by Pinky Anand
In mid-September 2015, the Delhi High Court was moved for stay of the release of Mohammed Afroz. The main issue before the court was ‘whether a juvenile in conflict with law, who is found to have committed an offence and sent to Special Home by Juvenile Justice Board, can be released on expiry of the period of stay ordered without ascertaining the factum of reformation that is necessary for his social reintegration’. The Delhi High Court refused to order a stay on the release of the juvenile convict and was of the opinion that they could not stop the juvenile’s release as per the statutory and existing provision of law. The court also asked the JJB to interact with the convict, his guardians and officials of the Delhi government regarding his post-release rehabilitation. The petitioners pointed out that the juvenile convict continued to be unreformed and indeed had become radicalized by his association with another juvenile convicted for his involvement in the Delhi High Court blast case on 7 September 2011, and that there was no material to establish the mental state of Afroz. The penal law of India is reformatory in structure, believing that reform is possible in most cases. This jurisprudence is strongly advocated when the accused is a juvenile. Afroz was released keeping in mind pro-release jurisprudence and the idea of reform of juveniles.
The Delhi Commission for Women filed a petition before the Supreme Court to prevent the release. The commission made a representation to the then chief justice requesting the setting up of a committee to visit the juvenile at the observation home to assess his current mental condition. It was pleaded that under Rule 32 of the Delhi Juvenile Justice (Care and Protection) Rules, 2009, long-term institutional care as a last resort should be permitted. However, the Supreme Court upheld the decision of the high court.
The trial of the remaining four suspects was fast-tracked by the Saket court and within ten months—a record time in the context of Indian judicial pace—they were declared guilty and given capital punishment.
The Delhi High Court upheld the death penalty on 13 March 2014, placing the case in the class of ‘rarest of rare category’ which provides for capital punishment.
On 5 May 2017, the Supreme Court too upheld the death sentence against the accused. A three-judge bench, comprising Justice Dipak Misra, Justice R. Banumathi and Justice Ashok Bhushan expressed their anguish by stating that the incident created a tsunami of shock.
The report said:
We are here concerned with the award of an appropriate sentence in case of brutal gang-rape and murder of a young lady, involving most gruesome and barbaric act of inserting iron rods in the private parts of the victim. The act was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of attracting passengers and committing crime with them. The victim and her friend were picked up from the Munirka bus stand with the mala fide intent of ravishing and torturing her. The accused not only abducted the victim, but gang-raped her, committed unnatural offence by compelling her for oral sex, bit her lips, cheeks, breast and caused horrifying injuries to her private parts by inserting iron rod which ruptured the vaginal rectum, jejunum and rectum. The diabolical manner in which crime was committed leaves one startled as to the pervert mental state of the inflictor. On top of it, after having failed to kill her on the spot, by running the bus over her, the victim was thrown half naked in the wintery night, with grievous injuries.
Ramachandran, the amicus curiae (a person appointed by the court to assist it in a particular matter) appointed by the Supreme Court, opposed the sentence on the count that mitigating circumstances should have been taken into consideration. The court took a stringent view and said:
I have considered all the aggravating and mitigating circumstances in the present case. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the crime. Justice demands that the courts should impose punishments befitting the crime so that it reflects public abhorrence of the crime. Crimes like the one before us cannot be looked with magnanimity. Factors like young age of the accused and poor background cannot be said to be mitigating circumstances. Likewise, post-crime remorse and post-crime good conduct of the accused, the statement of the accused as to their background and family circumstances, age, absence of criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of ‘rarest of rare cases’. The circumstances stated by the accused in their affidavits are too slender to be treated as mitigating circumstances.
The present case clearly comes within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’. If at all there is a case warranting award of death sentence, it is the present case. If the dreadfulness displayed by the accused in committing the gang-rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the ‘rarest of rare category’, then one may wonder what else would fall in that category.
The impact of the incident was such that it jolted the entire machinery into action—it was as if someone had flicked on a bulb. A mere six days after the incident, a committee headed by a former judge of the Supreme Court, J.S. Verma, was set up to consider and suggest changes in the criminal law and make it deterrent in nature. The committee was given thirty days to submit its report. Contrary to precedence, the committee prepared its report in twenty-nine days after considering more than 80,000 suggestions and petitions received by them from the public, jurists, lawyers and various other factions of the society. The report found that crimes against women were directly linked to failures of the government and the police. The major suggestions of the report were to make rape punishable by life sentence instead of death as it had been seen that the death sentence did not act as a deterrent, and clearing ambiguity over the control of the Delhi police in such cases. The committee, however, did not favour setting the official age of a juvenile at sixteen rather than eighteen.
The Criminal Law (Amendment) Act, 2013, also expanded the definition of rape to include oral sex as well as the insertion of an object or any body part into a woman’s vagina, urethra or anus.
The punishment for rape is seven years at the least and may extend up to life imprisonment. Any man—be it a police officer, medical officer, army personnel, jail officer, public officer or public servant—who commits rape may be imprisoned for at least ten years. A punishment of life imprisonment, extending to death, was prescribed for situations wherein the rape concludes with the death of the victim, or the victim being in a vegetative state. Gang rape has been prescribed a punishment of at least twenty years under the newly amended sections.
The new amendment defines ‘consent’ to mean an unequivocal agreement to engage in a particular sexual act; clarifying further that the absence of resistance will not imply consent. Non-consent is a key ingredient for commission of the offence of rape.
Thus the brutal gang rape of 2012 led to key structural changes in the way the judiciary now interprets rape laws. Age-old ideas of ‘habitual of sex’ and ‘vaginal penetration’ have been replaced by structures that respond more accurately to how women experience sexual assault. It overrides the chauvinistic mindset of only ‘vaginal-penile’ penetration, and targets ‘natural’ and ‘unnatural’ penetrative assault of any nature under the same umbrella.
The widespread public outrage against the juvenile’s release after three years was mirrored by the victim’s parents, who felt that justice had not been served, and releasing the boy who had committed such a heinous act would encourage others of his age to commit such crimes. This led the legislators to propose a change in the laws relating to juveniles. The Juvenile Justice Bill 2015 was introduced before both the houses of the Parliament, with a proposal in the bill to consider those between sixteen to eighteen years of age as adults. The bill was debated in the Rajya Sabha extensively, with the government hoping to pass the bill in spite of having no majority. The Lok S
abha passed the bill on 7 May 2015. The Juvenile Justice (Care and Protection of Children) Act, 2015, came into force on 1 January 2016.
In 2012, Save Life Foundation filed a Public Interest Litigation (PIL) in the Supreme Court, requesting it to safeguard Good Samaritans who come forward to help the injured. This issue came into the limelight again after this gruesome incident. That night no one had come to the rescue of the victims. They were lying on the street grievously hurt and partially naked. People in cars, autos and other vehicles passed them, but none of them rushed to help and take the victims to the hospital. This level of apathy was alarming. The ministry of road transport and highways notified guidelines for the protection of Good Samaritans in May 2015.
What Went Wrong?
As a hired school bus, the vehicle was not permitted to be on the road at the time of the incident. Had the system been better and the authorities more vigilant, the incident wouldn’t have taken place at all. Also, police vans reached the victims forty-five minutes after they were thrown from the bus.
The Delhi government did take certain serious steps to remedy the situation, but it took two years to do so. By 2014, GPS tracking systems were installed in 6321 Delhi Transportation Corporation (DTC) buses, 45,000 autos and 5549 chartered buses. But the only overall measure that was successful to a certain extent was the DTC’s night-service system, which increased its capacity from forty-two to eighty-five buses in the year 2014.
In 2015 the Central government released Rs 125 crore from its Nirbhaya Fund for installation of CCTV cameras in DTC buses. A year later, the transport ministry issued a draft notification, making it mandatory for all transport vehicles with a seating capacity of over twenty-three passengers to have CCTV cameras connected to GPS, so as to be monitored by the local police control room. In the recent railway budget, Rs 700 crore has been allocated from the Nirbhaya Fund towards the installation of CCTVs in trains, specifically long-distance ones.
Gender inequality is the primary tumour of our society, and rape, trafficking, child marriage, female foeticide and honour killings the metastases. I believe that in India, the problem is not a lack of laws, but the manner in which they are implemented.
Four and a half years later, the ‘Nirbhaya case’ is a touchstone of almost mythical proportion. No single crime has resulted in as much lawmaking and law-amending as this one. The Nirbhaya judgment, to some extent, will assuage a sense of retributive public justice. In a country where justice has always been delayed, the pronouncement of this judgment in a time-bound manner may serve as a ray of hope. And with the launch of the Good Samaritan law, there is the expectation citizens will step forward and help those in need. Another Nirbhaya would not have to lie helplessly on the roads of this country.
Many have opposed the death penalty awarded in this case, but as rightly said by Justice Banumati, it was a ‘barbaric crime’ that shook the conscience of the nation and ‘question of any other punishment is unquestionably foreclosed’.
For me, the day the sentence was given marked a palpable, tangible difference in the way we view victims of sexual assault. For once, the outpouring of emotion had to do with anger and there was no victim shaming. The rage was felt not just by the kin of the victim, but by the whole society, especially women, who are at a higher risk of becoming victims. I saw society change and imbibe the values that we as women lawyers have fought for decades to bring to the fore. Sadly, the cost was very high, a young life cut short in its prime.
