Nithari Killings: Koli Sentenced to Death Again

Source: Indlaw

A special CBI court at Ghaziabad awarded death penalty to Surender Koli in the Deepali rape and murder case. 

This was his fourth death sentence in as many cases out of the 19 serial Nithari killings which rocked the nation in 2006. 

Earlier, special CBI Judge A K Singh pronounced Koli guilty in the case of rape and murder of 12-year-old Deepali. Koli, the domestic help of Moninder Singh Pandher who was not proceeded against in this case for want of evidence, has already been awarded death sentence by the special court in three of 16 cases filed in connection with the rape and murder of children and a young woman at Nithari in the district. 

Like in other cases, body parts of Deepali were also found in a drain behind Pandher’s bungalow in Nithari in Noida, Uttar Pradesh. 

In the first conviction in the series of horrific crimes, Koli and Pandher were found guilty and sentenced to death in the rape and murder of 14 year-old Rimpa Haldar on February 13, 2009. However, Pandher was acquitted by the Allahabad High Court on September 11. 

Koli was also awarded death sentence for rape and murder of eight-year-old Aarti last year and of nine-year-old Rachna this year. 

Deepali’s case is the fourth of the 16 cases filed by the CBI in connection with the rape and murder of children and a young woman whose skeletal remains were found in Nithari in 2006. 

Of the total 19 cases, CBI filed charge sheets in 16 cases, while the remaining three cases were closed without trial due to lack of evidence.

Nursery Admission Criterion Challenged Before Delhi High Court

Source : Indlaw

A Civil Rights Group has moved the Delhi High court against the recent guidelines issued by the government for admission of children in nursery class in private-aided and un-aided schools. 

Appearing on behalf of the parents and Social Jurist, lawyer Ashok Agrawal contended that the guidelines issued by Delhi government on December 15 and by Union HRD ministry on November 11 were contrary to the Right to Education Act and, therefore, violated the fundamental rights of a child. 

The PIL petitioner said Delhi government's guidelines give a free hand to the unaided and private schools to formulate their own nursery admission criteria. 

He further said the guidelines are contrary to the RTE Act and would lead to further commercialisation of education at the cost of hapless parents and students. Similar guidelines issued by the HRD ministry on November 11. 

'Such kind of discrimination as suggested by the government is not acceptable to us as it defeats the very purpose of the Right to Education Act initiated by the government itself,' the petition said. 

The government cannot violate its own provisions and formulate another set of rules to favour some persons for commercial benefits, Mr Agrawal added. 

The PIL will come up for hearing on Wednesday.

Exhibiting Documents in Evidence : The Law

Justice R.C. Lahoti
Supreme Court of India

Justice R.C. Lahoti pronounced a landmark judgment, in Sudir Engineering Company vs Nitco Roadways Ltd., which deals with the entire law relating to the marking of exhibits and tendering documents in evidence. The Bench has held that mere marking of an exhibit on a document does not dispense with the formal proof thereof. The relevant extracts from the judgment are reproduced hereinbelow;

(6) Let me now look at the law. Any document filed by either parly passes through three stages before it is held proved or disproved. These are : First stage : when the documents arc Filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second stage: when the documents are tendered or produced m evidence by a party and the Court admits the documents in evidence. A .document admitted in evidence becomes a part of the judicial record of the case and constitutes evidenee. Third stage: the documents which are held 'proved, not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage arrives the final hearing of the suit or proceeding.

(7) Order 13 Rule 4 sub-rule (1) of the Civil Procedure Code provides as under :- 

4.( 1 ) ' Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely :- (a) the number and title of the suit, (h) the name of the person produced the documents, (c) the date on which it was produced, and, (d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge. (2) xxx xxx xxx (Punjab & Haryana amendment) :- "Provided that where the Court is satisfied that the 'document, not endorsed in the manner laid down in the above rule, was in fact admitted in evidence, it shall treat the document as having been properly admitted in evidence unless non-compliance with this rule has resulted in miscarriage of justice." - Haryana Gaz., 11-6- 1974, Pt.III (L.S.) p.687." (underlining by me)

(8) I am firmly of the opinion that mere admission of document in evidence does not amount to its proof. 8.1Admission in evidence of a party's document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of Sections 63-65 of the Evidence Act is adduced without laying foundation for its admissibility or where a document not properly stamped is admitted in evidence attracting applicability of Section 36 of Stamp Act. 8.2 But the right of a party disputing the document to argue that the document was not proved will not he taken away merely because it had not objected to the admissibility of the document. The most instructive example is of a Will. It is a document required by law to he attested and its execution has to he proved in the manner contemplated by Section 68 of the Evidence Act read with Section 63 of the Succession Act. The party challenging the Will shall not be excluded from demonstrating at the final hearing that the execution of the Will, though exhibited, was not proved is statutorily required.

