New Delhi: In its order convicting former Congress MP Sajjan Kumar in the 1984 Sikh riots case, the Delhi high court acknowledged that there was an “absence of a proper witness protection programme” which had an “adverse effect on the criminal justice system”.
HC draws heavily from court rulings in Gujarat riots cases
Since the witnesses, whose depositions resulted in the conviction of all the accused, testified over 22 years after the riots, the court also relied heavily on observations in two cases pertaining to the Gujarat riots of 2002.
One of these was the Bilkis Bano case that pertained to the gang rape of the plaintiff and the killing of 14 members of her family. The other was the Zahira Shaikh case, better known as the Best Bakery case, in which 11 members of her family and three employees of the bakery were killed.
In the Bilkis Bano case, it was argued for the accused that despite several chances, no complaint was lodged by the witnesses about the riot. However, the Bombay high court held that “when these witnesses found the police non-cooperative or hostile, then naturally they were discouraged to lodge any complaint at any place where they were staying,” Justices S. Murlidhar and Vinod Goel recorded in their order.
‘1984 witnesses felt abandoned’
The judgment also drew a parallel to how witnesses in the 1984 Sikh-riots were left feeling insecure and abandoned.
The high court noted that the counsel for the victims, H.S. Phoolka submitted that it was “unfortunate that not even a single non-victim had come forward to speak even though the killings had taken place in broad daylight.” He attributes this conspicuous anomaly to the “fear of people who feel that by speaking the truth, they would put the lives of their family members and themselves in imminent danger.”
‘How those who protected Sikhs, later turned hostile’
Those who enforced the protection order also pointed out how Phoolka spoke of at least five persons who sheltered and rescued the victims during the violence, but later turned hostile and were non-supportive of the prosecution’s case. “Four of them […] deposed as witnesses for the defence, which unequivocally illustrated the magnitude of the influence and power exercised by the accused.”
Making mention of Phoolka, who himself survived the riots and later made fighting the cases of the victim’s his mission, concluded his submissions by stating that “no extent of lapse of time can absolve the State and the courts of their duty towards the victims and to humanity.”
‘Bano case too moved after CBI took over’
Delving deeper into the issue of witness protection, the high court bench said in the Bilkis Bano case the Bombay high court upheld the conviction of the accused for rape and murder despite the omissions and contradictions of evidence pertaining to the number of people in the mob, the weapons they were carrying, and even the slogans shouted. Bano later prayed before the Supreme Court that the investigation of her case be transferred from Gujarat police to the CBI.
In this case too, “once the CBI took over the investigation and recorded the statements of the prosecution, it is noticed that there are no significant omissions or contradictions,” the order said.
It is pertinent to note that it was only after the Justice Nanavati Commission came out with its report in 2005 that the Centre handed over the 1984 Sikh-riots case to CBI.
‘Till 2006, witnesses of 1984 riots felt abandoned’
Relying on how the courts appreciated evidence in the Bilkis Bano case, the Delhi high court said; “As rightly pointed out by Mr Phoolka, the Court would also have to bear in mind that till 2006, the victims of the 1984 riots had every reason to believe that they had been abandoned. All the trials had ended in acquittals and the prospects indeed looked bleak that they could proceed against the powerful persons involved.”
Further, the bench said while in the 2002 Gujarat riots cases, the Supreme Court did set up a SIT, until 2017, no SIT was constituted to investigate the 1984 riots.
‘Absence of proper witness system acknowledged by SC’
Citing the Zahira Habibullah Sheikh v State of Gujarat (2006), Justices S. Murlidhar and Vinod Goel further wrote:
“The absence of a proper witness protection programme and its adverse effect on the criminal justice system has been acknowledged by the Supreme Court […] the State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty.”
The bench also quoted the SC as saying that every state “as a protector of its citizens has to ensure that during a trial in court, the witness could safely depose [truthfully] without any fear of being haunted by those against whom he had deposed.”
The apex court further insisted that “if ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before courts mere mock trials as are usually seen in movies.”
SC sought legislative measures to prevent tampering with witness, victim
In Zahira Habibullah Sheikh v State of Gujarat, the Supreme Court also stated:
“legislative measures to emphasise prohibition against tampering [of witnesses], victim or informant have become the imminent and inevitable need of the day […] conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be [made] to ensure fair trial where the accused and the prosecution both get a fair deal.”
‘Protect witnesses so truth is presented, justice triumphs’
Further, the bench recalled that in National Human Rights Commission vs State Of Gujarat & Ors case, the Supreme Court observed that the “time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery.”
Against this backdrop, the bench held that it examined the depositions of ‘prosecution witness number 1’, Jagdish Kaur, whose husband, 18-year-old son and three cousins were killed by a mob in Delhi Cantonment. Her deposition along with those of her cousin, Jagsher Singh, and another person, Nirpreet Kaur, formed the basis of the conviction of Kumar and five others in the case.