By India Resists Team,
Surinder Koli, a Dalit accused of murdering 18 women and children residing in Nithari village, NOIDA is facing imminent execution after his Review Petition was dismissed by the Supreme Court on 28th October 2014. While Nithari disappearances constitute the biggest and most bizarre urban crime of our times, Koli’s case is an egregious miscarriage of justice where a human sacrifice is about to offered in our names to the great god of public opinion.
Listed below are facts which highlight how Koli’s case is an affront to due process and fair trial rights.
2003: An abnormally high number of women and children were reported missing from Nithari village in Sector 31 Noida. These numbers attest to the fact that the phenomenon of missing children predated Koli’s arrival as a domestic servant with Moninder Singh Pandher at his bungalow D-5, Sector 31, Nithari, Noida in 2004. Numerous parents living in Nithari had reported to the police that their children had gone missing but no action was taken.
Feb 2005: The prosecution case is that 14-year-old Rimpa Haldar had gone missing on 8 February. Her parents too had tried unsuccessfully to register the case with the police.
March 2005: Some boys playing cricket discovered a hand in a plastic bag in the open area behind D-5. They called the police, who after seeing the hand advised them to forget about it, and no action was taken. This can be found in court records in the evidence given by prosecution witnesses 23 and 24.
2006 – 07: When the issue of missing children was finally reported to the Allahabad High Court, the police were directed to investigate. Investigations commenced and Koli was arrested on 29 December 2006 and, according to the police, he led them to the same spot where the boys had found the hand 18 months ago. Nevertheless, the police claim that it was through Koli that they discovered the large number of skulls and bones in the open space at the back of D-5, and in the drain running on the main road in front of the bungalows. In January 2007 the case was transferred to the CBI who took Koli’s custody thereafter. For the next two months no additional evidence was found against Koli. What was there would not have sufficed. That there were human remains lying in the open space behind the row of bungalows was clearly known to many people in the locality, and mere knowledge of this could not lead to the inference that they were the murderers.
After sixty days of police custody, when no further evidence could be discovered against Koli, the CBI applied to the Magistrate to have Koli’s confession recorded (27 February 2007). They said that Koli had informed them that he wanted to confess. Koli was produced before the Additional Chief Metropolitan Magistrate who directed that before the recording of his confession (on the basis of which Koli would be eventually convicted and sentenced to death), Koli be given access to a legal aid lawyer for five minutes in open court. Thereafter Koli was produced before another Magistrate who recorded his confession. In this confession, Koli gave a detailed but highly repetitive account of how exactly he lured a total of 16 victims (9 female children, 2 male children and 5 adult women) into the house, killed and attempted to have sex with the inert bodies, chopped and eat their body parts, and then threw the remains at the back of the house and in the drain on the main road. In this same confession, Koli also said that he was tutored by the police to say many things, including the names of the victims, the manner of killing, etc. He also said that the police had tortured him brutally. This is the sum total of prosecution case against Koli and the evidence adduced in support of it.
Invalid and Inadmissible Confession:
Section 24 of the Indian Evidence Act bars a confession if it appears to be have been caused by inducement, threat or promise. The first legal requirement for the admissibility of a confession is that it should be a voluntary admission of guilt. In this case, the confession itself states Koli was tortured and tutored. Under law, a confession has to be read as a whole, and unless the exculpatory part has been conclusively falsified by the prosecution, it cannot be ignored. It is not permissible to only rely on the incriminating part of a confession and pretend the exculpatory part does not exist. There are a large number of judgements on this point, including one by a constitutional bench of five judges. The Supreme Court has also held that prolonged police custody prior to the making of a confession is sufficient to brand the confession as involuntary. A confession, if it is a genuine admission of guilt must be made at the earliest point in time or else it will be presumed to be induced by torture. Koli’s confession, which is the only evidence in the case against him, is not worth the paper it is written on. It is denuded of all evidentiary value by the torture and the tutoring which require no additional proof because it is a part of the same confession which is relied on by the prosecution. There was no other evidence in this case against Koli except this so-called confession which was made after 60 days in police custody.
