Court On Its Own Motion vs Dhanraj & Ors on 11 August, 2025

August 12, 2025

Delhi High Court

Court On Its Own Motion vs Dhanraj & Ors on 11 August, 2025

1. The assassination of Ms. Indira Gandhi, former Prime Minister of
India, led to eruption of riots in the entire city of Delhi in 1984, resulting in
death of several innocent Sikhs and destruction of properties of various Sikh
families as also Gurudwaras.

2. The present batch of matters arises out of FIR No. 416/1984 dated
04.11.1984 registered at Police Station Delhi Cantt. The said FIR was
registered at the instance of one Mrs. Baljit Kaur D/o late Shri Avtar Singh.

3. Pursuant to the registration of the said FIR, several other complaints
were received regarding murders of innocent Sikhs and destruction of
properties in the Raj Nagar area, which includes the Complaint of one
Sampuran Kaur on 18.11.1984 stating that her husband S. Nirmal Singh had
been murdered. She stated that on 01.11.1984, after the assassination of Ms.
Indira Gandhi, when she was present at her house along with her husband
and children, a mob was roaming around to kill Sikhs and at about 9:30AM,
they set fire to the Gurudwara at Raj Nagar. She stated that about 500
people came to her house and started pelting stones and set her house on
fire. She stated that the rioters were being led by Mahinder Singh Yadav,
Bagdola-wale and Balwan Khokhar. She stated that when her husband

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Nirmal Singh came out and asked the rioters as to why they were killing
them, Balwan Khokhar came and took her husband away to get the matter
compromised. He took her husband Nirmal Singh on a motorcycle and took
him to the shop of one Dhan Raj where Balwan Khokhar gave away her
husband to the rioters and Dhan Raj tied her husband Nirmal Singh with a
rope and then, Mahinder Singh Sharabi and other rioters poured kerosene oil
on Nirmal Singh and set him on fire. They also robbed her house and
thereafter, set it on fire. This complaint dated 18.11.1984 led to Sessions
Case 32/86, which gave rise to Criminal Revision Petition 245/2017.

4. Similarly, another Complaint dated 15.11.1984 by one Jagir Kaur was
received, who complained that on 01.11.1984, at about 5:30 PM, a mob of
about 1000-1500 people led by Balwan Khokhar, Vidyanand Gupta and
Mahender Singh, residents of Village Bagdola, attacked her house, gave
beatings to her husband Joga Singh by bricks and pipes, and after beating
him, they poured kerosene oil over her husband and burnt him alive. The
said complaint has led to Session Case 31/86, which gave rise to Criminal
Revision Petition 246/2017.

5. One more complaint was received from Daljit Kaur on 12.11.1984
stating that on 01.11.1984, at about 9:30 AM, a mob led by Balwan Khokhar
set a Gurudwara on fire and thereafter they came to her house at RZ-241/D,
Raj Nagar, Palam Colony, New Delhi shouting that all sardars must be
brought and killed. They set the front door of her house on fire. She stated
that when her husband, Avtar Singh came out, he was immobilised by the
mob and was set on fire. She stated that while her husband was still alive,
his son Sukhvinder Singh tried to save him but he was also set on fire and
killed. This complaint has resulted in Sessions Case No.10/86, pertaining to

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Criminal Revision Petition 247/2017.

6. A composite challan had been filed inter alia in all the aforesaid three
Complaints, ultimately giving rise to three Sessions Cases, viz., Sessions
Case 31/86, Sessions Case 32/86 and Sessions Case 10/86. It is pertinent to
mention that all the three Sessions Cases were tried separately, and all
accused persons in these cases were acquitted by Ld. Additional Sessions
Judges, New Delhi vide Judgment dated 29.04.1986 in Sessions Case 31/86,
Judgment dated 17.05.1986 in Sessions Case 32/86 and Judgment dated
15.07.1986 in Sessions Case 10/86.

7. Material on record also indicates that concerned with the lack of
proper investigation and the causes of large scale violence, several
Commissions were appointed including (i) the Marwah Commission, 1984;

(ii) Justice Ranganath Misra Commission of Enquiry, 1985; (iii) Dhillon
Committee, 1985; (iv) Ahuja Committee, 1985; (v) Kapur Mittal
Committee, 1987; (vi) Jain Banerjee Committee, 1987; (vii) Potti Rosha
Committee, 1990; (viii) Jain Aggarwal Committee, 1990 and (ix) Narula
Committee, 1993 to examine the various aspects of the matter.

8. Reports were furnished by these Committees/Commissions. On
08.05.2000, the Government of India appointed a Commission of Inquiry
under the Chairmanship of Justice G. T. Nanavati, former Judge of the
Supreme Court of India, i.e., the “Nanavati Commission”, to inquire into
the causes and the course of criminal violence targeting members of the Sikh
community which took place in the NCT of Delhi and other parts on
31.10.1984 and thereafter; the sequence of events leading to and all such
facts relating to such violence and riots. The Commission also covered
questions as to whether the crimes which were committed against the Sikh

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community could have been averted and whether there were any lapses or
dereliction of duty on the part of the Police Officials and other authorities.
The Commission was also to inquire and report on the adequacy of
administrative measures taken to prevent and deal with the said violence and
riots and certain other matters as may be found relevant in the course of the
inquiry.

9. The Nanavati Commission of Inquiry gave its Report on 09.02.2005,
which was placed before the Houses of Parliament. Before the Parliament,
an assurance was given by the then Prime Minister and the then Home
Minister that wherever the Commission has named any specific individuals
which would require further examination or re-opening of the case, steps
will be taken to do so within the ambit of law.

10. After examination of the matter, a Communication dated 24.10.2005
was issued by the Ministry of Home Affairs for further investigation/re-
investigation of cases against Dharam Das Shastri, Jagdish Tytler, Sajjan
Kumar for their role in the various cases/actions and the cases were
entrusted to the Central Bureau of Investigation (CBI). The CBI registered
an FIR vide RC24/2005-SIU-I/SIC-1/CBI/ND.

11. Upon conclusion of the investigation, Chargesheet No.1/10 dated
13.01.2010 was filed against eight accused persons, namely, Sajjan Kumar,
Balwan Khokhar, Mahender Yadav, Capt. Bhagmal (Retd.), Girdhari Lal,
Krishan Khokhar, Maha Singh and Santosh Rani @ Janta Hawaldarni. The
case was registered as Sessions Case 26/2010. Since some of the accused
namely, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki,
Balidan Singh and Raja Ram, had passed away before the trial, proceedings
against them stood abated, and charges were framed against the surviving

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accused persons.

12. Vide Judgment dated 30.04.2013, the learned Additional District &
Sessions Judge, Karkardooma acquitted Sajjan Kumar while the other five
accused persons were convicted for commission of different offences, which
resulted in filing of the following appeals before this Court:

a. Criminal Appeal No. 715/2013 titled „Mahender Yadav v. CBI‟
b. Criminal Appeal No. 753/2013 titled „Krishan Khokhar v. CBI‟
c. Criminal Appeal No. 831/2013 titled „Jagdish Kaur & Anr. v.
Balwan Khokhar & Ors.‟
d. Criminal Appeal No. 851/2013 titled „Capt. Bhagmal Retd. v.
CBI‟
e. Criminal Appeal No. 861/2013 titled „Balwan Khokhar v. CBI‟
f. Criminal Appeal No. 1099/2013 titled „State through CBI v.
Sajjan Kumar & Ors.‟
g. Criminal Appeal No. 710/2014 titled „Girdhari Lal v. CBI‟

13. It is pertinent to note that the CBI investigation and the resultant trial
pertained inter alia to:

a. the larger conspiracy resulting in the incidents which took place
on 01/02.11.1984 in the Raj Nagar area;
b. the murders of five Sikh persons (Kehar Singh, Gurpreet Singh,
Raghuvinder Singh, Narender Pal Singh & Kuldeep Singh);
c. damage caused to the Raj Nagar Gurudwara.

14. The CBI case did not pertain to the alleged offences which were the
subject matter of Sessions Cases 10/86, 11/86 and 32/86, presumably on
account of acquittal of the accused persons, which were not followed up
with any appeals on behalf of the State or the victims.

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15. During the course of hearing of the aforesaid Criminal Appeals, Ld.
Counsel for some of the accused persons (Capt Bhagmal and Sajjan Kumar)
had sought to place reliance inter alia on the following Judgments passed by
Ld. Additional Sessions Judges, Delhi in:

Sr.No Case No. Parties name Result of the trial Details of complaint

(i) SC State v. Vidyanand, Balwan Acquittal by Dated 15.11.1984 by Jagir Kaur
No.31/86 Khokhar, Mahender Singh Yadav judgment dated (widow)
29.04.1986

(ii) SC State v. Dhanraj, Mahender Acquittal by Dated 18.11.1984 by
No.32/86 Singh, Balwan Khokhar, judgment dated Sampuran Kaur (widow)
Mahender Singh Yadav 17.05.1986

(iii) SC State v. Dhanpat, Ved Parkash, Acquittal by Dated 15.11.1984 by Swaran
No.11/86 Shiv Charan, Ramji Lal judgment dated Kaur (widow)
Sharma 28.05.1986

(iv) SC State v. Balwan Khokhar Acquittal by Dated 19.11.1984 by Daljit
No.10/86 judgment dated Kaur
15.07.1986

(v) SC No. State v. Mahender Singh, Ram Acquittal by Dated 04.11.1984 by Baljit
33/86 Kumar judgment dated Kaur (daughter) (registered as
04.10.1986 FIR 416/84)

16. The Ld. Counsel for the aforesaid accused persons sought to draw
strength from the abovementioned Judgments of acquittal on the basis that
the incidents which formed the subject matter of these judgments as also the
incidents under consideration in the Criminal Appeals being heard, although
arising from different investigations, had taken place around the same time,
i.e., 01/02.11.1984, in the aftermath of the assassination of Ms. Indira
Gandhi.

17. In order to appreciate the contentions of the Ld. Counsel for the
aforesaid accused persons, this Court deemed it fit to issue directions for

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tracing out the records of the cases in which the Judgments of acquittal
tabulated above had been rendered.

18. Extracts of relevant Orders which outline the steps taken for tracing
the records of Sessions Cases 10/86, 11/86 and 32/86, viz. the subject matter
of the present Revision Petitions, are as under:

a. Order dated 08.02.2017 passed in Criminal Appeal Nos.
715/2013, 753/2013, 831/2013, 851/2013, 861/2013, 1099/2013 &
710/2014, reads as under:-

―…2. It would appear to be in the interest of justice
that the record of these cases is traced out. Further
directions with regard to the same would be made once
the parties had a chance to inspect the same.

3. A direction is issued to the District Judge
(Headquarters) to trace out the record of the cases and
cause the same to be produced before us within two
weeks from today. Even if the digitized record is
available, the same may be produced before us‖
b. Order dated 21.02.2017 passed in Criminal Appeal Nos.

715/2013, 753/2013, 831/2013, 851/2013, 861/2013, 1099/2013 &
710/2014, read as under:-

―1. By our order dated 8th February 2017, we had
directed the District Judge (Headquarters) to cause the
following record to be produced before us within two
weeks from that day:

Sr.No Case No. Parties name Judgment Judgment
date passed by

1. SC State v. Vidyanand, 29.04.1986 Sh. S.P. Singh
No.31/86 Balwan Khokhar, Chaudhari,
MahenderSinghYadav ASJ, New Delhi

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2. SC State v. Dhanraj, 17.05.1986 Sh. S.P. Singh
No.32/86 Mahender Singh, Balwan Chaudhari,
Khokhar,MahenderSingh ASJ, New Delhi
Yadav

3. SC State v. Dhanpat, 28.05.1986 Sh. V.B.
No.11/86 Ved Bansal,ASJ,
Parkash,ShivCharan Delhi.

,
Ramji Lal Sharma

4. SC State v. Balwan Khokhar 15.071986 Sh.V.B.Bansal,
No.10/86 ASJ, Delhi.

5. SC Statev.MahenderSingh, 04.10.1986 Sh. S.P. Singh
No.33/86 Ram Kumar Chaudhari,ASJ,
New Delhi

6. SC Statev.SunilTiwari@ Raju, 30.04.1994 Sh.S.S.Bal,ASJ,
No.28/93 Hukam Chand, Mangat New Delhi.

Ram, Balwan
Khokhar

*****

7.On 31st January, 2012, the Mauza Clerk from the
Record Room (Sessions), Tis Hazari Courts had placed
the following report before the Trial Court (at TCR –
Part-VI page 735-737):

―1. S.C. No.10/86 decided on 15.07.86 vide goshwara
No.80/S has been destroyed weeding out cell on
09.06.05.

