Nithari: It was the 13th Friday of February 2009. The Sessions Court in Ghaziabad sentenced two men, Surendra Koli and Moninder Singh Pandher, to death for the rape and murder of 14-year-old Rimpa Haldar.

Koli and Pandher were branded as India’s most notorious serial killers. The public clamoured for retribution, their outrage stoked by the horrific details of the crimes reported in the media.

Two years earlier, over a dozen skulls and bones of women and children had been dug up in a locality in Noida’s Nithari village. The village, once an unassuming corner of Noida, was now a grim symbol of horror. Parents no longer dared to leave their children unattended; the shadow of past crimes still lingered in the neighbourhood.

Pandher owned the bungalow where the killings allegedly occurred, while Koli, his house servant, confessed to the murders. 

Rimpa was one of the children whose remains were found as the police dug up the ground in the neighbourhood.

As is the legal norm with death sentences given by trial courts, the case was forwarded to the High Court of Allahabad for confirmation. 

The high court exonerated Pandher and upheld Koli’s death sentence.

Over the next decade and a half, Koli and Pandher’s lives became entangled in a web of legal battles. After Koli’s death sentence in the Rimpa Haldar case, he pleaded for mercy and languished in jail, his fate uncertain.

In the first part of this series, we delved into how the police investigation into the Nithari murders raised more questions than it answered.

In this part, we examine how Koli’s life swung between the inconsistencies in India’s judicial system and how governments, in the state and centre, delayed his mercy petition. To do so, we have relied on court judgments and conversations with legal experts. 

In February 2011, the Supreme Court dismissed Koli’s appeal against the death penalty, paving the way for his execution.

After the higher courts confirmed the death sentence, Koli was condemned by trial courts to death in 12 other Nithari murder cases. Pandher received death sentences in two cases. 

Legal experts told The Collective that the High Court and Supreme Court’s approval in the pivotal Rimpa Haldar case, the first to come up in the courts, likely influenced the lower courts handling subsequent cases based on the same investigation. 

“Each trial is supposed to be judged on its own evidence and facts. But, if the High Court and the Supreme Court’s judgements tell you how to interpret the evidence, a trial court judge will naturally be influenced by that, even though there is nothing in law to that effect,” said Stuti Rai, a Delhi-based lawyer and researcher on death penalty sentencing in India.

Yet, in these 12 cases, the Allahabad High Court disagreed with the Sessions court’s decision. It stated unequivocally that the prosecution had “botched” the cases, undermining the integrity of the investigations. It set both Koli and Pandher free in all of these cases.

This raises a troubling question: why did the Supreme Court fail to flag the glaring inconsistencies in Koli’s case? How did it allow a man to be sentenced to death when the same judicial system would exonerate him a decade later in cases built on identical evidence?

Koli remains behind bars in the Rimpa Haldar case. His death sentence was commuted to life imprisonment, but this was on humanitarian grounds – not because he was acquitted of raping and killing her.

Had Koli’s execution in this case gone ahead, the Indian state would have killed a man later found innocent in other cases stemming from the same evidence.

Satisfying the “collective conscience”

After the Ghaziabad Sessions Court’s 2009 death sentence for Koli and Pandher in the Rimpa Haldar, the Allahabad High Court reviewed the case as part of its confirmation process.

While affirming Koli’s death sentence, the court described his crimes as “gruesome, diabolical, and revolting,” stating that they had shaken the “collective conscience” of the community.

These words of the Allahabad court are borrowed from India’s legal framework on death penalty sentencing. Historically, death sentences were the norm in murder cases, but legal reforms have since made life imprisonment the standard punishment. 

The death penalty is now reserved for “rarest of rare cases” where “special reasons” justify its use. Judges are required to assess – under the 1980 Bachan Singh legal framework on death penalty sentencing – both the severity of the crime and the offender’s background and social conditions, weighing “aggravating” circumstances or factors that worsen the crime against “mitigating” factors that could reduce the sentence. The death penalty could only be imposed if the aggravating factors are stronger than the mitigating ones.

The 1983 Machchi Singh framework added another layer, introducing the concept of crimes that shock the “collective conscience” of society – a phrase that gained prominence during Afzal Guru’s death sentencing in the 2001 Parliament attack case. Shocking a community’s collective conscience would deserve death as punishment. Guru, the prime accused in the 2001 attack, was secretly hanged in Delhi’s Tihar jail in February 2013.

“The concept of collective conscience means a judge should go by public anger and their perception of what the public wants. This goes against the very purpose of having a judicial process rather than vigilantism,” Rai told The Collective.

Legal experts and researchers argue that courts often disregard “mitigating circumstances”. A report of Project 39A found that trial courts rarely gave thoughtful consideration to determine the appropriate punishment. 

It found that trial courts in Delhi, Madhya Pradesh, and Maharashtra used “collective conscience” in around half of the death sentences imposed between 2000 and 2015. It also found that of the 215 death penalty cases studied only 4.9%  were confirmed by appellate courts.

