Troubling gaps

The crucial gaps in the investigation and trial of the Nithari case that have come to light are expected to have some impact when the Supreme Court hears afresh the review petition of the death-row convict Surender Koli.

Surender Kohli (left), with Maninder Singh Pandher (right), coming out of a forensic laboratory in Gandhinagar, Gujarat, in 2007.

ON October 28, the Supreme Court’s three-judge Bench will hear afresh the review petition of the death-row convict Surender Koli who was convicted and sentenced to death for large-scale sexual abuse, rape and murder of children in Nithari village of Noida, Uttar Pradesh.

Koli’s death sentence was confirmed by the Supreme Court on February 15, 2011. President Pranab Mukherjee rejected his mercy petition on July 20, after receiving the recommendation from the Ministry of Home Affairs on June 26. On July 25, the Supreme Court’s two-judge Bench dismissed without an open hearing a letter written by him to the Chief Justice of India, treating it as a “review petition”. With this, it appeared as if Koli had exhausted all legal remedies available to him.

However, in Mohd. Arif @Ashfaq vs The Registrar, Supreme Court of India and Others , decided on September 2, the Supreme Court’s Constitution Bench headed by the then Chief Justice, R.M. Lodha, held that a review petition filed by a convict whose death penalty has been affirmed by the Supreme Court is required to be heard by a Bench of three judges in open court, and cannot be decided by circulation among the judges.

The judgment held that given the vagaries of the sentencing procedure, at least three judges needed to apply their minds at the final stage of the journey of a convict on death row. The court held in this case that the fundamental right to life and the irreversibility of the death sentence mandated that oral hearing be given at the review stage in death sentence cases as a just, fair and reasonable procedure under Article 21, which mandates such hearing. The court also provided for an outer limit of 30 minutes for hearing such review cases. The court extended the benefit of this judgment to convicts whose review petitions had already been dismissed but whose death sentences had not been executed. The convicts in such cases were asked to apply for the reopening of their review petitions within one month from the date of this judgment.

The court, however, declined similar relief to convicts whose curative petitions (this is a further remedy available to a convict after the rejection of his review petition by the court) also stood dismissed. The curative petition of the lead petitioner in this case, Mohd. Arif, had already been dismissed, and therefore, he was not entitled to a rehearing of his review petition.

However, Koli, who had not filed a curative petition after the rejection of his review petition in chambers by the Supreme Court, got a fresh lease of life by virtue of this judgment. On September 12, hours before he was to be hanged at the Chaudhary Charan Singh district jail in Meerut, Koli’s lawyers sought and secured a stay after midnight on his execution citing the Supreme Court’s judgment in the Mohd. Arif case from Justice H.L. Dattu, who subsequently assumed office as the Chief Justice of India on the retirement of Justice Lodha.

On September 12, a three-judge Bench headed by Justice Dattu posted the review petition filed by Koli, through his counsel Indira Jaising, for a detailed hearing on October 28. Apart from Justice Dattu, this new Bench comprises Justices Anil R. Dave and S.A. Bobde. Justices Dattu and Dave were on the original review Bench that dismissed Koli’s first review petition on July 25. With a third judge, it is expected that the new Bench will rehear the case with an open mind.

Although Koli is being separately prosecuted in 15 different cases, only one case—pertaining to the murder of 15-year-old Rimpa Haldar—has gone through all stages from the trial court to the Supreme Court and to the rejection of the mercy petition by the President.

But some holes have come to light in the investigation and the trial of this case. The clothes worn by Rimpa Haldar on the day of the incident were identified by her mother and recovered from the scene of the crime by the Central Bureau of Investigation (CBI). The DNA test done on them, carried out by the Centre for DNA Fingerprinting and Diagnostics (CDFD), a pioneer institute in Hyderabad, confirmed a match with the blood of her parents and brother.

However, Amar Ujala , a Hindi daily, published a news report on January 29, 2007, suggesting that Rimpa was perhaps alive, based on a letter allegedly written by her to her father stating that she had eloped and had married and settled down in Nepal. The newspaper alleged that her father, Anil Haldar, had submitted this letter to the police. In this letter, Rimpa had reportedly stated that she was pregnant, that she would return after the child was born. The truth about this letter has not yet been established, and it is not clear whether the police investigated this allegation.

“The appellant (Koli) appears to be a serial killer,” the Supreme Court said in its 2011 judgment, and added, “these cases in our opinion fall within the category of rarest of rare cases as laid down in Bachan Singh vs State of Punjab ”.

Although the other cases in which Koli is an accused were nowhere near completion in 2011, because the court concluded that Koli was a “serial killer” and that all these cases (in which he is an accused) fall in the category of rarest of rare cases, his petition deserves a serious review by the three-judge Bench. The 2011 judgment was delivered by Justices Markandey Katju and Gyan Sudha Misra.

