Showing posts with label Guest Post. Show all posts
Showing posts with label Guest Post. Show all posts
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.   
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All parents want their kids to do well in their exams. As such, it is only normal for them to want their teens get good scores in one of the most important tests they will ever take in their lives: the SAT.


Although there aren’t many things you can do as a parent to ensure your child aces his or her SAT (after all, you won’t even be in the testing room on the day of the exam), there are still several ways you can help him or her prepare well for the upcoming test.

Here are some of them:

1.    Enroll your teen in a reputable SAT review center


One of the best ways you can help your child prepare sufficiently for the SAT is to enroll him or her in a good review center.

Trusted providers of SAT preparation classes will have highly-qualified instructors who will share their knowledge and expertise to their students to enable them to get high scores in their first exam.  

To ensure the students get the support they need, they will undergo a screening process first. The instructors will then identify the areas where a student needs the most help and create a personalized study plan that will target these areas for improvement while addressing the other subjects as well.

2.    Ensure your child attends these prep classes


Enrolling your teen in a good SAT prep class is one thing; making sure he or she attends them as scheduled is another.

Aside from preparing for their SAT, senior students will have a lot of other things on their mind: completing their various academic requirements, working on their college applications, participating in extracurricular activities, etc. Your teen may forget to attend his or her review classes because of his or her busy schedule.

You can make sure your child doesn’t miss out on any review classes by reminding him or her of the schedule and driving him or her to the review center. These classes don’t happen every day so driving your teen to the facility and waiting for him or her for an hour or so shouldn’t be a big hassle for you.

3.    Look for additional SAT test prep resources


Supplement your child’s learning from the review center by looking for additional SAT prep resources online.

There are a number of free SAT test prep tools which your teen can use to increase his or her knowledge and expertise in certain subject areas. You should also look for video lessons, practice questions, and full-length SAT practice tests which your child will find helpful as well.

In addition, find out if your child’s school offers test prep programs as well. Many secondary schools offer free or inexpensive review courses which can be an option or additional prep class for your teen.

4.    Help your child choose the best test date


Work with your teen to select the best date to take the SAT exam. Make sure there is enough time for your child to review before the date of the exam.

To avoid missing any college application submission deadlines, choose a schedule that will allow your teen to get the result before the cutoff time as well.

Additionally, check if any colleges or universities on your child’s list require SAT subject tests. These tests measure a student’s knowledge in certain subjects such as English, math, and biology. These tests cannot be taken on the same day as the main SAT test, so you will have to add them to your child’s exam timetable.

5.    Show your support and unconditional love


Lastly, your teen will be under a constant barrage of stress from reviewing for the SAT, finals, completing projects, etc. The last thing he or she needs are your frequent reminders about doing well on the SAT so that he or she can go to his or her college of choice.

You can avoid adding to your child’s heightened level of stress by not pressuring him or her to spend all his or her vacant time reviewing. Encourage him or her to take frequent study breaks to give his or her brain and body some time to relax and re-energize.

Finally, your teen already knows the importance of getting a good SAT score so you don’t need to remind him or her about this every day.

If you want to really show your support your child, let him or her know that you will help him or her in every way you can. Moreover, explain to your teen that if he or she doesn’t get an impressive score, it isn’t the end of the world.

With your help throughout the whole SAT prep process, your child will have higher chances of getting an amazing score and getting into his or her preferred college or university.


AUTHOR BIO
Maloy Burman is the Chief Executive Officer and Managing Director of Premier Genie FZ LLC. He is responsible for driving Premier Genie into a leadership position in STEM (Science, Technology, Engineering and Mathematics) Education space in Asia, Middle East and Africa and building a solid brand value. Premier Genie is currently running 5 centers in Dubai and 5 centers in India with a goal to multiply that over the next 5 years.


