Today, I am here to present my research paper titled "Procedural Lapses in the Nithari Case," a case that

reflects not only on the horrifying criminal acts committed but more importantly, on the failure of procedural
justice, which ultimately led to the acquittal of the accused.

The Nithari killings, which shook the conscience of the nation in 2006, involved the mysterious
disappearances and brutal murders of several women and children from the Nithari village near Noida. After
a prolonged investigation, decomposed bodies and remains were recovered around the residence of
Moninder Singh Pandher, and his domestic help Surendra Koli. While the initial investigation painted a
picture of monstrous crimes and led to convictions by the trial court, the Allahabad High Court in its detailed
2023 judgment set aside the convictions and acquitted both accused, pointing to grave procedural lapses by
the investigation agencies and prosecution.

I will focus primarily on the two major procedural lapses that determined the fate of this case — the invalid
recording of confession under Section 164 of the CrPC, and the defective recovery of evidence under
Section 27 of the Indian Evidence Act.

1.Coming first to the confession, it is settled law that a confession is one of the strongest pieces of
evidence, but it is also the most susceptible to abuse, especially when obtained from a person in police
custody. Therefore, Section 164 CrPC lays down strict mandatory procedures to ensure that any confession
made by an accused is free, voluntary, and not influenced by external pressures.

Section 164 of the Code of Criminal Procedure is a very important safeguard.​

It allows a magistrate to record the confession of an accused. However, the law expects that:
The confession must be voluntary.
There should be no police pressure.
The accused must be given time to cool off and reflect before confessing.
The magistrate must personally ensure and record that the accused is making the confession freely, and
without coercion or fear.

In the Nithari case, Surendra Koli’s confession was riddled with fatal procedural defects. He was held in
continuous police custody for about sixty days before the confession was recorded, which itself raises a
serious presumption that the confession was not voluntary. No credible explanation was offered by the
prosecution for this prolonged custody without producing him before a Magistrate or ensuring legal aid.

Further, before recording the confession, no medical examination was conducted to check for injuries or
signs of torture, which is a crucial safeguard as per the guidelines laid down in D.K. Basu’s case. The
purpose of such examination is not merely medical but to give the accused confidence that he is no longer
under police control or threat. In Koli’s case, this step was entirely skipped. Even worse, no meaningful
cooling-off period was granted before recording the confession. The Magistrate recorded the confession
immediately after Koli was brought from police custody, without sending him to judicial custody or giving him
time to reflect freely, thereby violating an essential safeguard under Section 164. As held in Shivappa v.
State of Karnataka, the cooling-off period is not a formality; it is a fundamental check to ensure that the
accused’s mind is free from fear, influence, or exhaustion.

Moreover, the Magistrate did not make any independent inquiry to ascertain the voluntariness of the
confession. There was no attempt to ask Koli whether he had been threatened, coerced, or promised
inducements. The recording Magistrate relied purely on the statements and presentation of the police, which
goes against the very spirit of judicial impartiality. Further complicating the matter, Surendra Koli later
retracted his confession during trial at the earliest opportunity, claiming that he was subjected to severe
custodial torture, including allegations of brutal assault, burning, and other inhuman treatment. The
prosecution failed to counter these allegations by producing any medical report or independent testimony,
leading the court to draw an adverse inference under Section 114(g) of the Evidence Act. It is a settled
principle that retracted confessions, especially when unsupported by independent corroboration, are of
weak evidentiary value.

The confession’s evidentiary value was further diluted by the sloppy manner in which it was recorded and
preserved. The CD and video recordings were neither signed by the accused nor the Magistrate. Original
memory devices were not produced during trial. Thus, even the technical proof of the confession was
lacking. As a result, the High Court concluded that the confession could not be relied upon, either legally or
factually.

Important Landmark Cases on Section 164 CrPC:

●​ Selvi v. State of Karnataka (2010): Court ruled that confessions obtained through narco-analysis
and similar techniques without free will violate Article 20(3) of the Constitution.
●​ Babubhai v. State of Gujarat (2006): Confessions made after prolonged police custody are
presumed to be involuntary.
●​ Shivappa v. State of Karnataka (1995): Mandatory procedures must be followed while recording a
confession, otherwise the confession cannot be used.
●​ D.K. Basu v. State of West Bengal (1997): Set guidelines for mandatory medical examination to
prevent custodial torture.

In State (NCT of Delhi) v. Navjot Sandhu (2005), concerning the 2001 Parliament Attack case, Mohammad
Afzal Guru was convicted despite the Supreme Court acknowledging that his confession was obtained
under duress and therefore inadmissible. The Court emphasized that in conspiracy cases, where direct
evidence is often unavailable, circumstantial evidence could form the basis of conviction. In Afzal Guru's
case, his association with terrorists and his active role in facilitating the attack were established through a
strong and complete chain of circumstantial evidence, which supported his conviction. In contrast, although
the Nithari case also involved retracted confessions and allegations of torture, the High Court found no
strong circumstantial evidence to compensate for the procedural lapses, leading to acquittal.

