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

Reserved

Index

In

Nithari Judgement

CAPITAL CASE No. - 3 of 2021

With

CAPITAL REFERENCE No. 2 of 2021

Surendra Koli ……..Appellant

Versus

CBI

…….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 ‘B’

16-20

3.

Documentary evidence of prosecution

21

4.

5.

6.

Oral evidence of prosecution

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

Defence evidence

22

23-24

25

7.

8.

Chronology of events

Circumstances relied upon by the court of

Sessions to hold the accused guilty

26

27

9.

Arguments in support of appeal

28-66

10.

Arguments on behalf of the prosecution (CBI)

67-73

11.

Issues arising in the appeal

74-76

12.

13.

14.

15.

16.

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

77-85

86-122

123-124

125-133

134-153

2

17.

18.

19.

20.

21.

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;

154

155-158

159-170

171-172

173-174

175-176

177

178-180

181

182-192

193-195

196-205

206-208

209-212

213

214-219

220-221

222-238

239-245

246-251

252-258

259-260

261-267

268

269-278

279-287

288-307

3

22.

23.

24.

25.

(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

308-320

321-326

327

328

329-334

335-336

337-340

341-350

4

CAPITAL CASE No. - 3 of 2021

With

CAPITAL RE