Wrongful Reliance on the Confession and Silence of the Courts:
The trial court, the High Court and the Supreme Court in the criminal appeal all relied on this confession. In all these courts it was strenuously argued that this confession had no legal evidentiary value because of the torture and the tutoring, but because there was no answer to this argument, the courts ignored it. Their judgements are conspicuously silent on this point. There is no explanation by them as to how and under what legal provision could they rely on such a confession. If this argument was addressed by the Courts, they would have to exclude the confession, and that would force them to acquit Koli. When this case was brought to the notice of Ram Jethmalani, India’s pre-eminent and most respected criminal lawyer, he immediately agreed to take it on pro bono. When he read the part of the confession where the torture and tutoring are mentioned, he closed the papers and said that nothing more was needed: the case had to be thrown out. He forcefully argued this point before the three judges of the Supreme Court in the Review Petition hearing, but to no avail. This point was also stressed in the written submissions given to the judges. What is most surprising and distressing is that this bench too, in its judgement dismissing the review petition did not answer this point of how could such a confession be admissible in law. Thus, four different courts, including two benches of the Apex Court have held Koli to be guilty without being able to answer the principle argument raised in his defence.
Sensational and Incredible Confession:
Besides the obvious legal point alluded to above, the confession in itself stretches our credulity. Certain aspects of the story trotted out in the confession seem clearly improbable. According to the prosecution, Koli was living in D-5 as a full time domestic servant of Pandher and his wife. The wife often travelled to Chandigarh, and during the day Pandher would be at work. But there was also another domestic servant (Maya Sarkar), a gardener and two drivers employed by Pandher who would have been in the house. All the killings took place in the drawing room of the house between 9 am and 4 pm. After each killing, Koli would strip the clothes of his victim and carry the body upstairs to a bathroom where he would proceed to chop it into small parts. Then he would leave the bathroom in that condition while he cooked and ate some of the body parts. After 3-4 hours when he would regain his composure, only then would he clean up the drawing room and bathroom. It is too much to believe that not once in any of the sixteen killings and dismemberment, when the body parts were lying scattered in the bathroom and the clothes strewn across the living room, did either Maya Sarkar, the drivers, Pandher or any visitor to the house enter the drawing room. Neither Maya Sarkar nor the gardener were examined as witnesses at the trial.
The WCD Report
The Autopsy Surgeon’s statement
The confession is not the only disturbing aspect of Koli’s case. In 2007, the Ministry of Women Child Development (WCD) set up an expert committee of seasoned bureaucrats to investigate the Nithari killings. Their report is a damning indictment of the Noida Police and the CBI’s investigation, and raises serious doubts about Koli’s involvement in this case. In paragraph 3.2 of this report, the Committee refers to the scientific information supplied by Dr.Vinod Kumar, MD, the Chief Medical Superintendent, Noida, on 10 January 2007 who had supervised the post-mortem examinations conducted on the bodies identified after assembling the bones and skulls found at the site. Dr. Vinod Kumar informed the Committee
“that it was intriguing to observe that the middle part of all bodies (torsos) 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. According to him, the surgical precision with which the bodies were cut also pointed to this fact. He stated that body organs of small children were also in demand as these were required for transplant for babies/ children. A body generally takes more than 3 months to start decomposing and the entire process continues for nearly 3 years. Since many of the reported cases related to children having been killed less than a year back, it is a matter for investigation as to why only bare bones were discovered. He did not favour the theory of cannibalism as it could be a ruse to divert attention from the missing parts of the bodies.” (emphasis added)
In its conclusions, the WCD report casts doubt on the prosecution theory about the motive for this offence and states that having embarked on its hypothesis that Koli was the culprit, the police has not investigated the possibility of organ trade as the motive for the offence.
Why was the WCD report suppressed?
This report was in the possession of the government but was not given to Koli or to the courts. The constitutional requirement of a fair trial obliged the prosecution to disclose this report to Koli. The evidence of Dr. Vinod Kumar clearly shows that this expert witness did not accept the hypothesis of cannibalism or sexual perversion which the Prosecution had introduced in Koli’s confession. This would have been a crucial factor for the consideration of the trial court in adjudicating whether or not the prosecution theory of sexual perversion and cannibalism should be believed or not. The prosecution’s reluctance to allow Dr. Vinod Kumar’s evidence to come before the courts can be seen from the fact that neither did the prosecution examine the autopsy surgeon, nor did they record his statement or even even mention him in the list of witnesses which is completely unprecedented in a murder case. The police carefully eliminated all possibility of Dr. Vinod Kumar’s views coming to the notice of Koli or his trial court lawyer.
The doubt expressed by the WCD Report receives support from the fact that the very adjacent house (D-6) was occupied by a doctor who had been previously charged in a case of organ trade. This fact was deposed to by a prosecution witness himself who further stated that the Doctor’s house was guarded 24 hours by security guards. These facts were known to the Investigating Officer as can be gleaned from his own evidence in court.