2. S.C. No. 11/86 vide goshwara No. 96/S decided on
27.05.86 is not traceable due to shifting the judicial
record from Room No. 220 to Room No. 45. So it is
humble request that, kindly give some more time for
trace the judicial file.

3. S.C. No. 31/86 decided on 29.04.86 vide goshwara
No. 27/S has been destroyed weeding out cell on
10.06.05.

4. S.C. No. 32/86 decided on 17.05.86 vide goshwara
No.29/S has been destroyed weeding out cell on

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10.06.05.

5. S.C. No. 33/86 decided on 04.10.86 vide goshwara
No. 16/S has been destroyed weeding out cell on
09.06.05.‖

*****

11. It appears therefore, that so far as the record of the
SC No.11/86 and SC No.28/93 were available as on
13th February, 2012. So far as the record of other
four cases are concerned, the same had been reported
to be weeded out.‖
(Emphasis supplied)

c. Order dated 16.03.2017 passed in Criminal Appeal Nos.

715/2013, 753/2013, 831/2013, 851/2013, 861/2013,
1099/2013 & 710/2014, read as under:-

―…3. Pursuant to our orders dated 21st February,
2017 and 9th March, 2017 calling for the records of
these cases, only the record of SC No. 11/86 has been
sent to this court by the office of the District &
Sessions Judge (Headquarters).So far as the other five
cases are concerned, it is submitted vide report dated
23rd February 2017 (No. 51 RR(s)/THC/DELHI/2017)
that as per the practice and procedure followed for
maintenance of records in the district judiciary, the
records of these cases stand weeded out/destroyed, as
per Delhi High Court Rules & Orders, upon attaining
maturity.

4.We are informed by Mr. D.P. Singh, learned Special
Public Prosecutor appearing for the CBI that the Delhi
Police would be in possession of the challans and the
other records which were filed before the court as well
as the original case diaries relating to these cases.

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5.The judgments in these cases are being heavily relied
upon by the appellants in support of their appeals. We
deem it essential to peruse the record of these cases in
order to facilitate adjudication.

6.Accordingly, a direction is issued to the
Commissioner, Delhi Police to produce forthwith the
complete record relating to the challans which were
filed and registered as cases from serial nos. (i) to (vi)
in para 1 arising out of FIR No. 416/84 Police Station
Delhi Cantt.

7.We also direct that the above record shall not be
weeded out or destroyed by the Delhi Police until
further orders from this court.‖
(Emphasis supplied)
d. Order dated 22.03.2017 passed in Criminal Appeal Nos.

715/2013, 753/2013, 831/2013, 851/2013, 861/2013, 1099/2013 &
710/2014, read as under:-

―1. The Delhi Police has filed a status report dated 21st
March 2017 under the signatures of Radhey Shyam
Meena, Asst. Commissioner of Police, Anti-Riot Cell,
New Delhi enclosing a list of files which are stated to
have been sent to the CBI by the Ministry of Home
Affairs of the Government of India. Time is sought by
Mr. D.P. Singh, learned Special Prosecutor to examine
the same and to ascertain the location of the files
mentioned in our order dated 16th March 2017. The
CBI shall ensure that the information with regard to
the record received from the Nanawati Commission or
any other authority is disclosed to the counsel to
enable them in assisting this court in the matter.

2. Some more time is sought by Rahul Mehra, learned
Senior Standing Counsel to undertake a further
verification with regard to the availability of records
keeping in view the judgments, copies whereof has now

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been made available to him.‖
(Emphasis supplied)

19. A perusal of the above extracts indicates that records pertaining to
three cases which are being dealt with by this Court by way of the present
Order, viz., Sessions Case 10/86, Sessions Case 31/86 and Sessions Case
32/86, have been destroyed / weeded out. While some steps for tracing out
the aforesaid records were undertaken by this Court, as on date, only the
composite Chargesheet along with the final Judgments passed in the
aforesaid cases are available before this Court.

20. Thereafter, this Court initiated proceedings under Section 401 CrPC
in Criminal Revision Petition 245/2017, Criminal Revision Petition
246/2017 and Criminal Revision Petition 249/2017, which are now being
dealt with by way of the instant Order.

21. Vide Order dated 29.03.2017, several directions were passed by this
Court in the three revision petitions, viz., Criminal Revision Petition
245/2017, Criminal Revision Petition 246/2017 and Criminal Revision
Petition 249/2017.

22. The directions passed by this Court in Criminal Revision Petition
245/2017, reads as under:

―114. We accordingly direct as follows:

(i) Let this order be registered as a petition under
Section 401 of the Cr.P.C.

(ii) Issue notice without process fee to private
respondent nos. 1 to 4 as well as the State – respondent
No.5 to show cause as to why the judgment dated 17th
May, 1986 in SC No.32/86 premised on the composite
chargesheet dated 25th March, 1985 based inter alia

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on the complaint dated 18th November, 1984 of Smt.
Sampuran Kaur (clubbed with FIR No.416/84, P.S.
Delhi Cantt.), be not set aside and a retrial/fresh trial
be directed by this court in exercise of its revisional
powers under Section 401 of the Cr.P.C.

(iii) Issue notice without process fee to private
respondent nos. 1 to 4 as well as the State – respondent
no.5 to show cause as to why this court not direct
fresh/further investigation into the complaint of Smt.
Sampuran Kaur by an independent agency as the
Central Bureau of Investigation.

(iv)The address of the complainant – respondent no. 6
shall be ascertained by the State and the same shall be
filed in the Registry within two weeks from today.

(v) Subject to the compliance with the above directions,
court notice without process fee shall be issued for the
service of complainant – respondent no. 6.

(vi) Compliance with the above directions shall be got
ensured by the Commissioner, Delhi Police.

(vii)A copy of the composite final report dated 25th
March, 1985 filed by the Delhi Police in SC Nos.10/86,
11/86, 31/86, 32/86 and 33/86 (placed by CBI on the
record of Crl.A.No. 1099/2013) and a copy of the
judgment dated 17th May, 1986 in SC No.32/86 shall
be placed in the file along with the present order.

(viii) For the reasons set out above, we appoint Mr.
P.K. Dey, Advocate as Amicus Curiae in this matter.

(ix) The Registry shall ensure that a complete paper
book is made available to the Amicus Curiae.

(x) It shall be the responsibility of the Delhi High
Court Legal Services Committee to pay the fees of the

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Amicus Curiae which are quantified at Rs.50,000/-.

(xi) All notices shall be returnable on 20th April,
2017.‖
(Emphasis supplied)

23. The directions passed by this Court in Criminal Revision Petition
246/2017, reads as under:

―105. We accordingly direct as follows :

(i) Let this order be registered as a petition under
Section 401 of the Cr.P.C.

(ii) Issue notice without process fee to private
respondent nos. 1 to 3 as well as the State – respondent
No.4 to show cause as to why the judgment dated 29th
April, 1986 in SC No.31/86 premised on the composite
chargesheet dated 25th March, 1985 based inter alia
on the complaint dated 15th November, 1984 of Smt.
Jagir Kaur (clubbed with FIR No.416/84, P.S. Delhi
Cantt.), be not set aside and a retrial/fresh trial be
directed by this court in exercise of its revisional
powers under Section 401 of the Cr.P.C.

(iii) Issue notice without process fee to private
respondent nos. 1 to 3 as well as the State – respondent
no.4 to show cause as to why this court not direct
fresh/further investigation into the complaint of Smt.
Jagir Kaur by an independent agency as the Central
Bureau of Investigation.

(iv) The address of the complainant – respondent no. 5
shall be ascertained by the State and the same shall be
filed in the Registry within two weeks from today.

(v) Subject to the compliance with the above directions,
court notice without process fee shall be issued for the
service of complainant – respondent no. 5.

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(vi) Compliance with the above directions shall be got
ensured by the Commissioner, Delhi Police.

(vii)A copy of the composite final report dated 25th
March, 1985 filed by the Delhi Police in SC Nos.10/86,
11/86, 31/86, 32/86 and 33/86 (placed by CBI on the
record of Crl.A.No. 1099/2013) and a copy of the
judgment dated 29th April, 1986 in SC No.31/86 shall
be placed in the file along with the present order.

(viii) For the reasons set out above, we appoint Ms.
Inderjeet Sidhu, Advocate as Amicus Curiae in this
matter.

(ix) The Registry shall ensure that a complete paper
book is made available to the Amicus Curiae.

(x) It shall be the responsibility of the Delhi High
Court Legal Services Committee to pay the fees of the
Amicus Curiae which are quantified at Rs.50,000/-.

(xi) All notices shall be returnable on 20th April,
2017.‖
(Emphasis supplied)

24. The directions passed by this Court in Criminal Revision Petition
249/2017, reads as under:

―98. We accordingly direct as follows :

(i) Let this order be registered as a petition under
Section 401 of the Cr.P.C.

(ii) Issue notice without process fee to private
respondent no. 1 and 2 to show cause as to why the
judgment dated 15th July, 1986 in SC No.10/86
premised on the composite chargesheet dated 25
March, 1985 based inter alia on the complaint dated

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18th November, 1984 of Smt. Daljit Kaur (clubbed
with FIR No.416/84, P.S. Delhi Cantt.), be not set
aside and a retrial/fresh trial be directed by this court
in exercise of its revisional powers under Section 401
of the Cr.P.C.

(iii) Issue notice without process fee to private
respondent nos. 1 as well as respondent no.2 to show
cause as to why this court not direct fresh/further
investigation into the complaint of Smt. Daljit Kaur by
an independent agency as the Central Bureau of
Investigation.

(iv) The address of the complainant – respondent no. 3
shall be ascertained by the State and the same shall be
filed in the Registry within two weeks from today.

(v) Subject to the compliance with the above directions,
court notice without process fee shall be issued for the
service of complainant – respondent no. 3.

(vi) Compliance with the above directions shall be got
ensured by the Commissioner, Delhi Police.

(vii)A copy of the composite final report dated 25th
March, 1985 filed by the Delhi Police in SC Nos.10/86,
11/86, 31/86, 32/86 and 33/86 (placed by CBI on the
record of Crl.A.No. 1099/2013) and a copy of the
judgment dated 15th July, 1986 in SC No.10/86 shall
be placed in the file along with the present order.

(viii) For the reasons set out above, we appoint
Mr.Siddharth Aggarwal, Advocate as Amicus Curiae in
this matter.

(ix) The Registry shall ensure that a complete paper
book is made available to the Amicus Curiae.

(x) It shall be the responsibility of the Delhi High

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Court Legal Services Committee to pay the fees of the
Amicus Curiae which are quantified at Rs.50,000/-.

(xi) All notices shall be returnable on 20th April,
2017.‖
(Emphasis supplied)

25. Material on record indicates that the Order dated 29.03.2017 passed in
Criminal Revision Petition 246/2017 was challenged before the Apex Court
by Mahender Singh Yadav, one of the accused in Sessions Case 31/86
(giving rise to Criminal Revision Petition 246/2017), by filing Special Leave
Petition (Crl.) 3928/2017. The aforesaid matter remains pending before the
Apex Court since 2017. Even though no Order(s) staying the present
proceedings were passed, the present matters remained pending, awaiting
the outcome of proceedings in the Apex Court.

26. The Petitioner in Special Leave Petition (Crl.) 3928/2017, namely,
Mahender Singh Yadav, i.e. one of the accused in SC 31/1986, had passed
away during the pendency of the SLP, as recorded by this Court in Order
dated 21.11.2023.

