Trials of Truth

by Pinky Anand

  The following is a chilling extract from the confessional proceedings of Surendra Koli on oath before the magistrate, translated from the Hindi:

  ‘Okay. Yes. The road in front of the house leads to Nithari village . . . The address is D-5 Sector 31. I had been working there since July 2004. After work, I used to stand at the gate. I don’t entirely remember but I think it happened in 2005. Yes, beginning of 2005, maybe in January or February. I was alone at home at that time and a girl was going in the direction of Nithari from Sector 30. Later on, I got to know that her name was Rimpa. I called her inside for work. When she came inside, I told her . . . I would talk to madam regarding the pay . . . Yes, and when she started looking inside the house, I used her chunni and strangulated her from behind. She fell unconscious. Then I tried having sex with her. After trying for a while, when I was not able to have sex with her, I killed her by strangulating her again with her chunni.’

  ‘Okay, why did you kill her?’

  ‘Such pressure had been built in my mind that I should cut her and eat her. Then, right after that, I took her to the bathroom. At that time, there was no fear in my mind that somebody would come home or something would happen or a scene would be created. I mean there was no fear as such . . . Then I took her to the bathroom upstairs. Then I went downstairs. I went to the kitchen and fetched a knife . . . At that time itself, I cut her and ate an arm and a piece of her chest.’

  ‘Okay.’

  ‘Yes, I cooked it in the kitchen . . . itself.’

  ‘Cooked it in the kitchen?’

  ‘Yes. I don’t clearly remember how much I ate in the evening. In the evening, at around 4–5, when I was completely satiated, I saw that her slippers and everything were lying in the drawing room itself. Till then, there was no realization. It was as if I was drunk. I don’t consume anything like alcohol, paan, cigarette, beedi, gutkha, nothing at all. Okay. So such feelings arose in my mind like I should cut somebody and eat. Then, after a couple of days, somewhere around a month, I ate the same girl so much after evening that my mind was satisfied. Then I went to the bathroom upstairs and saw that her body, cut into pieces, was lying all over the place. At the time of cutting, I had not realized what I had done to her. After that, out of fear, I quickly wrapped her into polythene packets and kept her in the bathroom. Then at night, I washed everything and kept her in the gallery which is there behind the house and where nobody would come. I threw her in that gallery.’

  The confessional statement and the recoveries made on the basis of this statement made up the bulk of the case against Koli. The trial court found him guilty and sentenced him to death.

  However, the case against Pandher is not so cut and dried. There was no such confession. The trial court convicted him on the basis of circumstantial evidence, holding that the number of body parts recovered and the smell arising from them was no less than that of a slaughterhouse and would spread over a large distance. Therefore, it would be impossible for a person living in the house to have no knowledge of the bad smell.

  The trial court also believed that Koli was motivated to commit such criminal activities because he was influenced by Pandher’s promiscuous activities of having two or three call girls over at a time. Being a witness to these probably made Koli want to have sex with the girls, and also kill them and eat their organs.

  The trial court held that Pandher and Koli had collaborated on the murders. The court discounted the evidence that Pandher had been in Australia at the time Rimpa was murdered and held that it had not been proved beyond reasonable doubt by the accused. Circumstantial evidence was enough to convict Pandher. The trial court awarded the death penalty to both Koli and Pandher.

  On appeal in the Allahabad High Court, Koli’s sentence was upheld. However, in a move that shocked the national media and public, the decision against Pandher was reversed, and he was acquitted.

  It was contended that Pandher was in Australia from 30 January 2005 to 15 February 2005, while Rimpa was murdered on 8 February 2005. The court deduced that it was not possible for Pandher to have been involved in the murder. Credence was given to the alibi furnished by his wife, Devender Kaur, who said that Pandher was with her in Australia from 30 January 2005 to 15 February 2005. Her testimony remained unchallenged. However, if the family’s sources are to be believed, Devender Kaur had a strained relationship with Pandher and they had separated. She lived with her son who was stationed in Canada. The counsel for the complainant also raised questions regarding the absence of documentary evidence like Pandher’s air tickets or other travel documents. The high court, however, rejected the complainant’s contention, and gave credence to Pandher’s alibi.