Discrepancy in the numbers of missing children and murders attributed to Koli
The Report of the Expert Committee further notes that the number of killings ascribed to Koli kept increasing with the passage of time. The Report observes as follows:
“The DM stated that incidents of missing children have come to light in the specific area of Nithari village. As per the statistics provided by SSP, Noida, the number of reported cases of missing children in last two years* are as follows:
|Cases reported for missing persons/children||9||20||29|
|Persons admitted as killed by the accused||2||9||11|
|Persons still missing||4||3||7|
*As per the data given by SSP, Noida during the first visit of the Committee to Nithari on 04.01. 2007.
Note: The number of children/ persons identified as killed by the accused was 17 as reported by the authorities on 10.1.2007″
It seems that having got a scapegoat, the police quickly attributed all the unsolved cases to Koli and the number of killings done by him was increased from 11 to 17 to account for the unsolved cases of missing children.
Some Observations of the Report of the Expert Committee:
“After going through the details of the investigation as reported by the district authorities the Committee felt that the modus operandi and the motive of the killings are not clear. The original assumption on which the police are proceeding is that it is primarily a sexual crime of a serial crime category, committed by very psychologically disturbed persons.”
1. There was no type or pattern in the choice of the victims which is generally the hallmark of a serial killer. The victims were both male and female and their ages ranged from a 3 year old boy to young women. As such, the premise of it being the work of a serial killer is unclear at present.
- The nallah in front and the back of the house are not very deep and have stagnant water. It was also not cleaned for a long period by civic authorities. Therefore, the sacks would not have flown away but remained wherever they were dropped. It is curious that no decomposition of the body took place nor was there any report of foul smells.
- The method of disposal of the body also needs further investigation. According to what has been reported, the accused tied the skull and the bodies in sacks and dropped them in the nallah at the front and back of the house. Considering that these sacks had to be dropped from terraces in the daylight hours, it is very strange that there were no witnesses inspite of adjoining neighbouring terraces.
- As per some medical reports, the body normally takes at least three years to decompose; as many of the deaths were as recent as 2006, the body should not have been completely decomposed. Yet, only skull and bones were found which gives rise to a lot of suspicion. Such a careless disposal of bodies where it was certain that they would be discovered in due course is strange.
- It is also strange that the flesh of the torsos was disposed off separately from the rest of the body. In fact, this portion of the bodies has only been discovered after the thorough search carried out under CBI’s supervision. What was the motive behind action by the accused needs to be investigated.
Suggestions of the Committee
There are certain aspects that need to be further investigated:
- The CBI should look into all angles including organ trade, sexual exploitation and other forms of crimes against women and children.
- There is need to study the organ transplant records of all hospitals in NOIDA over the last few years to study the pattern and trend of these operations and tracing the donors and recipients.
- As the motive, modus operandi and method of disposal of bodies are notclear, the involvement of other persons as well a larger geographical spread needs to be investigated. This is all the more important as the CBIinvestigation is discovering more new bodies spread over a larger area.
- The identification of the victims is based solely on the confessions of the accused and that too from their photographs. There is no other strong evidence to prove that these children definitely met their deaths at the hands of the accused or if there is a possibility that they could be trafficked elsewhere. The fact that some of their clothes were found in the accused’s premises cannot automatically prove that they are dead.
- The interrogation made by Police of the maid servant of the house, Maya Sarcar, needs also to be looked into for revelations into the activities of the accused.
- The discovery of more and more bodies in the area is a cause of grave suspicion whether these crimes are the work of just two individuals or whether a larger gang is involved. The original motive as on being sexual crimes needs to be reinvestigated.“
The Mystery of the DNA Report
The DNA report, far from providing conclusive proof of Koli’s guilt, raises many disturbing questions. It points to the fact that not all the cases of the missing children have been explained. According to the prosecution, they collected DNA samples from 18 families whose family members had gone missing. Koli allegedly confessed to killing 16 persons but body parts of 19 victims were found which seems to contradict the confession. Who killed the other 3 persons whose body parts were found? When the DNA samples of these 18 families were compared with the DNA samples extracted from the 19 bodies, only 8 matched. Eleven bodies remained unidentified. Whose were they? How is it that though Koli’s confession mentions 16 victims, all living in Nithari, 11 bodies remained unidentified and their DNA did not match with the DNA taken from the families whose children had gone missing? Where are the family members of these 11 victims whose bodies remained unidentified?