27. As such, since Mahender Singh Yadav, i.e. the Petitioner in Special
Leave Petition (Crl.) 3928/2017, has passed away, and there was no Order of
the Apex Court directing this Court not to proceed further with the hearing
of the batch of Criminal Revision Petitions, including the present case, this
Court has heard the parties as well as the Amicus Curiae.

28. In Criminal Revision Petition 245/2017, only one accused, Balwan
Khokhar is alive, and the other three accused persons, namely, Dhanraj,
Mahender Singh and Mahender Singh Yadav have passed away.

29. In Criminal Revision Petition246/2017, out of the three accused

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persons, namely, Vidyanand, Balwan Khokhar and Mahender Singh Yadav,
only Balwan Singh Khokhar is alive.

30. Similarly, in Criminal Revision Petition 249/2017, the sole accused
Balwan Singh Khokhar is alive.

31. A perusal of the material on record indicates that a composite
Challan, i.e. Police Report under Section 173 CrPC dated 25.03.1985,was
filed in Sessions Cases 10/86, 11/1986, 31/86, 32/86 and 33/86.

32. Material on record also prima facie indicates that apart from shoddy
investigation of the cases,even during the course of trial, the Ld. Additional
Sessions Judges hardly took any steps to ensure the presence of crucial
witnesses, including persons who had witnessed the incident, more
specifically in Criminal Revision Petition 245/2017 (arising from Sessions
Case 32/86) and Criminal Revision Petition 246/2017 (arising from Sessions
Case 31/86).

33. Insofar as Criminal Revision Petition 249/2017 is concerned, this
Court noted in its Order dated 29.03.2017, that the Complainant/Daljit Kaur
was examined as PW1, however, her testimony was disbelieved on account
of a purported discrepancy between her earlier statement and her deposition
in Court.

34. The conduct of perfunctory investigations and trials constrained this
Court to make observations in its Orders dated 29.03.2017 regarding the
lapses on part of the Investigating Agency as also the Ld. Additional
Sessions Judges. Relevant extracts containing the aforesaid observations in
Crl.Rev.P.245/2017 are reproduced herein below:-

―20. So far as the trial is concerned, in paras 8 and 9
of the judgment dated 17th May, 1986 in SC No.32/86
referring to the examination of the witnesses, the trial

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court has noted as follows:

―8. In this case, seven witnesses have been
cited. Out of them, four have been examined. Smt
Sampuran Kaur, Nirprit Kaur and Constable
Paramjit Singh have not been examined. As
regards Paramjit Singh is concerned, she is a
formal witness. He was a photographer. The
photos Ex.PX, PY & PZ were admitted by the
accused persons. Photos do not show anything to
connect the accused persons with the alleged
offences. Evidence of PW Paramjit Singh was
formal and he had taken only photographs.

9. In this case, Sampuran Kaur and Nirprit
Kaur, according to the prosecution, were the eye
witnesses of the incident. They were the only eye-

witnesses of the incident. They were the only eye
witnesses of the incident who had been cited as
prosecution witnesses. But, unfortunately, both
these alleged eye-witnesses have not been
produced by the prosecution. Summons of these
witnesses were issued for 14-4-86 and they were
not properly served and they did not appear. In
this connection, in the order-sheet dated 14-4-86,
I have mentioned regarding the slackness of the
process-serving agency and in view of the request
of the I.O., I had ordered for given dasti summons
to the I.O. The case was fixed for prosecution
evidence on 28-4-86. On that date also,
Sampuran Kaur and Nirprit Kaur did not appear
and the service upon them was not properly
effected. Regarding the slackness of the process-
serving agency, 1 have mentioned in the order-
sheet which is self-explanatory. Even the report
of the process server were not forwarded by the
SHO which was necessary according to the
practice. On 28-4-86, in view of the request of the
APR and the I.O. the case was adjourned and it

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was mentioned that the last opportunity was
given and 16-5-86 was fixed for Sampuran Kaur
and Nirprit Kaur again for 16-5-86 and they were
received back unserved again and according to
the report they were untraceable. No other
address of these witnesses was supplied by the
prosecution. In these circumstances, the most
important witnesses Sampuran Kaur and Nirprit
Kaur have not been produced by the prosecution
and according to the process server’s reports,
they were untraceable.”

(Emphasis supplied)

As per the judgment, the prosecution thus produced
only four police witnesses during the trial.

21. Finally, in paras 16 to 18 of the judgment dated 17
May, 1986, the trial court has held as follows:-

―16. Sampuran Kaur, who had given these
applications and who was the complainant, has
not been produced. She had given these
applications with great delay and there was
possibility of manipulations. As regards Nirprit
Kaur is concerned, her statement was recorded
with great delay on 1-3-85. In this way, her
statement u/s. 161 Cr.P.C. was recorded for the
first time after about four months from the date
of incident. Hence, why she had not approached
the police four months after the incident, has not
been satisfactorily explained by the prosecution.
The arguments of the defence counsel that Nirprit
Kaur was introduced as an eye witness in this
case after consultation and manipulation and
with undue delay, has got force in the
circumstances of this case.

17. Nothing incriminating was recovered from

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the possession of the accused persons. Accused
persons were arrested after a long gap from the
date of the incident. They had no motive to
commit the alleged offences. The accused persons
had not given any disclosure statements and they
had not given any confessional statements.

18. I have considered the entire evidence on
record and the circumstances of this case.

Prosecution has miserably failed to prove its
case. Prosecution story appears to be improbable
and unreliable. No offence is proved against the
accused persons, in this case.‖

(Emphasis by us)

22. Para 9 of the judgment extracted above narrates
the steps taken by the trial court in SC No.32/86
regarding summoning and ensuring appearance of the
two cited eye-witnesses. The case was therefore, fixed
for 14th April, 1986, 28th April, 1986 and 16th May,
1986 when it was reported by the ”process server” that
they were “untraceable” and were treated as
untraceable without any further effort at all to trace
the eye witnesses in serious offences including rioting
and murder.

****

25. We have noted above that the Code of Criminal
Procedure as well as Indian Evidence Act, 1872 amply
empowers the trial court to take action for ensuring the
appearance of the witnesses. Therefore, the judgment
of the trial court dated 17th May, 1986 in SC No.32/86
suggests that it was passed without any effort by the
court to ensure that vital witnesses were served and
their evidence recorded.

26. It is noteworthy that the case stands registered as

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SC No.32/86 and the trial was completed in the middle
of May, 1986 on 17th May, 1986 i.e. within a period of
hardly five months.

*****

Whether any evidence of the offence could have been
available to the trial court conductine the trial in SC
No.32/86?

29. Another material question thrown up from the
above extract of the trial court judgment is as to
whether it was ensured that the best and all evidence
were secured and made available to the trial court? It
has been pointed out by Mr. R.N. Sharma, Id. counsel
for the appellant (in Crl.A.No.851/2013) and Mr. Anil
Kumar Sharma, Id. counsel for the respondent no.l (in
CrLA.No.1099/2013) referring to the trial in SC
No.26/10, that to establish the commission of the
offences, the attack on the Gurudwara, Raj Nagar and
the murder of Nirmal Singh on the of November 1984,
the prosecution has examined Joginder Singh as PW-7
and also produced Nirpreet Kaur (daughter of Nirmal
Singh) as PW-10 and Manjeet Singh as PW-12 in this
trial.

30. Mr. R.N. Sharma, Id. counsel for the appellant (in
Crl.A.No.851/2013) and Mr. Anil Kumar, Id. counsel
for the respondent no.l (in Crl.A.No.1099/2013) have
submitted that amongst others, the prosecution
examined Nirpreet Kaur (daughter of Late Nirmal
Singh and Sampuran Kaur) who was examined as PW-
10 in SC No.26/10. Mr. Sharma and Mr. Anil Kumar,
Id. counsels have elaborately read before us her
testimony. To illustrate, we extract hereunder some
portions of her testimony recorded on 6th January,
2011 placed before us which read thus:-

”PW-10 Ms. Nirpreet Kaur w/o Late Sk

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DilbarSingh, aged. 42 years r/o H. No. WZ-127A
Street No. IDA, Old Shahpura, Tilak Nagar,
N.Delhi-18, occupation: ready-made garment
business.

xxxx xxxx xxxx

I am residing at the above mentioned address
for last about 10-12 years. In the year 1984 I was
residing at RZ/WZ-241, Raj Nagar, Palam
Colony, N. Delhi alongwith my father Late Sh.
Nirmal Singh, mother Sampuran Kaur, my two
brothers namely Nirpal Singh and Nirmolak
Singh. My father was a transporter by profession
and he was also running a taxi stand in Anand
Niketan. I and my family members are followers
of Sikh religion. My father was keshdhari and an
amritdhari Sikh.

On 31.10.1984 I came to know that Prime
Minister Smt. Indira Gandhi has been
assassinated by her security guard. Except for
some stray incident, everything was normal. On
that day my father had come early to the house. In
the evening at about 6.30pm, Balwan Khokar who
used to introduce himself as nephew of Sajjan
Kumar alongwith his brother Krishan Khokhar
came to our house and asked my father to keep his
brother Krishan Khokhar as driver. My father
told him that at present there is no vacancy and in
case there will be any vacancy, he will inform him
within 3-4 days. Balwan Khokar and Krishan
Khokar are present in the court today. My father
asked Balwan Khokar that Sikhs are being
attacked thereupon Balwan Khokar told him that
Sajjan Kumar is his maternal uncle and he had
assured him that there shall be no attack in our
colony.

On the intervening night of 31.10.1984 and

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01.11.1984 at about 2.30-3am, ‘Granthi’ of our
Gurudwara came to our house and informed my
father that police personnels have come in the
Gurudwara because my father was President of
the Gurudwara. My father and my mother
accompanied him to Gurudwara. Our house was
very near to Gurudwara. When my father and
mother went to Gurudwara they had a talk with
the police personnel and they inform him that
situation outside is not congenial and they have
been deployed to safeguard the Gurudwara. I also
went to Gurudwara at about 5/5.30 am for
bhajan & kirtan. When I had reached Gurudwara
at that time police personnel were present in the
gurudwara but during the midst of prayers police
official disappeared, without intimating anyone.

In the meantime, we heard noise and of slogans
at about 7.30/8am. We rushed outside and saw
that a huge mob is coming which was being led
by Balwan Khokar, Mahender Yadav and owner
of Mamta Bakery. They were armed with sariyas,
rods, subbal, jellies etc. The people in the mob
were raising slogans “Indira Gandhi amar rahe”,
“en Sardaron ko maro, enhonne hamari maa ko
mara hai”. I became scared and became
apprehensive that mob may not dishonour
(beadbi) “Guru Granth Saheb I rushed back to
Gurudwara in order to pick up Guru Granth
Saheb. My younger brother Nirmolak Singh who
was aged about 9 year at the time followed me.
The mob attacked us. I could save myself, he was
caught by the mob, but due to his tender age, he
could also managed to come out from the clutches
of the mob. Mahender Yadav and owner
ofMamta Bakery told the mob by pointing out
towards us “ese maron, ye saap ka bachcha hai”.
I picked up Guru Granth Saheb and returned back
to my house. I saw that the mob had come to my
house and they had damaged the wall of my

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house and the gate. My father came out of the
house and told the mob that they are not
responsible for killing of Indira Gandhi and they
are also citizens of India. On hearing this some
members of the mob went away and some persons
from the mob set on fire a truck belonging to
Harbans Singh. In our street mainly Sikhs persons
were residing. On hearing the voice of my father
Harbans Singh and other Sikhs came out of their
houses and they all put off the fire. All decided
that they will save themselves. For 21/2 to 3 three
hours we were defending ourselves. In the
meantime police personnels/police officials came.
Balwan Khokar, Mahender Yadav and Kishan
Khokar came, where all the Sikhs had gathered.
Mahender Yadav bowed down towards the feet of
my father and told him that he is just like his
younger brother and will try to solve the matter
and offered to compromise and that they will pay
the compensation for the loss/damages. My father
and other Sikhs who had gathered over there
refused to compromise. Police personnels asked
my father and other Sikhs persons to
compromise the matter. Police personnels took
the kripan from the Sikhs and went away. My
father went with Balwan Khohar and Mahender
Yadav on a scooter. Mohan Singh one of the Sikh,
who had gathered over there uttered that now my
father would not come back. On hearing this, I
rushed in the same direction where my father
had gone. I saw that the scooter stopped near the
shop of Dhanraj where mob was present and
Balwan Khokar told the mobthat the Sikh who
was left has been brought by him. Mob caught
hold of my father, Ishwar Sharabi Sprinkled
kerosene oil over my father. The mob was not
having any match box at that time. One police
personnel told the mob “doob maro tum se ek
Sardar bhi nahi jalta “. From his name plate, I

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could gather that his nanie was Inspector
Kaushik. Inspector Kaushik gave match box
which was taken by Kishan Khokar and Kishan
Khokar set on fire my father. Mob had gone a
little ahead my father jumped on a nearby nala.
When the mob saw that my father is alive they
returned back. Dhanraj gave ropes from his
shop. Captain Bhagmal tied my father with ropes
on the telephone pole. Wife of Dua gave
kerosene oil and my father was again set on fire.
The mob then left. My father again jumped into
the nala. Pujari of a hearby Temple called the
mob again by telling them that he (Sardar) was
still alive. The mob again came. Balwan Khokar
hit my father with rod. Mahender Yadav
sprinkled some white powder on my father as a
result of which he was burnt. Somebody from the
mob shouted that after 15 minutes his whole
family should be killed. On hearing this I rushed
towards my house. I found my mother lying
unconscious, my house was burning. Police
personnels were standing near the gate of our
house, but nobody helped us. Wife of Sh. Santok
Singh Sandhu who used to live in our
neighbourhood and her husband was serving in
Air Force somehow managed to get Air Force
vehicle and in that vehicle her family and our
family went to Air Force Station, Palam. On the
way I saw half burnt bodies of Sardars.”

(Emphasis by us)

31. It is pertinent to note that as per para 5 of the
judgment dated 17th May, 1986 in SC No. 32/86, the
killing of S. Nirmal Singh was the subject matter of the
complaint dated 18th November, 1984 made by his
widow Smt. Sampuran Kaur. It was the subject matter
of SC No.32/86, the trial whereof culminated in the
judgment of acquittal dated 15th May, 1986 primarily

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for the reason that eye-witnesses were not examined.

32. So far as her daughter Nirpreet Kaur being joined
in the investigation into the commission of the offences
in 1984, recording of her statement and appearance in
court is concerned when examined as a witness in SC
No.26/10, Nirpreet Kaur has given the following
testimony on oath:

“I do not know if my mother is a witness in
this case or not. Name of my mother is Sampuran
Kaur. Statement of my mother was not recorded
by the Cm. I know this fact and therefore I am
deposing to this effect. It is incorrect to suggest
that my mother gave a statement to CBI on
17.09.2008 or that she has been cited as PW-19 in
the present case. My statement was recorded by
CBI in January 2009. Again said CBI recorded
my statement in December 2008 and my statement
was recorded by Magistrate in January 2009.

xxxx xxxx xxxx

Probably the report of Nanavati
Commission came in the year 2005 but I am not
confirmed about the same. During the period
2000 to 2005 I continued visiting PS Delhi Cantt
and Riot Cell for the killing of my father. It is
incorrect to suggest that I did not visit PS Delhi
Cantt or riot cell or that if I had visited these
places I would have been informed by the duty
officer of PS Delhi cantt that the case has since
been decided on 17:05.1986 or that even the riot
cell would have also informed me about the fate of
the case after seeing the record which was with
them. It is incorrect to suggest thatfrom the very
beginning I was aware of the fact that case
pertaining to killing of my father has been
decided. It is incorrect to suggest that if I was
not aware about the fate of case of killing of my

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father I would have made representation when
NDA Government came into power. Vol. For me
change of Government was of no consequence. I
had no faith in any of the Government.”

(Emphasis by us)

33. In SC 26/10, Nirpreet Kaur (PW-10) has also
testified about her whereabouts and the circumstances
which prevented her from taking any legal action about
the murder of her father. Some portion of her testimony
reads as follows:

“After leaving the house at Raj Nagar, Palam
Colony, I stayed at Air Force Gurudwara and
Moti Bagh Gurudwara. When we were in Moti
Bagh Gurudwara, my mother started receiving
threats that I speak too much and I will be killed.
My mother became very scared and took me and
my brothers to village Ghorewal, Tehsil^
Khanowan, Distt Gurdaspur, Punjab, in end
November,I984. In the beginning of December,
1984, red card was issued to us. I have brought
the same in the court In first week of January,
1985 we came back to Delhi and started living in
a rented accommodation initially at Anand
Niketan; thereafter at Virender Nagar and then
ChokhandL We kept on changing the houses
because some suspicious element used to roam
near houses and therefore being scared we used
to change accommodation. In 1986 we were
allotted accommodation like other riot victims at
Tilak Vihar and my mother is now residing in the
allotted accommodation as riot victim. In May
1985,1 again went to my village Ghorewal as I
again started receiving threats. After staying
there for some time, I went to Jhalandhar at the
house of my maternal uncle and took admission
in Lyallpur, Khalsa College, Jhalandhar. I was

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having the feeling of anguish that injustice is
being done to Sikhs and nobody is coming to
their help therefore I joined Sikh Student
Federation. In 19841 was 16 years of age. At that
time I was student. After I joined Sikhs Student
Federation, I was involved in two false cases of
TAD A. I remained in Jail for many years. In
one case I was acquitted while in another case I
was discharged. In Punjab also I was implicated
in a case pertaining to TAD A. In that case also I
was discharged.

xxxx xxxx xxxx

It is correct that I did not make any written
representation before any authority regarding
killing of my father upto December 2008. Vol.
When CBI official contacted me I gave statement.
I do not know when my statement was recorded by
the CBI but I joined investigation in the end of
August 2008 and thereafter had several meetings
with them. I had faith in the courts from where I
was acquitted and discharged. xxx xxx
xxx. I had taken the plea in the TADA cases
that I have been falsely implicated became I was
an eye witness to the killing of my father in 1984
riots. I have been verbally telling the court that
since 1 have been speaking against MPs and
MLAs therefore I have been falsely implicated in
false cases. There was no question of ‘taking any
such plea in writing before the concerned judges
as my statement was not recorded therein (it is
stated by counsel for the CBI that no statement
u/s 313 CrPC was recorded by the concerned
judges due to no incriminating facts appearing
against the accused and she was accordingly
acquitted/discharged in all cases.). I do not know
if I was produced in person before the TADA
Committee for review within three months of my

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arrest. Vol. After the arrest I was tortured and I
was only produced before the court where the
proceedings were going on and was bailed out
after three years. …‖

(Emphasis by us)

34. So far as knowledge about the judgment dated 7 th
May, 1986 is concerned, in SC 26/10 Nirpreet Kaur
(PW-10) has given the following testimony:-

” … It is correct that I was informed by Mr.
Pangarkar that case pertaining to killing of my
father was tried and that has resulted into
acquittal but I did not believe his version
because we were never called to appear as
witness in that case nor heshowed the copy of
judgement to me.

Q. After you came to know from ‘Mr. Pangarkar
that the case pertaining to killing of your father
had been tried and same has resulted into
acquittal then what steps you have taken?

Ans. I gave statement before Mr. Pangarkar and
thereafter before Magistrate U/sec. 164 CrPC
expecting that now the case pertaining to killing
of my father will be tried.

During the course of argument on charge when
it was submitted by counsel for accused that this
case does not pertain to killing of my father and
thereafter I went through the judgement then I
came to know that this case does not pertains to
killing of my father. After I came to know about
this fact I contacted the LO Mr. Anil Yadav and
told him that if this case does not pertain to killing
of my father then why I was made a witness in this
case. Thereupon he told me that in the case
pertaining to killing of my father our summons

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have been sent to wrong address and therefore
that case has resulted in acquittal however since I
knew the incident which had taken place in the
locality therefore I have been cited as witness. Till
date I am not satisfied and want that I should get
justice for the killing of my father.

Q. After coming to know that this case does not ‘
pertains to killing of your father and after going
through the judgement it was confirmed to you.
Have you made any representation either to the
CBI or to any other authority while explaining
that my statement was recorded for killing of my
father which they have not pursued and I am cited
as witness in a different case?

Ans. I am still finding ways and means to get the
case pertaining to killing of my father tried.

Q. I put a question to you specifically submit
before the court what steps you have taken after
knowing to this fact in writing?

Ans. I do not want to disclose the step which I am
taking now.

xxxx xxxx xxxx

Q. You have stated before the court that you have
read the judgement in case titled as State vs.
Dhanraj and ors. FIR no.416/84 u/s
148/302/201/436/149/427/395/396 IPC in Session
Case no.32/86 decided by the hon’ble Court of Sh.
S.P. Singh Choudhary, Id. ASJ vide his order
dated 17.05.1986. Is it correct that the concerned
hon ‘ble court has observed in the judgement and
has made observation. While considering your
statement dated 01.03.1985 recorded by S.I. A.K.
Saxena, South Distt. Line, u/s 161 CrPC before

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Delhi Police in that case?

Ans. Neither me and my mother made any such
statement u/sec. 161 CrPC except an application
dated 11.11.104 was given by my mother for
compensation.”

(Emphasis by us)

35. In the trial in SC No.26/10, the investigating officer
Shri Ashok Kumar Saxena stands examined by the
defence as DW- 4th on 3rd August, 2011 and 4th August,
2011. On the nature of the investigation conducted by
him into FIR No.416/84 and the
complaints (including the complaint dated 18th
November, 1984 given by Sampuran Kaur) clubbed
with it, Shri Ashok Kumar Saxena inter alia stated
thus:-

“… S.I. Arjun Singh had also partly
investigated FIR No. 416/84. He was a member
of the investigating team. He had also
investigated this case with me. I do not remember
how many charge sheets were submitted in case
FIR No. 416/84. I have seen S.I. Arjun Singh
signing and writing as he worked with me. I did
know Urdu. S.I. Arjun Singh knew Urdu. I
identify the handwriting and signatures of Arjun
Singh appearing on the statement of Jagdish Kaur
dated 20.01.85. The same is EX DW 4/B (objected
to as mode of proof). Arjun Singh signed on the
statement at point A. SI Arjun Singh used to write
Urdu and the statement shown to me is in Urdu
and formed part of case diary therefore, it bears
the signature of S.L Arjun Singh therefore, I say
that the statement was recorded by SI Aijun Singh
In the gist of relevant case diary’ statement of
Guru Charm Singh is mentioned’ the same is EX
DW 4/C, and signature of SI Arjun Singh is at

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point A. (objected to as to mode of proof).”

(Emphasis disclosed)

36. Shri Ashok Kumar Saxena was also extensively
crossexamined by Mr. R.S. Cheema, Id. Senior Counsel
for CBI when he stated as follows:-

“It is correct that myself and S.L Arjun
Singh never remained posted together and I
never worked with him prior to the formation of
special investigation team of case FIR No.
416/84. There was no personal/official exchange
ofletters between me and S.I. Arjun Singh. Vol.
During the course of investigation of this FIR No.
416/84 when the file used to come to me I used to
go through the investigation carried out by S.I.
Arjun Singh and during that period I used to see
his writing. I used to get the Urdu portion read
over to me by someone when he was not there. I
do not remember if Jagdish Kaur joined the
investigation of the case in my presence or not I
do not remember under what circumstances and
what place and in what manner the statement
EXDW4/B was recorded. I do not recollect if I
met personally Jagdish Kaur or having seen her. I
can write my name in Urdu but otherwise I
cannot read and write Urdu. I have not read
Urdu as subject in my school. It is correct that if
on two separate papers in Urdu without mention
of case diary etc. is shown to me I will not be
able to say with certainty if the same are written
by S.I. Arjun Singh or not.”

