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The Nithari Case: Should A Mentally Ill Convict Be Hanged Based On A Torture Confession?

Posted on October 30, 2014 in Society, Specials, Staff Picks

By Veda Nadendla:

‘The death penalty legitimizes an irreversible act of violence by the state and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.’
Amnesty International

Surinder Koli

Surender Koli is a living, condemned example to show that our judicial system is involved in an intricate and well hidden web of injustices and lies. Injustices that selectively deny fundamental rights to the economically downtrodden offenders and conveniently use them as pawns in their propaganda to promote justice and fair-play to the national public; while the more influential offenders manoeuvre their way out of the system with legal support. One of the most brutally criminal and shocking cases of the country, the Nithari case, does not fail to disappoint yet again, only this time, roles are reversed. The offender becomes the victim and ‘the system’ is his culprit.

Arrested in December 2006 alongside his employer Moninder Singh Pandher, Surender Koli was convicted of murdering 16 children, raping either before or after killing them, chopping, cooking and eating their flesh, and refrigerating some of their organs. This conviction was based exclusively on Koli’s confessional statement which was recorded before a magistrate under Section 164 Criminal Procedure Code (CrPC- recordings of confessions and statements). Here are some facts about the convictions:

– February 13 2009 – Both men found guilty of rape and murder as well as criminal conspiracy in the case of Pandher, sentenced to death.
– September 10 2009 – Pandher acquitted of his crimes and his death sentence overturned by the Allahabad high court. While Pandher is still on trial for 5 murders, he was granted bail on September 2014.
– May 4 2010 – Koli was found guilty for the murder of 7 year old Arti Prasad and sentenced to death eight days later.
– September 27 2010 – Koli was found guilty for the murder of 9 year old Rachna Lal and sentenced to death on the following day.
– December 22 2010 – Koli was found guilty of the murder of 12 year old Dipali Sarkar and sentenced to death.
– December 24 2012 – Koli was found guilty of the murder of 5 year old Chhoti Kavita and delivered his final death sentence.
– October 28 2014 – Surender Koli’s plea to review his death sentence is rejected.

Agreed that Koli is a barbarian, a child-eating cannibal and a rapist; but this man too deserves justice, though most would argue otherwise. With negligible evidence against him, Koli has been sentenced to death, not once but five times, based primarily on his confessions which are proven to be doctored and under the influence of torture.

The Right to Life is often a victim’s foremost argument to seek a strong and unreasonable punishment for their culprit. Why then has the nation turned its back on the blatant violation of Koli’s Right to Life? Denial of his review plea is also a clear-cut violation of the laws governing evidentiary rules, which do not allow torture confessions to be admitted as evidence. Hanging Koli will not only lead to the loss of a key witness in the case against Pandher, but will also validate torture confessions. While the court rejected Koli’s plea seeing no error in their judgement, here’s a look at the errors in question to open your eyes to their digression.

1. Error 1: Forced To Confess Under Torture

In a report by India Resists, under arrest and the influence of torture, Koli recorded the very names and timelines of his indiscretions at D-5 Sector 31 Noida, but later withdrew his confessions in a 313 statement claiming that he was under the influence of torture and was tutored by the UP Police. He also confessed that during his police custody, he was shown photos and asked to memorize the names, while being tortured. Torture confessions are legally inadmissible and yet, Koli’s confession has been repeatedly recognized as sufficient for conviction by the trial court. The report gives more gruesome details that: ‘The charge of torture and dubious evidence in fact receives credence from the videography of Koli allegedly demonstrating to a medical committee the procedure through which he used to dismember the bodies of his victims. Koli’s hands remain covered with cloth through the said videographed demonstration — resulting, the defence argued, from the fact of violence done to him. The High Court correctly interpreted this as custodial confession and excluded it from evidence.’

The report also points out that Koli’s statement mentioning torture confession was conveniently left out of the 164 CrPC submitted to court. A confession is legitimate when a person is of sane and stable mind, under no force or pressure; which is clearly the opposite in Koli’s case. Is this not reason enough to have a second look at his plea to review his death sentence?

2. Error 2: Without legal aid or opportunity

Surender Koli represents that breed of criminals who are unable to fend for themselves financially or legally and are doomed to rot in the system until someone decides otherwise. One of the most important factors in determining whether a convict will receive a death sentence rests on the quality of legal representation provided. While the businessman, Pandher, is acquitted and conveniently out on bail despite still being under trial for 5 cases in the Nithari case, Koli’s situation has worsened over the years, with no influence or finances to afford legal representation. Now, despite the fact that he confessed to his crimes and expressed grief, this man remains on death row with no chance to defend himself.

3. Error 3: Loss of a key witness in the Nithari case

Hanging Koli is like giving a hall pass to Moninder Singh Pandher. With the key eye witness eliminated, not only will Pandher remain acquitted, but it will become harder to prove his guilt in any of the 5 murders he is accused of, provided the negligible evidence in the case. An eye-for-an-eye has become a common punishment in the eyes of the common man, but is it not the duty of the judiciary to execute sensible and just decisions? Instead, they will choose to execute a scapegoat in their claim to fame (read justice).

4. Error 4: Complete disregard for Koli’s psychological assessment

After a psychological assessment by a medical board, it was found that Koli is a Necrophiliac and Paraphiliac, conditions characterized by abnormal sexual desires. According to the Fifth Edition of The Diagnostic and Statistical Manual of Mental Disorders, Paraphilia quantifies as a Paraphilic Disorder when people with atypical sexual interests ‘feel personal distress about their interest, not merely distress resulting from society’s disapproval; have a sexual desire or behaviour that involves another person’s psychological distress, injury, or death, or a desire for sexual behaviours involving unwilling persons or persons unable to give legal consent.’

In a time when awareness of psychological disorders and activism for the mentally ill is on the rise, the judiciary has turned a blind eye toward the psychological state of the accused by snubbing his plea for review of his death sentence. The man needs diagnosis and treatment, not torture and death. Based on his psychological condition, not only does the verdict become illegitimate, but proves that a review becomes mandatory.

Capital punishment by the Indian judiciary is a rare occurring; one that encourages applause for it seems that justice has been served. What sort of justice condemns a mentally unfit man to the gallows without giving him a chance to defend himself on all accounts he is convicted for, while his co-accused goes scot-free? What sort of justice is it to sentence a man to death with no substantial evidence?

A majority of the nation has kept quiet because according to them, a child-eater/rapist deserves to get what he did to those innocent children. But I am not asking you to stop feeling the hate or the anger, we are asking you to open your eyes to rationale. To understand that capital punishment is not a deterrent and that people will continue to commit crimes. Death does not beget reformation, it is just an end. In this case, an end of a witness, a man guided by his disorder, a tortured person who has not been given a second chance? I think he deserves that chance, to explain himself, to be represented justly and to be able to receive treatment.

Do you think he deserves that second chance?