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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(xiv) This Court's findings with respect to the POA Act and the incident of 21st April 2010 are as follows:
1. There was a deliberate targeting of the houses of the Balmikis by the Jats;

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave, Sardhana Road, Kankerkhera,
Meerut – 250001,