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It must be noted first and foremost that in a landmark judgment with far reaching consequences for Assistant Public Prosecutors, the Aurangabad Bench of Bombay High Court in Maharashtra State Public Prosecutors Association Through its President Sanjay Purushottam Deshmukh versus 1. The State of Maharashtra Through its Secretary, Home Department, Mantralaya, Mumbai. 2. The Director of Prosecution, State of Maharashtra, Church Gate, Mumbai in Writ Petition No. 8117 of 2017 which was  reserved on 10th July 2018 and pronounced on 24th August 2018, has quashed resoundingly a government resolution dated May 12, 2015 imposing a condition that the Assistant Public Prosecutor, whose rate of conviction is less than 25% of the cases handled by him, is not entitled to promotion and thus accepted the contention of the petitioners as valid. A Division Bench of Justice SV Gangapurwala and Justice SK Kotwal at Aurangabad held that the said notification was irrational, unreasonable and against the law of the land. So it had to be quashed and naturally so! The Court was hearing a writ petition filed by Maharashtra State Public Prosecutors Association and the respondents were State of Maharashtra and the Director of Prosecution in the State. PR Katneshwarkar was advocate for the petitioner and NT Bhagat, A.G.P. for the State/respondent No. 1.Image result for bombay high court

            Submissions

                                 As it turned out, para 5 brings out that, “Learned Counsel for the petitioner submits that the impugned Government Resolution, specially Clause Nos. 4 and 7, mandating the Assistant Public Prosecutors in Maharashtra State to secure minimum 25% conviction in criminal cases for getting promotion, is unreasonable, contrary to the provisions of Criminal Procedure Code and decision of Supreme Court as well as decision of the High Court.”

                            To be sure, para 6 then points out that, “Learned Counsel for the petitioner submits that the Public Prosecutor, who represents the State in the criminal trial, is not expected to assure the State that in any case he would secure the conviction. On the other hand, being officer of the Court it is the duty of Public Prosecutor to place before the Court every material collected by the Investigating Officer fairly, irrespective of the fact whether it supports the prosecution case or not.”

                                         Bluntly put: Who can deny or dispute this? How can the Investigating Officer be biased and always disposed towards securing the conviction of the accused under any circumstances? Will this not make an open mockery of justice which always demands neutrality from not just Judges but also the Investigating Officers?  

                       It also cannot be lost on us that it is rightly contended in para 7 that, “Learned Counsel for the petitioner submits that the result of criminal trial depends on quality and quantity of evidence collected by the Investigating Officer and not on the performance of the Public Prosecutor. There is no nexus between the performance of Public Prosecutor and conviction or acquittal.” Absolutely right! To link the performance of Public Prosecutor with conviction or acquittal would be downright absurd!

                                   No wonder, it is then rightly stated in para 8 that, “His last submission is that the impugned Government Resolution being irrational and against the law of the land, deserves to be quashed. He placed reliance on the case of “S.B. Shahane and others Vs. State of Maharashtra and another”, [1995 Supp (3) Supreme Court Cases 37] and “Sushil Hiralal Chokhani Vs. State of Maharashtra”, [(2005) All M.R. (Cri.) 2673].” Can any sane person call such a Government Resolution rational? Speaking for myself, it has been rightly quashed by the Aurangabad Bench of the Bombay High Court!

                                    It would be apposite to now mention what has been contended by the Respondents. To begin with, it is pointed out in para 9 that, “Learned Counsels for the respondents submit that in the Maharashtra the rate of conviction in criminal case is less which compelled the Government to take policy decision and to pass the impugned Government Resolution for improvement in conviction rates, which is neither bias nor malafide, and therefore, the Court cannot interfere with the same. They submit that the conviction rate in Maharashtra State has dropped drastically as compared to the other States, which affects the public at large and sends a wrong signal to the society. The impugned Government Resolution was passed as a policy decision for achieving greater conviction rate and such sincere act of the State cannot be interfered by the Court.”

                                 Continuing in the same vein, it is then brought out in para 10 that, “Learned Counsels for the respondents submit that the respondents conduct seminars and workshops for the Public Prosecutors with sole object to help them to become competent and achieve higher conviction rate.” Para 11 then states that, “Respondents placed reliance on the case of “Delhi Science Forum Vs Union of India”, [1996 (2) SCC 405] wherein it is held that, “The Courts have their limitation as these issues rest with the policy makers of the nation. No directions can be given or is expected from the Courts while implementing such policies, unless there is a violation of infringement of any of the provisions” and “Tamil Nadu Education Department Vs State of Tamil Nadu”, (1980 Vol 3 SCC 97) wherein it is held that, “What was regarded as administratively impractical might, on later thought and activist reconsideration, turn out to be feasible and fair. The Court cannot strike down a Government Order or a Policy merely because there is a variation or contradiction. Life is sometimes a contradiction and even consistency is not always a virtue. What is important to know whether mala fide vitiates or irrational and extraneous factors foul”.”   

                                    Needless to say, para 12 then states that, “In fact, after going through the affidavit filed by respondent No. 2, it reveals that the respondent No. 2 has not played any role for passing the impugned Government Resolution and it was the policy decision of Government of Maharashtra. Our attention was drawn to the case of “Brij Mohanlal Vs Union of India and others”, [(2012) 6 SCC 502] wherein while considering when the Court should or should not interfere in the policy decision of the State, the following parameters are laid down:

(I)                         If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(II)                     The change in policy must be made fairly and should give the impression that it was done so arbitrarily on any ulterior intention.

(III)                  The policy can be faulted on grounds of mala fides, unreasonableness, arbitration or unfairness, etc.

(IV)                 If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(V)                     It is dehors the provisions of the Act or legislations.

(VI)                 If the delegate has acted beyond its power or delegation.”

                            After perusal of all the facts before it by the respondent, the Bench notes in para 13 that, “No doubt, after going through the data placed on record by the respondents, it is clear that conviction rate in Maharashtra State is dropping down. Now the question arises whether to enhance the conviction rate the Public Prosecutor, who represent the State in the criminal trial, can be compelled to get conviction at least in 25% cases handled by them.”

                           Going forward, it is then pointed out in para 14 that, “In the case of “S.B. Shahane and others Vs State of Maharashtra” (supra), while giving directions to the Government to separate Prosecution Department from Police Department, the Apex Court considered 14th Law Commission Report. The relevant paragraphs of that report are reproduced as under:-

“Para 12 – Police Prosecutors and their functioning –

                 It is obvious that by the very fact of their being members of the Police Force and the nature of the duties they have to discharge in bringing a case in court, it is not possible for them to exhibit that degree of detachment which is necessary in a prosecutor. It is to be remembered that a belief prevails amongst the Police Officers that their promotion in the Department depends upon the number of convictions they are able to obtain as prosecuting officers. Finally, they only control supervision of the work of these prosecuting officers that is exercised by the Department Officials.”

“Para 15. – Suggested remedial measure –

We therefore suggest that as a first step towards improvement, the prosecuting agency should be completely separated from the Police Department. In every district a separate prosecution department may be constituted and placed in charge of an official who may be called a ‘Director of Public Prosecutions’. The entire prosecution machinery in the District should be under his control. In order to ensure that he is not regarded as a part of the Police Department he should be independent official directly responsible to the State Government. The departments of the machinery of the Criminal Justice, namely, the Investigation Department and the prosecuting department should thus be completely separated from each other.”   

                                            It would be of immense significance to note here that para 15 explicitly states that, “After considering the above observations of the Law Commission, the Apex Court found that the Police Prosecutors who were functioning under the administrative and disciplinary control of the superior officers of the police force, were not able to exhibit needed degree of detachment expected of Prosecutors because their promotions to higher post in Department depended on the number of conviction they were able to obtain from the Court in the prosecutions conducted by them. Therefore, it was felt that the Prosecution Department should be beyond the control of police administration.”

                             Moving on, it is then observed in para 16 that, “The Apex Court in the case “State of Bihar Vs Ramnaresh Pandey and another” reported in (AIR 1957 SC 389) observed that the Public Prosecutor is an officer of the Court and he is bound to assist the Court with his fairly considered view and Court is entitled to have the benefit of the fair exercise of his function. Following this view the Division Bench of this Court in the case of “Sushil Chokhani” (supra) also held that the duty of Public Prosecutor is not merely to secure the conviction of and imposition of punishment to the accused. It is his primary duty to place before the Court all the evidence collected by investigating agency whether it be in favour or against accused for consideration thereof by the Court. Utmost fair and impartial attitude is expected in that regard from the Public Prosecutor.”

