Don't kill this man!!

The 12th century Sephardic legal scholar, Moses Maimonides, famously wrote, "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death." He argued that executing an accused criminal on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice." [1]

Despite the emergence of nation-states and improvements in policing, many countries retain the death penalty. It is not only dictatorial regimes like China and Iran, but also democracies of USA, Japan and India, which execute people for various offenses.

In India, the death penalty was the default punishment for murder, up until the 1970s. However, a 1983 ruling by the Indian Supreme Court, mandated that the death penalty be awarded only in the "rarest of the rare" cases. What constitutes "rarest of the rare" is still left to the discretion of the judges (jury trials were abolished in India in 1960), and usually means murder preceded by torture or rape. Such acts of violence are punishable with "hanging till death" in the Republic of India. [2]

On December 29 2006, the residents of Noida, along with all other citizens of India, were shocked as the police recovered one after another, the remains of dead children and women, from a municipal water tank behind house D-5, Sector 31 at Nithari. The house belonged to a rich businessman Moninder Singh Pandher, who used to live there with his housekeeper Surender Kohli. The infamous residence was labelled "the house of horrors", and the government sacked some low ranking police officials, as the allegations of "inaction" surfaced. [3]

The case was quickly transferred to the CBI (Central Bureau of Investigation) by a nervous state government who wanted to wash its hands "off the case". The CBI conducted brain mapping and narco analysis test on both suspects, and formal chargesheets were filed later.

Rimpa Haldar, a 14 year old girl, who was just one of the 19 victims of this ghastly crime, was raped and murdered. The court of special CBI judge Rama Jain was to try the duo for the crime. CBI counsel argued that Kohli was a rare combination of a man affected by paedophilia, and necrophilia, and had no chance of reform. He is a threat to the society and should be sentenced to die, the CBI argued. [4]

However CBI couldn't produce any much evidence against Pandher, who as the owner of the house, was away when the incidents took place. "This is borne out from the documents, statement of witnesses and mobile phone records."

“Investigation has revealed that JCB organized an annual conference of its dealers in Gold Coast Australia from February 1 to 4 of 2005,” the chargesheet says. “On January 30, 2005 accused Moninder Singh Pandher left IGI Airport New Delhi by flight no.SQ 407 for Australia and reached there on 31.1.2005.” [5]

According to the CBI, Pandher left Australia on February 14 and reached IGI Airport, New Delhi, only the next day — almost a week after Rimpa disappeared. “The above journey has also been confirmed by the Foreigners Regional Registration Officer, New Delhi vide its letter dated 16.4.2007. The immigration stamps affixed on his passport at IGI Airport and Australia also establish his departure and arrival at the places mentioned above,” the CBI said.

Nevertheless, the CBI did prosecute Pandher for immoral trafficking, bribery, etc.

It is often said that "kanoon andha hota hai". Blind Justice is the theory that the law should be viewed objectively. Completely ignoring the fact that the prosecutors didn't charge Pandher with having committed the murder, the special CBI court of Rama Jain convicted him of murder and also sentenced him to die.

Not the fact that Rama Jain didn't believe in the CBI. She accepted the CBI's theory that Pandher wasn't even in the country when the murder took place.

So what bizarre logic makes Rama Jain think that Pandher is guilty of murder??

Frankly speaking, it was Judge Jain's personal belief. "Pandher must have known about the murders", "How is it that the person living in the house (D 5, Sector 31) did not know about these happenings?"

Quite understandably, most of the Indian media didn't take up the possibility that Pandher might be an innocent man, whose only guilt was that he lead an immoral life (call girls visting often). Saying such a thing over national television would be tantamount to loss of TRPs, which our hyper competitive media companies can not afford.

This case reflects two big underbellies of India. One, is that the media isn't always fair. Two, is that judges can get swayed in by personal sentiments and public opinion. It is clear that Judge Jain ignored one of the most basic principles of Justice - "Blind Justice". She has ignored established law, that in order to convict a free man, requires that his guilt be proven beyond reasonable doubt. It might seem that in doing so, she has actually violated the law herself.

While it would seem, that Pandher is being made a sacrificial goat, for a blood thirsty India, it comes that voices of sanity still do exist. Retired Justice R S Sodhi, of the Delhi High Court, now a lawyer, who has himself sent to the gallows quite a many convicts, including the murderer of Priyadarshini Mattoo, has expressed shock at this judgment.

“This judgement is nothing short of judicial abuse. You cannot send people to the gallows on the basis of public opinion. One has to judge him or her in accordance with legal provisions. One must also abide by the principles of the rule of law, which, I think, has been given a go by in the present case" says Sodhi. [6]

To the accusations that Pandher led an immoral life, lawyer Sodhi says, "sleeping with women cannot be held a criminal offence. That is the only thing reportedly established during trial". He adds, "There is no evidence that can directly link Pandher to the conspiracy and a mere suggestion that Pandher would have been in the know of these horrific crimes was not enough to invite a conviction, let alone a death penalty".

Now Sodhi has agreed to defend Pandher at the Allahabad High Court. He can not be executed unless his death sentence is upheld all the way upto the Supreme Court. Given that no "real case" exists against him (sleeping with call girls is hardly a crime), he may walk free soon.

If that happens, then this could become a classic case in the point, for death penalty abolitionists, like myself.