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

Reserved

CAPITAL CASE No. - 2667 of 2017

With

CAPITAL REFERENCE No. 8 of 2017

Surendra Koli ……..Appellant

Versus

C.B.I.

…….Respondent

Counsels for Appellant:- From Jail, Ms. Mary Punch (Sheeba

Jose), Sri Mohd. Kalim, Sri Yug Mohit Chaudhary assisted by

Ms. Payoshi Roy, Sri Siddhartha and Namarata Tiwary.

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

Prakash, Sri Jitendra Prasad Mishra and Sri Sanjay Kumar

Yadav.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

( Delivered by Hon’ble Ashwani Kumar Mishra, J.)

1.

Accused appellant Surendra Koli S/o Shankar Ram Koli

(hereinafter referred to as ‘SK’) has been tried in Sessions Trial

No. 550 of 2007, arising out of CBI FIR No. RC 5(S)/07-SCB-I/

DLI, under Sections 302, 364, 376, 201 IPC and convicted in

the aforesaid sections vide judgment dated 07.10.2016. He is

sentenced to death alongwith fine of Rs. 10,000/- under

Section 302 IPC with a direction to hang the accused till death,

subject to confirmation by the High Court; life imprisonment

alongwith Rs. 10,000/- fine under Section 364 IPC; life

imprisonment alongwith Rs. 10,000/- fine under Section 376

IPC and seven years rigorous imprisonment alongwith fine of

Rs. 5,000/- under Section 201 IPC. Default sentence has also

been awarded for non-payment of fine of six months under

Section 302 IPC, four months, each, in respect of offences

under Section 364, 376 and Section 201 IPC.

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2.

The court of sessions has forwarded the judgment dated

07.10.2016, alongwith lower court records, for confirmation of

death sentence under Section 366 Cr.P.C. The confirmation

proceedings have been registered as Reference Case No. 8 of

2017. Jail Appeal is also filed by accused SK, which is

registered as Capital Criminal Appeal No. 2667 of 2017. The

reference proceedings and the capital criminal appeal arising

out of the same judgment dated 07.10.2016 have been heard

together and are being disposed of by this common judgment.

In order to protect identity of the unfortunate victims of Nithari

incident, their names are being anonymized.

The Nithari Incident

3.

Nithari is a village abutting Sector-31 of NOIDA, in

District Gautam Buddh Nagar of Uttar Pradesh. It suddenly

became infamous for its missing children and caused massive

uproar in the country. Various complaints were lodged in

respect of such missing children by their parents/guardians

which included the complaint of one Nand Lal, father of a

young girl namely 'L', who too had gone missing on 07.05.2006

and a complaint was lodged with Police Station Sector-20,

Noida. An application under Section 156(3) Cr.P.C. was filed by

the informant on 24.08.2006 against Moninder Singh and

Surendra residents of D-5, Sector-31, Noida for registration of

FIR against them. The Chief Judicial Magistrate, Gautam Buddh

Nagar ordered registration of first information report in respect

of missing girl 'L'on 27.09.2006. It is pursuant to this direction

that Case Crime No. 838 of 2006 was registered at Police

Station – Sector-20, NOIDA, under Section 363, 366 IPC on

07.10.2006.

4.

It transpires that progress of investigation in the case was

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not satisfactory and consequently, a grievance was raised

before this Court relating to tardy process of investigation in

the case and consequently, directions came to be issued for the

investigation in Case Crime No. 838 of 2006 to be pursued with

expedition. In compliance of such directions, orders were

issued by the Superintendent of Police for constituting special

team to investigate the case. Dinesh Yadav, Dy. S.P., Noida,

was to lead this special team. It is during investigation of the

case that role of accused SK surfaced and the police took him

in custody on 29.12.2006. Accused SK purportedly confessed