                                        Having said this, we now need to turn our attention to para 17 which while underscoring the need for Public Prosecutors to perform their duty impartially and drawing red lines for the State observes clearly and convincingly that, “Thus, it is clear that Public Prosecutors being an officer of the Court, is not expected to only grab the conviction, but is expected to act fairly before the Court and his performance should be only in the form of assistance to the Court for arriving at proper conclusion regarding conviction or acquittal of the accused. Considering such impartial duty to be performed by the Public Prosecutor, the State cannot set target before the Public Prosecutors to get conviction at least in 25% criminal cases handled by them. What is expected by the State of Maharashtra from the Public Prosecutor is totally against law as discussed above. In other words, by passing the impugned Government Resolution, the State Government cannot fix bench-mark for the Public Prosecutors to secure at least 25% conviction in the criminal cases handed by them, to get promotion.”

                             While underscoring the critical role played by the Investigating Officer, it is then pointed out in para 18 that, “The conviction or acquittal in criminal trial depends on various factors and mainly on the quality of material collected by the Investigating Officer. If the Investigating Officer has collected good quality of material as evidence against the accused and if he has taken necessary precaution while sealing and forwarding the important Muddemal articles to Chemical Analyst, certainly such case may result into conviction, provided that material witnesses stand constant at the stage of evidence. For conviction, the credit goes to Investigating Officer and witnesses. The conviction in criminal trial is not merely related with performance of the Public Prosecutor but as discussed supra depends upon various factors.”

                                  While punching holes in the impugned Government Resolution mandating 25% conviction in criminal trial, para 19 then goes on to add that, “Therefore, issuance of the impugned Government Resolution mandating achievement of 25% conviction in criminal trial is only as a result of above-said misconception. If any negligence has been committed by the Public Prosecutor while conducting the case, that cannot be ascertained only from conviction or acquittal, but it can be ascertained only on examination of the record of that particular case. Therefore, we hold that the condition of particular conviction rate to be achieved by Public Prosecutors, embodied in the impugned Government Resolution is definitely unreasonable.”

                                 Now coming to the concluding paras 20 to 22. Para 20 minces no words in concluding that, “Thus, the impugned Government Resolution is irrational, unreasonable and against the law of the land. Therefore, in view of the parameters laid down by the Apex Court in the case of Brij Mohan Lal” (supra), this Court can definitely quash the impugned Government Resolution. It follows that this Writ Petition deserves to be allowed.” Para 21 states that, “The Writ Petition is allowed. The impugned Government Resolution dated 12.05.2015 is quashed.” Finally, the judgment is concluded in para 22 by observing that, “Rule is made absolute in the above-said terms. Parties to bear their respective costs.”

                                       In the ultimate analysis, it is an exemplary and elegantly written landmark and laudable judgment which certainly deserves to be applauded! It is worth emulating by all the courts in all parts of India! This will ensure that Public Prosecutors can impartially render their job without getting biased with pre-determined notion to ensure conviction of accused at any cost to fulfil the criteria of ensuring the set 25% conviction rate to be eligible for promotions and other benefits which is downright absurd and can never serve the true purpose of justice in the real sense! No doubt, the Aurangabad Bench of Bombay High Court which has dared to deliver this landmark judgment deserves unqualified appreciation for it! It is the biggest warning to all States that they should desist from setting such ridiculous criteria and those who have already done so must immediately make suitable amendments to comply unconditionally with what the Aurangabad Bench of Bombay High Court has laid down so emphatically in this landmark case!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.
0
oming straight to the nub of the matter, it has to be said right at the outset that in a landmark judgment with far reaching consequences, the Delhi High Court on August 24, 2018 in Kulwinder v State (NCT of Delhi) in CRL.A. 129/2012 held 20 more people guilty of killing a 60-year-old Dalit man and his physically-challenged daughter at Mirchpur village in Haryana’s Hissar district in 2010, while dismissing the appeals filed by 15 convicts against the various sentences awarded to them. The Bench of Delhi High Court comprising Justice S. Muralidhar and Justice I.S. Mehta also upheld acquittals of 21 other accused, holding that there was insufficient evidence to establish their guilt. So it was but natural that they had to be acquitted!
Mirchpur Dalit Killings

                                         As things stand, while convicting 20 more people and dismissing all appeals by those already convicted, the Delhi High Court opined that the trial court indulged in “conjectures and surmises” asserting vocally that, “This was an act of deliberate targeting of the Balmiki houses by the Jat community mob and setting them on fire in a pre-planned and carefully orchestrated manner. The entire evidence, if read carefully, more than adequately demonstrates that there was a large scale conspiracy hatched by members of the Jat community to teach the Balmikis a lesson and pursuant to that conspiracy, houses of the Balmiki community were set on fire.” It may be recalled here that the house of one Tara Chand was set on fire resulting in burning alive of the father and daughter on April 21, 2010 after a dispute between Jat and Dalit community of the village. What was then witnessed was that 254 families of the Balmiki community then had to flee Mirchpur as a result of the horrifying violence which they were subjected to at the hands of the Jat community. They were thus rendered homeless as 18 houses of Balmikis which is a Dalit community were burnt by an irate mob of Jats!

