Is India preparing to hang an innocent ‘untouchable’?

Should the court rule against Koli and were he to be hanged, it would be the second consecutive execution in India of a most likely, or almost entirely, innocent person.

N. Jayaram
26 November 2014

Surinder Koli is a member of a Dalit, or oppressed (formerly known as ‘untouchable’), caste in imminent risk of execution for horrific crimes he may well not have committed.

He has been convicted of murdering a 14-year-old named Rimpa Haldar based entirely on his confession obtained under torture some two months after his arrest in December 2006. His confession statement, which mentioned several other murders, mutilation, cannibalism and worse, specifically stated that he was tortured and tutored during detention.

In most civilised jurisdictions, confession under torture is automatically ignored. The Indian Evidence Act bars a confession made due to inducement, threat or promise. Moreover the Supreme Court of India has ruled against it, also observing that prolonged custody prior to a confession is sufficient to deem it involuntary. There is no other evidence against Koli than his confession under torture during detention by the Central Bureau of Investigations (CBI).

Moreover, Koli’s confession details stretch credibility. According to his repetitive and near identical statements, all the killings took place during the day in Moninder Singh Pandher’s house where Koli was a domestic servant. He carried out the killing in the drawing room, stripped the clothes off, carried the bodies to the bathroom to be mutilated, got to the kitchen and cooked and ate some body parts. Some hours later he would clean the house. Not once did anyone surprise him in the acts, nor observe them.

Fifteen more cases are pending against Koli – 11 in the trial court stage and four in the appeal stage in Allahabad High Court in the state of Uttar Pradesh. He was poorly represented by legal aid lawyers whereas his employer Pandher, who was also convicted in the Rimpa Haldar case, went from death penalty to outright acquittal by the high court.

The killings and mutilations took place in Nithari village close to New Delhi but in the jurisdiction of Uttar Pradesh.

In 2007, India’s Ministry of Women and Child Development (WCD) set up an expert committee of senior officials to look into the “Nithari Killings”. The committee made a damning indictment of the investigations by the police and the CBI (thus raising serious doubts about Koli’s role in the killings). The committee noted scientific information supplied by a senior medical expert, Dr Vinod Kumar, MD, who had carried out autopsies and who pointed out that the middle parts (torsos) of all the bodies were missing, giving rise to the suspicion that they were being used in the organ trade.

Dr Vinod Kumar noted the surgical precision with which they had been handled.  He disfavoured the theory of cannibalism as that could have been a ruse to divert attention from the organ trade. In its report, the WCD committee cast doubts over the prosecution theory about the motive for the killings and noted its failure to investigate the organ trade trail. The house next to the one where Koli worked was occupied by a Dr Naveen Chaudhury, who had been charged previously in a case of organ trading.

The WCD report was never given to Koli’s lawyers or to the trial or appeal courts. Dr Vinod Kumar’s observations would have had a crucial bearing on the case against Koli. The prosecution failed to examine his report, record his statement or call the autopsy surgeon as a witness. A highly unusual lapse in a murder case.

Moreover, the WCD report pointed out that there was no pattern in the choice of victims which is generally the hallmark of serial killers: the victims were both male and female and ranged in age from three to young women. The method of disposal of the body – around the house in broad daylight – seems not to have aroused the courts’ suspicion. Crucial witnesses such as other employees of Pandher were never called. Koli’s guilt, in other words, has never been proven beyond reasonable doubt.

Assuming for the sake of argument that Koli did indeed do what his confession statements claim, he needs psychiatric and medical help, not the hangman’s noose. Sparing mentally ill convicts the death penalty is the least amount of decency that retentionist states can show.

The Supreme Court, while dismissing Koli’s review petition on 28 October 2014, was reported to have said that “in future the trial court will ensure that the accused in other cases by given proper legal assistance by a lawyer of expertise and who can devote time,”. How absurdly bizarre is that? It amounts to saying: you have a point that Koli was not given proper legal representation but we’ll nevertheless let this poorly represented chap hang even if he’s innocent as he claims to be.

Following the Supreme Court’s unfortunate decision, the People’s Union for Democratic Rights went back to the Allahabad High Court, seeking commutation to a life sentence on the ground that there had been considerable delay in his case. The court originally set 25 November to hear the government’s response but as that had not been submitted in time, will now hear it on December 1.

Should the court rule against Koli and were he to be hanged, it would be the second consecutive execution in India of a most likely, or almost entirely, innocent person.  In February last year, a Kashmiri named Afzal Guru was hanged in secret and his body buried inside the jail without informing his family beforehand in connection with the 2001 attack on the Indian parliament. The Supreme Court had almost conceded there was little merit in the case, but said: “The collective conscience of the society will be satisfied only if the death penalty is awarded to Afzal Guru.”

India’s political class, judiciary, police and prosecution are packed with members of upper or oppressor castes as is the media. Inside Indian jails, it is the Muslims, Dalits and Adivasis (indigenous peoples), who make up the majority.  Officials and media people from upper classes and castes have little sympathy for the latter. The Supreme Court’s callous dismissal of the review petition by Koli, an indigent Dalit, and its abominable verdict in the Afzal Guru case are but two examples.

Equally crucially, if Koli were to be hanged, a possible witness in what the report of the committee constituted by the Ministry of Women and Child Development points to a much larger criminal network would be lost forever. The Pandhers and their neighbours can sleep in peace, basking in the caste, class and communal prejudices of the institutions that fail(ed) to bring them to justice.

Is that what a country that preens itself as the world’s largest democracy is all about?

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