New Delhi: The same material evidence in the Nithari killings leading to opposing judgements by the Allahabad High Court has laid bare the deep fissure in how judges can interpret custodial confessions, recoveries and circumstantial proof.
Based on the same evidence, a bench of the court in 2009 upheld the death sentence handed to prime accused Surendra Koli in one Nithari case, while in 2023, the court gave the clean chit to Koli and overturned the death sentence in 12 other cases.
The two judgements stand out: one affirms guilt, the other embraces grave doubt. Together, they form a striking chronicle of judicial reasoning shaped by different philosophies of criminal justice.
In a striking legal paradox, the Supreme Court, too, upheld both the 2009 and 2023 judgements of the high court at different points in time.
Koli, a domestic worker employed by businessman Moninder Singh Pandher, was accused of sexually assaulting, butchering and killing several children from the Nithari locality in Noida. The killings came to light in December 2006 after skeletal remains of at least eight victims were found in a drain behind Pandher’s bungalow. Both men were charged in multiple cases based on similar evidence.
Koli and Pandher were first convicted in 2009 for the rape and murder of 14-year-old Rimpa Haldar. A trial court in Ghaziabad handed capital punishment on 13 February, 2009. The Allahabad High Court on 11 September, 2009, acquitted Pandher but upheld the sentence for Koli, within seven months of the latter appealing against the trial court verdict.
Koli continued to face trial on a consolidated FIR of 12 cases. After years of examination and cross-examination, the trial concluded in 2017, with the trial court convicting Koli in multiple cases.
However, six years down the line, the Allahabad High Court acquitted Koli in the 12 cases lodged against him and Pandher in two of the six cases lodged against him, while also setting aside the death sentences handed by the trial court. In doing so, the HC commented adversely on “casual” and “perfunctory” approach of the Central Bureau of Investigation (CBI) in the matter.
Incidentally, the evidence presented by the CBI in this set of cases was similar to the one that was examined in the Haldar trial.
The 2009 HC judgement was upheld by the Supreme Court in 2011. Koli’s review against the SC decision was dismissed in 2014, affirming the death sentence originally handed to him by the trial court. The SC had then found “no reason to doubt the credibility of the confession or the chain of circumstantial evidence.”
However, a separate SC bench in July found merit in the HC’s 2023 verdict that gave the clean chit to Koli in 12 cases. This gave Koli the opportunity to question his conviction in the Haldar case. He promptly moved a curative petition in the top court, asking it to cure the defect in its 2011 and 2014 decisions that ordered his hanging in the Haldar case.
The apparent contradiction—the same evidence producing two opposite SC-approved outcomes—remained unresolved until this month, when a curative bench led by Chief Justice B.R. Gavai finally set aside Koli’s conviction, declaring that “when proof fails, the only lawful outcome is to set aside the conviction even in a case involving horrific crimes”.
With that, the apex court effectively reconciled 16 years of divergent judicial findings, acknowledging both the fallibility of its earlier decision and the importance of consistency in the administration of justice.
Also Read: Sentenced to death by three courts. Nithari killings convict Surendra Koli, now free
Conviction in Rimpa Haldar case
The foundational case in the Nithari series concerned the murder of 14-year-old Rimpa Haldar. In its order dated 11 September, 2009, the Allahabad HC bench of Justices Imtiyaz Murtaza and K.N.Pandey upheld Koli’s conviction by the trial court and affirmed his death sentence, while acquitting Pandher for lack of evidence on direct involvement.
Koli’s confession under Section 164 of the erstwhile Code of Criminal Procedure (CrPC) was treated as credible, voluntary and substantially corroborated. In fact, his conviction was solely based on his confession, which, according to the HC, was corroborated by recoveries at Koli’s behest.
“The testimony of P.W. 13 (metropolitan magistrate) and confessional statement show that provision of Section 164 CrPC have been strictly complied with… the confessional statement inspires full confidence,” the 113-page HC order said.
It also held the recoveries under Section 27 of the Indian Evidence Act as “admissible”, concluding that disclosure by the accused led to the discovery of skeletal remains and articles connected to the victim.
The 2009 judgement described how Koli’s confession traced his “criminal propensity” to his employer’s decadent lifestyle. It approved the trial court’s finding that Koli’s criminal propensity was aroused each time Pandher brought women to his house.
The lust accentuated in him and gradually, overtaken by criminal propensity, he used to commit murder, the trial court had said, a view that the HC upheld.
In effect, the 2009 HC bench accepted the chain of inference: confession, recoveries, and link to the offence.
Since Koli’s confession was recorded after he was sent to judicial custody, it was free from police influence and therefore was reliable testimony, sufficient for his conviction, the HC had noted.
Pandher’s alibi, that he was abroad in Australia at the time and procedural lapses in his trial, persuaded the bench to acquit him in this case.
The court found that Pandher’s “lascivious habit” or “act of debauchery” of bringing call girls to his house, mentioned in Koli’s confession, could hardly be understood as incriminating regarding offences under Section 302 (murder), 376 (rape) or 120-B (criminal conspiracy) of the erstwhile Indian Penal Code.
Lastly, expressing that “Surendra Koli is a menace to the society”, the HC judgement agreed with the trial court ordering death to Koli as the case was well within the category of the “rarest of rare”.
“The depraved and brutish acts of Surendra Koli call for only one sentence and that is death sentence,” it concluded.
Acquittal in 12 companion cases
On 16 October, 2023, a division bench of Justices Ashwani Kumar Mishra and Syed Aftab Husain Rizvi of the Allahabad High Court delivered an opposite and lengthier verdict, after evaluating the same evidence that led to Koli’s conviction and sentencing in the Haldar case.