(9) The law laid down by the Supreme Court in Sait Taraji Khimechand VS. Yelamarti Satvam is :- 'The mere marking of an exhibit does not dispense with the proof of documents'

(10) Two Division Benches of Lahore High Court Ferozchin VS. Nawnb Khan, Air 1928 Lahore 432 and Hari Singh VS. Firm Karam Chand, Air 1927 Lahore 115 have clearly held that the admission of documents under Order 13 Rule 4 Civil Procedure Code does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof

(11) I have looked into the provisions of Delhi High Court (Original Side) Rules 1967 also. Chapter Xiii Rule 3 provides for documents admitted in evidence being numbered in such manner as the Court may direct. 11.1 There is an Original Side Practice Direction (No.3 of 1974), which vide puras 6 and 7 provides :- 6. The Court Master of the Court shall lake charge of every document or object put in as an exhibit during the trial of any case and shall mark or label every exhibit with a letter or letters indicating the parly by whom the exhibit is put in or the witness by whom it is proved, and with a number, so than all exhibits put in by a party, or proved by a witness, arc numbered in one consecutive scries. 7. The Court Master .of the Court shall examine all documents produced or offered in evidence and bring any apparent insufficiency of the court fee or other stamps to the notice of the Judge for orders. He shall endorse all documents admitted in evidence and all documents rejected with the particulars required by law and sign or initial such endorsement. (underlining by me) 11.2 A bare reading of this Practice Direction shows that it is not artistically drafted 'Proved' as used in para 6. is nothing else except used loosely for 'put in' 'produced' or 'tendered'. After all the question of proof is not answered by Court during the statement of witnesses simultaneously with production of documents nor does the Court Master decide upon proof of documents. Para 7 makes it clear that endorsement file by the Court Master of exhibit number, on a document is 'admission in evidence' and not proof of a document.

(12) In Baldeo Sahai VS. Ram Chander & Ors., Air 1931 Lahore 546 it was said :- 

"There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents 'MC. proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with an endorsement thereon to that effect." A reading of the report shows that it was the practice of the Court to endorse the documents soon on their filing which practice was deprecated and hence slopped. The word "proved" has been used by the Division Bench in the sense of 'proposed to be proved' as is clear from its having been used Along with the word 'tendered' or "admitted" in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As staled in para 6 hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved - are two distinct and different stages, not one. They are respectively the second and third stages

(13) Admission of a document in evidence is not to be confused with proof of a document.

(14) When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each lime a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.

(15) The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was I he document before the winless when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.

(16) This makes the position of law clear. Any practise contrary to the above said statement of law has no sanctity and cannot be permitted to prevail.

(17) Every Court is free to regulate its own affairs within the framework of law. Chapter Xiii Rule 3 above said contemplates documents admitted in evidence being numbered in such manner as the Court may direct. I make it clear for this case and for all the cases coming up before me in future that the documents tendered and admitted in evidence shall be marked with numerical serial numbers, prefixed by Ex.P if filed by plaintiff or petitioner and prefixed by Ex.D if filed by defendant or respondent.

(18) Reverting back to the case before me, let the report of Notary Public be endorsed with an exhibit number by the Court Master.

Family Arrangement : Essentials : The Law

The Supreme Court in its landmark judgment, in Kale & Others vs Deputy Director Of Consolidation, has explained and examined the essentials of a family arrangement. The Court held as under;

"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend." The object of the arrangement is to protect the family from long drawn litigation cr perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: "A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving-its honour.

The agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.

Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections- to the binding effect of family arrangements".

In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence:

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.

The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently. In Lala Khunni Lal & Ors. v. Kunwar Gobind Krishna Narain and Anr.(1) the statement of law regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council. In this connection the High Court made the following observations , which were adopted by the Privy Council:

The learned judges say as follows:

"The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring - a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that

(1) L. R. 38 T. A. 87. 102.

it is the duty of the Courts to uphold and give full effect to such an arrangement."

Their Lordships have no hesitation in adopting that view."

This decision was fully endorsed by a later decision of the Privy Council in Mt. Hiran Bibi and others v. Mt. Sohan Bipi(1).

In Sahu Madho Das and others v. Pandit Mukand Ram and another(2) this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J., speaking for the Court, observed as follows:

"It is well settled that compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property `, under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members- and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step. (fraud apart) and upholding an arrangement under which. One set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and, simple from him or her, or as a conveyance for consideration when consideration is present."

In Ram Charan. DAS v. Girjanandini Devi & Ors. (3), this Court observed as follows:

"Courts give effect to a family settlement upon the broad " and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the content is not to be under stood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or

(1) A.I.R. 1914 P.C.44. (2) [1955] 2 S.C.R. 22, 42-43. (3) [1965] 3 S.C.R. 841, 850-851.

having a claim to a share in the property in dispute. . . . . . . . The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter."

In Tek Bahadur Bhujil v. Debi Singh Bhujil and others(1) it was pointed out by this Court that a family arrangement could be arrived 4 at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed , to did not require registration. This Court had observed thus: "Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights f in what properties the parties possess."

Similarly in Maturi Pullaiah and Anr. v. Maturi Narasimham and ors.(2) it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the Court. Similarly it has also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement. In this connection this Court observed as follows: -

"It will be seen from the said passage that a family arrangement resolves family disputes, and that even disputes based upon ignorance of parties as to their rights may afford a sufficient ground to sustain it.

* * * * *

Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family,

(1) A.I.R. 1966 S.C. 292, 295. (2) A.I.R. 1966 S.C. 1836.

enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts `will . more readily give assent to such an arrangement than to avoid it."

In Krishna Biharilal v. Gulabchand and others(1) it was pointed out that the word 'family' had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share. The Court then observed:

"To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all , belong to one family. As observed by this Court in Ram Charan Das v. Girjanandini Devi and ors.[1965] 3 SCR 841 at pp. 850 & 851-the word "family" in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement see Ramcharan Das's case.

The courts lean strongly in favour of family arrangements to bring about harmony in a family and do Justice to its various members and avoid in anticipation future disputes which might ruin them all."

In a recent decision of this Court in S. Shanmugam Pillai and others v. K. Shanmugam Pillai & others(2) the entire case law was discussed and the Court observed as follows:

"If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements.