Aug
19
Government Prosecution Unprepared in Sajjan Kumar Case
August 19, 2005 | Comments Off on Government Prosecution Unprepared in Sajjan Kumar Case
The prosecution’s behavior in a case against Sajjan Kumar, arising from the 1984 Sikh massacres, gives insight into what will happen in any future prosecutions initiated by the government in fulfillment of its recent promises regarding the Nanavati Report.
The Delhi High Court was forced to adjourn a hearing today because the prosecuting authority was not prepared to argue their appeal to a 2002 acquittal of Sajjan Kumar in a case arising from the 1984 Sikh massacres:
“Do your home work and then come to the court,” a Division Bench of Justice Vijender Jain and Justice Rekha Sharma told the CBI [Central Bureau of Investigation] counsel.
The court’s observation came after the counsel started arguments on ‘leave to appeal’ but ended up reading out the CBI petition (appeal).
CBI counsel R M Tiwari submitted that the trial court order would result in miscarriage of justice as evidence of several prosecution witnesses had not been appreciated properly.
However, when asked to specifically point out the shortcomings in the trial court order acquitting Sajjan Kumar and some other accused in the anti-Sikh riots case, he could not impress the court.
Earlier in April, the Court requested the CBI to file an explanation for why it had delayed filing its appeal. The CBI had allowed the 90-day appeal period to lapse.
The hearing was adjourned until October 4, at which point the Court will also consider petitions by 8 other survivors and the Sikh Gurudwara Prabandhak Committee (SGPC).
ENSAAF’s report Twenty Years of Impunity: The November 1984 Pogroms of Sikhs in India discusses how grave lapses in police investigations, delays in filing cases, the failure to identify and investigate prosecution witnesses, the deliberate misrecording of witness statements, and the failure to comply with legal procedures precluded effective prosecutions. It also specifically focuses on Sajjan Kumar’s acquittal in this case:
On December 23, 2002, another major perpetrator, MP Sajjan Kumar, was acquitted in the last case remaining against him. This case illustrates the government delays and impact of police manipulation of evidence. The police had earlier closed all cases against Kumar, never filing a charge sheet. Only after the Poti-Rosha committee recommended the institution of a case against Kumar, based on the affidavit of Anwar Kaur regarding the murder of her husband, did the CBI register a case on September 7, 1989. In 1992, the CBI applied for prosecution sanction—required by the State for the arrest or prosecution of public servants—but received no response for two years from the government of Prime Minister Narasimha Rao (who was Home Minister in November 1984). After M.L. Khurana began to push for the grant of sanction, the CBI was finally able to file its charge sheet in court in December 1994 and record the statements of witnesses in 1999, 15 years after the massacre. Two witnesses testified to seeing Kumar addressing meetings on October 31, exhorting people to kill Sikhs. Anwar Kaur gave her testimony and stood by her statement for two days of cross-examination. On the third day, the reporter recorded a confusing statement where Anwar Kaur first vehemently stood by her testimony of the previous days, and then stated the contrary. Harvinder S. Phoolka, senior advocate representing the victims, attributed this to a recording error—the insertion of one negative word.
The next five witnesses called by the prosecution turned hostile. Kumar’s two witnesses, both police officers, had recorded the Sultanpuri omnibus FIR. The Sessions Judge Manju Goel acquitted Sajjan Kumar on the basis of the police officers’ testimony that none of the witnesses had mentioned Kumar in their FIRs or testimonies, failing to account for police manipulation of FIRs and testimonies…Thus, by tampering with and falsifying the FIRs, and failing to record the names of certain perpetrators, the police managed to preclude most of the prosecutions.
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