Friday, February 6, 2015

Why We Should Not Hang Surinder Koli

By Dilip D’Souza | Grist Media – Mon 27 Oct, 2014
The Supreme Court will hear Surinder Koli’s final plea in one of the Nithari murders cases this week, failing which he will be executed. His death will ensure that the rest of the Nithari cases will forever remain a blur. There remain several holes in the investigation against him that raise serious doubts about his guilt, but are we willing to listen?

A man may be executed, perhaps in as soon as a few days, for some pretty ghastly crimes. Why should this matter to you, you ask. He committed them, he was tried and found guilty, he's been sentenced, let him fry! Or hang. But what if I told you a few things:
* He was accused in over a dozen cases of murder. Only one trial has actually been completed as well as confirmed by the High Court – the one in which he was sentenced to death. That is, legally he has only ever been sentenced for one murder (see note below). Yet when his appeal against his sentence went to the Supreme Court and was denied, the judgeswrote: “The appellant appears to be a serial killer.” One murder, and he's a serial killer?

* The whole case against the man rests on his confession made to the
police after two months in custody, during which, he says in the confession, he was severely tortured.Section 24 of the Indian Evidence Act says such confessions are inadmissible in a trial.

* A doctor who examined the dead bodies remarked on how they were missing their torsos, how they were sliced with "surgical precision," and strongly suggested that there was an alternative explanation for these killings: an organ trade racket.

Should we let him hang, still? Or is that certainty marred by a few tiny cracks?

A quick recap might be in order: The man we're talking about is Surinder Koli, and the cases we're talking about are the infamous Nithari murders, with their gruesome rumors of mutilation, necrophilia and cannibalism. Koli was the domestic servant in Moninder Singh Pandher's home in Nithari village, Noida. Children and young women had been disappearing in the area for months, their families registering complaints with the police starting in 2005. In late 2006, the police arrested Koli as a suspect in the disappearance of a girl. He eventually confessed to the murder, saying he hadchopped her body into pieces and flung them behind Pandher's house into a drain there. When he took the police there, they found several skulls, bones, slippers and items of clothing, and also recovered two knives from Pandher's house.

The police framed charges against Koli and Pandher. In February 2009, the trial court in Ghaziabad sentenced both men to death for the murder of a girl called Rimpa Haldar. In September that year, the Allahabad High Court allowed Pandher's appeal against his death sentence, thus setting aside his death sentence. But it dismissed Koli's appeal. In February 2011, the Supreme Court too dismissed Koli's appeal, saying "no mercy can be shown" to him. Various other avenues to overturn Koli's death sentence have also been explored, with no success. This week, the Supreme Court will hear one final plea to review certain aspects of his case. If that fails, Koli has no options left and will be executed.

Courtesy: AFP Photo

Let's be clear: several young women and children were indeed killed and parts of their bodies found near Pandher's home in Nithari. That truth is not in any dispute. But there are questions – too many questions – about how the investigation has proceeded. Consider some of these:

1. In January 2007, only days after this whole horrific story hit the headlines, the Ministry of Women and Child Development (WCD) assembled a committee "to investigate into allegations of large-scalesexual abuse, rape and murder" in Nithari. The committee's members were all senior bureaucrats. On their visits to Nithari, the police told them that they had identified 17 victims from the skulls andbones found in the ditches near Pandher's house.

The committee raised several disturbing points about the bodies. The doctor who supervised the postmortems, Vinod Kumar, told them that "it was intriguing to observe that all middle part of all bodies (torsos) was missing…[this] gives rise to a suspicion that wrongful use of bodies for organ sale etc could be possible. …[T]he surgical precision with which the bodies were cut also pointed to this fact."

Not only that, Dr Kumar also pointed out that it takes up to three years for a body to decompose. How then were only the "bare bones" of these victims found, less than a year after their murders? Dr Kumar "did not favor the theory of cannibalism as it could be a ruse to divert attention from the missing parts of the bodies." Because of what Dr Kumar said, the WCD Committee recommended that "the CBI should look into all angles including organ trade…there is need to study the organ transplant records of all hospitals in Noida."

Now consider this in the light of what prosecution witness Ramesh Prasad Sharma deposed during the Ghaziabad trial, as recorded in the Allahabad High Court's order about the appeals. Sharma was thecook of Pandher's immediate neighbor in Nithari, one Dr Naveen Chaudhary. He lived in a neighboring bungalow that overlooked the same ditch where the bodies were found. Sharma told the court that he knew "that his master was arrested in the year 1997 in some kidney scam matter."
Let's understand: Pandher and Koli's next-door neighbor was once arrested for organ trading. And yet the entire organ trade angle was never investigated in the Nithari cases.

2. The trial court observed that there were no eyewitnesses to the murders – naturally – and so the prosecution relied, in its case against Koli, on what the trial court Judge called "the admission made by the accused" while in the custody of the police. As every Indian criminal lawyer knows, this must immediately attract our attention to Section 24 of the Indian Evidence Act, which could not be clearer: "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."

All we've ever heard and know about how the police treats people in custody should tell us something about the possible inducements, threats and violence brought upon Koli. But we don’t have to draw conclusions only from such assumptions – Koli himself repeatedly mentions in his confession that the police tortured and tutored him. For example: "The [UP] police have got me to memorize all the names…when [they] arrested me they made me see these photos again and again and told me the names of these people." (In his original Hindi: "Naam mein photo dekh kar ke naam ko sab mera ye police ne ratvaya hai…UP Police ne jab mereko pakda tha us time mein matlab ki inhone mere ko ye saare photo dekh dekh kar sab ka inka naam wagarah…matlab ki iska ye naam hai.")

There is also evidence of tutoring in how Koli describes each crime: he made the victim unconscious, tried to have sex with her which was unsuccessful, strangled her, took the body up to the bathroom, came down, took a knife from the kitchen, chopped the corpse, ate a piece or two, put the pieces in plastic bags, threw the bags behind the house at night, washed the bathroom. Seventeen murders, and he describes them all in terms that are similar nearly to the point of being identical. Koli goes on to say in his confession that the police tortured him: "Of these there were 2-3 photos I mean, of those, I was tortured a lot and only then, I mean, they made me confess…I was made to suffer a lot of torture." ("Jisme se do teen photo aisi thi matlab usme mereko kaafi torture kiya aur tab ja kar ke matlab jo inhone mere ko kabool karvai thi…bohot jyada torture kiya gaya tha.")

It is for exactly these reasons that the Evidence Act rules such confessions inadmissible, and Koli's should have been rejected right away. Koli's lawyer made this point during the trial: "The entirecommittal statement becomes void and in the eyes of the law it is a futile statement and nothing can be concluded ... as there is no legal value of the statement made during the police custody." Yet the trial court Judge stated: "I fully disagree with this argument." Thus she allowed it as, in her words, "sufficient proof of the crime."

3. Now, if the confession is treated as true, it's worth at least thinking about what it implies. Koli speaks in it of how Pandher would bring sex workers to the house. Watching them with Pandher, serving food to them, "pressure built in my mind for sex…wrong feelings came in my mind…kill someone and hack…that kind of bad feelings started coming in my mind." When Pandher was forced,because of a guest in the house, to desist from bringing sex workers home, Koli says he was fine. But these thoughts would resume once the guest left and Pandher started with sex workers once more. There is reason to treat this as talk from a seriously disturbed mind. It is at least worth considering that this is a man with a mental health problem, with a mind he has little control over that gets triggered by certain circumstances. He deserves a proper medical examination to ascertain his mental health. Whom does it serve to execute such a man instead of at least letting a doctor see him?

4. The trial court has convicted Koli (and Pandher) in just one murder case that has so far been confirmed by the High Court – of a young woman called Rimpa Halder. That is, what has only ever been proved to the satisfaction of our justice system is that Koli committed this one murder of Haldar (Pandher was subsequently acquitted by the High Court). The other murder cases are still pending either trial or confirmation (see note below). While hearing their appeal, the High Court underlined this very point about Haldar’s case: "The findings recorded by us are only confined to the murder of Rimpa Haldar and the court below shall not be import any observation/comments in the body of this judgement for being applied to the decision while hearing other cases relating to Nithari incident."  For all we know, if Koli is ever tried in all those cases, he could conceivably prove his innocence in one or more.

Yet that possibility was shot down when the Supreme Court heard Koli's appeal – his appeal, remember, in the completed murder trial of Rimpa Haldar. The Supreme Court order explicitly, but inexplicably, proclaims Koli's guilt in all the other cases too: "The appellant appears to be a serial killer. The killings by the appellant are horrifying and barbaric. He used a definite methodology in committing these murders."

How did the Supreme Court arrive at such a conclusion about cases that have not even been tried or confirmed yet? Did the court’s observation not effectively render those other cases irrelevant?

* * *
There are these and plenty more cracks in Koli’s case that several other reports have pointed out: that Koli told the Supreme Court that his toenails and fingernails were missing at the time of his confession, which was evidence of his being tortured. That children continued to disappear in that Noida area even after Koli's arrest. That the police claim 16 murders while the media had reported 19 skeletons.

But perhaps it comes down to this: faced with these ghastly crimes, what do we really want? Justice, so that they never happen again? Or revenge?

Note: Koli has been convicted and sentenced to death by trial courts in four other Nithari cases. In none of these has the conviction and sentence yet been confirmed by the High Court (as it has been in Rimpa Haldar’s case). When a death sentence is handed down, such a confirmation is mandatory; without it, the trial court’s judgment has no legal effect.

Dilip D'Souza writes to keep his cats fed. This pursuit has resulted in five books (most recently, “Final Test: Exit Sachin Tendulkar” and "The Curious Case of Binayak Sen") and several writing awards (the Newsweek/Daily Beast Prize and the Outlook/Picador prize, among others). The cats seem happy. Follow him @DeathEndsFun.

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