(Emphasis supplied)

37. So far as the status of the residence of the
complainant and recording of the statement of Nirpreet
Kaur is concerned, we extract hereunder some portions

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of Shri Ashok Kumar Saxena’s (DW-10) cross-
examination on this aspect which read thus:-

“I had visited the house mentioned in
statement EXDW 4/B. This statement was
recorded in Moti Bagh Gurudwara. It is not
mentioned in the statement that it was recorded in
Moti Bagh Gurudwara and I am stating so on the
basis of my memory. I can tell after seeing the
case diary. Some goods were lying burnt in the
house but house was not reduced to ashes. When
I had gone for site inspection at that time nobody
was living in this house. Witness is shown case
diary dated 01.03.1985 of case FIR No. 416/84,
P.S Delhi Cantt. It is correct that prior to
01.03.1985 I did not meet Nirpreet Kaur nor I
knew her. During investigation I went to
Gurudwara Moti Bagh where on inquiry about the
resident of WZ 241, Raj Nagar Palam Colony
Nirpreet Kaur d/o Nirmal Singh came forward
and I recorded her statement. Many other ladies
were present at that time. I am stating this fact
from my memory. The ladies were from other
victims families of Delhi Cantt. I am not
recollecting the name of any other lady. It is
incorrect to suggest that I never went to Moti Bag
Gurudwara or that I never recorded the statement
of Nirpreet Kaur EX DW 4/A or that it is a forged
statement. I cannot say if Nirpreet Kaur was not
residing at Moti Bagh Gurudwara however, she
was there when she met me and I recorded her
statement. I am not aware if any camps were
organized for the victims or not but riot victim’s
families were there in the Gurudwara. I cannot
say if there was a camp in Moti Bagh
Gurudwara for the riot victims families or the
same was closed in March 1985.1 can not say if
after 01.3.85,1 went to Moti Bagh Gurudwara or
not. I do not remember when I lastly visited Moti
Bagh Gurudwara.

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I did not record any statement of
Sampooran Kaur w/o Nirmal Singh. I do not
remember if I ever met her. After seeing the case
diary dated 09.05.85 the witness admits that he
recorded the supplementary statement of
Sampooran Kaur on 09.05.85. (at the request of
counsel for the accused the statement is exhibited
as DW 4/D). It is correct that same address is
mentioned in the statement of Sampooran Kaur
as that of Nirpreet Kaur. It is incorrect to suggest
that the statement dated 09.05.85 of Sampooran
Kaur is forged one or that she was not available
at Mod Bagh Gurudwara on 09.05.85 or that
there was no camp at that time. It is incorrect to
suggest that statement EX DW 4/B andEXDW 4/C
are not recorded by S.L Arjun Singh or that in
order to favour the accused persons I am going
out of the way to identify signatures of S.I Arjun
Singh….”

(Emphasis by us)

38. With regard to the address of Sampuran Kaur and
Nirpreet Kaur (wife and daughter of Late Shri Nirmal
Singh respectively), Shri Ashok Kumar Saxena (DW-

10) has made the following statement:-

“… It is correct that Sampooran Kaur w/o Nirmal
Singh and Nirpreet Kaur d/o Nirmal Singh did
not appear in the court however 1 cannot say if
they were served or not. It is incorrect to suggest
that I know it fully well that both these witnesses
were not served with the summons or that I am
intentionally pleading ignorance. Whatever
addresses were given by them at the time of their
statements, were given in the charge sheet.

Question: I put it to you that you have mentioned
the address of Nirpreet Kaur and Sampooran

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Kaur as resident of WZ 241 Raj Nagar, Palam
Colony in the challan?

Answer. So far as I recollect beside WZ 241 Raj
Nagar Palam colony they had also given some
new number of the same house which was also
mentioned in the statement U/s 161 Cr.P.C. I do
not remember if on 15.05.85, they were not
residing at this address. I remember in March
1985 when I recorded their statements they were
in Gurudwara Moti Bagh. Thereafter I do not
where they lived.”

(Emphasis by us)

39. So far as the manner in which the investigation has
been conducted, the witness Ashok Kumar Saxena
(DW-10) has stated as follows:-

“I do not know Guru Charon Singh whose
statement has been exhibited as DW 4/C. I cannot
say if SI Ram Niwas investigated case FIR
No.416/84 from 4.11.84 to 17.11.84 but he and
other I.Os had investigated this FIR. After
formation of Special investigation Team S.I. Avtar
Singh, S.I. Arjun Singh and myself investigated
this FIR. I do not remember if I investigated this
FIR on 04.12.1984 for a single date. However, it
is correct that I had investigated this FIR in a
single date. Vol. thereafter also. It is correct that
the file remained with me till final compliance
from 26.02.85. It is correct that I had taken help
of someone for getting the Urdu version read over
to me but I do not remember if the name of that
person was SI. Bhim Singh. I do not want to see
the case diary in this regard.‖

40. So far as the judgments passed in 1986 of
acquittals, the filing of the final report/challans and
cases registered by P.S. Delhi Cantt. are concerned,

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the witness Shri Ashok Kumar Saxena (DW-4) has
stated as follows:-

“I do not exactly remember how many killings
were the subject matter of FIR No. 416/84.
However I remember that there were 3/4 killings
and the same was the number of the
complainant. I do not remember if there were 22
complaints involving killing of 30 persons. It is
correct that objections raised by prosecution
branch was tried to be removed in that case. It is
correct that 4/5 challans of FIR No. 416/84 were
dealt with by me. I do not remember if a
composite report U/s 173 Cr.P.C was prepared by
S.H.O. Sita Ram Mamgai or that he annexed
five list of witnesses. I do not want to see the case
diary in this (O regard. It may possible that out
of five challans I was cited as witness in four
challans. Charge sheet was submitted by the
SHO. I appeared as a witness but I cannot tell in
how many cases I appeared as a witness. It may
be possible that I might have appeared as witness
in the case pertaining to the killing of Nirmal
Singh.

xxxx xxxx xxxx

Question. In three of the five challans pertaining
to the murder of Avtar Singh, Nirmal Singh, and
Joga Singh, the eye witnesses were not served
and the court found that thev were not residing
at the siven addresses and the cases resulted in
acquittal.

Ans. I cannot say anything.

It is correct that in all these cases the deceased
were Sikh males. It is correct that Gurudwara
Raj Nagar also came to notice during

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investigation and we visited there. We had gone
to Gurudwara for making inquiry. I do not
remember about the damage of Gurudwara. In
the statement of the witnesses it had come that
houses were looted. I do not remember if any
looted property was recovered. Details of looted
property did of come to my notice therefore house
of any accused could not be searched in that
perspective. During investigation it was revealed
that some of the victims were burnt, some of
them were half burnt and their postmortem was
conducted. I do not remember if in these five
challans any postmortem was conducted or not
It is incorrect to suggest that a large number of
murders were clubbed together illegally in FIR
No.- 416/84 to suppress the scale of crime. It is
further incorrect to suggest that investigation
conducted by us was a farce and the addresses of
eye witnesses were not correctly given to give
undue benefits to the accused persons. It is
further incorrect to suggest that I have deposed
falsely under the influence and pressure of the
accused. It is further incorrect to suggest that CBI
had joined me in investigation on more than one
occasion and my detailed statement was recorded
on 19.06.2006.”

(Emphasis supplied)

41. We have merely noted the above portions of the
testimony of two of the witnesses in SC No.26/10. This
should not be construed as our having opined on the
truth and veracity of this evidence. The above
statements raise the question as to whether the
prosecution made any effort to ensure that the best and
available evidence was produced during trial in SC
No.32/86 and whether the trial judge took any steps in
this regard? We consider these questions hereafter.

Whether this court has any jurisdiction to intervene

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in the judgements bearings SC No.31/86 dated 29th
April. 1986; SC No.32/86 dated if 17th May. 1986: SC
No. 11/86 dated 28th May. 1986: SC No.10/86 dated
15th July. 1986 and SC No.33/86 dated 4th October.

1986

42. The judgments in SC Nos.10/86, 11/86, 31/86,
32/86 and 33/86 have come to our knowledge while
hearing appeals being Crl.Appeal Nos.715, 753, 831,
851, 861, 1099/2013 & 710/2014, in exercise of our
jurisdiction under Section 386 of the Cr.P.C. Prima
facie the judgments reflect a very perfunctory and
hasty disposal of the cases which has deeply troubled
our judicial conscience. Would it be permissible for
this court to shut its eyes in the matter or does the
available statutory regime and law make available any
possible option for intervention at this stage? We are
conscious that no order adverse to the interest, of an
accused person (who stands acquitted) or a victim can
be passed without hearing him/her or behind his/her
back. However, to exercise judicial power, a prima
facie view has to be recorded to ensure whether such
intervention could be justified and appropriate. For
this reason, prior to issuance of notice, we have
undertaken a prima facie examination of the statutory
provisions as well as judicial precedents which, we set
out hereunder.‖

*****

93. A prima facie consideration of the composite
challan dated 25th March, 1985 indicates lip service to
the duty to investigate while the judgments in SC Nos.
10/86, 11/86, 31/86, 32/86 and 33/86 reflect no steps
or compliance with Sections 62, 64, 65, 87 and 311 of
the Cr.P.C. as well as Section 165 of the Indian
Evidence Act, 1872 and haste to scuttle prosecutions
and close trials.

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94. The complaints which were the basis of the trials in
SC Nos. 10/86, 11/86, 31/86, 32/86 and 33/86, refer to
the incidents on 1st and 2nd November, 1984, all in the
Raj Nagar referable to the police post Palam Colony
under Police Station Delhi Cantt. They were
investigated by the same police officials. A
consolidated final report dated 25th March, 1985 under
Section 173 of the Code of Criminal Procedure was
filed in court. It is undisputed that after committals and
framing of charges, the trials in these cases culminated
within a short period of three to four months and the
final outcome was acquittal of the accused persons
from the charges.

95. Even if each complaint could be examined as a
standalone crime, it is undisputed that each of them
relates to the very serious offence of commission of
murder. Some of the accused persons are implicated
for commission of more than one such offence. Would
these crimes fall in the category where truth has
become a casualty at the hands of investigator,
prosecutor and in the trial?

*****

Prima facie observation

101. Even at the cost of repetition, we hasten to add
that we are not commenting on the correctness of the
evidence of Nirpreet Kaur as PW-10 or that of Shri
Ashok Kumar Saxena (DW-10) in SC No.26/10 or the
legal acceptability of her explanation. We may note
here that a strong objection is taken by Mr. R.N.
Sharma and Mr. Anil Kumar Sharma, Id counsels for
the appellants in Crl.A.Nos.851/2013 and Crl.A.No.
1099/2013 to the testimony of Nirpreet Kaur (DW- 10)
on the fact that she has surfaced and made the
allegations for the first time in the case only in the year
2011 when her evidence had been recorded during

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trial in SC No.26/10 by the trial court and that she
deserved to be disbelieved for this reason. We shall
rule on this after hearing counsels in
Crl.A.Nos.715/2013, 753/2013, 831/2013,
851/2013,861/2013, 1099/2013 and 710/2014. These
are amongst the several aspects on merits which we
shall consider in the appropriate proceedings.

102. We have extracted the testimony of Nirpreet Kaur
(PW-10) and of Shri Ashok Kumar Saxena (DW-4) only
to point out that the prosecution in SC No.32/86 was
bound to bring out the truth. However, the
responsibility to do so did not rest only on or end with
the prosecution. It was the statutory duty of the court
as well conducting the trial and actively engaged with
the proceedings to ensure that the truth is brought out
and the justice is done.

103. The instant case manifests that after giving three
dates, which were separated by barely a few weeks,
there was a total period hardly of one and a half
months, for service of the two eye-witnesses including
the complainant to the occurrence. It was brought out
on record that the complainant’s own house stood
burnt; that she was not available at that address; that
the summons sent by the court had not been served on
her as per para 9 of the judgment dated 17th May,
1986, no effort was made by the trial court for causing
an inquiry to be made with regard to her address and
serving her even with summons let alone taking the
coercive action by way of bailable or nonbailable
warrants to enforce the presence of a witness.

