The Allahabad high court on Monday acquitted Surinder Koli and his employer Moninder Singh Pandher in connection with the grisly 2006 murders of 19 victims in Noida, including women and children, and came down heavily on the investigation agencies, accusing them of carrying out a “botched up” probe, in which the “basic norms” of collecting evidence were brazenly violated.
A division bench of justices Ashwani Kumar Mishra and Syed Aftab Husain Rizvi said that a fair trial eluded the accused and added that the prosecution failed to prove the guilt of the accused beyond reasonable doubt, on the settled parameters of a case based on circumstantial evidence.
“We express our disappointment at the manner in which Nithari killings, particularly the disappearance of victim A, has been investigated…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 said.
The court found flaws in the investigation on four counts
The court said the analysis of evidence on Koli’s arrest made it clear that the prosecution was not able to successfully prove the circumstance that arrest was made on 29.12.2006. “There is no arrest memo on record and the manner of arrest, as per the prosecution witnesses, are distinct and contradict each other. A doubt is clearly raised…” the court found. It also pointed out the lack of an independent witness
The prosecution argued that the accused confessed and gave information about the crime on 29.12.2006 which led to the recovery of biological remains. But the court found there was no disclosure statement or panchnama of the accused on record. “No panchnama has been prepared or produced in evidence nor any independent witnesses are produced to prove the information allegedly furnished by the accused,” the judges said.
The court further said that the prosecution evidence about the place and time of the alleged disclosure statement was full of contradictions. “Even the exact words attributed to the accused appellant as being the statement made by him are not deposed by the investigating officer in his evidence. The two prosecution witnesses furnish different and distinct account of the contents of information furnished by the accused which renders their testimony contradictory and unreliable,” the verdict said.
“In the absence of any disclosure statement; nonspecification of the time, place and contents of disclosure; absence of independent witnesses and contradictory version of contents of information furnished, we hold that prosecution has failed to prove the information/declaration furnished by the accused…” the verdict added.
This meant that the discovery of bones, skulls or skeletons could not be used as evidence, the court held.
The high court found that the recovery of biological remains on 29.12.2006 was not proved by the only independent prosecution witness. “This witness admits that a large crowd had already gathered at the spot when he arrived thereby suggesting that some incriminating material had already been found,” the order said.
The court said the prosecution failed to prove that the discovery of “biological materials” was due to information provided by Koli, and that the statements of witnesses were contradictory and not reliable.
“ We, therefore, hold that prosecution has failed to prove the circumstance of recovery of biological materials or the belongings of victim on the information furnished by the accused,” the bench held.
The prosecution argued that Koli made multiple confession — first before the investigating officer on 29.12.2006, then before CBI on 11.01.2007 and then on 17.01.2007. “These confessional statements since were made to police as such they have rightly been ignored by virtue of section 26 of the Evidence Act,” the judgment said.
Another confession before the magistrate on 01.03.2007 was the “sheet anchor of the prosecution case”, the court said. But the court found that the prolonged, 60-day police custody was not satisfactorily explained and applications filed by the prosecution seeking remand were on grounds contrary to the prosecution case.
“In case the accused SK had already made a confession before the police on 29.12.2006 there is no reason as to why he was not produced before the magistrate before 01.03.2007 for recording of his confessional statement,” the court asked.
The court said Koli was not medically examined during custody to rule out the possibility of physical torture, and asked how he wrote an application in formal language offering to confess despite being poorly educated.
“Despite specific allegation of severe physical torture to the accused for extracting his confession the non-holding of his medical examination has rendered the confession unreliable,” the court said, adding that legal aid was not given adequately. “In the confession itself the accused has alleged torture by police which renders the confession untrustworthy by virtue of section 24 of the Evidence Act,” the judges added.
The bench noted that there was no independent corroboration of “murder, rape or cannibalism” in the confession with other evidence on record. “We have no doubt that prosecution has failed to prove that confession of accused SK is voluntary and true. The circumstance of confession, therefore, cannot be relied upon against the accused,” the court held.
In its final order, the court observed that with the passage of time, the guilt was fastened exclusively upon Koli.
“Prosecution evidence has kept changing with the stage of investigation and ultimately all explanations are furnished in form of confession of accused Surinder Koli, by throwing all possible safeguards to the winds,” the court said, adding that the investigators “opted for the easy course of implicating a poor servant of the house by demonising him”.
“The manner in which confession is recorded after 60 days of police remand without any medical examination of accused; providing of legal aid; overlooking specific allegation of torture in the confession itself; failure to comply with the requirement of Section 164 CrPC is shocking to say the least,” the court added.