As the stay on Surender Koli’s execution by the Supreme Court draws to a close, we must ask why Koli is being sent to the gallows on the basis of a torture confession.~ IndiaResists.com Team

Surender Koli may hang any day after 28th October. The ‘man eater’ of Nithari has been charged with raping, killing – and cooking – children and women, 16 of them, over 2005 and 2006. As the first of these 16 cases concludes with the confirmation of his death sentence by the Supreme Court, Koli’s hanging appears imminent. And it won’t be a piece of unimpeachable evidence that will send Koli to the gallows, but his own confession.

Why is it, that despite a panoply of legal and constitutional provisos, we are increasingly inclined to rely on confessions to not only convict, but to sentence people to death?  Even prior to the Miranda ruling in the US (1966), Indian jurisprudence had recognized the grim reality of confessions arising from violence and coercion inflicted upon the accused. Sections 24-27 of the Indian Evidence Act and Section 164 of the CrPc therefore provide the legal framework under which confessions extracted by police have been rendered inadmissible in law. The authority to record confessions lies with the magistrate alone, who must verify that it is free of “inducement, threat or promise”. The courts, if they deem the confession to be forced, are bound to exclude it from consideration. Moreover, from Article 20 (3) flows the right against self-incrimination – prohibits as it does the use of compelled oral evidence. 

For nearly two years, children of poor migrants – daily wage labourers, rickshaw pullers, domestic helps, ironing and cleaning women – had continued to disappear in Nithari village in Noida. The police either registered a gumshudgi report without bothering to investigate, or taunted and ridiculed the distraught parents before chasing them away.  It was only on the directions of the High Court that any investigation was initiated. Within days Surender Koli was taken into custody, whereupon he is said to have swiftly admitted to his crimes. He is said to have led the police to the discovery of skulls and bones from the drains next to the house he worked in.

The confession – with horrific descriptions of necrophilia and cannibalism – and the cache of bones and skulls electrified both media and public. The disappearance of poor children, which had failed to enthuse authorities or the local resident welfare association, made for riveting news now. The stomach churning confession is exceptional not only for its grisly details but also for the repeated references to tutoring and torture in the course of its narration. It is hard to believe that this is a statement recorded under 164 CrPC by a magistrate who was duty bound to ensure the voluntariness and independence of the confession.

As Koli narrates the acts that he committed and his mental state – a sort of overpowering stupor, so much so that he fails to remember whether he could in fact have sex with the victims’ dead bodies – the magistrate recording the statement asks how he remembers the names of the girls he is confessing to murdering.

“So after that again I after Rachna, again another girl named Pushpa. Seeing the name with photo, the police has got me to memorise all the names, the UP police has.

 What did they make you memorise?

When the UP police arrested me they made me see these photos again and again and told me the names of these people.

Accha*!

For each photograph, they told me the name, the time, the manner, etc. But I don’t know about the time even now. They had told me all this but I have forgotten.”

Remember, the case hinges entirely on confession – a fact recognized as much by the trial court when it agreed with the CBI’s contention that confession alone was sufficient for securing conviction. The burden of the trial court judgement then is to prove the validity of the 164 statement and taint the 313 statement where Koli withdrew his confessional as extracted under torture.

The High Court concurred with the trial court in holding that the excuse of torture was merely a defence tactic, entering trial records much after the original confession, and owes its genesis in “advice”. Repeatedly, the initial parts of Koli’s confession and the testimony of the recording magistrate are cited to establish its voluntariness.

But on page 30 of his confession, Koli says:

“Of these there were 2-3 photos, I mean, of those, I was tortured a lot and only then, I mean, they made me confess.

Ok. 

I was made to suffer a lot of torture.

Ok.

Because of this these 2-3 photos, I mean, of these they made me do, and these after coming to CBI, I denied, that you may do whatever you wish, but these I have not done.

Ok.”

It is astounding that this part of the confession is ignored in the trial record. It is obvious that the fact of his torture (and tutoring) was not an afterthought – the advise of a poorly paid legal aid lawyer – but present in the very confession which has been held to be voluntary and independent by court after court.

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. But should not have his 164 statement troubled the High Court – and subsequently the Supreme Court – as much?  Koli’s application to record his statement was filed on 28th February 2007, when he was in police custody. He was thereafter sent to Tihar Jail and his statement recorded the very next day, on 1st March 2007. Having spent two months in the custody of police and CBI, was this enough cooling period for reflection? It is a shame that the courts have rejected the applicability of Swaran Singh judgement (which insisted on reasonable time for reflection outside police control) in the present case.

Then, there is the issue of Koli’s mental health. Members of the medical board set up to assess Koli’s psychotic state testified in court that Koli was found suffering from Necrophilia, “a kind of paraphilia which is kind of sexual perversion disorder”. However, they ruled out any mental illness. While seeking death for Koli, the CBI informed the court that he was possibly the only patient in the world who suffered from the “combination of diseases” such as parafelia, necrofilia and mecropilia. A plain reading of those portions of Koli’s confession which the courts have relied upon to sentence him to death shows him to be a man in the grip of uncontrollable emotions, moving automaton-like, finding relief only after killing, chopping and eating body parts of the victims. Every single of the kills is triggered by the stimuli of his employer Pandher bringing home prostitutes.

Koli could not have simultaneously been of “healthy mind set” and the author of this confession.

Whereas the touchstone of circumstantial evidence is that the circumstances should not be explainable on any other hypothesis except that the accused is guilty, Koli’s confession effectively foreclosed the pursuit of any alternative line of investigation. The shallow drains where heads and torsos were secreted did not radiate the stench typical of decomposing bodies (even though the trial court says without citing any evidence that the house used to smell worse than a slaughter house). The absence of flesh on any of these bodies baffled the autopsy surgeon, as mentioned in the report of an investigation conducted by the Ministry of Women and Child Development. In this light, the deposition of prosecution witness number 38 that his master, “doctor Saheb” who resided in the house next to Pandher’s had been arrested in 1997 “in some kidney scam matter”, and that his house “is protected by guards round the clock” ought to have unsettled the hypothesis of the guilt of the accused. The discrepancy in the number of disappeared children, the number of children Koli confessed to killing; and the numbers of skeletal remains discovered should have alerted the court as well.

Despite the apex court’s warning time and again that the repugnant nature of the crime should not become an excuse to abandon dispassionate analysis of evidence, it does appear that the more shocking a crime, the easier it is for the courts and society to jettison legal norms and standards of proof.  Why else would the Supreme Court hold that “Koli appears to be serial killer” while 15 of the 16 cases are still in the process of trial.

If we send Koli to gallows on the basis of this confession, we would be vitiating the jurisprudence of evidentiary rules and custodial violence. This would be nothing short of judicial acceptance of torture confessions. Surely, the heartbreaking tragedy of Nithari deserves a more sincere closure than dispatching to death, at best a severely ill man, and at worst, an innocent man.