Nithari village in Noida, Uttar Pradesh, earned a rare notoriety in 2006 for the serial killings of at least 16 children and women. Eight years later, Surender Koli, a domestic servant, is close to being hanged in one of the murder cases after his mercy plea and review petition were rejected, while 15 other cases related to the Nithari killings are pending against him.
The killings had come to light following complaints from locals in Nithari that many children from the area had gone missing. Two Nithari residents, whose children had been missing since 2004, claimed to have discovered the remains of some children from the municipal drain behind House No. D-5, the residence of businessman Moninder Singh Pandher, and told the police they suspected Koli, who worked there.
According to the police narrative, the killings came to light during the investigation into the disappearance of a 20-year-old woman. Pandher was picked up after it was found that someone from his residence was using the missing woman’s mobile phone. Koli was arrested the next day and allegedly confessed to having sexually assaulted and murdered the woman. The police claim that Koli also admitted to having murdered several children and revealed where their remains had been buried. The police dug up more remains from the spot and DNA testing was used to identify them.
Pandher, a graduate of St Stephen’s College, New Delhi, claimed ignorance of what was going on in his house and put the entire blame on Koli, a Dalit from Almora, Uttarakhand, who had studied up to Class VIII.
The CBI stepped in, dug up more skeletons and also pointed to a range of suspected motives from child pornography, child prostitution and organ trafficking to black magic, necrophilia and cannibalism in the 16 cases registered against Koli.
In 2007, the CBI gave a clean chit to Pandher. But after objections from the families of some of the victims, charges were eventually framed against him. Two years later, both Pandher and Koli were sentenced to death in one of the many cases. But, upon appeal, the Allahabad High Court acquitted Pandher while upholding Koli’s death penalty. And in 2011, the Supreme Court confirmed Koli’s death sentence and soon after, the President rejected his mercy petition.
Yet, the only clinching evidence against Koli till date is his confession to the magistrate under Section 164 of the Criminal Procedure Code (CrPC), where he repeated what he had told the police in custody. What has gone unreported is that Koli has all along been telling his lawyers that he was tortured before his confession and had been threatened with more if he did not repeat it before the magistrate. In his letter to the apex court, Koli mentions that the magistrate failed to notice the telltale signs of torture — his fingernails and toenails were missing.
Koli had to make his confessional statement before a magistrate not in Ghaziabad but in Delhi and alleges that it was done so that the investigators could have a magistrate of their choice. The police, however, claim that the reason was an attack by lawyers when he was brought to a Ghaziabad court. But they had taken him to the same court twice after the said attack.
Moreover, the statement was taken down in English — a language Koli does not understand — and the stenographer was not examined in court. Nor was Koli medically examined before or after the confessional statement.
Koli’s letter also questions several key points of the probe. Had his confession not been recorded, the probe along some alternative lines could well have proved damning for the CBI’s case.
A group of lawyers called the Death Penalty Litigation Group has come forward to represent Koli pro bono after realising how poorly he has been represented. Koli’s lawyers met him for the first time on 22 July, two days before his review petition to the apex court was to come up for hearing. They filed an application for an adjournment on the grounds that there wasn’t enough time for them to represent their client effectively.
The apex court bench refused to entertain the petition because the delay of around three years was not explained and they did not find merit in the petition. But, if Koli had engaged the lawyers on a pro bono basis two days earlier, then who had filed the review petition?
It appears that Koli had written several letters to judges from prison, including one to the Chief Justice of India on 21 February. As per the application for adjournment, the letter (as is the standard practice) was routed through the Supreme Court registry. Instead of sending it to the legal aid cell, the registry got the letter translated into Hindi, gave it a number and converted it into a review petition.
Though it is common practice to convert some letters into petitions — for instance, in the case of public interest litigation — experts say it is not done in sensitive cases, such as those involving death penalty. The review of a criminal appeal requires a legally-sound mind to frame the petition and explain the delay. It is doubtful that Koli was aware that a statute on limitations even exists in the legal lexicon.
The result of the registry’s action is that Koli’s right to legal representation — guaranteed as a fundamental right under the Constitution, as interpreted in various Supreme Court judgments — has been violated. Koli’s letter is little more than a list of his general grievances against the functionaries of the criminal justice system as applicable to his case. He was completely ignorant of the arguments eligible to be the subject matter of a review petition under Article 137 of the Constitution. For instance, Koli wrote “Curative Petition” instead of review petition in the subject line. Obviously, he did not know that a curative petition is filed to ‘cure’ defects in a petition filed before the court.
In the letter converted to a review petition, Koli makes a desperate plea to defend himself before the court. One of the reasons for this is poor legal representation.
The Supreme Court has made it clear in numerous cases that the right to legal aid is a sacrosanct right of the accused. According to experts, access to competent legal aid assumes even more significance in the case of a convict on death row. After all, in such cases, it could mean the difference between life and death.
The importance of legal aid for death row convicts was reiterated in the apex court’s decision in the case of Shatrughan Chauhan versus Union of India (2014) — another case where the Death Penalty Litigation Group had played a key role and in which the death sentence of 15 death row convicts were commuted. The relevant portion of the judgment reads: “Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected. Various judgments of this Court have held that legal aid is a fundamental right under Article 21. Since this Court has also held that Article 21 rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendents of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts.”
In Koli’s case, however, either the prison superintendent failed to send the letter to the legal aid cell or the latter did not approach the apex court for a review while Koli kept inching closer towards being hanged.
Meanwhile, there was another development that has a bearing on the matter of Koli’s hanging. A five-judge constitutional bench of the Supreme Court has been convened since 8 July. An important and related question of law is being decided by this special bench. It is hearing several matters on the contention that the review of death penalty should be held in open court and not in the judge’s closed chambers that do not allow oral hearings.
The apex court bench, which dismissed Koli’s so-called review petition on merits, did not take that into account. Since the important question of law was before the constitutional bench, the apex court could have stayed the execution for the time being, or else transferred the matter to the five-judge bench.
One factor that makes Koli’s hanging less likely to be delayed is that there are no political compulsions in his case to make the government consider such a course. In another instance, the apex court had overturned a death penalty case on the grounds of inordinate delays in deciding mercy petitions. So, there is a chance that the government may not stretch it too far and Koli’s execution is now merely a matter of process.
Of the 15 cases still pending against Koli, 11 are in the trial court and four are at the appeal stage in the high court. With his hanging, a crucial witness will no longer be available for all those cases. Besides, there remains the issue of a suspected organ trafficking racket in the hospital next to Pandher’s former residence, which the investigators could never find a clue about.
Koli’s execution will leave many such questions unanswered. For instance, if the investigation into the serial killings is complete by convicting Koli, someone needs to say why children in Khora Colony (Sector 62-A, Noida) still go missing and the police avoid registering complaints.
Worse, three bodies have gone mysteriously unaccounted for — the police claim there were 16 murders while the media had earlier reported the discovery of 19 skeletons.
Even if it were to be argued that Koli’s right to legal representation is not important, there is still a very crucial reason to delay his execution — he is the only witness in the cases against Pandher, who was granted bail this month in one of the eight cases in which he has been charged.
The result of the other trials could have an important bearing on the death sentence eventually; but, if Koli is hanged in a hurry, we, the people, will forever lose the right to know the truth behind the serial murders — one of the most chilling and bizarre urban crimes in India.