It is true that the bones of 19 children and women were found in Nithari, Noida, in 2006. It is also true that it was decided well before the trials in any of those cases that the two men, Surendra Koli and Moninder Singh Pandher, were guilty of these crimes, with the imagery of cannibalism etched in our collective memories. However, the terms of justice seem to be severely contested in light of the acquittals for Koli and Pandher. On the one hand is the scale of the loss to families of the victims and on the other is our collective commitment to the rule of law and presumption of innocence. It is not easy to stay committed to these principles in the face of such human tragedy. Does it matter whether there was reliable evidence to convict Koli and Pandher? Or, should we demand a conviction at all costs despite what we might make of the evidence?
The legal journey
The saga began in December 2006 when human bones were found in the nala outside kothi number D-5 in Nithari, where Koli resided with his employer Pandher. This led to a lurid tale of rape, murder, and cannibalism that Koli confessed to to a Magistrate after spending almost 60 days in the custody of the Central Bureau of Investigation (CBI). His pleas in the confession that he had been tortured and tutored by the police were ignored by the Magistrate. The CBI registered 16 cases for 16 murders.
Editorial | Nithari fiasco: On the case being a scathing indictment of investigators
In the first case that was tried, the Sessions Court relied on the confession and the discovery of human remains outside D-5 to convict and sentence Koli to death in February 2009. The Allahabad High Court and the Supreme Court of India, also relying on Koli’s confession, confirmed this death sentence. The case progressed to the level of the President of India rejecting Koli’s mercy petition, only for the High Court to find that it would be constitutionally untenable to execute him. Koli remains in Dasna district prison, where he is serving a life sentence for this murder.
The remaining 12 cases also had Koli’s confession as the mainstay of the prosecution’s case. Yet, the Allahabad High Court has now acquitted Koli, despite the very same evidence having been used right up to the Supreme Court in the first case.
What changed suddenly? The High Court has highlighted that Koli’s lawyers were able to get investigators to admit to legally significant flaws in these 12 cases that were not available in the first case, where Koli, an illiterate and poor man, had been reliant on a different lawyer. On the basis of these admissions, the High Court concluded that the investigation was deeply flawed, and that both the police and the CBI had failed to investigate a neighbour to D-5 — a surgeon who had been interrogated earlier for organ trafficking.
Unlike courts before it, the High Court gave due consideration to the report of a high-level committee set up by the central government to look into the Nithari murders that had recommended an inquiry into organ trafficking, given the precision with which the bodies were dismembered and the absence of torsos among the bones found. The court also noted that evidence of ‘substantially better quality’ had been put forth in these cases to establish that the confession had been procured through torture and tutoring. This is not Koli’s first acquittal; the trial court has also acquitted him of the remaining three murders.
The public response
For many readers of this daily, all of this might seem like unnecessary legal wrangling designed to obfuscate the truth. The perceived failure of the legal system to confirm public belief about Koli’s guilt seems to have unleashed immense anger and frustration. There is no willingness to pause and question the conduct of the investigation agencies in this case. Irrespective of what we might have been led to believe through media hyperbole, it is in our own collective interest to say that criminal convictions must meet a certain quality of evidence, and courts should not uncritically accept prosecution narratives. Media trials, based on evidence leaked by investigators, often sentence the accused even before their trial in a court of law begins.
When the police are not shy about manipulating evidence, and public pressure is relentless, it comes as little surprise when innocent (and generally poor) persons are paraded as the criminal concerned. Whether our appellate courts catch these wrongful convictions becomes a roll of dice, dependent on the judge’s identity and their tolerance for public pressure. In stark contrast to its approach in Koli’s case, the Supreme Court has recently acquitted 13 people who had been sentenced to death. The Court’s dissatisfaction with police investigations has become a refrain in such cases.
The anger with and frustration over the lack of accountability for the tragedy that unfolded in Nithari are certainly legitimate. However, the pursuit of that accountability should not translate into a demand for convictions at all costs. It risks further delegitimisation of an already broken criminal justice system. It also does injustice to us all by compromising the rule of law — our only protection against the might of the state, which can choose and punish people at its whim.
Stuti Rai is a Litigation Associate at Project 39A, National Law University Delhi. The views expressed are personal
