward, para 3 then elucidates the background of this landmark case. It says that, “The appellant is convicted for the rape and murder of a girl aged 3 years. The offence was committed in the intervening night of 2nd and 3rd March, 2007. On the basis of circumstantial evidence led by the prosecution, the appellant was found guilty of and convicted for offences punishable under Sections 376(2)(f), 377 and 302 of the Indian Penal Code (IPC) by the Sessions Judge, Amravati in Sessions Trial No. 183 of 2007 by a judgment dated 6th September, 2008.”

                                      Needless to say, it is then primarily pointed out in para 4 that, “With regard to the sentence to be awarded, the Trial Judge heard the prosecution and the appellant on 6th September, 2008 and again on 6th September, 2008 and again on 8th September, 2008 on which date he passed a preliminary order. Thereafter, the learned Sessions Judge passed an order on 10th September, 2008 awarding the sentence of death to the appellant.” Para 6 then brings out that, “On an overall view of the circumstances of the case, the Sessions Judge concluded that any alternative option of punishment is unquestionably foreclosed and therefore the only sentence that could be awarded to the appellant is of capital punishment.”

                                   Be it noted, para 7 then further goes on to mention that, “The appellant preferred an appeal against his conviction and sentence before the Bombay High Court being Criminal Appeal No. 700 of 2008. This was heard along with Criminal Confirmation Case No. 3 of 2008. Both these were taken up for consideration and the conviction was upheld and capital punishment awarded to the appellant was confirmed by the High Court by a judgment and order dated 26th March, 2009.”

                                        It cannot be lost on us that it is then very rightly pointed out in para 29 that, “The result of the above discussion is that ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence. The precautions that must be taken by all the courts in cases of circumstantial evidence is this: if the court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out; if the court has no doubt, on the circumstantial evidence, that the accused is guilty, then of course a conviction must follow. If the court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. Even in such cases, the court must follow the dictum laid down in Bachan Singh that it is not only the crime, but also the criminal that must be kept in mind and any alternative option of punishment is unquestionably foreclosed. The reason for the second precaution is that the death sentence upon execution, is irrevocable and irretrievable.”

                                     No doubt, it is also then elegantly pointed out in para 30 that, “Insofar as the present case is concerned, learned counsel for the appellant did not lay much stress on commuting the death sentence to one of life imprisonment only on the basis of the circumstantial evidence on record. Therefore, we need not examine the nature of the crime and other factors or detain ourselves in this regard. We have referred to the various decisions cited by learned counsel only for completeness of the record and to reaffirm the view that ordinarily death sentence should not be awarded in a conviction based on circumstantial evidence.”  

Reform, rehabilitation and re-integration into society

                        Simply put, it is then underscored in para 31 that, “The discussion on the reform or rehabilitation of a convict begins with the acknowledgement in Bachan Singh that the probability that a convict can be reformed and rehabilitated is a valid consideration for deciding whether he should be awarded capital punishment or life imprisonment. This Court has also accepted the view that it is for the State to prove by evidence that the convict is not capable of being reformed and rehabilitated and should, therefore, be awarded the death sentence.” It is then acknowledged in para 32 that, “This view has been accepted universally in all the decisions that were cited before us by learned counsel for the appellant.”

                                       Truth be told, para 45 then makes it abundantly clear that, “The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.”

                                   Having said this, it is then very rightly brought out in para 47 that, “Consideration of the reformation, rehabilitation and re-integration of the convict into society cannot be over-emphasised. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana (2013) 2 SCC 452 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet “In the sentencing process, both the crime and the criminal are equally important.” Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social re-integration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.”

                                 Continuing in the same vein, para 48 then states clearly that, “In other words, directing imprisonment for a period greater than 14 years (say 20 or 25 years) could unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment.” Very rightly so! There can be no denying it!

                        For esteemed readers exclusive indulgence, it would be imperative to now mention what para 73 says. It explicitly states that, “It is therefore quite clear from the various decisions placed before us that the mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence. Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right – that everyone is entitled to.”     

                                        As it turned out, we see that it is then observed in para 74 that, “Insofar as the present case is concerned, it has come on record that there are two cases pending against the appellant for similar offences. Both these were pending trial. Notwithstanding this, the Trial Judge took this into account as a circumstance against the appellant. It would have been, in our opinion, far more appropriate for the Sessions Judge to have waited, if he thought it necessary to take the pendency of these cases into consideration, for the trials to be concluded. For ought we know, the two cases might have been foisted upon the appellant and he might have otherwise been proved not guilty.”

