Nithari Acquittals | Poor Servant Made Villain Of Killings, CBI Overlooked Possibility Of Organ Trade Being Reason For Murders: Allahabad HC

A Bench of Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi also pulled up the CBI for ‘completely overlooking’ the strong possibility of organ trade being an actual reason behind murders.

In its 308-page Judgment, the Division bench repeatedly observed that the possibility of organ trade being the cause of killings in Nithari was not probed by the CBI even when the resident of the adjoining house had been arrested earlier in case of a kidney scam.

“It appears to us that the investigation opted for the easy course of implicating a poor servant of the house by demonizing him, without taking due care of probing more serious aspects of possible involvement of organized activity of organ trading,” the bench observed.

The Court further termed it as SHOCKING as to how Koli's confession was recorded by the Police after 60 days of police remand without any medical examination; no legal aid was provided to him, and torture allegations levelled by him were not probed.

Noting that the loss of life of young children and ladies is a matter of serious concern particularly when their lives were brought to an end inhumanly, however, at the same time, the Court also flagged its concern regarding the denial of a fair trial to the accused persons.

“The prosecution case is based upon the confession of accused SK, made to U.P. Police on 29.12.2006. The procedure required to be followed for recording the accused’s disclosure leading to recovery of biological remains i.e. skulls, bones and skeleton etc. has been given a complete go by. The casual and perfunctory manner in which important aspects of arrest, recovery and confession have been dealt with are most disheartening, to say the least.”

The Court also observed that the stand of the prosecution regarding the crime in question kept changing from time to time as initially, the prosecution case was against accused Koli and Pandher, who owned the house in which murders were allegedly committed, and even recoveries made were attributed jointly to them. However, the Court noted, over time, the guilt was fastened exclusively upon the accused Koli.

“Prosecution evidence has kept changing with the stage of investigation and ultimately all explanations are furnished in the form of confession of accused SK, by throwing all possible safeguards to the winds. The manner in which confession is recorded after 60 days of police remand without any medical examination of the accused; providing of legal aid; overlooking specific allegations of torture in the confession itself; failure to comply with the requirement of Section 164 CrPC. is shocking to say the least,” the Court said as it stressed that the probe was botched up and basic norms of collecting evidence had been brazenly violated.

Regarding Koli’s continued police custody (from December 29 2006 to February 28 2007), the Court found that custody was not satisfactorily explained by the prosecution and during this period, he had not been medically examined to rule out the possibility of physical torture etc.

The Court also underscored that in case Koli had already confessed his crime to the police on December 29, there was no reason as to why he was not produced before the Magistrate before March 1, 2007, for the recording of his confessional statement.

Against this backdrop, the Court specifically held that despite specific allegations of severe physical torture to him for extracting his confession, the non-holding of his medical examination had rendered the confession unreliable.

The Court also noted that no legal aid was given to Koli and only 5 minutes of legal aid by the ACMM, Delhi on March 01, 2007, which amounted to its denial and had occasioned a failure of justice for the accused who was produced after 60 days of police custody.

The Court also noted that the Magistrate had not recorded his satisfaction about confession being voluntary and had merely used the expression ‘seems’ which cannot be treated as the belief of voluntariness of confession in terms of Section 164 CrPC.

The Court also concluded that there was no independent corroboration of murder, rape or cannibalism in the confession with other evidence on record.

Regarding allegations against accused Pandher, the High Court observed that his conviction and sentence were based primarily upon the confession made by co-accused SK, under Section 164 CrPC and since his confession was found to be unreliable by the Court, the bench said there remained no evidence on record against him in the case.

“The evidence on record at best indicates that accused Pandher lived a promiscuous life and indulged in physical relations with young girls, or would get drunk and enjoy 295 company of young ladies would not make him guilty of offences under Section 302, 376 or 201 I.P.C. Apart from it, we find no other evidence on record to implicate him,” the Court remarked as it allowed his appeal against death penalty.

About Nithari Killings

It is believed that the infamous Nithari murders were committed between 2005 and 2006. The matter came to light when in December 2006, skeletons were found in a drain near a house in Nithari, Noida.

Later on, it was found that Pandher is the owner of the house and Koli was his domestic help and hence, both were implicated in the FIRs.

The CBI registered a total of 16 cases, charge sheeting Koli in all of them for murder, abduction, and rape besides destruction of evidence, and Pandher in one for immoral trafficking.

The Ghaziabad court, however, summoned Pandher in five other cases after several victims' families approached it. As per the CBI, Koli had killed several girls by chopping off their bodies to pieces before throwing them in the backyard outside their house. As per the prosecution's case, the bodies of a total of 19 victims were found in the backyard of Pandher’s house.

Advocate Manisha Bhandari appeared for Pandher. Advocate Payoshi Roy appeared for Koli.

Case title - Surendra Koli vs. State through Central Bureau of Investigation and connected matters 2023 LiveLaw (AB) 385

Case Citation: 2023 LiveLaw (AB) 385