Both the Allahabad High Court, in 2009, and the Supreme Court, in 2011, ignored the report of the committee set up by the Ministry of Women and Child Development, Government of India, to investigate the allegations in the Nithari case. The committee, headed by Manjula Krishnan, Economic Adviser in the Ministry, and had K. Skandan, Joint Secretary in the Ministry of Home Affairs, and J.S. Kochher, Director, Ministry of Women and Child Development, as members, submitted its 35-page report to the Ministry on January 17, 2007.

The committee met Dr Vinod Kumar, M.D., Chief Medical Superintendent, Noida, during its visit on January 10, 2007. Under his supervision, a post-mortem was conducted on the bodies identified after assembling the bones/skulls found at the site. He told the committee he found it intriguing that the middle parts of all bodies (torsos) were missing.

The report quoted him as saying that such missing torsos gave rise to the suspicion of a possible wrongful use of the bodies for organ sale. According to him, the surgical precision with which the bodies had been cut also pointed to this possibility. According to the report, Vinod Kumar felt that the missing torsos merited further investigation and he did not favour the theory of cannibalism as it could have been a ruse to divert attention from the missing parts of the bodies. Sadly, the trial court, the High Court and the Supreme Court uncritically accepted the theory of cannibalism put forward by the CBI.

Lack of a pattern

More importantly, the report, in paragraph 4.3.1, pointed out that there was no 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 committee observed. Therefore, it is not clear on what basis the Supreme Court found Koli to be a serial killer.

Koli’s conviction and sentence in the case was based entirely on his confession before the magistrate under Section 164 of the Code of Criminal Procedure (CrPC). The magistrate repeatedly told Koli that he was not bound to make a statement and that it could be read against him. In this confession, Koli admitted in great detail how he used to kill the girls after luring them inside House no. D-5, Sector 31, Noida, by strangling them, and how he would then chop up the body and eat the parts after cooking them. Some body parts, clothes and slippers were thrown in the enclosed gallery behind the house and he volunteered to lead the police team to the specific spot where he had kept the articles/body parts hidden.

Koli was the servant of the co-accused in the case, Maninder Singh Pandher. While the trial court found Pandher guilty and sentenced him to death, the Allahabad High Court acquitted him on the grounds of an alibi, as he was in Australia when the crime took place. But Pandher is an accused in seven other cases and he is currently on bail. Koli’s testimony may be crucial to decide these pending cases as he is a co-accused. Executing him before the conclusion of these cases just on the basis of one dubious confession may give rise to the suspicion that he is being legally eliminated in order to defend those perceived to be more guilty than he.

Both the judgments of the Allahabad High Court and the Supreme Court are silent on Koli’s claim that he was tutored by the police to say certain things and that he was also tortured by the police.

The High Court records the argument of the amicus curiae appointed to defend Koli that his confession was not voluntary, but does not explain why it could not accept this argument. Frontline has accessed Koli’s confession dated March 1, 2007, which has been translated into English by reliable sources. In his confession, he clearly alleges that he was tutored by the police to identify the names of the victims and their photographs and that he was also tortured.

Section 24 of the Evidence Act states that a confession made by an accused person becomes 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 from a person in authority.

It is pointed out by Koli’s defence team that if Koli is allowed a trial in the remaining cases, he may be able to prove that his confession was forced or false. More importantly, it is claimed that he may be able to prove that the investigation was dishonest, or that some of the victims are not dead. It is also suggested that Koli may even be able to show through medical evidence that he suffers from a mental/personality disorder that constitutes a powerful mitigating circumstance that might justify awarding him life imprisonment over the death penalty.

A reading of Koli’s confession shows that he is traumatised and suffers from a serious personality disorder. According to Yug Mohit Chaudhary, who studied his case thoroughly and is part of the legal team preparing his defence, he may not be insane according to the unrealistic and archaic (1843) standards of the McNaughten Rules (a standard test for criminal liability in relation to mentally disordered defendants in common law jurisdictions) incorporated in Section 84 of the Indian Penal Code (IPC), but he is a very ill person.

Poor legal aid has been the bane of Koli’s defence right from the trial court proceedings to the Supreme Court. “As a legal aid lawyer gets about Rs. 2,000 each for a trial, murder appeal and Supreme Court petition, it is highly unlikely that Koli’s Supreme Court-appointed amicus curiae even wrote to, sought instructions from or even met with Koli,” says Chaudhary. No evidence by way of defence, mitigation or medical opinion was led on his behalf, he added. The outcome of Koli’s fresh review petition, therefore, could throw light on the effectiveness of India’s due process in protecting the rights of those charged with serious crimes.