New Delhi: The sharp eyes of the judges of the Allahabad High Court did not miss the manner in which Nithari accused Surinder Koli mechanically parroted his confession — including crime details that he claims he was made to memorise (‘ratvaya’) — while setting aside the prosecution’s key evidence as “untrustworthy”.
“Naam…photo dekh kar…Police ne ratvaya hai (Police made me memorise the names by seeing photos),” Koli said in his statement given to the magistrate.
On Monday, the Allahabad High Court acquitted Koli in 12 cases and his employer Moninder Pandher in two cases for lack of evidence. Koli, however, will remain behind bars in the 2005 rape and murder of a 14-year-old girl.
“In the confession, itself the accused has alleged torture by police which renders the confession untrustworthy by virtue of Section 24 of the Evidence Act,” the HC noted in a judgement, pertaining to the murder and sexual assault of a woman referred to as ‘Victim A’ by the court.
The abovementioned section states that any confession made by an accused is irrelevant if the confession appears to the court to have been given under inducement, threat or promise.
In his confession recorded on 1 March 2007, Koli elaborately describes how he lures the victims to the house, tries to rape them after they are unconscious, and then kills them — some of them were cooked and eaten up. In the later half, he mentions how he was coerced to memorise names of victims and identify them.
The defence challenged this stating that this coercion makes the statement “tainted”, unreliable and involuntary. It also said that Koli’s statement was recorded only after 60 days of prolonged and uninterrupted police custody and is thus “tutored”.
Koli’s statement to the magistrate clearly mentions usage of the word ‘ratvaya’ and accuses investigating agencies of beating him up, it asserted.
The defence alleged that Koli’s nails were plucked and genitals burnt and that he was threatened that his family will be in danger if he does not confess.
In his statement, Koli claimed that he was made to memorise vital aspects of his confession, their names, time, method of killing. The court noted that on 18 separate occasions, he couldn’t remember the details.
The high court found merit in the arguments put up by the defence. “The confession of accused SK (Surinder Koli) is tailor-made to suit the prosecution case,” the order said.
Also Read: ‘Murder, cannibalism to attempted necrophilia’ — gory timeline of cases against Nithari accused
Prolonged custody & torture
Koli was arrested by the police on 29 December 2006, while the case was transferred to the CBI in 2007 January but his statement was recorded only on 1 March, 2007.
In his confession, he elaborately describes how he lures the victims to the house, tries to rape them after they are unconscious, and then kills them — some of them were cooked and eaten up.
This statement, however, was deemed involuntary because the recording magistrate did not record his satisfaction about this confession being voluntary.
“The Magistrate has merely used the expression ‘seems’ which cannot be treated as belief of voluntariness of confession in terms of Section 164 CrPC,” the Allahabad HC bench noted, pointing out that Koli’s statement didn’t adhere to the requirements under this section.
As per procedure, the confession of an accused must be shown as voluntary before it can be acted upon. A confession without a memorandum that it is voluntary, is not admitted as evidence.
The high court also questioned why Koli, who recorded his confession to the police on 29 December itself after which bones and skulls were allegedly recovered upon his instance, was brought before the magistrate only two months later.
This prolonged police custody and the delay in recording his statement in front of the magistrate, the HC noted, could be to ensure that Koli “could remember and recite the confession taught to him by the investigative agency”.
It is extremely unnatural and defies logic that Koli had no recollection of the nature and manner in which he disposed off the bodies or whether he had sex with them or whether he ate parts of them, but had a clear and categorical recollection of the time, sequence and manner of entrapping his victims, the bench noted.
“It is also surprising that he does not remember the names of the victims, or the date of each offence but he is able to chronologically narrate the sequence of killings in his confession,” the bench said, adding that it is “highly improbable” that he remained uninterrupted during these crimes by anyone or anything.
Further, as per his confession, the bodies were kept for hours in the bathroom. However, no blood stains were found and it is “improbable” that none of the other servants noticed anything.
Despite Koli not having any prior criminal record or knowledge of cutting human flesh, his confession doesn’t mention a single failure while dismembering the bodies in the 16 “identical killings”.
No legal aid & medical
“Jismesein 2-3 photo aisi thi matlab usme se mere ko kaafi torture kiya aur tab ja kar ke matlab jo inhone mere ko kabool karvai thi. Acha! Bohot zyaada torture kiya gaya tha mere ko (I was tortured….a lot.. to confess),” Koli stated in his statement to the magistrate.
However, in spite of the court’s order for a medical examination to be done on 28 February 2007, before handing Koli over to Tihar jail officials, no medical examination was carried out until the day of recording of his statement, which the judges termed as “suspicious”.
“The CBI’s failure to conduct a medical examination, despite the Court’s categorical order, is extremely suspicious and gives rise to an adverse inference u/s 114(g) of the Evidence Act,” the court noted.
Moreover, the doctor who had opined that no external injuries were found was also not produced in court.
“Despite specific allegation of severe physical torture to the accused for extracting his confession, the non-holding of his medical examination has rendered the confession unreliable,” the HC noted.
It also pointed out how Koli, who studied only till Class 7, wrote a letter to the Additional Chief Metropolitan Magistrate, offering to record his confession in “formal language”.
Koli was provided with no legal aid and the only legal assistance he got was of 5 minutes provided by the magistrate which amounts to its “denial” and “has occasioned failure of justice for the accused”, the HC said.
The accused was also not provided with legal aid when his confession was being videotaped, it added.
The court also noted that there is no certificate under 65B of the Evidence Act given to the CD, which is the basis of the transcript recording of Koli’s confession. Further, the memory chip, which is the primary document, was not sent to court as required under Section 164(6) CrPC. There are also no signatures of the accused and the recording magistrate on the CDs, which is mandated under section 281, it added.
(Edited by Tony Rai)
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