104. Persons have come forward as eye-witnesses and
have given their testimony in SC No.26/10. Upon
consideration of the principles laid down by the
Supreme Court in (2004) 4 SCC 158, Zahira
Habibulla H. Sheikh & Anr. v. State of Gujarat &
Ors. and (2015) 8 SCC 787, Bablu Kumar & Ors. V.

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State of Bihar & Anr., prima facie it appears that the
present case is fit to invoke the revisional power by this
court under Section 401 of the Cr.P.C. to thereby set
aside the impugned judgment and direct a retrial of the
case.

Investigation — whether any undertaken?

105. A perusal of the above composite
chargesheet/fmal report under Section 173 of the
Cr.P.C. dated 25th March, 1985 would show that the
bare essential requirements of an investigation into
any of the complaints do not appear to have been
carried out before its filing. It is not disclosed as to on
whose instance the site plan was prepared and what
were the photographs taken of? No effort has been
made to trace out either the dead bodies or the stolen
materials. No statement of the eye-witnesses, including
relatives or any other neighbours or other public
persons who may have been present has been
recorded. To say the least, the bare notions of
investigation do not seem to. have been carried out
before the challan has been filed.

106. What to say of investigation, the complaints which
disclosed commission of the heinous and serious
offence like murder, have not even been registered.

*****

108. During the course of hearing
Crl.A.Nos.715/2013, 753/2013, 831/2013, 851/201,
861/2013, 1099/2013 and 710/2014, we have
repeatedly queried counsels as to who was killed, or
even how many died in the violence which erupted ®
after the 31®’ of October, 1984? We have got no firm
answer at all. The complaints in SC No. 10/86 (lodged
by Daljit Kaur); 11/86 (lodged by Swaran Kaur –

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widow)’, 31/86 (lodged by Jagir Kaur – widow)’, 32/86
(lodged by Sampuran Kaur – widow) and 33/86
(lodged by Baljit Kaur – daughter) show that only adult
male members of families of one community were
killed. The complaints disclose horrifying crimes
against humanity. The complaints also point out that
male members of one community were singled out for
elimination. This suggests that these were no ordinary
crimes, or ”simple’ murders (if ever a murder could be
termed as ”simple’). Treated as individual cases, while
the culprits got away scot free, everybody else, the
police, the prosecutors, even the courts, appear to have
failed the victims, and, most importantly society.
Perhaps, had these terrible offences in 1984 been
punished and the offenders brought to book, the history
of crime in this country, may have been different. We
are of the view that if we fail to take action even now,
we would be miserably failing in our constitutional
duty as well as in discharging judicial function.‖

35. Relevant extracts containing the aforesaid observations in Crl. Rev. P.
No. 246/2017 are reproduced herein below:-

“Prima facie observations

25. In the judgment dated 29th April, 1986, the trial
court has thus rejected the complaint dated 13th
November, 1984 of Jagir Kaur as fake, incomplete and
confusing. The prosecution has been faulted for not
registering the case. The trial court also held that
failure to register a separate case has not been
satisfactorily explained and also as to why the
inquiries regarding the application dated 13th
November, 1984 (EX.PW4/A) were not conducted. The
trial court specifically notes that in Ex.PW4/A, only
Balwan Singh Khokhar and Mahender Singh, residents
of Village Bagdola were mentioned. However, after
arrest of the accused, no identification parade was
conducted.

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In these circumstances, the court has accepted
the defence case that the accused persons were
introduced by the complainant and police after
consultation and manipulation.

26. The trial court had also disbelieved the complaint
for the reason that it was dated 13th November, 1984
while it refers to the incident dated 1st November,
1984.

27. So far as the eye-witness or the complainant Jagir
Kaur is concerned, para 10 of the judgment dated 29 th
April, 1986 deserves to be extracted and reads thus:

“10. …In this case, the only eye-witness is Jagir
Kaur, according to the prosecution. But this Jagir
Kaur has also not been produced by the
prosecution in spite of opportunity given. Her
summons was issued but received back unserved
and according to the report, she is untraceable.
The I.O. has also stated that she is untraceable. In
this way, this most important witness has also not
been produced by the prosecution and hence,
non-production of this material witness goes
against the prosecution and an adverse
presumption can be drawn u/s. 114 of the Indian
Evidence Act. …”

(Emphasis by us)

Thus the report on a single summon to the effect that
Jagir Kaur is untraceable was accepted by the trial
court to acquit the accused persons.

28. It has further been observed thus in paras 10, 11
and 12 of the judgment dated 29th April, 1986:

“10. xxxx It appears that the incident had taken

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place in the densely populated area in the day
time and it appears that the incident was seen by
several persons. Except the interested witness
Jagir Kaur, no independent witness was
examined u/s 161 CrPC or was produced in this
court as a prosecution witness. Even the site plan
ExPW3/B was prepared with undue delay on 1-3-

85. It was prepared after about four months from
the date of incident. This site plan was not
prepared on the pointing out of the eye witness.
This site plan was prepared as noticed by the I.O.
on the spot. This site plan shows that near the
place of incident, there are houses of E.C.
Sharma, Daya Ram Gautam and R.L. Tiwari. But
none of them have been produce as a prosecution
witness and they also w.ere not examined u/s 161
Cr.P.C.

11. The body of Joga Singh deceased was not
recovered. His post mortem was not conducted
according to the prosecution case, he was burnt at
the place of incident. Just after the incident or at
the earliest. The FIR was not registered and the
ID had also not seen the place of incident so that
material evidence regarding the burning could
be collected on 1-3-85 when site plan was
prepared. Neither ashes nor any other evidence
was found on the spot to show that Joga\Singh
was burnt on that spot. Neither ashes nor any
petrol nor any other incriminating article was
recovered from the possession of the accused. No
looted property was recovered from the
possession of the accused. Names of the accused
persons were introduced with great delay and
they were also arrested with undue delay. The
statement of Jagir Kaur was recorded u/s 161
Cr.P.C.with undue delay. In the absence of Jagir
Kaur, there is no evidence on record to connect
the accused persons with the alleged offence.

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12. I have considered the entire evidence on
record and the circumstances of this case.
Prosecution story appears to be improbable and
unreliable. No offence is proved against the
accused persons. ”

(Emphasis by us)

29. It has been noted in the judgment dated 29 th April,
1986 that the site plan (Ex.PW3/B) was prepared on
the 1st of March 1985 i.e. four months after the date of
the incident by the investigating officer ―on his own”

and not on pointing out of any witness.

30. It has been noted that in the site plan (Ex.PW3/B),
the houses of E.G. Sharma, Daya Ram Gautam and
R.L. Tewari are mentioned. However, none of them has
been examined.

31. We find that in para 11 of the final judgment dated
29th April, 1986, the trial court observed that the dead
body of Joga Ram was not recovered, his post-mortem
was not conducted and no FIR was registered. It has
been observed that no petrol or other incriminating
article was recovered; no ash or any other evidence
was found and no looted property was recovered from
the possession of the accused which would support that
Joga Singh was burnt on the spot.

32. Finally, it was observed that in the absence of Jagir
Kaur, there was no evidence on record to connect the
accused persons with the alleged offences.
Consequently, it was held that the prosecution story
appears to be ”improbable and unreliable”. Balwan
Khokhar and Mahender Singh Yadav were
consequently, acquitted in the case by the judgment
dated 29th April, 1986.

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33. Despite noting that the incident had taken place in
a densely populated area in the daytime, no
independent witness has been examined by the
prosecution.

34. The prosecution is bound to produce the best
evidence to support the allegations against the accused
persons. However, the responsibility does not rest only
on or end with the prosecution. It is the statutory duty
of the trial court as well conducting the trial to actively
engage with the proceedings to ensure that the truth is
brought out and that justice is done.

35. Despite it being brought out on record that Jagir
Kaur’s house had been attacked; that she was not
available at the given address; that even the summons
had not been served on her; no effort had been made
by the trial court for causing an inquiry to be made
with regard to her address and serving her with
summons, let alone taking the coercive action by way
of bailable or non-bailable warrants to enforce the
presence of a witness.

36. The trial judge has noted that as per her
application as well as her statement recorded u/s 161
CrPC, she has stated that her house had been attacked
and that her husband had first beaten her husband and
subsequently burned him alive.

37. It was the solemn responsibility of the court, trying
such a serious and heinous offence, to ensure that the
witness is traced out and produced. Instead of
discharging this duty, the court has opted to draw an
adverse presumption under Section 114 of the
Evidence Act while discarding the value of Jagir
Kaur’s evidence as that of an ―interested witness‖.

****

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Investigation – whether any undertaken?

97. A perusal of the above composite chargesheet/final
report under Section 173 of the Cr.P.C. dated 25 th
March, 1985 would show that the bare essential
requirements of an investigation into any of the
complaints do not appear to have been carried out
before its filing. It is not disclosed as to on whose
instance the site plan was prepared and what were the
photographs taken of? No effort has been made to
trace out either the dead bodies or the stolen materials.
No statement of the eye-witnesses, including relatives
or any other neighbours or other public persons who
may have been present has been recorded. To say the
least, the bare notions of investigation do not seem to
have been carried out before the challan has been
filed.

98. What to say of investigation, the complaints which
disclosed commission of the heinous and serious
offence like murder, have not even been registered.

99. The prosecutors also appear to have completely
abdicated their duties and have not assisted the trial
courts nor ensured that the truth was brought out,
guilty convicted and serious crimes punished. The
prosecutions were launched without any effort a
ensuring that investigations were honestly complete
and that culpability could be fixed.

100. During the course of hearing Crl.A.Nos.715/2013,
753/2013, 831/2013, 851/201, 861/2013, 1099/2013
and 710/2014, we have repeatedly queried counsels as
to who was killed, or even how many died in the
violence which erupted after the 31st of October, 1984?
We have got no firm answer at all. The complaints in
SC No. 10/86 (lodged by Daljit Kaur); 11/86 (lodged
by Swaran Kaur -widow); 31/86 (lodged by Jagir Kaur

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– widow); 32/86 (lodged by Sampuran Kaur – widow)
and 33/86 (lodged by Baljit Kaur – daughter) show that
only adult male members of families of one community
were killed. The complaints disclose horrifying crimes
against humanity. The complaints also point out that
male members of one community were singled out for
elimination. This suggests that these were no ordinary
crimes, or ‘simple’ murders (if ever a murder could be
termed as ‘simple’). Treated as individual cases, while
the culprits got away scot free, everybody else, the
police, the prosecutors, even the courts, appear to have
failed the victims, and, most importantly society.
Perhaps, had these terrible offences in 1984 been
punished and the offenders brought to book, the history
of crime in this country, may have been different. We
are of the view that if we fail to take action even now,
we would be miserably failing in our constitutional
duty as well as in discharging judicial function.

****

Whether the victim and complainant should be heard

103. In the present case, the composite final report
dated 25th March, 1985 admits that it commenced
intervention only on complaints made by relatives of
deceased who were also victims of the violence. They
had complained of having faced threats and their
property being stolen or destroyed; We have extracted
hereinabove the composite final report under Section
173 of the Cr.P.C. regarding the five complaints
setting out the nature of investigation undertaken on
their complaints and the final judgments after the trials
which suggest insufficient effort, if any made, to ensure
the appearance of the complainants before the court.‖

36. Relevant extracts containing the aforesaid observations in Crl. Rev. P.

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No.249/2017 are reproduced herein below:-

“Prima facie observations

26. The above extract of paras 10 and 11 of the
judgment dated 15th July, 1986 show that the trial
court has taken the view that Daljit Kaur has stated in
the initial part of her statement that Balwan Khokhar
was not present in the crowd and that he had not
participated in the incident and therefore, liability
could not be fastened on Balwan Khokhar merely
because he was named by Daljit Kaur in her cross-
examination by the APP.

