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The Hanging Fate of Nithari Killers

“What separates us from the animals, what separates us from the chaos, is our ability to mourn people we have never met.”
-David Levithan

A person having compassionate feelings for fellow human beings cannot forget the gruesome killings that had come to light during 2005-06, in Noida’s Nithari village in Uttar Pradesh, where children and women disappeared and later their body parts were found in a drain outside the residence of businessman Moninder Singh Pandher in sector-31. It was revealed that Pandher’s servant, Surender Koli, had been raping and killing the children and women, even eating their body parts after cooking them.

Rabindranath Tagore once said, “Satan cannot enter unless there is a flaw.” The series of kidnappings, rapes and murders of people, mostly minor girls had a flaw. The flaw was that the victims belonged to poor families; obviously, they had to be voiceless before the deaf and dumb Noida police, who did not take the cognisance of the parents of missing children and did not take action on time.

The families of the missing children accused the police of negligence, corruption and dereliction of duty. The situation at Nithari aggravated as an angry mob of village fought pitched battles with the police just outside the residence of the accused Moninder Singh Pandher.

In the result of the mounting pressure on December 26, 2006, Pandher was picked up by the police and on December 27, Pandher’s servant Surinder Koli was too picked up in connection with the disappearance of the minor girl, Payal. During interrogation, Koli confessed to having killed the children through strangulation. He would then rape them before taking the bodies to his personal washroom and dismembering them. Koli had even confessed the crime of cannibalism.

After Koli’s confession, police started digging up the nearby land area and discovered the children’s bodies in a drain near Pandher’s house. Viewing the seriousness of the situation, the Central Government constituted the inquiry committee. After the mounting pressure from the Central Government, the Uttar Pradesh Government decided to hand over the inquiry to Central Bureau of Investigation (CBI). On January 17, 2007, the inquiry committee submitted its report indicating the Uttar Pradesh police for gross negligence in handling the cases of missing children. Consequently, the UP government suspended two superintendents of police and dismissed six policemen for dereliction of duty.

As of today, Surender Koli has been sentenced to death in 11 out of 16 cases. On April 6, 2019, the CBI court awarded death penalty to Surender Koli for the 11th Nithari murder of a 10-year-old girl.

In the first Nithari killings case pertaining to a 14-year-old Rimpa Halder, Koli was sentenced to death along with his employer Moninder Singh Pandher by the Ghaziabad court on February 13, 2009. The Allahabad High Court had confirmed Koli’s death sentence on September 11, 2009, while acquitting Pandher of the charges. The Supreme Court bench comprising Justices Markandey Katju and Gyan Sudha Mishra upheld the death sentence of Koli on  February 15, 2011, saying the case was “horrifying” and “barbaric” and “no mercy can be shown to him.” The bench also said, “Koli has not retracted his confessional statement” and the circumstances in which the crime was committed was “premeditated” and falling in the “rarest of the rare category.”

On May 7, 2011, Koli moved a mercy petition before the President of India but Koli’s mercy petition was rejected by President Pranab Mukherjee on July 20, 2014. On September 3, 2014, the court issued a death warrant against Koli. On September 4, 2014, Koli was transferred to Meerut jail because of the absence of hanging facilities in Dasna jail. Koli was to be hanged on September 12, 2014. Meerut jail superintendent  S.M. Rizvi reportedly said that the hook and loop to hang Koli had arrived from Naini central jail.

However, those of you who do not believe in miracles or chamatkars may now start believing as to  how senior advocate Indira Jaising got midnight reprieve for convict Koli.

In the midnight  of September 7-8, 2014,  the Supreme Court  stayed the execution of Nithari killings convict Surinder Koli for one week, who was set to be hanged on September 12 in Meerut jail for killing children. The death sentence of Koli in one of the 16 murder cases would have been carried out by now, had it not been stayed by the Supreme Court in a special hearing in judge’s house at 0130 hours.

Hearing the petition filed by senior advocate Indira Jaisingh in the light of a recent SC Constitution bench verdict, which had held that the review plea of condemned prisoners must be given an open court hearing, the bench of Justices H L Dattu and Anil R Dave stayed Koli’s execution.

Talking to Lawyers Update former Director, Central Bureau of Investigation (CBI), D R Kaarthikeyan who had cracked the Rajiv Gandhi murder case said that Nithari killings were the most horrible crimes but unfortunately in our country everything gets forgotten with the passage of time. Kaarthikeyan further said, “Since the accused was sentenced to death in the first case, which was confirmed by the apex court and his mercy petition was rejected by President of India, Pranab Mukherjee, there is absolutely no relevance, justification, excuse for such unpardonable, inexcusable delay! Everyone seems to avoid his own responsibilities to take hard decisions in time.”