  The high court referred to the confessional statement which revealed that a girl or a woman would be murdered every forty-five days or so and her body parts would be thrown into the drain. And before these body parts could decompose, another murder would be committed. It was observed by the high court that it was beyond comprehension how this circumstance could be reckoned to be incriminating to Pandher. It was also noted that there was no such evidence on record that the foul smell spread over a distance of 1 kilometre—in fact, there was no evidence of a foul smell at all. During the investigation of the case, several persons had visited D-5 and no one had spoken about any foul smell pervading the house. It was clarified that Surendra Koli, as per his confessional statement, used to throw the body parts after wrapping them up in polythene and, therefore, there was little chance of a foul smell.

  It was also revealed in the confessional statement that Surendra Koli, prior to joining Pandher’s service, had worked in several houses but had never been charged with such offences. The high court theorized, just like the trial court, that the reason for this was the lubricious behaviour of Pandher. He used to bring two or three girls to his house and revel in drinking and having sex with them. Watching Pandher indulging in such activities, the high court hypothesized, criminal propensity and lust accentuated in Koli, leading him to commit these gruesome murders. The confessional statement demonstrated that when Pandher was not bringing in the girls, Koli had no distraction, but when Pandher did, he was inclined towards murder.

  The high court, however, opined that the acts of debauchery by Pandher could hardly be taken as ‘incriminating circumstance’ that attracts the provision of Section 120B of the IPC which lays down the punishment for criminal conspiracy. There are certain basic ingredients that constitute criminal conspiracy. They are: (a) an agreement between two or more persons; (b) the agreement must relate to doing or causing to be done by either: (i) an illegal act or (ii) an act which is not illegal in itself but is done by illegal means. Therefore, the meeting of minds of two or more persons for doing or causing an illegal act to take place or an act carried out through illegal means is sine qua none of criminal conspiracy. The high court relied on the confessional statement and found no link or meeting of minds between Pandher and Koli to get Rimpa Haldar inside the house and commit the offences. Needless to say, in Koli’s confessional statement, no allegation was made against Pandher. There was not an iota of evidence to attract the provision of Section 120B of the IPC or Section 30 of the Evidence Act, which provides that a confessional statement by one person would act against others too if they are being tried jointly for the same offence. The entire incriminating circumstance was based on the confessional statement of Koli. The high court also pointed out that the sessions judge could not cull any inculpatory part from Surendra Koli’s statement which leaned against Pandher. The only thing construed unfavourably was that Pandher used to bring girls to his house, one of whom was named Payal, but because of a lack of evidence, the court acquitted Pandher of Rimpa’s murder.

  The court observed, ‘We can fully understand that though the case, superficially viewed, bears an ugly look so as to prima facie shock the conscience of any court, yet suspicion however great it may be, cannot take the place of legal proof. A moral conviction, however, strong or genuine cannot amount to a legal
conviction supportable in law.’

  Comments on the Death Penalty

  The high court still had to decide whether to award the death penalty to Surendra Koli. The death penalty is only given in the rarest of rare cases. A comparative study of the arguments advanced across the bar led to the observation that on the one hand, the death penalty was considered inhumane, and on the other, the parents of an innocent girl wanted such a punishment for the abominable wrongdoing of the lustful ravishers. The court lamented that the incident was indeed ‘shocking, tragic, lachrymose, hair-raising, and heart-rending’.

  The mitigating circumstances discussed were that the appellant was the father of two children and had a family; however, upon consideration of the totality of circumstances, even such factors could not exempt the accused from liability. The high court thus affirmed the sessions court’s order and awarded the death penalty to Surendra Koli.

  Supreme Court

  The Supreme Court upheld the decision of the high court to sentence Surendra Koli to death because it was ‘rarest of the rare case’ where a death sentence could be awarded. The bench of justices Markandey Katju and Gyan Sudha Misra confirmed the death sentence of Koli. At the same time, the Supreme Court kept the CBI appeal against the acquittal of Pandher pending, stating that any order passed against him or in his favour could have a bearing on the remaining cases, which were still at the trial stage. The bench said that before deciding on the CBI’s appeal, it would wait for the outcome of the trial of other cases in which Pandher had been accused, along with Koli. The victim Rimpa’s father, Anil Haldar, filed an appeal challenging Pandher’s acquittal and sought restoration of the death sentence awarded to him by the sessions court, which is still pending.

  On 3 September 2014, the court issued the death sentence for Koli. On the evening of 4 September 2014, Surendra Koli was transferred to Meerut jail because of the absence of facilities to execute such a penalty at Dasna jail in Ghaziabad. He was to be hanged on 12 September 2014. The Supreme Court of India stayed the death sentence for one week after a petition was filed. On 29 October 2014, the Supreme Court bench headed by Chief Justice H.L. Dattu rejected the review petition against the death sentence, stating that the court had not committed any error in judgement.

  Surendra Koli’s hanging was stayed at the last minute by the apex court, which decided to hear his right to plead against the death sentence in an open court. However, the Supreme Court finally rejected the petition on 29 October 2014, clearing the way for his execution. But this was not the end. A mercy petition was filed, as the People’s Union for Democratic Rights (PUDR) approached the Allahabad High Court through a PIL. On 28 January 2015, the high court bench headed by Chief Justice D.Y. Chandrachud and Justice P.K.S. Baghel commuted the death sentence of Surendra Koli to life imprisonment on the grounds of ‘inordinate delay’ in deciding his mercy petition. The high court highlighted the delay of three and a half years in the disposal of his mercy petition by the Uttar Pradesh governor and the President, and termed the sentence ‘unnecessary and unreasonable.’ The court in its order held that the manner in which an execution warrant was issued for Koli by the special CBI court of Ghaziabad was in ‘violation’ of Koli’s ‘right to due process’. It also noted that Koli was kept in solitary confinement since the beginning of his conviction, which is illegal under the law.

  While the death penalty still exists as a punishment in India for the rarest of rare cases, there are certain safeguards to ensure human rights: the high court is required to confirm the death sentence; as per other landmark judgments such as in the cases of Kartar Singh and Bachan Singh, it can only be awarded in the rarest of rare cases; a review petition could be filed; and Article 72 gives the President of India and the governors the right to grant pardons and to suspend, remit or commute sentences. Recently, more safeguards have been added. Inordinate delay, as in Koli’s case, led to the commuting of the death sentence to life imprisonment.

  Do we actually truly subscribe to the death penalty? Such a question needs to be dealt with in great detail. Though India allows for the death penalty as a punishment, it has to be emphasized that it can only be awarded in the rarest of rare cases, as per the principle laid down by the Supreme Court in Bachan Singh v. State of Punjab. Deciding what constitutes the rarest of rare cases in itself is a subjective proposition. The debate is not merely a legal one. It has aspects of morality and rectitude closely intertwined with it. While some argue that the death penalty is cruel, inhumane and degrading, others are of the view that it enshrines the detrimental theory of punishment and prevents crime by instilling fear in the mind of a prospective offender. On the one hand, it can be regarded as revenge masquerading as justice, and on the other, it’s a social necessity.

  More than ten cases are still pending against both Pandher and Koli at various stages of trial and appeal. Only time will tell us the outcome of these cases.

  However, in all this the media has reincarnated itself as the public court. It has been the voice of the people who can never be heard, the light to the people who can never see the reality and the guide to the judge effecting the decisions. High-profile litigation is not just decided in the courts; it is also decided in the court of public opinion. The magnitude of the coverage and the filter through which the media reports on litigation can create a ‘clear bias’.

  Yet, as I mentioned in other chapters, media scrutiny is often positive and seeks to undo the injustices that status and wealth can unleash. As far as issues pertaining to court litigation are concerned, it is for the readers to form their own views.

  10

  ELECTED TO DEATH

  The idea of political assassinations is antithetical to the idea of democracy. The entire premise of electing a person representing a particular idea or ideology to run a state is defeated when, for political reasons or ideological clashes, these leaders become a target of violence.

  The term ‘assassination’ is generally understood as the murder of a prominent personality, usually a political leader or ruler, and is, sadly, an age-old concept. Instances of assassination are as old as the institution of governance itself, and can be traced as far back as ancient Egypt. In its long, dark history, it has manifested in the form of filicide, patricide and matricide, and the killings of the leaders of political parties, thinkers and philosophers. Murder has often created rulers and changed dynasties, and these killings are then rewritten in the word and in favour of the victor as ‘tributes’, as liberation from a harsh rule or freedom from tyranny.

  We all have different ideals, identify with separate factions and tend to disparage or disregard conflicting theories. Intolerance towards these different ideas manifests in various ways, but assassination is the worst form of intolerance, often used as a motive to drive home an almost-fanatical show of power. An assassination sends the message ‘We are more powerful than you’ in order to prove power, to prove that one faction is better, and sometimes to exact revenge or prevent the leader from doing something the assassins don’t want him to do. A key difference between the assassinations of pre-Independence India and post-Independence India is that in the former, political assassination as a tool of political censorship has not been very frequent. In fact, most assassinations have been carried out by radical separatists or breakaway faction groups or rebellions.

  One of the biggest shocks our country received was within a year of Independence, when India had to cope with the assassination of the ‘father of our nation’, Mahatma Gandhi, by a fanatical extremist. Mahatma Gandhi was on his way to address a prayer meeting at Birla House, when he was shot at point-blank by Nathuram Godse, who allegedly held Mahatma Gandhi responsible for Partition, which arose in the process of attaining Independence. Considering that Gandhi was widely regarded as almost a saint with extremely clean, untainted intentions, his assassination was a shock, and the question resounded: Who would want to kill a proponent of ahimsa?

  Yet again, in 1975, when the country was grappling with nationw
ide protests and high rates of inflation and unemployment, Lalit Narayan Mishra, the then railway minister was assassinated at the Samastipur railway station while inaugurating the Broad Gauge Link. The trial court noted that the assassin’s motive was to pressurize the government to release the leader of Anand Marga, who had been arrested on charges of murder. The trial for the case was finally concluded on 8 December 2014, resulting in the conviction of the four accused. This was the first case that had been transferred outside a state in order to ensure that no tampering of evidence took place.

  However, the case that shook the conscience of the country was that of the assassination of the then prime minister Mrs Indira Nehru Gandhi. In 1984, the incumbent PM, Mrs Gandhi, was killed by the very men stationed to protect her. On the morning of 31 October she was fired upon by her bodyguards in retaliation to the army’s Operation Blue Star—the infamous military action taken to strike at the roots of the militancy movements in the Punjab area. The strike was carried out to attack the militants who had hidden in the Golden Temple at Amritsar.

  In 1991, political heir and the eldest son of Indira, Rajiv Gandhi, was assassinated while campaigning for the ongoing general elections. He was killed by a suicide bomber affiliated to the Liberation Tigers of Tamil Eelam (LTTE) because he sent the Indian Peace-Keeping Force (IPKF) to Sri Lanka in 1987. In 1995, yet another political leader, the then Punjab chief minister Beant Singh was assassinated by a suspected Khalistani separatist in a car blast at the Secretariat Building, Chandigarh. In this chapter, I will dwell on the Rajiv Gandhi assassination case and the trial that ensued.

  The Assassination of Rajiv Gandhi

  India has always been a diverse state. While we mostly take pride in it, the other side of the coin presents an ugly reality. As a nation, we have been grappling with militancy in various parts of the nation, from Kashmir to south India.