Similarly, in Mohd. Arif @ Ashfaq v. State (NCT of Delhi) (2011), involving the Red Fort attack, the Supreme
Court upheld Arif’s conviction even though there was a ten-day gap between his arrest and confession, and
allegations of duress were made. The Court observed that delay alone did not render the confession
involuntary and considered the totality of circumstances, including proper compliance with procedural
safeguards under Section 164 CrPC. More importantly, the Court placed strong reliance on corroborative
evidence such as CCTV footage showing Arif entering Red Fort with weapons, matching fingerprints on
recovered materials, and eyewitness testimonies. In comparison, the Nithari case lacked such corroborative
material. Therefore, while in Arif’s case the independent evidence outweighed the procedural irregularities,
in the Nithari case, the absence of corroboration led to acquittal.

BUT, in Nithari case:

●​ No independent strong circumstantial evidence existed apart from the confession and recoveries.
●​ Hence, procedural lapses directly affected the foundation of the case, and the High Court had no
choice but to acquit.​
2. Moving now to the second major lapse, the recovery of evidence under Section 27 of the Indian
Evidence Act. Section 27 allows a limited admissibility of information given by the accused in custody if it
leads to the discovery of a new fact. However, for such discovery to be admissible, it must arise from
information uniquely within the accused's personal knowledge, and it must be properly documented and
witnessed.

But even under Section 27, certain requirements must be met:

●​ The recovery must be made based on information uniquely known to the accused.
●​ It must be properly recorded with independent witnesses present.
●​ The recovered item must be previously unknown to the police

In the Nithari case, human remains — skulls, bones, clothes — were recovered from open, public spaces
like service lanes and drainage pipes around D-5 and D-6 houses. These were not exclusive locations
accessible only to the accused; rather, they were public areas, searched earlier and accessible to anyone.
Therefore, there was no discovery of a new fact based solely on the accused’s information.

Additionally, no independent witnesses were associated with the recovery, which is a basic requirement to
lend credibility to police recoveries. The so-called disclosure statements made by the accused were either
incomplete, improperly recorded, or shown to have been made after the recoveries had already taken place,
thus rendering the whole process artificial. Without proper independent witnesses and without truly new
discoveries, the recovery evidence collapsed under scrutiny.

Further, there was a serious break in the chain of custody. The recovered items were not properly sealed,
marked, or documented in accordance with forensic standards. Without a clear, unbroken chain of custody,
it becomes impossible to reliably link the recovered material either to the crime or to the accused. These
failures made the supposed discoveries meaningless from a legal standpoint.

Important Landmark Cases on Section 27 Evidence Act:

●​ Pulukuri Kotayya v. King-Emperor (AIR 1947 PC 67): Only that part of information leading to
discovery of a fact is admissible, not the entire confession.
●​ Boby v. State of Kerala (2023): Disclosure and recovery must be proved with exactness and
independent witnesses.
●​ Rajesh v. State of MP (2023): Discovery must be a new fact unknown to police earlier.

In State of Rajasthan v. Kashi Ram (2006), Kashi Ram was accused of murdering his wife and daughters.
Although there were procedural lapses in the recovery process — such as absence of independent
witnesses and recovery from a public place — the Supreme Court emphasized that the specificity of Kashi
Ram’s disclosure, particularly the statement that a body was buried "3 feet deep near a neem tree," was
crucial. This precise information, previously unknown to the police, satisfied the requirements of Section 27
of the Evidence Act. Therefore, despite procedural flaws, the Court found the circumstantial evidence
sufficient to convict him, though it commuted his death sentence to life imprisonment. In contrast, in the
Nithari case, the accused’s disclosure lacked such specific, new information and the recovery sites were
already known and contaminated, making the evidence unreliable and leading to acquittal.
In Anter Singh v. State of Rajasthan (2004), the appellant was convicted of murder based largely on the
recovery of a firearm following his custodial disclosure. Although the defense raised concerns about
procedural lapses and public accessibility of the recovery site, the Supreme Court held that the specificity of
the accused’s information — mentioning the exact location and how the weapon was wrapped — was
enough to make the recovery credible. The Court also clarified that absence of independent witnesses does
not automatically nullify a recovery if the overall evidence is reliable. Unlike in Nithari, where procedural
failures fatally weakened the prosecution’s case, in Anter Singh, the Court found the overall evidence strong
enough to uphold the conviction despite minor irregularities.

With both the confession and recovery having failed the test of admissibility, the prosecution’s case was left
hanging without any independent forensic evidence, strong circumstantial evidence, or credible eyewitness
testimony. DNA reports were inconclusive, and there was no other evidence to establish the guilt of the
accused beyond reasonable doubt. In such circumstances, the Court had no choice but to extend the
benefit of doubt to the accused, reinforcing the fundamental principle that it is better to let a hundred guilty
go free than to punish one innocent.

In conclusion, the Nithari judgment is not merely about the failure of investigation in a single case; it is a
reminder that due process is the backbone of the criminal justice system. No matter how heinous the crime,
constitutional safeguards must be respected. Procedural lapses are not technicalities; they are fundamental
to ensuring that justice is both done and seen to be done. This case teaches us that in criminal trials, the
means are as important as the ends, and no conviction can stand unless obtained through fair, lawful, and
transparent processes.

Thank you.