At the same time, the Id. trial judge has also
noted that in Ex.PWl/A, Daljit Kaur has named Balwan
Khokhar as responsible for the offence.

27. On the issue of inconsistencies in previous
statements, we may usefully refer to the pronouncement
of this court in Crl.A.No.741/2008, Vishal Yadav v.
State of U.P. dated 2nd April, 2014 in which one of us
(Gita Mittal, J) had the occasion to discuss the
applicable law;

“358. In (2001) 10 SCC 6 titled Majid v. State of
Haryana, the issue was whether the evidence of
PW-6 Hasham could be contradicted with the
evidence of DW-1 Jamaluddin unless at least the
attention of PW-6 has been drawn to the fact that
he had stated such inconsistent version to DW 1 ?
The court held as follows: —

14. If the former statement was in writing or
was reduced to writing, Section 145 of the
Act requires that attention of the witness
must be called to those parts of it which are
used for the purpose of contradicting him.
Here the statement allegedly made by PW 6
to DW 1 was not in writing, nor was it

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reduced to writing. Nonetheless, if the object
of examining DW 1 as a witness was to
discredit PW 6, it is only fair to insist that
PW 6 himself should have been given an
opportunity to explain it. Without PW 6
being asked about that aspect, it is
unreasonable to expect PW 6 to explain
about it. Hence it is immaterial that the
statement claimed by DW1 as made to him
by PW 6 was not reduced to writing.

359. It is contended on behalf of the appellants
that testimony of Nilam Katara in court contains
material improvements over her statement
recorded in the First Information Report as well
as her two statements (Ex.PW30/DA and
Ex.PW30/DB). The learned Trial Judge has
rejected this contention and concluded that the
facts which she narrated in court are only
explanations and elaboration of what she had
informed to police in the FIR and her statements
under Section 161 of the Cr.P.C.

360. Some of the precedents which shed valuable
Light on similar objections deserve to be
considered and are considered hereinafter. So far
as the contents of FIR are concerned, in a
judgment of the Supreme Court reported at (2006)
10 SCC 163 S. Sudershan Reddy and Ors. v.
State of Andhra Pradesh, the court laid down the
following:

18. …It is well settled that FIR is not an
encyclopaedia of the facts concerning the
crime merely because of minutest details of
occurrence were not mentioned in the FIR
the same cannot make the prosecution case
doubtful. It is not necessary that minutest
details should be stated in the FIR. It is

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sufficient if a broad picture is presented and
the FIR contains the broad features. For
lodging FIR, in a criminal case and more
particularly in a murder case, the stress must
be on prompt lodging of the FIR….

361. On the same aspect, we find that the Trial
Court in its judgment has referred to the judgment
of the Allahabad High Court reported at 1998
Cri.L.J.2064 Dharmendra Singh v. State of U.P.,
which also noted the requirement of details in the
statement under Section 161 Cr.P.C. in the
following terms:-

28…The F.I.R. and the statement recorded
under Section 161, Cr.P.C. are not
encyclopaedia, to give each and every
minute details which had come into light
during the deposition in the Court.

Sometime witnesses do not think it proper to
get it mentioned in the F.I.R. or in their
statements recorded under Section 161, Cr.
P.C. but it does not mean that the facts do
not exist.

362. The Supreme Court had occasion to compare
a deposition in court as against a statement
under Section 161 of the Cr.P.C. by a witness in
the judgment reported at (2000) 8 SCC 457,
Narayah Chetanram Chaudhary v. State of
Maharashtra, which reads as follows:-

43. On an analysis of the statement of PW 2
(which is part of Vol. 4 of the paper-book),
his statement under Section 161 Cr.P.C. and
the deposition made by him on 15-10-1984
during investigation (which is part of Vol. 3
of the paper-book) we have come to a
conclusion that there is no material

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improvement, much less contradiction in the
deposition made by him before the trial court
after being granted pardon. The so-called
improvements are in fact the details of the
narrations extracted by the Public
Prosecutor and the defence counsel in the
course of his examination-in-chief and cross
examination.”

(Emphasis by us)

28. It is therefore, well settled that if a witness has to
be contradicted with any portion of his previous
testimony or any other statement, his attention has to
be drawn to the inconsistent version and he would be
required to have been given an opportunity to explain
the same. Prima facie, such opportunity does not seem
to have been afforded to Daljit Kaur (PW-1).

29. It is a settled principle of law that so far as a
witness turning hostile is concerned, so much of the
testimony as supports the prosecution can and has to
be relied upon. This important well settled principle of
law has been completely ignored in the judgment dated
15th of July 1986.

30. Furthermore, the evidentiary value of Ex.PWl/A
has been ignored.

Whether this court has am jurisdiction to intervene in
the judgments bearing SC No.31/86 dated 29th April,
1986; SC No.32/86 dated 17th May, 1986: SC
No.11/86 dated 28nd May, 1986: SC No.10/86 dated
15th July, 1986 and SC No.33/86 dated 4th October,
1986

31. The judgments in SC Nos.10/86, 11/86, 31/86,
32/86 and 33/86 have come to our knowledge while
hearing appeals being Crl.Appeal Nos.715, 753, 831,
851, 861, 1099/2013 & 710/2014, in exercise of our

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jurisdiction under Section 386 of the Cr.P.C. Prima
facie the judgments reflect a very perfunctory and
hasty disposal of the cases which has deeply troubled
our judicial conscience. Would it be permissible for
this court to shut its eyes in the matter or does the
available statutory regime and law make available any
possible option for intervention at this stage? We are
conscious that no order adverse to the interest of an
accused person (who stands acquitted) or a victim can
be passed without hearing him/her or behind his/her
back. However, to exercise judicial power, a prima
facie view has to be recorded to ensure whether such
intervention could be justified and appropriate. For
this reason, prior to issuance of notice, we have
undertaken a prima facie examination of the statutory
provisions as well as judicial precedents which, we set
out hereunder.

****

82. A prima facie consideration of the composite
challan dated 25th March, 1985 indicates lip service to
the duty to investigate while the judgments in SC Nos.
10/86, 11/86, 31/86, 32/86 and 33/86 reflect no steps
or compliance with Sections 62, 64, 65, 87 and 311 of
the Cr.P.C. as well as Section 165 of the Indian
Evidence Act, 1872 and haste to scuttle prosecutions
and close trials.

83. The complaints which were the basis of the trials in
SC Nos.10/86, 11/86, 31/86, 32/86 and .33/86, refer to
the incidents on 1st and 2nd November, 1984, all in the
Raj Nagar referable to the police post Palam Colony
under Police Station Delhi Cantt. They were
investigated by the same police officials. A
consolidated final report dated 25th March, 1985 under
Section 173 of the Code of Criminal Procedure was
filed in courts It is undisputed that after committals
and framing of charges, the trials in these cases
culminated within a short period of three to four

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months and the final outcome was acquittal of the
accused persons from the charges.

84. Even if each complaint could be examined as a
standalone crime, it is undisputed that each of them
relates to the very serious offence of commission of
murder. Some of the accused persons are implicated
for commission of more than one such offence. Would
these crimes fall in the category where truth has
become a casualty at the hands of investigator,
prosecutor and in the trial?

****
Investigation — whether any undertaken?

90. A perusal of the above composite chargesheet/fmal
report under Section 173 of the Cr.P.C. dated 25th
March, 1985 would show that the bare essential
requirements of an investigation into any of the
complaints do not appear to have been carried out
before its filing. It is not disclosed as to on whose
instance the site plan was prepared and what were the
photographs taken of? No effort has been made to
trace out either the dead bodies or the stolen materials.
No statement of the eye-witnesses, including relatives
or. any other neighbours or other public persons who
may have been present has been recorded. To say the
least, the bare notions of investigation do not seem to
have been carried out before the challan has been
filed.

91. What to say of investigation, the complaints which
disclosed commission of the heinous and serious
offence like murder, have not even been registered.

92. The prosecutors also appear to have completely
abdicated their duties and have not assisted the trial
courts nor ensured that the truth was brought out,
guilty convicted and serious crimes punished. The

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prosecutions were launched without any effort at
ensuring that investigations were honestly complete
and that culpability could be fixed.

93. During the course of hearing Crl.A.Nos.715/2013,
753/2013, 831/2013, 851/201, 861/2013, 1099/2013
and 710/2014, we have repeatedly queried counsels as
to who was killed, or even how many died in the
violence which erupted after the 31st of October, 1984?
We have got no firm answer at all. The complaints in
SC No. 10/86 (lodged by Daljit Kaur); 11/86 (lodged
by Swaran Kaur -widow); 31/86 (lodged by
Jagir Kaur – widow); 32/86 (lodged by Sampuran Kaur

– widow) and 33/86 (lodged by Baljit Kaur —
daughter) show that only adult male members of
families of one community were killed. The complaints
disclose horrifying crimes against humanity. The
complaints also point out that male members of one
community were singled out for elimination. This
suggests that these were no ordinary crimes, or
‘simple’ murders (if ever a murder could be termed as
‘simple). Treated as individual case, while the culprits
got away scot free, everybody else, the police, the
prosecutors, even the courts, appear to have failed the
victims, and, most importantly society. Perhaps, had
these terrible offences in, 1984 been punished and the
offenders brought to book, the history of crime in this
country, may have been different. We are of the view
that if we fail to take action even now, we would be
miserably failing in our constitutional duty as well as
in discharging judicial function.

94. We have crafted this order with care and
circumspection merely noting bare facts, proceedings
and orders brought to our knowledge, as well as
statutory provisions and judicial precedents, conscious
of the first principle that no person can be
―condemned‖ unheard. However, this order under
Section 401 of the Cr.P.C. must show that we have

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applied our mind and prima facie found that material
and circumstances as well as the law mandates
invocation of our revisional jurisdiction under Section
401 of the Cr.P.C. before issuance of notice. We have
abided by this discipline required by law. We,
therefore, make it clear that all our observations
hereinabove are a prima facie consideration. Nothing
herein contained is a final view in the matter which
would be taken after hearing the respondents.

95. Given the manner in which the Delhi Police
appears to have conducted itself and the failure of the
prosecution in performing its basic functions, we are of
the view that independent assistance is needed by this
court for consideration of the case.‖

37. Heard Mr. H S Phoolka, Ld. Senior Counsel appearing for the
Complainants, Mr. Siddharth Aggarwal, Ld. Senior Counsel and Ms.
Indermeet Sidhu, Ld. Counsel, who have been appointed as Amicus Curiae
in the matters, and Mr. Rakesh Vatsa, Ld. Counsel appearing for the
accused/Balwan Khokhar.

38. Mr. Phoolka, Ld. Senior Counsel for the Complainants, contends that
the investigations and trials were conducted in these cases in a completely
sketchy manner and that the matters have to be sent back for re-trials.

39. Mr. Siddharth Aggarwal, Ld. Amicus Curiae, points out that the
instant proceedings have been instituted in exercise of powers conferred on
this Court under Section 397/401 of the CrPC. He draws the attention of this
Court to Section 397 of the CrPC and states that before proceeding further
and giving any tentative finding as to the correctness or otherwise of the
Judgments passed by the Ld. Additional Sessions Judges, this Court has to

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call for the records, examine them and only then proceed ahead in the
matter. He states that without calling for and examining the records, the
Judgments of the Ld. Additional Sessions Judges cannot be interfered with
and cases cannot be sent back for the purposes of re-trial. He draws the
attention of this Court to Section 401(3) of the CrPC to state that the High
Court cannot convert a finding of acquittal to one of conviction and at the
highest, the powers of the High Court is only to send the matter back for re-
trial or pass any other further directions. He draws the attention of this Court
to the Orders dated 08.02.2017, 21.02.2017, 16.03.2016 and 22.03.2017
passed by this Court in Criminal Appeal Nos. 715/2013, 753/2013,
831/2013, 851/2013, 861/2013, 1099/2013 & 710/2014,to indicate that the
records in Sessions Cases 10/1986, 31/1986 and 32/1986 (which pertain to
the Criminal Revision Petitions being dealt with in the present Order) have
been weeded out/destroyed. He submits that without getting the records, it
would not be appropriate for this Court to proceed further with the matter.