                                                  It cannot be lightly dismissed that many Balmikis suffered injuries and their properties were destroyed. The trigger for this heinous crime was a seemingly trivial incident that took place on the evening of 19th June 2010 when a dog which belonged to a Balmiki resident barked at a group of Jat youth returning to their dwelling places through the main thoroughfare of the village. More than eight years later, many of those who fled are yet to return to Mirchpur!

                                       To be sure, of the 103 accused persons sent up for trial, five were juveniles and were tried before the Juvenile Justice Board (“JJB”) in Hissar. Of the remaining 98, the trial ended in the acquittal of 82 of them and the conviction of 16 of them. These seven connected appeals arise out of the impugned judgment of the trial Court.

              The present appeals

                   As it turned out, it is observed in para 3 of this landmark judgment that, “Two of the seven appeals have been preferred by the State, one of them by the original complainants, and four have been preferred by the convicted accused persons. Six of the seven appeals seek to assail the judgment dated 24th September 2011 passed by the learned Additional Sessions Judge (‘ASJ’)-11, North-West District Rohini Courts (hereinafter referred to as ‘trial Court’) in SC No. 1238/2010 arising out of FIR No. 166/2010 registered as PS Narnaund, Haryana. By the said judgment, 15 of the 97 accused persons who had been charged with offences punishable under the Indian Penal Code (‘IPC’) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘POA Act’) were convicted and sentenced in terms of the consequential order on sentence dated 31st October 2011.” Para 4 further observes that, “The seventh appeal, i.e. Crl.A. 1472/2013, is an appeal by the State against the judgment dated 6th October 2012 in SC No. 1238A/2012 arising out of FIR No. 166/2010 whereby the accused Jasbir @ Lillu son of Raja (A-58) was acquitted of all the offences with which he had been charged except for that punishable under Section 174A IPC to which he pleaded guilty and was sentenced in terms of the consequential order on sentence dated 12th October 2012.”

                              Going forward, para 5 further states that, “The State’s appeal, i.e. Crl.A. 1299/2012 against the judgment dated 24th September 2011 has a total of 90 Respondents. The convicted accused persons have been impleaded as Respondent Nos. 1-15 while the acquitted accused persons have been impleaded as Respondent Nos. 16-90. Para 6 points out that, “The original complainants, i.e. Kamala Devi wife of Tara Chand, Pradeep son of Tara Chand, Gulab son of Jai Lal, Sube Singh son of Bhura Ram, and Satyawan son of Roshanlal, have preferred Crl.A. 139/2012. Therein, the State has been impleaded as Respondent No. 1; the convicted accused persons have been impleaded as Respondent Nos. 2-16; and the accused persons acquitted by the judgment dated 24th September 2011 have been impleaded as Respondent Nos. 17-90. Four of the accused persons died during the pendency of these appeals, viz. Baljit son of Inder (Accused No. 42: ‘A-42’), Bobal @ Langra son of Tek Ram (A-94), Rishi son of Satbir (A-23), and Jagdish @ Hathi son of Baru Ram (A-17).”

        Transfer of the trial to Delhi

                             More importantly, para 7 of this landmark judgment observes that, “As already noted, the charge-sheet in the present case was originally field against 103 accused of which five were juveniles. Therefore, the trials against them were separated and conducted before the JJB at Hissar. Initially, the criminal case against the remaining 98 accused was before the ASJ at Hissar. In fact, the learned ASJ at Hissar had also framed charges against the 98 accused persons by an order dated 6th September 2010. However, pursuant to the order dated 8th December 2010 passed by the Supreme Court of India in W.P.(C)211/2010, SC No.3-SC/ST pending before the Court of the ASJ at Hissar was transferred to the Court of the ASJ at Delhi which was notified as a Special Court under the POA Act and the trial was directed to commence de novo.