In Koli’s case, the High Court’s judgment spanned less than two pages to decide that the death sentence was appropriate. It summarised the legal frameworks but made no effort to consider circumstances that might mitigate the gravity of Koli’s sentence.

The sole mitigating factor noted, that Koli had two children, was dismissed outright.

Supreme Court’s dismissal

Koli appealed his death sentence in the Supreme Court represented by eminent lawyer Ram Jethmalani. Justices Markanday Katju and Gyan Sudha Misra presided over the case. 

The apex court dismissed Koli’s appeal in February 2011, stating that the high court had already examined the evidence in detail. It declared Koli’s confession as admissible, despite his claim that it was extracted under police torture.

“The Supreme Court has to decide whether an appeal merits relooking at the evidence and facts of the case… Death penalty cases deserve more caution and care in the delivery of justice,” Rai said.

“You are taking someone’s life, there is a huge responsibility to ensure everything is completely aligning with the law,” she added.

While accepting the validity of evidence, the apex court said that Koli “appears to be a serial killer” and fits the “rarest of rare” justification –as laid down in the Bachan Singh framework for capital punishment.

Yet, 12 years later, the Allahabad High Court would dismantle the prosecution’s case, finding no evidence to support the police’s claim.

In October 2023, the high court, while reviewing the trial court-imposed death penalty in 12 Nithari cases, tore down the prosecution’s case. It found that the investigation had been “botched up” and lacked evidence to show that Koli had led the police to the human remains in Nithari.

The court also noted that Koli’s confession failed the test of voluntariness, pointing out the possibility that Koli had been tortured and coached by investigating agencies to admit to crimes he may not have committed.

This brings us to the initial question, how could the Supreme Court miss all the hints showing an unfair trial?

Project 39A in its study on death sentences found “inconsistencies within the Supreme Court’s jurisprudence on capital sentencing”. It claimed that the “capital sentencing crisis” that ailed lower courts is “heavily influenced by the confusion in the apex court”.

Escaping the hangman

Within three months of the Supreme Court dismissing Koli’s appeal in 2011, the Ghaziabad Additional Sessions Judge issued a death warrant for his execution. He was to be hanged between 24 May and 31 May 2011, at 4 am.

However, the process stalled as Koli’s mercy petition, filed with the Governor of Uttar Pradesh, remained pending. 

The petition lingered for over three years. The Governor rejected it in April 2013, nearly 23 months after it was filed. The plea was then forwarded to the Ministry of Home Affairs, and eventually rejected by the President of India in July 2014. During this time, Koli was held in solitary confinement without judicial sanction – a clear violation of his rights.

On September 4, 2014, Koli was transferred to the Meerut District Jail to be hanged. News of his imminent execution spread in the media. He was scheduled to be executed at 5 am on 8 September 2014. But in a dramatic turn of events, late at night at 1 am, the Supreme Court stayed his execution.

Later, the People’s Union on Democratic Rights filed a petition, not challenging Koli’s conviction but the manner in which his death sentence was carried out.

They highlighted the undue delay in processing his mercy petition. Regulations required district officials to submit reports and judgments for the mercy plea, but the District Magistrate of Gautam Budh Nagar delayed submitting the report by 1.5 years.

From the filing of his mercy petition with the State of UP to its rejection by the President, the petition pointed out that three years and three months had passed, with over 2.5 years lost to procedural delays at various state and union government levels.

Questions were sent to the Uttar Pradesh government, the DM of Gautam Buddh Nagar, and the Ministry of Home Affairs regarding the delays in processing Koli’s mercy petition. However, we have yet to receive a response.

Multiple attempts to contact Koli’s defence lawyers were unsuccessful. We also emailed them queries about the cases but did not receive a response.

In January 2015, then Chief Justice of Allahabad High Court, DY Chandrachud, commuted Koli’s death sentence to life imprisonment. The court found the delays “avoidable, prolonged, and unnecessary”, with government justifications deemed “palpably unfounded” and deliberately misleading.

The court noted that Koli’s solitary confinement without a judicial order, violated legal norms, as he was not under an executable death sentence.

It also found that death warrants were issued without following due process. These lapses were deemed an “unconstitutional violation” of Koli’s rights to life and personal liberty under Article 21 of the Constitution.

So Koli’s death sentence was reduced to life imprisonment due to lapses in processing his mercy petition; he was not absolved of the crime of killing Rimpa Haldar.

For over 17 years, Koli, now acquitted in all but one case – he remains incarcerated for life in the Rimpa Haldar case – has been failed by India’s investigation agencies, systemic lapses in the judicial system and government apathy in dealing with death sentences and mercy petitions. 

In August 2024, the Supreme Court admitted CBI’s appeal challenging Koli’s acquittal. The hearings will begin in March 2025.

Almost two decades since the murders rocked the Nithari village, justice still seems elusive for the victims’ families and for Koli himself.