A Supreme Court bench comprising of Chief Justice H.L. Dattu, Justice Madan B. Lokur and Justice A.K. Sikri dismissed Nithari serial killer Surinder Koli’s review petition. The plea sought review of the judgment that had upheld death penalty awarded to him.
Arguing for Koli, Ram Jethmalani asserted, “One innocent life is more important than anything else. I am shocked that such a thing can happen in the judiciary as the prosecution had completely suppressed a vital document, viz. the autopsy report of a surgeon, which is a piece of evidence to prove Koli’s innocence.”
He argued that there was gross miscarriage of justice as Koli had been falsely implicated in the case. He also argued that Koli was convicted only on the basis of his own confession, which could not be relied upon. It was also pointed out that the surgeon who had performed the autopsy was not examined during the trial.
He even contended that it could be a case of organ trade and handiwork of a doctor, but an innocent person was being sent to the gallows.
The Court however refused to accept any new facts for the first time, which is not permissible under the rules.
Rejecting the petition, the court held as follows, ‘In conclusion, we would only observe that the learned District Judges while assigning the defence counsel, especially in cases where legalaid is sought for by the accused person, must preferably entrust the matter to a counsel who has an expertise in conducting the Sessions Trial. Such assignment of cases would not only better preserve the right to legal representation of the accused persons but also serve in the ends of ensuring efficient trial proceedings’.
Koli was sentenced to death along with his employer Moninder Singh Pandher, 54, by the Ghaziabad court on February 13, 2009. The Allahabad High Court had then confirmed Koli’s death sentence on September 11, 2009 while acquitting Pandher of the charges. Koli’s death sentence was confirmed by the Supreme Court in February, 2011.
However, legal luminaries have had a different opinion regarding the conviction of Koli due to reliance over circumstantial evidence. As noted by legal academician, Saurav Dutta in Caravan magazine, “For one, all through the proceedings in the various courts, Koli had maintained that the confession was extracted under torture—a claim that, if proven true, would suffice to render his conviction, and therefore the capital sentence, to a nullity. But the magistrate who gave his seal of approval, and both the sessions court and high court refused to test the veracity of his claims. The Allahabad High Court, in its judgement, noted the contention of Dr. Sushil Balwada, the court-appointed lawyer assigned to Koli’s defence, that the allegedly voluntary confessional statement was inadmissible as evidence, but left it at that. Even the Supreme Court, without assigning any reason, expressed its satisfaction at the confession having legal sanctity.”
Another aspect highlighted by Mr. Dutta is Koli’s mental condition, which had even been highlighted by CBI which is reported to have said that he was a necrophiliac and displayed strong psychopathic tendencies. During his interrogation and incarceration, he admitted to having been overwhelmed by feelings that he couldn’t describe, and he could not remember whom he had allegedly brutalized and when.
However, a Delhi High Court bench comprising of Justice Pradeep Nandrajog and Justice Mukta Gupta, while affirming the death sentence awarded to three men accused of raping and brutally murdering a 17 year old girl, prodded on the question of psychopathic crimes and effect of such tendencies while awarding a punishment, and concluded that psychopathy is considered to be an aggravating rather than a mitigating factor.
The Court asserted, “It is the dominant view among psychiatrists and the law that psychopathy should not mitigate or remove criminal responsibility…Psychopathy is said to aggravate rather than mitigate responsibility because of the diagnostic features and clinical description of psychopathy. Psychopaths are callous, manipulative, deceitful, indifferent to the rights of others and lacking in empathy and remorse. A diagnosis of psychopathy looks to be evidence not of impairment but of the offender‘s lack of any redeeming qualities that the court could take into account.” Read the LiveLaw story here.
Veteran legal correspondent V. Venkatesan notes, “A reading of Koli’s confession shows that he is traumatized and suffers from a serious personality disorder. According to Yug Mohit Chaudhary, who studied his case thoroughly and is part of the legal team preparing his defence, he may not be insane according to the unrealistic and archaic (1843) standards of the McNaughten Rules (a standard test for criminal liability in relation to mentally disordered defendants in common law jurisdictions) incorporated in Section 84 of the Indian Penal Code (IPC), but he is a very ill person.
Poor legal aid has been the bane of Koli’s defence right from the trial court proceedings to the Supreme Court. “As a legal aid lawyer gets about Rs. 2,000 each for a trial, murder appeal and Supreme Court petition, it is highly unlikely that Koli’s Supreme Court-appointed amicus curiae even wrote to, sought instructions from or even met with Koli,” says Chaudhary. No evidence by way of defence, mitigation or medical opinion was led on his behalf, he added. The outcome of Koli’s fresh review petition, therefore, could throw light on the effectiveness of India’s due process in protecting the rights of those charged with serious crimes.”
In the background of these considerations, several questions regarding the adequacy and effectiveness of legal representation provided to Koli are being raised. The decks have however been cleared for Koli’s execution with the apex Court rejecting the review petition.
Read more news about the case here.