                         Charges

                               Suffice to say, in para 8 it was clearly and categorically held about charges that, “The learned ASJ at Delhi passed an order on charge on 10th March 2011 whereby it was held that there was sufficient material to frame charges against various accused persons. Subsequent thereto, 12 separate charges were framed qua 97 accused persons under Sections 120B/302/147/148/149/323/325/395/397/427/435/436/449/450/452IPC as well as under Sections 3(1)(x) and (xv) and 3(2)(iii), charged under Section 216 IPC due to the allegation against him that he had harboured/concealed Sanjay @ Handa son of Dayanand (A-77) with the intention of preventing him from being apprehended. Vinod son of Ram Niwas (A-37), who was the Station House Officer (‘SHO’) of PS Narnaund at the time of the incident, was also charged under the aforementioned provisions of the IPC as well as under Section 4 POA Act for wilfully neglecting his duties as a public servant and who was not a member of a Scheduled Caste (‘SC’) or Scheduled Tribe (‘ST’) during the incident at village Mirchpur. All the accused pleaded not guilty to the charges and claimed trial.” Para 9 further brings out that, “Jasbir @ Lillu son of Raja (A-58 : Respondent in Crl.A. 1472/2013) was declared a proclaimed offender (‘PO’) by the trial Court on 27th September 2011 when he absconded at the stage of recording of the statements of the accused persons under Section 313 CrPC. Therefore, his case was separated out. Trial proceeded from then on against the remaining 97 accused persons.”

   Convictions and sentences awarded by the trial Court

                               It is clearly brought out in para 10 that, “As far as the remaining 97 accused were concerned, by the judgment dated 24th September 2011, the trial Court convicted 15 of them while acquitting the remaining 82 of all charges.” They had now challenged their conviction, while the victims and the police had also appealed against the acquittal of the others, as well as for enhancement of the sentences already awarded.

Absence of fraternity and equality in the Indian society

                            Needless to say, while convicting 20 more people and dismissing all appeal by those already convicted, the Delhi High Court took stock of the current situation of the displaced families, noting that those who decided to stay back at Mirchpur village did not support the prosecution in the present criminal trial, and it was only those who decided not to return who did participate. It further noted that while the Government of Haryana has sought to rehabilitate the displaced families, it is not in Mirchpur but in a separate township. The Delhi High Court very rightly observed that, “The question is whether this accords with the constitutional promise of equality, social justice and fraternity assuring the dignity of the individual.”  

                                      It cannot be lost on us that the Delhi High Court then opined explicitly that the instances of atrocities against the Scheduled castes by those belonging to dominant castes still continue, despite 71 years having passed since independence. This, it observed, was evidence of the lack of equality and fraternity in the Indian society. It observed bluntly and boldly that, “71 years after Independence, instances of atrocities against Scheduled Castes by those belonging to dominant castes have shown no sign of abating. The incidents that took place in Mirchpur between 19th and 21st April 2010 serve as yet another grim reminder of “the complete absence of two things in Indian society” as noted by Dr. B.R. Ambedkar when he tabled the final draft of the Constitution of India before the Constituent Assembly on 25th November 1949. One was ‘equality’ and the other, ‘fraternity’.”

          Cannot accept allegations of false implications

                                 No prizes for guessing that the Delhi High Court also steadfastly refused to accept the allegations of the accused being falsely implicated by the victims, opining that the victims had suffered too huge a personal loss to allow such a finding. It minced no words in observing point blank that, “The atmosphere of fear created by the members of the dominant Jat community was evidently so severe that the confidence of the members of the Balmiki community about their safety and security in Mirchpur is yet to be restored. It is too cynical to characterize the statements given by many of the victims as having been motivated only by the expectation of the compensation announced by the government. Many of the victims lost their properties, were injured and had their houses burnt. The trauma and shock of the incident has left such deep scars that many of them could not gather the courage to speak to the police for many days thereafter. It is in this context that the Court is disinclined to accept any of these submissions regarding alleged false implication of the accused by the victims.”

