Nithari, symbol of cops' inability?

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The Nithari killings case has been mired in twists and turns since day one. And the shoddy investigation by the police has further helped in botching up the case. It seems the poor investigation in the case is setting up main accused Moninder Singh Pandher and his man servant Surendra up for an acquittal.

So, will the police be able to build a proper prosecution to nail the criminals?

The police is giving several theories at this point but what is the hard material evidence that it has gathered so far?

On CNN-IBN’s show India 360 we asked: Is it still possible for the CBI to build a strong prosecution in Nithari killings?

On the panel of experts were criminal lawyer from the Mumbai High Court, Mahesh Jethmalani, former DGP of UP, Prakash Singh and Associate Professor of Forensic Medicine at AIIMS, Dr Sudhir K Gupta.

Now here is a case with no witnesses, body or the murder weapon. At the moment all that the police has are the confessional statements of Moninder Singh Pandher and Surendra, and the narco analysis test, which may or may not be admissible in a court of law.

So, what is the kind of evidence that police needs to gather in order to build a strong prosecution?

Jethmalani says that most murders are committed in the absence of eyewitnesses but there is always a chain of circumstances.

“Most murders are proved by circumstantial evidence. And confessions to the police are not admissible according to the Evidence Act and neither are brain mapping and narco analysis. But we do have overwhelming evidence in this case and more evidence is not required actually,” Jethmalani explains.

However, he says that DNA testing is required to link the bones found with the missing children. “But even if that is not done, there is no denying that murder of unidentified people have taken place. So, murder is established. Now murder of specific individuals need to be proved by specific tests,” he reasons.

The Bombay High Court lawyer also indicates that the skeletal remains were found in the drains of the residence of the main accused.

“These drains were not accessible to the public. It’s a private drain, which has been cordoned off from the public by a brick wall. Clothes have also been found of children, which parents can identify. Apart from that schools bags, shoes and some pornographic pictures have also been found. So, all this is fairly sufficient for a case of circumstantial evidence,” Jethmalani explains.

But how did the police conclude from skeletal remains that the children were sexually assaulted? How is rape proven in a case in which even the torsos are missing.

Former DGP of UP, Prakash Singh says that sexual assault cannot be proven in a normal manner like recovering the victim’s clothes, traces of semen or anything of suspicious nature.

“To that extent one cannot prove rape but still one can build up on the circumstantial evidence like the statements of people that he used to sexually assault children and the statement of his servant,” Singh explains.

Now the question that arises is will the police be able to build on those linkages.

“Murder will be established and it is a graver offence. But yes, rape can only be proved by circumstantial evidence,” Singh says.

The case can get a stronghold once the DNA tests have been done as then the skeletal remains can be linked to the missing children of Nithari. But can it be established that Moninder killed the children?

Forensic expert Dr Sudhir K Gupta explains, “There will be two medical parts of the examination of the skeletal remains. One will be the forensic anthropology examination in which scientifically we can prove that the bones are those of a human being along with the race, weight, height, approximate age and also the age of the skeletal”.

But as far as the nature of the crime is concerned he says, “Nature of crime means probable cause of death”.

Evidence that the police has managed to gather so far
	Moninder and Surendra’s confessional statements - Not permissible in the court of law.
	Narco Analysis Results - May help the prosecution, but they can't be treated as evidence.
	Bones and clothing dug out from Moninder's house - Link with Nithari killings cannot be proved definitively.
	None of the bodies of the missing children or the weapon of crime has been found till now.

Like in the Jessica Lal murder case the nation saw how desperately our criminal justice system is in need of a reform. Similarly, in the Nithari killing it has been seen how desperately the police is in need of reforms.

Now as the Nithari case grows murkier it gives doubts as to what if the accused turns around and says that his statements to the police were not true and that he was pressurised into doing so by the police. Then is the material evidence enough to convict the accused?

“Yes, I think they (police) have enough circumstantial evidence to convict the accused. Most murders are not proved by the confessions of the main accused so we do not need to worry if Moninder retracts. Even if he makes a judicial confession I don’t see any trouble,” Jethmalani reassures.

However, he says, “One thing that we really require is the forensic evidence. DNA matching is what is required in this case”.

But Jethmalani hastens to add that the most shocking part of this case “is the delay in investigating the missing children. For 20 months parents kept complaining and nothing was done. The police is culpable in this matter because if they had they found one or two children then they could have stopped the other children from being killed in a similar manner”.

Jethmalani’s comments on the case points to another aspect of the police which has become the need of the hour – Should criminal investigation be separated from law and order?

“Nithari has brought into focus the urgency and imperativeness of police reforms. And Supreme Court has clearly said that investigative work should be separated from law and order. So, if this is put into practice then chances of Nithari happening will become mush lesser. We need a team that does not get sucked into day-to-day law and order situations,” explains Singh.

Another point, which comes to light is that should there be more forensic and scientific inputs for the police.

“In Delhi enough scientific inputs are given by the forensic experts. But in remote areas basic training is required for the police like using gloves and storing evidence in sealed plastic packets,” Gupta says.

But Singh says that there is a problem with resources and the integrated policing is required for the National Capital Region (NCR).

“There is a huge gap in terms of what is available to the Delhi Police and the UP Police. Integrated policing is required for the NCR region. One commissioner need not be in-charge of the entire area but yardsticks need to be laid down like a certain amout of manpower for a given area. The minimum strength in a police station also needs to be taken into account,” Singh explains.

Now, during the investigation one also observed how the police was stuffing the evidence into bags and breaking some of the bones in the process.

To conclude the discussion the experts were asked, if there is one improvement that they would like to see in the way the police investigates murders, what would that be?

“As far as Nithari is concerned it’s too early to comment on the flaws of the investigation. The case came up only 10 days ago. So far they (police) have collected whatever they had to from the house of the main accused. The rest depends on the forensic work and that is not the police’s department,” says Jethmalani.

But he argues that the police should act with promptitude whenever there is a complaint weather it is serious or not. “They must not look at the personality or the strata that complainant belong to. Nithari is a gross dereliction of duty”.

While Gupta says, “In any case of criminal injuries, a proper system should be developed so that it can be followed by all the investigating officers”.

But for the former DGP the police has not done his job well.

“This case leaves much to be desired. Basically there are three lessons to be drawn from Nithari. We need to take notice of the straws in the wind. Dedicated teams for investigation are required and greater scientific input is also the need of the hour”.

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