                                 Quite remarkably, it is then elucidated in para 75 that, “We may generally mention, in conclusion, that there is really no reason for the Trial Judge to be in haste in awarding a sentence in a case where he might be considering death penalty on the ground that any other alternative option is unquestionably foreclosed. The convict would in any case remain in custody for a fairly long time since the minimum punishment awarded would be imprisonment for life. Therefore, a Trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. It must be appreciated that a sentence of death should be awarded only in rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned. In other words, courts must “make assurance double sure.” [Shakespeare’s Macbeth, Act IV, Scene I]”

                                            Finally and most importantly, let us now discuss the concluding paras. Para 79 stipulates that, “Insofar as the present petition is concerned, the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purpose of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.” Lastly, para 80 then concludes by holding that, “For all these reasons, we are of opinion that it would be more appropriate looking to the crimes committed by the appellant and the material on record including his overall personality and subsequent events, to commute the sentence of death awarded to the appellant but direct that he should not be released from custody for the rest of his normal life. We order accordingly.”

                              All said and done, it is a very progressive and humane judgment which accords the highest priority to even the right of criminal to lead a life of dignity and respect. It also lays down that the probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. It is very rightly held that, “A trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence.”

                                         The Apex Court also commendably said that there were views that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored and that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime. Absolutely right! There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

To begin with, it has been a long and gruelling wait of 34 long years for the survivors of 1984 anti-Sikh riots to finally see one big leader Sajjan Kumar being sentenced to life term by Delhi High Court in a recent landmark judgment titled State Through CBI vs Sajjan Kumar & Ors in CRL.A. 1099/2013 reserved on 29th October 2018 and pronounced on 17th December 2018. This landmark and laudable judgment was authored by Justice Dr S Muralidhar of Delhi High court for himself and Justice Vinod Goel. But there is still a long way to go because many other big stalwarts of Congress party like Jagdish Tytler among others have always been under the scanner but have somehow managed to save themselves from the long arms of the law as the Akali leaders among others keep pointing out repeatedly!

                                     At the outset, this historic judgment begins by bringing out that, “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 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.

The present appeals arise as a result of the investigation by the CBI into the killings of five Sikhs in the Raj Nagar Part I area in Palam Colony in South West Delhi on 1st and 2nd November 1984 and the burning down of a Gurudwara in Raj Nagar Part II. Six accused, including Sajjan Kumar a Congress leader who was a Member of Parliament at that time, were sent up for trial some time in 2010. Three years later, the trial court convicted five of the accused: three of them for the offences of armed rioting and murder and two of them for the offence of armed rioting. Sajjan Kumar stood acquitted by the trial Court of all offences. The convicted accused as well as the CBI appealed to this Court.  

In the judgment that follows this Court has partly allowed CBI’s appeal and reversed the acquittal of Sajjan Kumar. This Court has convicted him for the offences of criminal conspiracy and abetment in the commission of the crimes of murder, promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of communal harmony, defiling and destruction of the Gurudwara by burning. Further while affirming the conviction and sentences awarded by the trial court to the other five accused, this Court has additionally convicted and sentenced them for the offence of criminal conspiracy to commit the aforementioned crimes.

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.”

                                      Having said this, let us now turn to what the opening para i.e. para 1 of this landmark judgment says. It says that, “These appeals are directed against the judgment dated 30th April 2013 passed by the District & Sessions Judge, North-east District, Karkardooma Courts, Delhi (‘trial Court’) in SC No. 26/2010 arising out of FIR No. RC-SI-1/2005/S0024 registered at PS Delhi Cantonment acquitting Sajjan Kumar (Accused No. 1: ‘A-1’) of the offences of criminal conspiracy and abetment while, at the same time, convicting Balwan Khokar (‘A-2’), Mahender Yadav (‘A-3), Captain Bhagmal (Retd.) (‘A-4’), Girdhari Lal (‘A-5’), and Krishan Khokar (‘A-6’). The trial Court convicted A-2, A-4, and A-5 for the offences punishable under Sections 147, 148, and 302 read with 149 IPC. A-3 and A-6 were convicted for the offences punishable under Sections 147 and 148 IPC. By the order on sentence dated 9th May 2013, they have been sentenced in the following manner:

(i)                         For the offence punishable under Section 302 read with Section 149 IPC, A-2, A-4 and A-5 were sentenced to imprisonment for life along with payment of a fine of Rs. 1,000/- and, in default of payment of fine, to undergo rigorous imprisonment (‘RI’) for six months;

(ii)                      For the offence punishable under Section 147 IPC, all five convicted accused were sentenced to two years’ RI along with payment of a fine of Rs. 1,000/- and, in default of payment of fine, to undergo RI for six months;

(iii)                   For the offence punishable under Section 148 IPC, all five convicted accused were sentenced to three years’ RI along with payment of a fine of Rs. 1,000/- and in default of payment of fine, to undergo RI for six months.”    

