Professional Documents
Culture Documents
Surinder Koli
Surinder Koli
As you may be aware, Surendra Koli, convicted in the Nithari killings, is on death row after his review
petition was dismissed by the Supreme Court recently. Please find below, an email from his
advocate, Yug Chaudhry, with the details of the case and the manner in which criminal procedure
and the rules of evidence were applied to him.
Regards,
Kunal
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 D5. 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
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.
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 postmortem 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:
20
29
Persons/children recovered/returned
11
11
*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.
IV.
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.
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 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.
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.
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.
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.
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
[1] 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)
[2] 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.
[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.
[6]SeeSidharthaVashisht @ Manu Sharma v. State NCT of Delhi (2010) 6 SCC 1 and V. K. Sasikala v.
State (2012) 9 SCC 771.