A two-judge bench of the Allahabad High Court has ordered the release of Surendra Koli and Moninder Singh Pandher, pointing out that the prosecution has failed to prove beyond ‘reasonable doubt’ the guilt of both the accused “on the settled parameters of a case based on circumstantial evidence”.
The 308-page judgement, which was made available on Tuesday night, comes as a complete shocker in a case that had held the nation’s attention in December 2006, when 15 skulls, bones, slippers, clothes were recovered from an open space between Koli’s residence D5 (Sector 31 Noida) and the neighbouring bungalow D6.
Between 2004 and 2005, many children had gone missing from Nithari village in Noida but no action was taken. In March 2005, when some children playing cricket noticed a human hand between the above-mentioned bungalows and the Jal Nigam (water works) residences, the police allegedly covered the hand and said there was nothing to worry about.
Pandher had purchased the bungalow in February 2004 and employed Koli in July that year. The court reproduced chronology of events in the case, as provided by Koli and Pandher. It also accepted with no serious objections that when children went missing, Pandher was not in Noida, or travelled immediately before or after the disappearance. For instance, one such disappearance took place February 8, 2005, when Pandher was in Australia and returned only on February 14. On July 18, 2006, another child went missing but Pandher was in Punjab till the evening of the said date.
The court also pointed out that others who could have been key witnesses such as Pandher’s wife, two drivers, two servants and a gardener were not interviewed. Koli and Pandher were first interviewed by the Noida police in June 2006 and then released. In December 2006, both were questioned yet again but nothing came out of it.
The investigating agency prepared its case around the confessions of the accused. Koli who was arrested on December 29, 2006, allegedly confessed the same day that he would bring girls for Pandher. As per this confession, after Pandher had allegedly raped them he would tell Koli to do as he pleased with them and dispose of them. Koli would then allegedly kill them, sever their heads and dispose of the bodies, according to the confession.
Koli’s own admission is that he was actually arrested two days earlier and tortured to make the above confession. Moreover, the police did not formulate any charges nor document the exact words used by the accused in his confession. In 2007, during another confession, Koli added cannibalism to his deeds. Pandher was arrested on December 29.
Subsequent DNA analysis of the semen found on the above mentioned clothes did not match those found on Koli’s blanket. The postmortem reports of the skulls etc. were not produced before the trial court which would later sentence both men to death for the raping and killing (among other charges) of nine of the missing children. The CBI would later up the number of victims to 11. At least three of the skulls were later found not matching with any of the victims for whom missing person reports had been filed.
In February 2009, both Koli and Pandher were sentenced to death in three cases but five months later Pandher was acquitted, only to be similarly sentenced in two other cases. On Monday, the court put on record its “disappointment at the manner in which the Nithari killings…(were) investigated”.
“The prosecution case is based upon the confession of accused SK, made to UP Police on 29.12.2006. Procedure required to be followed for recording the accused’s disclosure leading to recovery of biological remains i.e. skulls, bones and skeleton etc. has been given a complete go by. The casual and perfunctory manner in which important aspects of arrest, recovery and confession have been dealt with are most disheartening, to say the least,” noted the court.
The court also took note of the prosecution’s wavering stands – first pinning guilt on both Koli and Pandher and then shifting it only to the former. “…Ultimately, all explanations are furnished in form of confession of accused SK, by throwing all possible safeguards to the winds,” noted the court.
The court also objected to the manner in which the confessions were obtained – beyond 90 days of police remand and without the requisite medical examination of the accused and overlooking the accused’s allegation that the confession had been brought about through torture. It also pointed out the failure of agencies to examine the possibility of organ trade.
The judges were scathing in their criticism of the manner in which the probe was carried out. “The investigation otherwise is botched up and basic norms of collecting evidence have been brazenly violated. It appears to us that the investigation opted for the easy course of implicating a poor servant of the house by demonizing him, without taking due care of probing more serious aspects of possible involvement of organized activity of organ trading. Inferences of many kind, including collusion etc. are probable on account of such serious lapses occasioned during investigation.”
In conclusion, the court noted, “Upon evaluation of the evidence in this case, on the touchstone of fair trial guaranteed to an accused under Article 21 of the Constitution of India, we hold that prosecution has failed to prove the guilt of accused SK and Pandher” and ordered their release in the absence of any other pending cases.
Justice not served: Victims' familes
Meanwhile, victims' parents could not control their anger and frustration as their two-decade-old wounds were opened again on Monday. Jhabbu Lal (63) and Sunita Devi (60), who lost their daughter, expressed sadness over the latest judgment.
"This is not right. When someone killing several children gets acquitted, imagine what punishment will those get who kill just one or two people," Lal said.
Ashok and Rajwati, who now run a footwear shop in Nithari village, had lost their five-year-old son in the serial killings. "Our son was born eight years after our marriage...We have lost all hope of justice now, it's been 17 years now," Rajwati said.
It has been learnt that other victim families no longer live in Nithari village.
(With inputs from The Week and PTI)