                                  Needless to say, para 2 brings out that, “The Central Bureau of Investigation (‘CBI’) has filed Crl. A. 1099/2013 challenging the complete acquittal of A-1 and the acquittal of the other accused for the other charges framed against them. The complainant, Jagdish Kaur (PW-1), had also preferred Crl. A. 850/2013 against the acquittal of A-1 which was subsequently withdrawn, with this Court granting her liberty to address arguments in Crl. A. 1099/2013.” Para 3 then states that, “The convicted accused, have filed separate appeals. Crl.A.861/2013 has been preferred by A-2, Crl.A.715/2013 by A-3, Crl.A.851/2013 by A-4, Crl.A.710/2014 by A-5 and Crl.A.753/2013 by A-6.”

       Charges framed against A-1

                           As it turned out, para 4 then elucidates that, “Four articles of charge were framed against A-1. First, he was charged with having committed the offence of criminal conspiracy punishable under Section 120B read with Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC on account of entering into an agreement, on or about 31st October 1984, with A-2 to A-6 as well as Mala Singh, Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh, Raj Kumar @ Rajaram (all since deceased), and other known and unknown persons including police personnel to commit the following acts:

(i)     Rioting,

(ii)    Rioting armed with deadly weapon,

(iii)    Murder,

(iv)    Mischief causing damage,

(v)   Mischief by fire with intent to destroy houses etc.,

(vi) House trespass in order to commit offence punishable with death,

(vii)   Dacoity,

(viii)  Promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of harmony,

(ix) Injuring or defiling place of worship with intent to insult the religion of Sikh community, and

(x) Making statements conducing to public mischief.

                                                          Going forward, para 5 then says that, “Secondly, A-1 was charged with being a principal offender who abetted and instigated the aforementioned co-accused persons in the wake of the assassination of Smt. Indira Gandhi to commit, in pursuance of the aforementioned conspiracy, offences punishable under Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC and thereby having committed the offence punishable under Section 109 IPC read with the aforementioned provisions of the IPC.”

                                                   To be sure, para 6 then adds that, “Thirdly, A-1 was charged with having delivered fiery/provocative speeches to the mob gathered at Raj Nagar, Palam Colony, Delhi Cantonment on 1st/2nd November 1984 and having instigated and promoted violent enmity against the Sikh community and disturbed harmony between the two religious groups/communities of the locality in retaliation of the assassination of Smt.Indira Gandhi, giving rise to feelings of enmity, hatred, and ill will between members of the non-Sikh and Sikh communities which was prejudicial to the maintenance of harmony and disturbed public tranquility and was thereby guilty of committing the offence punishable under Section 153A IPC.”

                                                            In the same vein, it is then pointed out in para 7 that, “Fourthly, A-1 was charged with having publicly made a statement on 1st/2nd November 1984, to wit, by asking members of the Jat community to not leave any Sikh or any other person who had given shelter to Sikhs alive, inciting the mob gathered there by delivering fiery/provocative speeches and was thereby guilty of committing the offence punishable under Section 505 IPC.”

                          Charges framed against A-2 to A-6        

                                     Of course, para 8 then stipulates that, “Nine articles of charge were framed separately against the five other accused, viz. A-2 to A-6. Firstly, they were charged in a manner similar to A-1 with commission, on or about 31st October 1984, of the offence of criminal conspiracy punishable under Section 120B read with Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC.”

                                       Moving ahead, para 9 then goes on to state that, “Secondly, they were charged with having been members of an unlawful assembly on 1st/2nd November 1984 in Raj Nagar, Palam Colony, Delhi Cantonment using force and violence in pursuance of the common object to loot, damage, and burn the properties of the Sikh community as well as to kill members of the Sikh community residing in the area in retaliation to the assassination of Smt. Indira Gandhi and were thereby guilty of commission of the offence punishable under Section 147 IPC. Thirdly, they were charged with commission of the aforementioned acts while being members of an unlawful assembly armed with guns, jellies, iron rods/pipes, lathis, kerosene oil, etc. and were thereby guilty of commission of the offence punishable under Section 148 IPC.”

