A Plea for Surendra Koli on the Verge of Execution

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.

I.

Facts

2003: An abnormally high number of women and children were reported missing from
Nithari village in Sector 31 Noida.1 These numbers attest to the fact that the phenomenon of
missing children predated Kolis 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. (Annexure I evidence of PW23 and Annexure II evidence of
PW24).
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 Kolis 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.
II.

Kolis Confession

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 years figure of 80, but still the highest among Noidas police stations.
http://archive.tehelka.com/story_main28.asp?filename=Ne310307Nithari_part3.asp)

After sixty days of police custody, when no further evidence could be discovered against
Koli, the CBI applied to the Magistrate to have Kolis 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 (Annexure III
translated copy of Kolis 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.

(a) 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. 2 The first legal requirement for the admissibility of a
confession is that it should be a voluntary admission of guilt.3 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

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."
3

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.

point, including one by a constitutional bench of five judges.4 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.5 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. Kolis
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.

(b) 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. (Annexure IV translated trial court judgement, Annexure
V High Court judgement, Annexure VI Supreme Court judgement in the criminal
appeal).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, Indias 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 (Annexure VII Ram Jethmalanis Written Submissions in the
Review Petition). 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. (Annexure VIII Supreme Court judgement in the Review
Petition). 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.

(c) 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
4

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.
5
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.

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.

III. The WCD Report

(a) The Autopsy Surgeons statement
The confession is not the only disturbing aspect of Kolis 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 CBIs investigation, and raises serious doubts about Kolis involvement in this case.
(Annexure IX WCD Report). 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.
(b) 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.6 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 Kolis 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 prosecutions reluctance to allow Dr.Vinod
Kumars 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 Kumars 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 (Dr. Naveen Chaudhary) 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 Dr. Chaudharys house was guarded 24 hours by
security guards. (Annexure X translated evidence of PW38 Cook employed in D-6). These
facts were known to the Investigating Officer (Annexure X translated evidence of PW35
Investigating Officer).

(c) 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:
2005
Cases reported for missing persons/children 9
Persons/children recovered/returned
3
Persons admitted as killed by the accused
2
Persons still missing
4
*As per the data given by SSP, Noida during the first visit of the Committee
04.01. 2007.

2006 Total
20
29
8
11
9
11
3
7
to Nithari on

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.

SeeSidharthaVashisht @ Manu Sharma v. State NCT of Delhi (2010) 6 SCC 1 and V. K. Sasikala v. State

(2012) 9 SCC 771.

(d) 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."
4.3.1. Committees Observations:
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.
2. 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.
3. 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
witnessesinspite of adjoining neighbouring terraces.
4. 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.
5. 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 CBIs supervision.What was the motive behind
action by the accused needs to be investigated.
4.3.2. Suggestions of the Committee
There are certain aspects that need to be further investigated:
The CBI should look into all angles including organ trade, sexualexploitation 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 accuseds 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."

IV.

The Mystery of the DNA Report

The DNA report, far from providing conclusive proof of Kolis guilt, raises many disturbing
questions (Annexure XI DNA Report). 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 Kolis 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?

V.

Is RimpaHaldar Still Alive?

Koli was charged in sixteen different cases. In each of the trials, the charge pertained to only
one specified victim. Only one of these cases that pertaining to Rimpa Haldar has
travelled its way through the trial and appellate process, and it is in this case that Kolis death
sentence has been upheld by the Supreme Court and his mercy petitions dismissed by the
Governor and President.

Immediately after Rimpa went missing, her parents tried to register a missing complaint with
the police but the police refused. They then sent complaints to the National Commission for
Women who issued a show cause notice to the police. Thereafter, her family received a letter
supposedly from Rimpa stating that she had eloped with a boyfriend to Nepal and was now
married and living there. The family took this letter to the police but were told that it had
been planted by vindictive neighbours and that they should ignore it. [Annexure XII Article
in Amar Ujala article dated 29.1.2007]. However, in reply to the notice issued by the
National Commission for Women about the missing children, the police relied on this letter
to claim that Rimpa was alive and living in Nepal. [Annexure XIII Letter in Hindi dated
14.8.2006.] After Kolis arrest, the police claimed that the DNA from Rimpas parents had
matched the DNA extracted from some body parts.

VI.

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/

VII.

Who Paid the fees for Haldars Lawyers?

During the trial, Adv. Khalid Khan appeared on behalf of Rimpa Haldars parents and
actively participated in the proceedings. The CBI had given a clean chit to Pandher and did
not file a chargesheet against him. It was on an application made by Adv. Khan that Pandher
was roped into the trial, prosecuted, convicted and sentenced to death. It was also on Adv.
Khans application that the evidence against Pandher was produced and proved in court. This
evidence did not amount to much, and though Pandher was convicted by the trial court, he
was acquitted by the High Court. Rimpa Haldars father is a rickshaw puller. It is difficult to
believe that he paid Adv. Khans fees, and one wonders who did. Who could have such a
deep interest in ensuring that Pandher and Koli are convicted? After this conviction, the file
on the Nithari killings would be closed forever, and no one else could then be implicated.

VIII. 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 societys evolving standards of decency.

IX.
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 XIV 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, medical
opinion was led on his behalf.

X.
Conclusion
There is an acute need to bring these facts out in the public domain. There is public hysteria
baying for Koli's blood, and we need to create a counter current in the popular media on this
issue.
These highlighted aspects of Koli's case affront due process and fair trial rights. Will we sit
quiet while somebody is executed in our names on the basis of nothing more than a coerced

confession especially when a government appointed committee puts out an alternative

explanation as a cause of crime and the same remains un-rebutted and unexplored till date?
I have always said that cases where the death penalty has been imposed are those where one
sees the most flagrant violations of fairness, procedure and our notions of justice, and Koli's
case shows this very blatantly.
I would urge you to write about Kolis case and disseminate this email as widely as possible
so that people know who is being hanged in their names and on what basis.
Sincerely
YugChaudhry
Advocate for Surendra Koli.
PS: Apologies for cross posting if you receive more than one copy of this email.
PPS. I would be happy to send you the original confession in Hindi (27MB). A video of
Kolis confession can also be made available (650 MB). Please let me know if you would like
any additional material.
Attachments:
A Plea for Surendra Koli
Annexure I evidence of PW23
Annexure II evidence of PW24
Annexure III translated copy of Kolis confession
Annexure IV translated trial court judgement
Annexure V High Court judgement
Annexure VI Supreme Court judgement in the criminal appeal
Annexure VII Ram Jethmalanis Written Submissions in the Review Petition
Annexure VIII Supreme Court judgement in the Review Petition
Annexure IX WCD Report
Annexure X translated evidence of PW38 Cook exmployed in D-6
Annexure X translated evidence of PW35 Investigating Officer
Annexure XI DNA Report
Annexure XII Article in Amar Ujala article dated 29.1.2007
Annexure XIII Letter in Hindi dated 14.8.2006.
Annexure XIV Chart of Pending Cases