Children Go Missing from the Area Even Now
Children from that area have continued to go missing. See article linked below: http://www.tehelka.com/nithari-killing-hanging-surinder-kohli-will-bury-the-truth/
Whether this is a fit case for the Death Penalty
Even if one believes the confession to be true, a bare reading would show that Koli needs a doctor more than a hangman. According to the confession, Koli, a person of high and rigid moral standards with no prior criminal antecedents, would get deeply disturbed on seeing his employer cavorting with multiple sex workers. He would be plagued with thoughts of ‘cut kill eat’ and despite his best efforts at controlling these thoughts, they would dominate his consciousness and take over his being. He would then be transported into some kind of automaton state where he would not know what he was doing and would have very little memory of what he had done. In this state he would lure his victims into the house, strangulate them, attempt to have sex with their inert bodies and then on failing to do so, would kill them. He would then dismember the bodies, and eat some of the body parts. Only 2-3 hours after this would his mind become calm again. By this account, Koli is a deeply disturbed and traumatised person who has himself suffered a great deal to his personality disorder. He may not be insane according to the unrealistic and archaic (1840) standards of the McNaughten Rules incorporated in section 84 IPC, but he is a very ill person. Not executing mentally ill people is a measure of a society’s evolving standards of decency.
Is it in the interests of justice to execute Koli now?
Only one case is complete. The other 15 are pending at the trial or the High Court. Much of the evidence is common: Koli’s confession, seizures of bones, skeletons, etc. If Koli is allowed a trial in the other cases, he may be able to prove that the confession was forced or false. He will also have an opportunity to bring on record the views of Dr.Vinod Kumar who conducted the autopsies and who opined that this was not the work of a sexually crazed serial killer but of organ traders who had severed the bodies with ‘surgical precision’. He may also be able to prove that the investigation was dishonest, or that some of the victims are not dead. He may even be able to show through medical evidence that he suffers from a mental / personality disorder that constitutes a powerful mitigating circumstance in favour of life imprisonment over the death penalty. Even if he cannot prove this, he is entitled to a chance, since he is effectively being condemned for all these killings though technically only one has been proved. It would not be fair or just to hang a man for 18 killings when only one has been proved. Moreover, even the families of the victims are entitled to have a judicial verdict on who killed their family members. They are entitled to know the truth and obtain closure. If Koli is hanged now, the trials concerning the remaining 17 victims will have to be aborted. [Annexure XV Chart of Pending Cases]
Koli was represented on very poorly paid legal aid throughout the proceedings. A legal aid lawyer gets about Rs. 2000 each for a trial, murder appeal and Supreme Court petition. It is highly unlikely that his Supreme Court appointed amicus curiae even wrote to, sought instructions from or met with Koli. No evidence by way of defence, mitigation, and medical opinion was led on his behalf.
 According to a story published in Tehelka: “Fifty-seven missing persons cases were registered in 2003 at the Sector 20 Police Station in Noida, which has jurisdiction over Nithari. The number rose to 80 in 2004. The figures are much higher than average. For instance, in Sector 58, 15 missing cases were registered in 2003 and only 8 in 2004. In 2005, the number of missing person reports in Sector 20 came down to 43 — significantly lower than the previous year’s figure of 80, but still the highest among Noida’s police stations.” http://archive.tehelka.com/story_main28.asp?filename=Ne310307Nithari_part3.asp)
 Section 24. “Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.—A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,1 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”
Ahir Raja Khima v. State of Saurashtra AIR 1956 SC 217 para 10. See also Shankaria v. State of Rajasthan (1978) 3 SCC 435 at para 23:“It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under Section 164 Cr. P.C., the Court must apply a double test:
(1) Whether the confession was perfectly voluntary?
(2) If so, whether it is true and trustworthy?
Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in Section 24 Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise.”
Nishi Kant Jha v. State of Bihar AIR 1969 SC 422 paras 15, 20, 21, 23; AghnooNagesia v. State of Bihar AIR 1966 SC 119 para 12-16; DevkuBhika v. State of Gujarat (1996) 11 SCC 641 para 3.
Nathu v. State of UP AIR 1956 SC para 5-6; Babu Singh v. State of Punjab (1964) 1 Cri LJ 566 (SC) para 16.
See Sidhartha Vashisht @ Manu Sharma v. State NCT of Delhi (2010) 6 SCC 1 and V. K. Sasikala v. State (2012) 9 SCC 771.