This time, Koli was acquitted in the 12 cases and Pandher in the two cases in which he had been handed death.
In the decision here, the bench faulted the prosecution for failing to prove guilt beyond reasonable doubt, passed critical remarks against its shoddy investigation and commented sharply on the brazen violation of procedure to gather evidence. All this together, the HC remarked, had botched up the case.
On a deep analysis of Koli’s confession and the fact that it was recorded after prolonged custody of 60 days, the bench concluded it was “neither voluntary nor true”. Koli was not provided with legal aid and not medically examined before his confession was recorded. Allegations (by Koli’s lawyers) of genital torture too were not looked into, it noted.
Koli’s prolonged custody, apparent coercion and procedural lapses rendered his confession inadmissible, the court said.
The HC further dissected the confession to say the words used in it did not inspire confidence. This was because the language used did not possibly match his educational qualification. Koli had studied up to Class 7.
The recording magistrate merely used the word “seems” while commenting on voluntariness, which the court said “imports a lesser degree of probability than proof”. It also noted that Koli’s own statement—that he was made to memorise (‘ratwaya’) the confession—suggested tutoring.
Koli’s mechanical parroting of details in the confession “indicates that he was still reeling under the impression of the torture and tutoring”, the HC said.
The investigating officer, astonishingly, was present during the recording and the confession itself mentioned tutoring and torture, the court observed. More such procedural lapses were highlighted in the verdict that held Koli innocent.
On recovery of skeletal remains under Section 27 of the Indian Evidence Act, the bench found them “inadmissible” because the site was public, excavations had begun before disclosure and no “contemporaneous panchnama” (site inspection memo) was signed by independent witnesses.
Testimony of police witnesses was riddled with contradictions about the place, time and circumstances of arrest and, therefore, declared doubtful.
“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 remarked.
It further criticised the CBI for ignoring crucial leads, including the Ministry of Women & Child Development report that had flagged the possibility of organ trade. The report’s findings pointed to torsos missing from recovered bodies, surgical precision in the cuts, and even suggested “the strong possibility of organ trade being the actual reason for the infamous Nithari killings”. Yet, the CBI never investigated this angle, the HC noted.
The bench summed up that “a domestic servant has been made out to be the villain of Nithari killings, completely overlooking the strong possibility of organ trade being the actual reason”.
With the confession and recoveries discredited, the court held that the chain of circumstantial evidence had collapsed entirely.
Also Read: ‘Murder, cannibalism to attempted necrophilia’ — gory timeline of cases against Nithari accused
Contrasting judicial approaches
The difference between the two judgements lies not merely in outcome but in judicial philosophy. The 2009 bench accepted the integrity of the investigative process, while the 2023 one viewed the same record through the prism of constitutional safeguards.
In the 2009 ruling, the confession and recoveries were treated as mutually reinforcing. In 2023, both were seen as fruits of illegality.
The earlier bench looked for “general corroboration”; the later bench demanded “scrupulous compliance” with every procedural safeguard, particularly in a death penalty case.
The 2023 judges rejected the idea that the earlier 2009 judgement bound them.
They emphasised that every criminal trial must stand on its own evidence, and the principle of “issue estoppel”, which prevents re-litigation of an already decided issue, cannot be used against an accused.
“In substance, the principle is that re-litigation of an issue already settled in a previous adjudication would be impermissible in law,” the bench noted, but clarified that applying estoppel here “would conflict with the fundamental principle of presumption of innocence of the accused”.
Thus, while the 2009 bench relied on procedural formality to sustain conviction, the 2023 bench insisted on constitutional fidelity to due process.
Investigative lapses & forensic contradictions
One of the sharpest departures in the 2023 judgement was its detailed scrutiny of investigation and forensic procedures.
The court noted that neither human remains, nor blood-stained clothes, nor any weapon linked to Koli were ever properly recovered or forensically corroborated. Even though the DNA of recovered remains matched some victims’ parents, the court said this did not automatically implicate Koli without a proven link to the act of killing.
The 2023 bench also underlined that police and CBI officers ignored alternate theories of crime, including a doctor living next door (in house D-6, Sector 31, Noida) who had been previously charged with organ trade.
“Shockingly, even the statement of doctor residing in house no. D-6… was not recorded,” the bench said. “Investigation was not taken further to rule out the possibility of organ trade as being the cause of disappearance of women and children in Nithari village.”
The 2023 judgement, therefore, dismantled the core of the prosecution’s narrative and portrayed a deeply compromised investigation.
On the opposite end, 14 years ago, the 2009 bench seemed to have done a surface-level examination, without probing deeper to determine the issues revolving around the magistrate’s certification of voluntariness of confession, investigators’ claim of discovery of evidence and inferences of forensic experts.
The 2023 bench found the investigation was pervaded by coercion, fabrication and disregard for rights. Its conclusion was unequivocal: the cumulative deficiencies—from dubious arrest to coerced confession—broke the chain of circumstances necessary to establish guilt beyond reasonable doubt.
The two judgements, read together, frame a cautionary tale in India’s death penalty jurisprudence.
The gap between them became the basis for Koli’s curative petition in the Supreme Court, which argued that “two sets of outcomes resting on the same evidentiary foundation cannot lawfully coexist”. His petition questioned how a justice system could both affirm and reject the same evidence, depending on which bench heard the matter.
Ultimately, the Supreme Court judgement upheld the 2023 acquittals, noting that “arbitrary disparity in outcomes on an identical record is inimical to equality before the law”.
(Edited by Nida Fatima Siddiqui)