40. Mr. Aggarwal, learned Amicus Curiae, also draws the attention of this
Court to the Judgment passed by the Apex Court in State of Uttar Pradesh v.
Abhai Raj Singh, (2004) 4 SCC 6. The relevant portion of the said Judgment
reads as under:-

―6. The powers of the appellate court when dealing
with an appeal from a conviction are delineated in sub-
clauses (i), (ii) and (iii) of clause (b) of Section 386 of
the Code. The appellate court is empowered by Section
386 to reverse the finding and sentence and acquit.

Therefore, the acquittal is possible when there is
reversal of the finding and sentence. The appellate
court is also empowered to discharge the accused. The
third category which seems to be applicable to the
present case is a direction for retrial by a court of
competent jurisdiction subordinate to the appellate

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court or committed for trial. For exercise of the powers
in cases of first two categories, obviously a finding on
merits after consideration of the materials on record is
imperative. Where that is not possible because of
circumstances like the case at hand i.e. destruction of
the records, the proper course for the appellate court
would be to direct retrial after reconstruction of the
records if in spite of positive and constructive efforts to
reconstruct the records the same was impossible. If on
the other hand, from the copies available with the
prosecuting agency or the defence and/or their
respective counsel, reconstruction is possible to be
made, the said course should be adopted and the
appeal can be disposed of as it deserved under the
course indicated in sub-clauses (i) and (ii). After
perusal of the records and hearing the appellant’s
pleader and Public Prosecutor under Section 377 or
378, the exercise of power as indicated above can be
resorted to. As was observed in Bani Singh v. State of
U.P. [(1996) 4 SCC 720 : 1996 SCC (Cri) 848] the
plain language of Section 385 makes it clear that if the
appellate court does not consider the appeal fit for
summary dismissal, it must call for the records and
Section 386 mandates that after record is received, the
appellate court may dispose of the appeal after hearing
as indicated.

7. A question would further arise as to what happens
when reconstruction is not possible. Section 386
empowers the appellate court to order that the case be
committed for trial and this power is not circumscribed
to cases exclusively triable by the Court of Session.
(See State of U.P. v. Shankar [AIR 1962 SC 1154 :

(1962) 2 Cri LJ 261] .)

8. It has been the consistent view taken by several High
Courts that when records are destroyed by fire or on
account of natural or unnatural calamities,
reconstruction should be ordered. In Queen Empress v.

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Khimat Singh [1889 AWN 55] the view taken was that
the provisions of Section 423(1) of the Criminal
Procedure Code, 1898 (in short ―the old Code‖) made
it obligatory for the court to obtain and examine the
record at the time of hearing. When it was not possible
to do so, the only available course was a direction for
reconstruction. The said view was reiterated more than
six decades back in Sevugaperumal, Re [AIR 1943
Mad 391 (2) : 44 Cri LJ 611] . The view has been
reiterated by several High Courts as well, even
thereafter.

xxx

10. We, therefore, set aside the order of the High Court
and remit the matter back for fresh consideration. It is
to be noted at this juncture that one of the respondents
i.e. Om Pal has died during the pendency of the appeal
before this Court. The High Court shall direct
reconstruction of the records within a period of six
months from the date of receipt of our judgment from
all available or possible sources with the assistance of
the prosecuting agency as well as the defending parties
and their respective counsel. If it is possible to have the
records reconstructed to enable the High Court itself to
hear and dispose of the appeals in the manner
envisaged under Section 386 of the Code, rehear the
appeals and dispose of the same, on their own merits
and in accordance with law. If it finds that
reconstruction is not practicable but by ordering
retrial interest of justice could be better served —
adopt that course and direct retrial — and from that
stage law shall take its normal course. If only
reconstruction is not possible to facilitate the High
Court to hear and dispose of the appeals and the
further course of retrial and fresh adjudication by the
Sessions Court is also rendered impossible due to loss
of vitally important basic records — in that case and
situation only, the direction given in the impugned
judgment shall operate and the matter shall stand

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closed. The appeals are accordingly disposed of.‖

(Emphasis supplied)

41. Thereafter, he draws the attention of this Court to the Judgment of the
Apex Court in Jitender Kumar Rode v. Union of India, 2023 INSC 419,
wherein it was opined that where the entire record was lost or destroyed and
the re-construction of record was not possible, the Appellate Court shall
order a fresh/de novo trial provided that the time lag from the date of
incident and the date of hearing of the appeal is short. The Apex Court was
further of the opinion that if the same is long and/or the FIR, statement of
witnesses under Section 161 CrPC and other relevant papers are not
available, the Appellate Court shall ordinarily not make an order for re-trial.

42. Learned Counsel for the Accused contends that the incident is of the
year 1984 and the matter is being considered after 40 years. He states that
when the entire record has been weeded out, the rights of the accused under
Article 21 of the Constitution of India would be violated if a re-trial or
further investigation is ordered at this stage.

43. Unlike in Sessions Case 11/86 (giving rise to Criminal Revision
Petition 247/2017), where the record of the case is available, the material on
record in the present cases, viz. Sessions Cases 10/86, 31/86 & 32/86,
indicates that the records have been weeded out/destroyed, and are presently
not available before this Court to enable it to exercise its powers under
Section 401 of the CrPC. The only material available at present is in the
form of the composite challan as also the final Judgments passed by the Ld.
Additional Sessions Judges.

44. Material on record further prima facie reveals several lacunae in the

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investigation as also the conduct of trials. A prima facie reading of the
Judgment passed by the Trial Court indicates that the Judgments are not well
considered, as already noted by this Court in its Orders dated 29.03.2017.
However, this Court is not inclined to make any further comments on the
tenability of the impugned Judgments at this juncture without having the
benefit of perusing the records of the Sessions Cases.

45. Since the entire records are not available and without vital documents,
such as the deposition of witnesses, documents exhibited before the Ld.
Additional Sessions Judges, statements recorded under Section 161 of the
CrPC etc., it would be impossible for this Court to proceed with further
consideration of the present cases.

46. Valuable lives have been lost in the incidents which form the subject
matter of the present cases. Several crucial witnesses, including
eyewitnesses to the incident were not examined in Sessions Cases 31&
32/86 on account of insufficient efforts to secure their presence through
service of summons at addresses which had been damaged and/or
abandoned by such witnesses in the aftermath of the incident. A composite
challan has been filed for several cases prima facie reflecting a perfunctory
investigation. Therefore, this Court is of the opinion that the matter cannot
be left to rest at this juncture.

47. The valuable rights of victims and the society at large to a free and
fair investigation as also a real trial cannot be allowed to be compromised as
a result of fait accompli. This Court is, therefore, inclined to follow the
course as suggested by the Apex Court in Abhai Raj Singh (supra), and
consequently direct the jurisdictional Trial Court for reconstruction of the
records of Sessions Case 10/86, Sessions Case 31/86 and Sessions Case

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32/86. We fervently hope that the exercise initiated by this Court vide
Orders dated 08.02.2017, 21.02.2017, 16.03.2017 and 22.03.2017 in
Criminal Appeal Nos. 715/2013, 753/2013, 831/2013, 851/2013, 861/2013,
1099/2013 & 710/2014 would be brought to its logical conclusion at the
earliest.

48. We may also advert to the following observations of the Apex Court
in Abhai Raj Singh (supra) which support the course of action we propose to
take:

“9. …It is not clear as to why the High Court did not
require the Sessions Court to furnish the information
about reconstruction of records; and / or itself take
initiative by issuing positive directions as to the
manner, method and nature of attempts, efforts and
exercise to be undertaken to effectively achieve the
purpose in the best interests of justice resulting from
any lapse, inaction or inappropriate or perfunctory
action, in this regard; particularly when no action was
taken by the High Court to pass necessary orders for
about a decade when it received information about
destruction of record. The course adopted by the High
Court, if approved, would encourage dubious persons
and detractors of justice by allowing undeserved
premium to violators of law by acting hand in glove
with those anti-social elements coming to hold sway,
behing the screen in the ordinary and normal course of
justice.”

(Emphasis supplied)

49. Several Commissions had been constituted to look into various
aspects of the Sikh riots in 1984. The CBI had also investigated into the
larger conspiracy resulting in the incidents which took place on
01/02.11.1984 in the Raj Nagar area and the murders of five Sikh persons
(Kehar Singh, Gurpreet Singh, Raghuvinder Singh, Narender Pal Singh &

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Kuldeep Singh), leading to the conviction of six accused persons named in
that case. This Court hopes that records of Sessions Case 10/86, Sessions
Case 31/86 and Sessions Case 32/86 may be available with the CBI, having
been taken into consideration by it during the course of investigation into
RC24/2005-SIU-I/SIC-1/CBI/ND. We are also informed that certain appeals
directed against the Judgment dated 17.12.2018 passed by this Court in
Criminal Appeal Nos. 715/2013, 753/2013, 851/2013, 861/2013, 1099/2013
& 710/2014, i.e. the CBI case, are pending before the Apex Court. As such,
the records of the present Sessions Cases 10/86, 31/86 and 32/86 may also
be available as part of the Trial Court Record in the said appeals, which may
be available with the Registry of the Apex Court, having been collected
during the course of investigation by the CBI.

50. Such records may also be available in the archives of the various
Committees/Commissions appointed from time-to-time.

51. Efforts are required to be made on a best endeavour basis to secure
such records from any and all sources so as to enable this Court to finally
adjudicate the present Criminal Revision Petitions.

52. In the event such records are not available with the CBI or with the
various Committees/Commissions, the assistance of lawyers who conducted
Sessions Cases 10/86, 31/86 & 32/86 may be taken, including Public
Prosecutors, Defence Counsel and other assisting counsel, as they are equal
stakeholders in the judicial process, and owe a duty to this Court to ensure a
proper adjudication of the present Criminal Revision Petitions.

53. As a first step, this Court directs the jurisdictional Trial Court to make
an endeavour to reconstruct the records of Sessions Cases 10/86, 31/86 &
32/86. To this end, the Order dated 28.05.2025 passed by this Court

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reserving Judgment in the present Criminal Revision Petitions is recalled. It
is expected that the CBI, the Delhi Police, the Public Prosecutor(s), the Ld.
Counsel for the accused persons, as also the Ld. Counsel for the
Complainants, will extend full cooperation in the matter.

54. The Ld. Trial Court is expected to make best possible efforts to
reconstruct the records from all possible avenues as expeditiously as
possible, and file a detailed report in that regard before the next date of
hearing.

55. List for further hearing on 01.09.2025.

56. This Court expresses its appreciation for the invaluable assistance
rendered by Mr. Siddharth Aggarwal, learned Senior Counsel (Amicus
Curiae), and Mr. Vishwajeet Singh, learned Counsel, who has ably assisted
the Amicus Curiae and this Court.

SUBRAMONIUM PRASAD, J

HARISH VAIDYANATHAN SHANKAR, J
AUGUST 11, 2025
hsk

Signature Not Verified
Digitally Signed
By:RAHUL SINGH CRL.REV.P. 245/2017 etc. Page 66 of 66
Signing Date:11.08.2025
19:46:11

Source link

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Sanjay Hazra @ Sanjay Hajra vs The State Of Jharkhand …. Opp. Party on 8 August, 2025

Haseen Miyan vs State Of U.P. And Another on 7 August, 2025

Vijay Kumar Bhatia vs State Of Chhattisgarh on 11 August, 2025

Satya Dev Bharal vs Krishn Dev Bharal & Ors on 8 August, 2025

Amit Kumar vs State Nct Of Delhi And Ors on 5 August, 2025

Sanjay Hazra @ Sanjay Hajra vs The State Of Jharkhand …. Opp. Party on 8 August, 2025

Court On Its Own Motion vs Dhanraj & Ors on 11 August, 2025

Delhi High Court

Court On Its Own Motion vs Dhanraj & Ors on 11 August, 2025

Author: Subramonium Prasad

Bench: Subramonium Prasad

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