                                               As we see, it is then next pointed out in para 10 that, “Fourthly, they were charged with having committed, while being members of the aforementioned unlawful assembly, the murders of Kehar Singh son of Dhyan Singh, Gurpreet Singh son of Kehar Singh, Raghuvinder Singh son of Gurcharan Singh, Narender Pal Singh son of Gurcharan Singh, and Kuldeep Singh son of Hardev Singh and were thereby guilty of commission of the offence punishable under Section 302 read with Section 149 IPC. Fifthly, they were charged with committing mischief and causing loss and damage amounting to approximately Rs. 3,30,000/- while being members of the aforementioned unlawful assembly and were thereby guilty of commission of the offence punishable under Section 427 read with Section 149 IPC.”

                                                      Interestingly enough, para 11 then reveals that, “Sixthly, they were charged with committing mischief while being members of the aforementioned unlawful assembly by setting fire to a place of worship, viz. the Raj Nagar Gurudwara, as well as the dwelling houses H.No.RZ-1/129 & RZ-15, Shiv Mandir Marg, Raj Nagar, Palam Colony, New Delhi and were thereby guilty of the commission of the offence punishable under Section 436 read with Section 149 IPC. Seventhly, they were charged with having committed house trespass while being members of the aforementioned unlawful assembly by entering H.No.RZ-1/129 & RZ-15, Shiv Mandir Marg, Raj Nagar, Delhi Cantonment, which were the dwelling house of the five deceased persons, in order to commit the offence of murder which is punishable with death, and were thereby guilty of commission of the offence punishable under Section 449 read with Section 149 IPC.”

                More importantly, para 12 then reveals that, “Eighthly, they were charged with having committed dacoity while being members of the aforementioned unlawful assembly in H.No.RZ-1/129 & RZ-15 which belonged to the deceased persons, and were thereby guilty of commission of the offence punishable under Section 395 read with Section 149 IPC. Lastly, they were charged with destroying/damaging/defiling a place of worship, i.e. the Raj Nagar Gurudwara held sacred by the Sikh community, while being members of the aforementioned unlawful assembly with the common intention of insulting the Sikh religion and were thereby guilty of commission of the offence punishable under Section 295 read with Section 149 IPC.”

                                         Summary Of Findings

                                   Most importantly, it is time now to focus on what the summary of findings are of the two Judge Bench of Delhi High Court in this landmark case. Para 368 states that, “The summary of conclusions arrived at by the Court is as under: –

(i)           There was an abject failure by the police to investigate the violence which broke out in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi is apparent from the several circumstances highlighted hereinabove. (Para 136)

(ii)       There was an utter failure to register FIRs with respect to the five deaths that form the subject matter of the present appeals. The failure to record any incident whatsoever in the DDR and the lack of mention of PW-1“s statement therein, amongst other circumstances, established the apathy of the Delhi Police and their active connivance in the brutal murders being perpetrated. (Paras 146 and 149)

(iii)   What happened in the aftermath of the assassination of the then Prime Minister was carnage of unbelievable proportions in which over 2,700 Sikhs were murdered in Delhi alone. The law and order machinery clearly broke down and it was literally a “free for all” situation which persisted. The aftershocks of those atrocities are still being felt. (Para 152)  

 (iv)    This was an extraordinary 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 the investigations which saw any progress were not carried to the logical end of a charge sheet actually being filed. 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. (Para 159)

(v) The argument that the CBI deliberately suppressed the fact of the pendency of the closure report in FIR No. 416/1984 is born out of sheer desperation. Even if FIR No. 416/1984 was not closed as “untraced”, the fact remains that there was no progress whatsoever in the said FIR. (Para 160)

(vi) 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. Nothing in the deposition of PW1 points to either untruthfulness or unreliability. Her evidence deserves acceptance. (Paras 219 and 220)

(vii) PW-4 is also definitely a witness in support of the case of the prosecution. (Para 232)

(viii) PW-6 was one of the persons who had suffered tragedies and had no reason to falsely implicate anyone. (Para 242)

(ix) The failure to examine important witnesses including PWs 3, 4, 6, 7, 9 and 12 by the Riot Cell of the Delhi Police and also the non-examination of Daljit Kaur and Harbhajan Kaur establishes that the Riot Cell did not carry out any genuine investigation. PW-1 was justified in not joining such an investigation. (Paras 280 and 281)   

(x) The trial Court completely omitted to address the charge of conspiracy despite detailed arguments submitted by the CBI in that regard. There was a two-pronged strategy adopted by the attackers. First was to liquidate all Sikh males and the other was to destroy their residential houses leaving the women and children utterly destitute. The attack on the Raj Nagar Gurudwara was clearly a part of the communal agenda of the perpetrators. (Paras 288 and 294)

(xi) 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”. 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. (Paras 367.1 and 367.10)