                 Summary of Court’s findings

                          Finally and most importantly, the Delhi High Court Bench comprising of Justice S. Muralidhar and Justice I.S. Mehta then summarized its findings in para 336. It observed that, “The observations and findings of this Court in the present case may be summarized as follows: -

(i)             There is a clear causal link that exists between the incidents that occurred on 19th, 20th and 21st April 2010 which was overlooked by the trial Court. The incident of 21st April 2010 has to be viewed in the context of the prevailing tension due to the perceived slight against the Jat community by persons from the Balmiki community which occurred on 19th April 2010 and then escalated.



(ii) The need to exaggerate the altercation between some Balmiki boys and Rajender, Karampal and Dinesh that occurred in the early hours of 21st April 2010, as an aggravated assault indicates the simmering tension that was prevalent in the village at the time, which was like a gunpowder keg kept waiting for a spark. This was again missed by the trial Court by seeing the incident on the morning of 21st April 2010 as a one off incident which had nothing to do with the events of 19th and 20th April 2010.



(iii)       Consequently, this Court is unable to subscribe to the sequence of events that has been laid down by the trial Court or its analysis of the same in trying to shift the blame onto the Balmiki boys for attacking members of the Jat community on the morning of 21st April 2010, which proved to be the spark that set off the violence that ensued on that date.



(iv) From the layout of the village, it is apparent that the Balmiki basti was located in one corner of the village abutting fields which lay to the south and surrounded by the dwellings of the Jat community on all other sides. There was no difficulty at all for the Jats to identify the Balmiki houses and attack them. In that sense, it could be said that the houses were attacked selectively. The conclusion drawn by the trial Court with regard to the selective targeting of the houses of the Balmikis is, therefore, set aside by this Court.



(v) The damage and destruction that is evidenced from the record is widespread and, in the opinion of this Court, could not have been carried by a small group of Jat youth as is speculated by the trial court. There is no doubt that it was indeed a mob which made a coordinated and premeditated attack on the Balmiki basti.  



(vi)  The conclusion of the trial Court that there was no criminal conspiracy is unsustainable in law. The trial Court failed to examine the photographs, videograph, and site plans in its analysis of the events of 21st April 2010 and erred in accepting the alternative version of the incident on 21st April 2010 as put forth by the defence. This part of the finding of the trial Court is, therefore, set aside by this Court.    



(vii) It is clear in the present case that an unlawful assembly comprising members of the Jat community was formed with the common object of setting fire to the properties of the Balmiki community and perpetrating violence against them, as it stands established that the members of said unlawful assembly came armed with stones and oil cans as well as lathis, jellies and gandasis which, in the present context, may be considered deadly weapons. The common object of the unlawful assembly was to “teach the Balmiki community a lesson”. Section 149 IPC is, therefore, clearly attracted.  



(viii) Section 3 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 introduced an altogether new Schedule to replace the earlier one wherein the Scheduled Castes in the State of Haryana were also listed in Part V. The Balmiki caste is listed under Entry No. 2 of Part V as a Scheduled Caste. Therefore, the offences committed against the Balmiki community attract the POA Act.



(ix) As regards the offences committed with the intention to humiliate the Balmikis that have been adverted to by the prosecution, this Court finds that the evidence adduced in this regard is not sufficient to find any of the accused guilty of the offence under Section 3(1)(x) of the POA Act.



(x) There is abundant evidence to show that at least 254 Balmiki families left Mirchpur and sought shelter in Ved Pal Tanwar’s farmhouse due to the attack suffered at the hands of the Jat mob. It is the collective act of violence by the Jats that compelled these 254 families of the Balmiki community to leave the village. Many of them are still awaiting rehabilitation and reparation. They have been too scared to return. The offence under Section 3 (1) (xv) of the POA Act stands established beyond reasonable doubt and is made out qua some of the accused to whom notices have been issued in the present case.



(xi) As regards the accused who have been held to be involved in the burning of the houses of the deceased Tara Chand, his wife Kamala or Dhoop Singh, the offence under Section 3(2)(iv) POA Act stands attracted, whereas for those accused who have been held to be involved in the damage by fire caused to the other houses, the offence under Section 3(2)(iii) POA Act stands attracted.



(xii) The finding of the trial Court that this was not an instance of violence driven by caste hatred is unsustainable and is hereby set aside. The prosecution has been able to establish beyond reasonable doubt that the offences under Section 3(1)(xv) and Section 3(2)(iii),(iv) and (v) POA Act stand attracted qua some of the accused persons.