The former Director CBI argued that in the event of accused’s supposed acquittal in rest of the 15 cases, his conviction of death sentence confirmed by Supreme Court and the mercy appeal rejected by the President of India in one case is the sufficient ground for going to gallows and his assumed acquittal in 15 other cases will yield no result.

Karthikeyan suggested that there should be a statutory  obligation on the part of all concerned including the judiciary, executive, legislature, to carry out the punishment within a stipulated period prescribing timelines for all the authorities concerned to take their own decisions.

Himal Akhtar noted advocate and member of the Bar Council of Delhi said that unfortunately there is no legal mechanism to expedite and conclude the process of litigation in such complex cases. The government with the assistance of judiciary and legal fraternity should bring out a concrete mechanism to avoid unnecessary delay and wastage of precious judicial time in lingering on such cases. Himal Akhtar expressed his willingness to move such issues at the level of state bar councils and the BCI.

In contrast to the views of Kaarthikeyan and Himal Akhtar, another experienced advocate Khursheed Zaidi said, “On this point, there were several petitions pending before Supreme Court,  thus the matter was referred to the Constitution bench of the Supreme Court in Pakistani national Mohd Arif @ Ashfaq involved in the Red Fort attack case of  2000. The other petitions pending were Bombay Serial Blasts accused Yaqoob Memon, Dharmapuri case related to three students.

The controversy was set at rest in Mohd Arif @ Ashfaq versus Registrar reported in (2014) 9 SCC 737 by the Constitution bench. The reason which reflects is that the death penalty is irreversible in nature. If it is found thereafter that such a sentence wasn’t warranted,  that would be of no use as the life of that person cannot be brought back. This being so, it is held that if the fundamental right to life is involved, any procedure to be just, fair and reasonable should be taken into account.

Giving his views, Major General Nilendra Kumar, former Judge Advocate General, Indian Army, said, “Usually it will be prudent as a matter of policy that an offender is brought to the trial of an offence once for all offences alleged to have been committed by him at one time. Multiplicity and duplicity of charges is to be avoided. It is also preferable that the sentence to be awarded is determined to have regard to all the charges on which the accused stands convicted. Later on, if the conviction on some of the charges is found not to be sustainable then the sentence can be appropriately reduced or modified.

The continuation of trial on numerous counts for offences against different victims ordinarily results in infructuous expenses, wasteful use of resources apart from deployment of judicial manpower and time. Further, it adds to the avoidable trauma and agony for the accused. Normally it would make sense to hold a trial first  on the most simple ( read straight forward) charges with fool proof evidence which carry the most obvious certainty of conviction and least  scope for the accused to get away.”

General Kumar further said, “When the responsibility  for the probe and prosecution in the entire episode had been entrusted to the Central Bureau of Investigation then after the completion of the probe in all cases of missing persons and marshalling of evidence it was expected that the CBI would have decided the strategy for the conduct of prosecution with regard to the number of charges, sequence and order of leading evidence. As a professional body of investigators, it was expected that the CBI will conduct timely and legally sustainable prosecution. Perhaps, such is not the case.

An accused can be hanged only once. The disposal of the case and impact on this society by a due administration of justice will suffer in the absence of proper and timely law enforcement.

When one offender has been properly dealt with and at the same time dropping off prosecution in other cases may give rise to the doubts about the identity and complicity of other perpetrators of crime in the absence of a judicial verdict. So after completion of the case regarding A, let it not be said that who killed  B, C, D and so on.

Cr.PC Section 321 provisions deal with the powers of Public Prosecutor or Assistant Public Prosecutor to withdraw a case after obtaining written permission from the state government which is required to be filed in the court concerned. It is not known whether the necessity to invoke this policy was examined in the interest of public policy and justice in the instant case.”

Lawyers Update asked Professor G.S Bajpai, Registrar, National Law University, Delhi, that once the accused was sentenced to death in the first case, which was confirmed by the apex court, what was the relevance of unnecessarily dragging the case to the joy of the accused and to the grief of the relatives of the victims, by way of trial after trial in rest of the cases?

Professor Bajpai replied, “In Koli’s case he was charge-sheeted for multiple murder cases. Just like acquittal in one case cannot be taken as an acquittal in other cases, similarly conviction in one case cannot establish guilt in other cases unless each such case is tried before a competent court following the due process of law.

The prolonged trial in pending cases has no implication on the sentence confirmed by the Apex Court in the first case. Once the death sentence is confirmed by the SC then other procedural remedies kick in like- Mercy petition, Review Petition, Curative Petition. Post Shatrughan Chauhan, Mohd. Arif and Shabnam cases a DEATH WARRANT cannot be issued unless the death row convict has exhausted the LAST REMEDY.

Answering the second question i.e. Should there be a mechanism to address suchlike situations by  fast-tracking and clubbing cases together, Professor Bajpai replied, “Cr.PC allows joinder of charges in exceptional cases mentioned in Chapter XVII Ss 218-224. In Koli’s case, the matter was handed over to CBI and hence tried by CBI Court which is a special court to try offences exclusively investigated by CBI, unlike other Sessions cases which go to regular Sessions Courts. Therefore, no need for any further Fastrack court/treatment as the cases is already listed before a Special Court.”