(xii) Common to the instances of mass crimes are the targeting of minorities and the attacks spearheaded by the dominant political actors 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. 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. (Para 367.6)

(xiii) The acquittal of A-1 by the trial Court is set aside. He is convicted of the offence of criminal conspiracy punishable under Section 120B read with Sections 302, 436, 295 and 153A(1)(a) and (b) IPC; for the offence punishable under Section 109 IPC of abetting the commission of the aforementioned offences; and for the offence of delivering provocative speeches instigating violence against Sikhs Crl.A. 1099/2013 & Connected Matters Page 201 of 203 punishable under Section 153A (1) (a)and (b) IPC. (Para 307)

(xiv) The convictions and sentences of A-2 to A-6 as ordered by the trial Court are affirmed. Additionally, each of them is convicted for the offence of criminal conspiracy punishable under Section 120B read with Sections 436, 295, and 153A (1) (a) and (b) IPC. (Paras 331, 356, 360 and 366)

                    Sentences

                               No less important is the sentencing part of this landmark judgment. Let us deal with it one by one. First and foremost, para 369 states that, “As far as A-1 is considered, he is sentenced as under:

(i)                         For the offence of criminal conspiracy punishable under Section 120B read with

(a)          Section 302 IPC, to imprisonment for life, i.e. the remainder of his natural life,

(b)         Section 436 IPC, to RI for 10 years and fine of Rs 1 lakh and in default of payment of fine to undergo simple imprisonment (SI) for 1 year;

(c)           Section 153A(1)(a) and (b) IPC, to RI for three years; and

(d)         Section 295 IPC, to RI for two years.  

(ii)                      For the offence punishable under Section 109 read with Sections 302, 436, 153A, and 295 IPC to identical sentences as in (i) (a) to (d) above.

(iii)                   For the offence punishable under Section 153A(1)(a) and (b) IPC, to RI for three years.

All sentences shall run concurrently.

                                       Be it noted, it is then directed in para 370 that, “The bail and surety bonds furnished by A-1 stand cancelled and he shall surrender not later than 31st December 2018, failing which he shall forthwith be taken into custody to serve out the sentences awarded to him. A-1 shall not from this moment till his surrender leave the NCT of Delhi in the meanwhile and shall immediately provide to the CBI the address and mobile number(s) where he can be contacted.”                

                               All said and done, it is a landmark and laudable judgment but the victims of the 1984 anti-Sikh riots have had to wait for far too long more than 34 years which is most disgusting and disgraceful! Even now they have to fight a long legal battle in the Supreme Court! They must be given top priority and decided at the earliest! Nearly 3000 Sikhs being killed in Delhi alone and no one being hanged or even awarded life term until recently is a huge national shame for which both Centre and the judiciary are equally responsible for not doing enough to act swiftly and sternly against the powerful political offenders!

                          Before concluding, let me again remind esteemed readers what is so rightly pointed out in para 367.6 of this landmark judgment. It says that, “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.” So this must be done at the earliest as has been very rightly pointed out by the Delhi High Court in this landmark judgment! There can be no denying it!

                                In conclusion, if there has to be respect for law in our country, the punishment for those indulging in such heinous crimes has to be swift and strict! Just because accused enjoys political patronage they should not be allowed to evade the due process of law as we have seen in many cases including  this one also for many decades because this would tantamount to making a mockery of our legal system and due process of law which cannot be permitted to happen in our country under any circumstances because doing so would lead our country to anarchy, dictatorship and lawlessness! No one who indulges in crime should ever be allowed to get away under any circumstances.

                                       It cannot be lost on us that in this 1984 anti-Sikh riots also there are many other big fishes who are still roaming free and they too must be brought to book and after following due process of law must be sent behind bars or to gallows which is the right place for them who mercilessly ensured the killings of thousands of Sikh men, women and even children without having any mercy on anyone! Can anyone deny this? Why have they been allowed to take law for granted? Why the killers were not sent to gallows promptly? Why even after killing of nearly 4000 Sikhs all over the country, no one has been hanged till now?

                                   Bluntly put: What image does this send of India in abroad? That one can get away with doing anything provided one has the right connections and the right political patronage! This must end now once and for all! No one should be allowed to get away after committing crime of any kind! Only then will our image in international forum get strengthened which will not just garner more investment in India from other countries but also strengthen India’s demand for a permanent seat in the UN Security Council! Also, this will severely hamper hostile countries like Pakistan from easily misguiding young Sikh youths and they will also realize that in India no one who killed their near and dear ones are being spared or left scot free just because of their political connections! India must act tough now on killers and those who masterminded such mass killings must be now punished most swiftly and most strictly!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.