9
THE BUTCHER OF NITHARI
Normally, crimes are identified with criminals, but sometimes the places where they are committed become synonymous with the incident. Nithari is a small village in Noida. Hitherto insignificant, it sprang into prominence between 2004 and 2006, when several children were reported missing in the area. The villagers had complained to the police multiple times about this pattern, but to no avail. The Noida police were merely silent spectators. They seemed more keen on keeping the cases off the books and chalked the missing children reports to children eloping with their lovers.
On 29 December 2006, two Nithari residents sought the help of former Resident Welfare Association (RWA) president S.C. Mishra as they claimed to have found the location of the remains of children who had gone missing over the last two years. Upon a search, in a tank drain in D block, directly behind house no. D-5, a decomposed hand was found. By the time the police arrived, the local residents had found three partial skeletons in the drain.
These events led to a national furore that came to be known as the ‘Nithari Kaand’.
More and more decomposed remains were dug up. The decomposed bodies were identified as those of children who had gone missing over the last two years. There were nineteen skulls in all, sixteen intact and three damaged. The post-mortem reports showed that eleven of the victims were girls or women. Doctors at the Noida Government Hospital found that there was a ‘butcher-like precision’ in the chopping of the bodies. Each body had been cut into three pieces before being disposed of. It was alleged that the accused, after strangulating the victims, would sever their heads and throw them in the drain behind the house. The viscera would be stored in a polythene bag before being discarded.
In January 2007, the residents of D-5 were arrested. They were identified as Moninder Singh Pandher—the owner of the house and Surendra Koli—the domestic help.
The media latched on to the case and carried out a trial by itself, convicting the two.
Multiple theories were put forward by the media houses. One was that these children were prostitutes, whom Koli would procure for the master of the house, Pandher. After he was satiated, together they would kill them and deal with the bodies in a gruesome manner so as to get rid of the evidence.
Some believed that there was an international child pornography racket being run from the residence by both the men. This was partially supported by the fact that the investigating teams seized erotic literature, along with a laptop connected to a webcam from the house. The police also recovered some photographs of Pandher with nude children and foreigners, taken during his international visits.
Yet another theory was that the murders were committed for organ trade. The police even raided the house of a doctor who lived in the neighbourhood, on the basis that the doctor had been accused of a similar crime in 1998, although the court absolved him later that same year. This theory was also canvassed by the senior defence counsel Ram Jethmalani during the review petition against the death penalty in the Supreme Court, where I had appeared on behalf of the government. Jethmalani’s attempt to use this argument to exonerate his client from the death penalty failed and the case was dismissed.
Ultimately, it was revealed that it was Surendra Koli who had committed the gruesome crime. Taken into custody on 29 December 2006, he spilled the beans during interrogation and confessed to having slain several women and children in the house, chopping their bodies into small pieces and throwing them into the drain behind the house. Koli also stated that these crimes had been carried out of his own volition and that Pandher had had no role to play in the crimes.
Despite investigation by the CBI, no hard evidence or proof was found against Pandher. During one of the murders, he was said to be in Australia, while during others, he was thought to be in Chandigarh. Due to the lack of evidence, the CBI claimed that no charge sheet could be filed against Pandher, effectively giving him a clean chit. Of course, in law, a charge sheet or a closure report is not the final word. The court can take a different view. In this case, the trial court disagreed with the closure report and summoned him.
This clean chit is not without controversies of its own. It has been alleged time and again that Pandher was an influential man, with multiple politicians frequenting the D-5 residence before the events took place. It is said that he used his considerable connections to get rid of all the evidence against him. These allegations have been made by the media time and again. As the matter is still sub judice before the Supreme Court, I
do not want to comment on these allegations. I seek only to inform of the proceedings as they took place in court and the reasons Pandher was convicted and subsequently acquitted.
In the trial court, both the accused were ultimately charged and tried for murder, rape, criminal conspiracy and kidnapping.
Multiple cases were filed for crimes committed against each victim. These cases are pending in various courts. I shall restrict my focus to the Rimpa Haldar case as the charges brought against the two sum up all the other cases as well.
The investigation found that on the pretext of offering work, Koli and Pandher would call a woman or child inside the house and rape and strangulate her or him. After that, they would murder the victim with an axe or a knife. Then to destroy the evidence, they would cut up the body into small pieces and throw them into the drain behind D-5.
Both accused denied the charges in the trial court. They pleaded that they had been falsely implicated and claimed to be innocent.
Eventually, the trial court convicted Surendra Koli on the following grounds:
A knife, chappal, purse, skulls and bones recovered on 29 December 2006.
Koli was in the habit of standing outside the house and luring in girls and children on the pretext of arranging work or other attractions.
Comparison of the DNA of the relatives of the victims and that recovered from the skulls and bones helped identify the victims and their families.
A fairly accurate demonstration of the procedure of cutting of bodies as carried out by Koli.
Another knife recovered on 11 January 2007.
An axe recovered on 8 January 2007.
The confessional statement of Surendra Koli was crucially incriminating.