Another renowned advocate, Yawer Qazalbash said, “In case the confirmed sentence of accused Koli is executed then the rest of 15 pending cases would obviously abate, irrespective of chagrin or grief of relatives of the victims. The present situation could be met through existing the mechanism, provided under Sections 219 or 220 Cr PC, where the rest of 15 cases may be charged and tried in one  trial (or, if need be in two trials) after a fast track court passes an order for consolidating the cases.”

Discussing elaborately, noted lawyer Navin Jaggi along with his two interns, Gauri Mishra and Aditi Mishra put their precious views saying, “We will sell to no man, we will not deny or defer to any man either justice or right.”- This was the first time the assertion for the right of speedy trial was articulated in the Magna Carta.”
The learned lawyer Jaggi and his two erudite associates explained, “Nithari case of 2006 constitutes one of the biggest and bizarre urban crimes which has been classified as the rarest of rare by the courts at several instances. This case where 19 children and young women were murdered in Noida is clearly an emotionally wrenching tragedy for the families of the victims. Not just the families but the entire Nation was riveted when the body parts of the murdered were found in and around Pandher’s home where he lived with his servant Koli. In his chilling confession to the magistrate, Koli admitted to having done heinous acts of varied nature to the victims alive and dead.”

“This case, which was detected in June 2006, has still not reached to any conclusion only because of the number of victims and subsequent trials for each one of them. The accused has been convicted in 11 out of 16 cases some of which have also been confirmed by the apex court after appeals. The latest conviction came out on  April 6, 2019, where he was sentenced to death by a CBI court. At this juncture, a question arises as to what is the need of having separate and subsequent trials when the fate of the accused is going to be the same regardless of the outcome in the subsequent trials.”

Jaggi’s team further said, “This clearly signifies that there is a need for developing a mechanism that would help in effectively dealing with cases of such nature where the prime accused is the same in every case and the manner of commission of the crime, place and such other factors are similar to a great extent for the numerous victims.

In such cases, we can fathom two extreme scenarios, one where the accused is convicted in the first trial itself and is sentenced to death, which would lead to the impediment of due process of law and put an end to subsequent trials. The other one being the ongoing scenario wherein each trial is concluded separately while the appeals of the initial ones are being disposed-off ultimately leading to the fact that the accused is able to take the plea of inordinate delay in order to get his sentence commuted.”

“Neither of these two scenarios offer a fair and reasonable approach to ensure timely justice to the victims and their families and the right of the speedy trial to the accused. Because in the first setting the hanging of the accused would not only lead to extinguishing of rights of the victims against the co-accused where the prime accused could have been a witness also would also in a way let other culprits if any, go scot free. Generally, in such cases, there are multiple accused who give effect to the crime collectively and the mens rea and actus, reus cannot always be accorded individually and may have to be seen as a collective act by several accused. On the other hand, the second set has its own drawbacks majorly owing to the principle that ‘justice delayed is justice denied’ and this is how a vicious cycle of appeals and inordinate delay is formed making the entire judicial process futile.”

“Having considered the entire scenario at hand, the nature of the case, the number of victims and the gravity of the crimes committed and their effect on the society, one can conclude that certainly, justice delayed is justice denied. However, giving out a decision without taking into consideration all the factors would lead to grave injustice to either of the sides.

Hence, there arises a need to reach a middle ground based on the principles of natural justice and fair trial enshrined in the grundnorm of our country. This could be achieved by clubbing of the cases in such instances where the court needs to look at the bigger picture in line with the detailed investigation which would include among other things analysis of the personality, past conduct, the background of the accused and link between the crimes if any. This can only be done when consideration is given as a whole to the numerous cases which appear to be part of the same transaction.”

“As Chief Justice Burger has noted: “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfil its primary function to protect them and their families in their homes, at their work, and on the public streets”, explained Jaggi’s team.

Through the analysis of the above-mentioned case, Navin Jaggi and associates have tried to bring out a solution which is the need of the hour i.e. the enforcement of a new law or guidelines which would help in effective disposal of such unusual cases. “These cases are classified as rarest of rare cases but, we need to keep in mind that such instances are now becoming a commonality which renders the existing law inefficient. It would not only ensure the Right to Fair Trial to the accused but also timely justice to the aggrieved”, concluded wisely, Navin Jaggi.

In the end, it would be pertinent to quote the observation of CBI court in awarding the 10th death penalty, “Such gruesome, cruel and inhuman act has no such previous example. Such action has shaken the society and it will lose faith in law if any mercy is shown…The act by the accused fall under the category of the rarest of the rare.”

 “When a child dies, you bury the child in your heart.” 

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