Neutral Citation No. - 2023:AHC:199091-DB

Reserved

Index

In

Nithari Judgement

CAPITAL CASE No. - 2 of 2019

With

CAPITAL REFERENCE No. 1 of 2019

Surendra Koli ……..Appellant

Versus

State through Central Bureau of Investigation …….Respondent

Counsels for Appellant:- Sri Yug Mohit Chaudhary assisted

by Ms. Payoshi Roy and Sri Siddhartha Sharma, Ms. Mary

Punch (Sheeba Jose) and Sri Mohd. Kalim.

Counsels for Respondent:- A.G.A., Sri Amit Mishra, Sri Gyan

Prakash, Sri Jitendra Prasad Mishra and Sri Sanjay Kumar

Yadav.

Sl. No.

Particulars

Para No.

1.

The Nithari incident

3-15

2.

Disappearance of victim J

16-19

3.

Documentary evidence of prosecution

20

4.

5.

Oral evidence of prosecution

Statement of accused u/s 313 Cr.P.C.

21

22-23

6.

7.

Chronology of events

Circumstances relied upon by the court of

Sessions to hold the accused guilty

24

25-

8.

Arguments in support of appeal

26-64

9.

Arguments on behalf of the prosecution (CBI)

65-70

10.

Issues arising in the appeal

71-73

11.

12.

13.

14.

15.

Law on recovery u/s 27 of the Indian Evidence

Act, 1872.

Analysis of evidence on the aspect of arrest of

accused, disclosure by him and the recovery

Evidence of previous recovery of biological

material from the same spot

Circumstance of accused SK luring girls and

cutting body parts before experts at AIIMS

Circumstances leading to confession of accused

74-82

83-120

121-122

123-131

132-151

2

16.

17.

18.

19.

20.

Contents of transcription of recorded confession

Retraction of confession by the accused

Law on confession:-

(i) Confession is viewed with circumspection;

(ii) Confession has to be read as a whole;

(iii) If tainted in part, the taint attaches to each

part of the confession

(iv) Confession must be voluntary and true;

(v) Burden to prove that confession is voluntary

is on the prosecution;

(vi) Role/duty of court in recording confession

Analysis of evidence on the aspect of confession

to ascertain Voluntariness and truthfulness:-

•

Prolonged police custody;

•

Delayed confession to facilitate tutoring?

•

Torture to accused;

•

Confession letter to ACMM New Delhi;

•

No proper medical examination of accused

SK;

•

Prosecution stand on torture ;

•

Evidence on torture;

•

Confession in view of Section 28 of the

Evidence Act;

•

Facets of confession in this case;

•

Safeguards under Section 164 Cr.P.C.;

•

No effective legal aid;

•

Non compliance of procedural safeguards

under Section 164 Cr.P.C.;

•

No conclusive finding of voluntariness prior

to recording of confession ;

•

Confession not properly proved;

•

Confession not shown to be true, rather,

contradicted by other evidence?;

•

No independent corroboration of murder,

rape or cannibalism;

•

Events

mentioned

in

confession

improbable;

Impact of previous judgment in the case of

'XYZ' :-

(i) Supreme Court in 'XYZ' only affirmed the

findings, conclusion and sentence of the High

Court in respect of accused SK;

(ii) High Court restricted its findings only to the

case of 'XYZ' and were not to apply in other

cases of Nithari killings, including this case;

152

153-156

157-168

169-170

171-172

173-174

175

176-178

179

180-190

191-193

194-203

204-206

207-210

211

212-217

218-219

220-236

237-243

244-249

250-256

257-258

259-265

266

267-276

277-285

286-305

3

21.

22.

23.

24

(iii) Evidence in the case of 'XYZ' distinct from

the case of ‘J’;

(iv) Judgment in 'XYZ' not an evidence in the

present case;

(v) Can the judgment in 'XYZ' be a binding

precedent;

(vi) Can previous judgment operate as issue

estoppel.

Alternative hypothesis consistent with the

innocence of accused, relied upon by the accused

SK

Analysis relating to judgment of Sessions court

Conclusion:-

(a) On arrest ;

(b) On disclosure;

(c) On recovery ;

(d) On confession;

Concluding remarks

306-318

319-324

325

326

327-332

333-334

335-338

339-348

4

CAPITAL CASE No. - 2 of 2019

With