Prayagraj, Oct 16 (UNI) A divisional bench of the Allahabad High Court on Monday reversed the order of the sessions court handing over capital punishment to accused to infamous Nithari case in Noida Surinder Koli and Moninder Singh Pandhet and directed them to release provided they were not required in any other case.
The bench of Justice Ashwani Kumar Mishra Justice Syed Aftab Husain Rizvi ordered, “The conviction and sentence of accused Surinder Koli and Moninder Singh Pandher vide an order passed by the court on July dated 24, 2017 is reversed.”
It said that the Capital Criminal Appeal is allowed and the reference is answered accordingly. “The accused appellants Koli and Pandher shall be released on compliance of Section 437A CrPC provided they are not required in any other case.”
The bench observed, “Before concluding, we express our disappointment at the manner in which Nithari killings, particularly the disappearance of victim one has been investigated. The prosecution case is based upon the confession of accused Koli made to Uttar Pradesh Police on December 29. Procedure required to be followed for recording the accused’s disclosure leading to recovery of biological remains that is 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.”
It said, “The stand of the prosecution regarding the crime in question kept changing from time to time. Initial prosecution case was against accused Koli and the owner of house number D-5 Moninder Singh Pandher and even recoveries made were attributed jointly to them. Successive remand applications filed by the prosecution clearly reflects it.”
The court observed, “However, with passage of time, the guilt was fastened exclusively upon accused Koli. Prosecution evidence has kept changing with the stage of investigation and ultimately all explanations are furnished in the form of confession of accused Koli, by throwing all possible safeguards to the winds. The manner in which confession is recorded after 60 days of police remand without any medical examination of accused, providing of legal aid, overlooking specific allegation of torture in the confession itself, failure to comply with the requirement of Section 164 CrPC is shocking to say the least.”
The bench observed, “The failure of investigation to probe the possible involvement of organ trade, despite specific recommendations made by the High Level Committee constituted by the Ministry of Women and Child Development, Government of India, in Nithari killings is nothing short of a betrayal of public trust by responsible agencies. Loss of life of young children and ladies is a matter of serious concern particularly when their lives were brought to an end in a most inhuman manner but that, in itself, would not justify denial of fair trial to the accused nor would it justify their punishment even in the absence of evidence to implicate them.”
It said, “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 demonising him, without taking due care of probing more serious aspects of possible involvement of organized activity of organ trading.”
It said, “Inferences of many kinds, including collusion are probable on account of such serious lapses occasioned during investigation. However, we do not intend to express any definite opinion on these aspects and leave such issues to be examined at the appropriate level.”
The court said, “Though the evidence in this case was voluminous, our task has been made easy by learned counsels appearing for the parties who have rendered all possible assistance to the court. We shall be failing in our duty if we do not record our utmost appreciation for the assistance rendered to us by Yug Mohit Chaudhary, Senior Counsel assisted by Payoshi Roy and Siddhartha Sharma, Advocates for the accused Koli and Manisha Bhandari for accused Pandher. Their written arguments and notes, on facts, have greatly facilitated us in formulating and writing our opinion.”
The bench said, “We conclude, holding that a fair trial has clearly eluded the accused appellants in this case.”
It observed, “The concept of fair trial For the dispensation of criminal justice, India follows the accusatorial or adversarial system of common law. In the accusatorial or adversarial system the accused is presumed to be innocent, prosecution and defence each put their case, judge acts as an impartial umpire and while acting as a neutral umpire sees whether the prosecution has been able to prove its case beyond reasonable doubt or not.”
It said that free and fair trial is sine-qua-non of Article 21 of the Constitution of India. “If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest, able and fair defence counsel and equally honest, able and fair public prosecutor. A fair trial necessarily includes fair and proper opportunity to the prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence.”
It said that if the courts are to impart justice in a free, fair and effective manner, then the presiding judge cannot afford to remain a mute spectator totally oblivious to the various happenings taking place around him, more particularly, concerning a particular case being tried by him.
It observed that the fair trial is possible only when the court takes active interest and elicits all relevant information and material necessary so as to find out the truth for achieving the ultimate goal of dispensing justice with all fairness and impartiality to both the parties.
The bench observed. “Upon evaluation of the evidence led 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 Koli and Pandher beyond reasonable doubt, on the settled parameters of a case based on circumstantial evidence.”
