The possibility of executing in error

INDEFINITE: The number of children who went missing in the Nithari case is still unclear. Picture shows family members of the missing children seeking justice during a yatra in 2007.— Photo: Subir Roy

INDEFINITE: The number of children who went missing in the Nithari case is still unclear. Picture shows family members of the missing children seeking justice during a yatra in 2007.— Photo: Subir Roy  

There is a problem with the death penalty that is squarely acknowledged in the law. Section 194 of the Indian Penal Code says: if anyone fabricates false evidence and a person is convicted and given the death sentence as a consequence of such evidence, and is hanged for the offence, then the person who gives such false evidence shall also be punished with death. Here the law recognises the possibility of error that may occur because of fabricated false evidence. In 1989, Parliament imported this provision into Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in 1989.

The 1989 law was a reflection of the vulnerability induced by societal and institutional biases, poverty and history of what the Act’s Statement of Objects and Reasons terms “indignities, humiliation and harassment.” The potential for these circumstances of birth and history producing error in the treatment of Dalits and tribals, which could result in a person who is innocent of the offence with which he is charged being executed, is chilling. The National Commission for Scheduled Castes is avowedly “committed to the full implementation” of the Prevention of Atrocities Act, and the President owes a responsibility in ensuring that the castes scheduled in his name are protected. This becomes significant in the Nithari case.

Nithari murders

The tale of the > Nithari murders is one of unimaginable horror. The number of children who largely belonged to migrant workers’ families and who went missing, only to reappear a year or two later, is still unclear. Some say there were 16, some say 18 and others 23. The remains of the children were stashed in the drains running in front of and behind a house in the neighbourhood where they lived. Tales of cannibalism, to which the servant-accused apparently confessed, also emerged. In 2007, when the Ministry of Women and Child Development (MWCD) set up a committee to “investigate into allegations of large-scale sexual abuse, rape and murder of children in Nithari,” the report recorded that the police had not registered missing persons’ reports or filed FIRs “till such time it became imperative for them to do so in view of the court order and growing media criticism.” By then, the disappearance of children in Nithari had become an epidemic.

The MWCD committee reported that the Chief Medical Superintendent, under whose supervision the post-mortem was conducted “after assembling the bones/skulls found at the site,” told the committee that “it was intriguing to observe the middle part (torso) was missing.” According to him, “such missing torsos give rise to a suspicion that wrongful use of bodies for organ sale, etc. could be possible…. (and) the surgical precision with which the bodies were cut also pointed to this fact.” Also, he cautioned, he “did not favour the theory of cannibalism as it could be a ruse to divert attention from the missing parts of the bodies.”

If Koli were to be executed in error, there would be no remedy and it is this that the 1989 Atrocities Act recognises

The committee, based on its field visits and probe, asked that “the CBI…[to] look into all angles including organ trade. “There is need to study the organ transplant records of all hospitals in Noida over the last few years,” they said, “to study the pattern and trend of these operations and trace the donors and recipients.”

There is nothing in the records connected with the case to suggest that any of this was taken seriously. There is just a passing reference in the High Court judgment about a “kidney scam matter” in 1997 connected with a neighbour, but nothing more.

Surinder Koli, who is under a sentence of death, was the servant in the blighted house. As the High Court clarifies even at the outset, “the case hinges on circumstantial evidence.” Koli’s confession is the fulcrum. Koli was picked up by the police on December 29, 2006, as was his employer Moninder Singh Pandher. Koli’s confession was recorded before a magistrate on March 2 and March 3, 2007, over two months after he had been taken into police custody.

In a confession before the magistrate where Koli is “hazy” in his recollection of what happened, he remembers the names of each of the victims and is able to identify them in photographs shown to him. This intrigues the magistrate who asks him: “How do you remember the photograph?” To which he says, “This, the police has told me about all the photos. At that time I used to be in a complete intoxicated-type state, so I did not know anything.” And, again, Koli says he knew two of the victims from before. “[The] rest of the names… names after looking at the photos… the police has told me,” he says, and so on in pages 27, 28, 29, 30 and 36 of the translated confession. And on page 30, he says, “I was tortured a lot and only then…they made me confess.” He repeats: “I was made to suffer a lot of torture.” This too is in the same confession which the courts have relied on to convict Koli.

Unanswered questions

There are too many questions that are left unanswered in this case. Was the organ trading aspect investigated? Is the explanation of cannibalism, of which there is no evidence other than the confession, a red herring like the civil surgeon believed? The police had been caught napping while many children disappeared. What impact did that have on the way the investigation proceeded? What impact did it have on Koli’s confession? If Koli were to be removed from the scene, what will happen to the 15 cases still pending? If he were to be executed in error, there would be no remedy. It is this that the 1989 Atrocities Act recognises and suggests should be prevented from happening.

With tutoring and torture recorded by the magistrate in the confession, even if courts have found Koli legally culpable, can we allow the risk of an error about what, if any, part he played in this episode? And proceed to hang him?

(Usha Ramanathan works on the jurisprudence of law and poverty and Bezwada Wilson is with the Safai Karmachari Andolan.)

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Printable version | Sep 23, 2020 5:18:27 PM |

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