(xiii) Section 8 (b) POA Act is of particular relevance in the present case since it makes specific reference to a group of persons committing an offence as a sequel to an existing dispute regarding land “or any other matter”. In such a scenario, it is stipulated that the presumption is drawn as regards the common intention and prosecution of the common object. In the context of the incident of 19th April 2010 and the incident that subsequently occurred on 21st April 2010, the presumption under Section 8 (b) stands attracted.



(xiv) This Court’s findings with respect to the POA Act and the incident of 21st April 2010 are as follows:

1.  There was a deliberate targeting of the houses of the Balmikis by the Jats;

2.  This was an instance of caste based violence meant to teach the Balmikis a lesson for the perceived insult caused to the Jats on 19th and 21st April 2010;

3.  The Jats had planned their attack in advance and had come to the Balmiki basti well armed with oil cans, rehris filled with stones, lathis, gandasis, jellies etc.;

4.  The properties of the Balmikis were burnt and their belongings were damaged/destroyed as is evidenced by the photographs and videograph on record.  



(xv) The inconsistencies and omissions highlighted by the trial Court in rejecting the testimonies of multiple PWs do not materially affect the case of the prosecution. The said witnesses, as discussed, remained unshaken and were, therefore, reliable.



(xvi) The mere fact that a TIP was not conducted in the present case would not vitiate the testimonies of the witnesses who have identified the assailants in the Court. Furthermore, merely because a witness belongs to the Balmiki community or may be closely related to a victim does not mean that such evidence should be disregarded per se.



(xvii) The disregard by the trial Court of the evidence of PWs 42 to 50 only on the ground that none of them came forward to save the two deceased or accompany them to the hospital even though they were related to them is an unacceptable finding. It fails to acknowledge that the situation that existed in Mirchpur on 21st April 2010 was such that the Balmikis were in a vulnerable position, were disoriented and paralyzed by fear. There can be no speculation about how a person should react in a particular contingency.



(xviii) The trial Court erred in rejecting the testimonies of the PWs because they contradicted their statements made before the Commission of Inquiry (CoI). Statements made before a CoI are, in terms of Section 6 of the Commission of Inquiry Act, inadmissible in a trial.



(xix) The trial Court erred in rejecting the testimony of the PWs with regard to the burning of houses in the Balmiki basti by the accused persons merely due to the absence of hydrocarbons of petroleum in the forensic samples and lack of corroboration by medical evidence. As the trial Court itself has noted, the manner in which the samples were collected was less than satisfactory, no specialist team was called and the extremely intricate job of collection of samples was left to a team of non-experts.



(xx) A conviction may be sustained if an accused person has been named and identified by at least two reliable witnesses who give a cogent and consistent account of the incident.



(xxi) PW-50 is a reliable witness. As a rule of prudence as regards consistency, the testimony of PW-50 is relied upon to the extent of the 16 accused she named in the first instance, and then again, this testimony qua these 16 has only been relied upon if corroborated by at least one other reliable eyewitness.



(xxii) It cannot be said in the present case that the dying declaration of the deceased Tara Chand is uncorroborated, as there is sufficient evidence in the form of the depositions of CW-1 and PWs 49 and 50 as well as those of PWs 55, 64 and 68 that fully corroborate the dying declaration, which is a substantive piece of evidencewhich has been relied upon to convict the accused persons.



(xxiii) The incidents of 21st April 2010 constituted an act of deliberate targeting of the Balmiki houses by the Jats and setting them on fire in a pre-planned and carefully orchestrated manner. It was pursuant to a conspiracy by the Jats to “teach the Balmikis a lesson”. Tara Chand and his daughter Suman were set on fire and pushed inside the house in that condition in the full knowledge that they were Balmikis. The dying declaration of Tara Chand more than adequately establishes the role of not only A-34 but also that of his associates who were identified by those present i.e. PW-49, PW-50 and CW-1. Consequently, the Court holds that the killing of Tara Chand and Suman was murder punishable under Section 302 IPC. The judgment of the trial court that it was culpable homicide punishable under Section 304 (II) IPC is hereby set aside.



Sanjeev Sirohi, Advocate,



s/o Col BPS Sirohi,



A 82, Defence Enclave,



Sardhana Road, 



Kankerkhera,



Meerut – 250001,



Uttar Pradesh.
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