Kiran Raj

The Supreme Court of India, Three-Judge Bench of Chief Justice BR Gavai, Justice Surya Kant and Justice Vikram Nath  set aside the conviction of a death-row convict in the final pending Nithari killings case. The Bench allowed a curative petition challenging the 2011 Supreme Court judgment that had upheld his conviction and death sentence, which was later commuted to life imprisonment. The petitioner sought relief after being acquitted in twelve other prosecutions arising from the same evidentiary base. Concluding that the conviction was founded on an involuntary confession and inadmissible recoveries, the Court held that maintaining divergent outcomes on identical material violated Articles 14 and 21 of the Constitution, and ordered the petitioner’s release if not required in any other proceedings.

The case concerned a curative petition filed under Articles 129, 137 and 142 of the Constitution, read with Order XLVIII of the Supreme Court Rules, 2013. The petitioner, a domestic employee at House D-5, Sector 31, Noida, sought relief from his conviction for the murder of a minor girl. Residents of Nithari had reported disappearances of women and children since early 2005. In March 2005, a human hand was first noticed near the area, and on 3 December 2006, another was found during drain cleaning. On 29 December 2006, the petitioner was taken into custody in connection with an FIR concerning one missing girl, and his employer was detained the same day. When police reached the house, multiple skulls, bones, and articles were recovered from the open strip between D-5 and D-6 and from a nearby drain.

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On 9 January 2007, the investigation was transferred to the Central Bureau of Investigation under the Delhi Special Police Establishment Act, 1946, assisted by forensic teams from Agra, AIIMS, and the Central Forensic Science Laboratory. Thirteen trials followed on a common evidentiary base consisting of a confession under Section 164 of the Code of Criminal Procedure and recoveries under Section 27 of the Indian Evidence Act.

The petitioner was convicted by the trial court under Sections 302, 364, 376 and 201 of the Indian Penal Code, and the conviction was upheld by the High Court and affirmed by the Supreme Court in 2011. After acquittal in twelve connected cases on identical evidence, the petitioner invoked the Supreme Court’s curative jurisdiction, alleging inconsistency and violation of Articles 14 and 21.

The Bench observed that “this curative petition presents an exceptional case for the exercise of our curative jurisdiction. The petitioner shows that a manifest miscarriage of justice endures and that two sets of outcomes resting on the same evidentiary foundation cannot lawfully coexist.” The Court stated that when inconsistent judicial outcomes arise from the same record, “the integrity of adjudication is imperilled, and public confidence is shaken.”

Referring to Rupa Ashok Hurra v. Ashok Hurra, it recorded that “the curative jurisdiction of this Court exists to prevent abuse of process and to cure a gross miscarriage of justice.” It further noted that “finality remains the rule and intervention is reserved only for very strong reasons that strike at the legitimacy of the adjudicatory process.” The Court clarified that “the object is not to reopen evidence as in a second appeal, but to cure a manifest miscarriage of justice where inconsistent results persist on the same foundation and undermine public confidence in the administration of justice.”

The Court observed that “the determinative question is whether two sets of outcomes of this Court can stand together when they rest on an identical evidentiary foundation.” It recorded that “the first is the decision of 15.02.2011 affirming the petitioner’s conviction and death sentence on the strength of a Section 164 CrPC confession and supposed discoveries under Section 27 of the Evidence Act. The second is the order dated 30.07.2025… affirming twelve acquittals where the very same confession and the very same class of Section 27 material were rejected as legally unreliable.”

Stating that “the tension is not peripheral. It goes to the integrity of adjudication,” the Bench found no basis for treating the same evidence differently: “We find no principled basis on which the same statement can be treated as voluntary and reliable in this case when it has been judicially discredited in all others.”

The Bench analysed the confession recorded under Section 164 CrPC and found multiple defects. It recorded that “the petitioner’s Section 164 CrPC statement was recorded after about sixty days of uninterrupted police custody without meaningful legal aid.” The Magistrate who recorded the confession “did not record the clear, unqualified satisfaction that the statute demands.” The Court stated that “the Investigating Officer’s proximity to the recording process, including his presence at the outset and his ready access thereafter, compromised the environment of voluntariness.”

The judgment further noted that “the text of the statement itself repeatedly adverted to tutoring and to prior coercion. These features attracted the bar under Section 24 of the Evidence Act and rendered the confession inadmissible as a matter of law.”

Regarding recoveries under Section 27 of the Evidence Act, the Court held that “no contemporaneous disclosure memo was proved.” It observed that “the narrative in the later-prepared seizure memorandum conflicted with the remand papers, which recorded a joint disclosure by both accused.” The evidence showed that “the police and members of the public already knew that bones and articles lay in the open strip and that excavation had begun before the petitioner arrived.”

The Court stated: “These features negate the essential element of discovery by the accused and reduce the exercise to a seizure from an already known place.” It added that “once the disclosure is not contemporaneously proved, once prior knowledge is established, and once contradictions infect the record, Section 27 of the Evidence Act ceases to operate.”

Assessing the scientific record, the Bench recorded that “extensive searches of D-5 by expert teams did not yield human bloodstains, remains, or transfer patterns consistent with multiple homicides and dismemberment inside the house.” It found that “the DNA work undertaken by the Centre for DNA Fingerprinting and Diagnostics linked certain remains to families of missing persons but did not prove authorship of homicide by the petitioner within D-5.”

The judgment also stated that “knives and an axe were exhibited without proof of blood, tissue, or hair consistent with use in the alleged crimes. There was no credible chain of custody or expert testimony establishing that a domestic help with no medical training could perform the precise dismemberment described.” The Court remarked that “these gaps were central to the acquittals in the twelve cases. They are equally present here.”

The Court strongly criticised the manner of investigation. It recorded that “the High Court’s critique of the investigation was not rhetorical excess. It was anchored in record-based deficiencies that bear directly on fairness and reliability.” It observed that “the scene was not secured before excavation began, the alleged disclosure was not contemporaneously recorded, the remand papers carried contradictory versions, and the petitioner was kept in prolonged police custody without a timely, court-directed medical examination.”

The Bench added: “Crucial scientific opportunities were lost when post-mortem material and other forensic outputs were not promptly and properly brought on record and when searches of D-5 yielded no incriminating traces.” It noted that “the investigation did not adequately examine obvious witnesses from the household and neighbourhood and did not pursue material leads, including the organ-trade angle flagged by a governmental committee.”

On the constitutional implications, the Court stated: “To allow a conviction to stand on evidentiary basis that this Court has since rejected as involuntary or inadmissible in the very same fact-matrix offends Article 21 of the Constitution. It also violates Article 14… since like cases must be treated alike.”

It added that “arbitrary disparity in outcomes on an identical record is inimical to equality before the law.” The judgment emphasised that “suspicion, however grave, cannot replace proof beyond reasonable doubt. Courts cannot prefer expediency over legality. The presumption of innocence endures until guilt is proved through admissible and reliable evidence.”

Acknowledging the gravity of the crimes, the Court stated: “The offences in Nithari were heinous, and the suffering of the families is beyond measure. It is a matter of deep regret that despite prolonged investigation, the identity of the actual perpetrator has not been established.” It further noted that “negligence and delay corroded the fact-finding process and foreclosed avenues that might have identified the true offender.”

Concluding its reasoning, the Bench held that “the present case crosses that exacting threshold… The confession that anchored the conviction is legally tainted… The supposed discoveries do not satisfy the statutory preconditions for admissibility.”

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The Court directed: “For the reasons recorded above, the curative petition is allowed. The judgment dated 15.02.2011 in Criminal Appeal No. 2227 of 2010 and the order dated 28.10.2014 in Review Petition (Crl.) No. 395 of 2014 are recalled and set aside.”

“Criminal Appeal No. 2227 of 2010 is allowed. The judgment dated 13.02.2009 in Sessions Trial No. 611 of 2007 passed by the Additional Sessions Judge, Ghaziabad, and the judgment dated 11.09.2009 passed by the High Court of Judicature at Allahabad in Criminal Confirmation/Appeal No. 1475 of 2009 are set aside.”

“The petitioner is acquitted of the charges under Sections 302, 364, 376 and 201 of the IPC. All sentences and fines imposed thereunder stand quashed. The petitioner shall be released forthwith, if not required in any other case or proceeding. The Registry shall communicate this judgment forthwith to the Superintendent of the jail concerned and to the Trial Court for immediate compliance.”

“In view of this acquittal, SLP (Crl.) No. 1444 of 2016 and SLP (Crl.) No. 7456 of 2016 arising from the judgment dated 28.01.2015 stand disposed of as infructuous. All pending applications stand disposed of.”

Advocates Representing the Parties

For the Petitioner: Dr. Yug Mohit Chaudhary, Mr. Siddhartha Sharma, Ms. Payoshi Roy, Mr. Prabu Ramasubramaniyan, Adv. Mr. Bharathimohan M, Advocates with Mr. Sai Vinod, AOR
For the Respondents: Raja Thakare, ASG

Case Title: Surendra Koli v. State of Uttar Pradesh & Anr.
Neutral Citation: 2025 INSC 1308
Case Number: Curative Petition (Crl.) Diary No. 49297 of 2025
Bench: Chief Justice BR Gavai, Justice Surya Kant, Justice Vikram Nath