ON TUESDAY, THE SUPREME COURT set free Surendra Koli of the lone case in which he was sentenced to death in connection with the Nithari killings, which came to light with the discovery of skeletal remains of children from a drain behind businessman Moninder Singh Pandher’s house in Noida in 2006.
A three-judge Bench comprising Chief Justice of India (‘CJI’) B.R. Gavai and Justices Surya Kant and Vikram Nath passed this judgment in exercise of their curative jurisdiction, which the Supreme Court devised in Rupa Ashok Hurra v. Ashok Hurra (2002) to prevent any miscarriage of justice. Curative jurisdiction is invoked only after review has failed to correct a grave error.
The narrow issue before the Bench was whether two outcomes could be reconciled with each other when they had arrived on the same piece of evidence, namely, the so-called confessional statement under Section 164 of the Code of Criminal Procedure (‘CrPC’), given by Koli and so-called recoveries.
Acquittal in 12 cases, which laid the foundation for curative
The Nithari killings followed as many as thirteen trials against Koli and his employer Moninder Singh Pandher.
Before coming to the matter from which the curative petition had arisen, it is important to refer to 12 cases in which Koli was acquitted by the Allahabad High Court because it laid the foundation for Koli to file the curative petition.
The Nithari killings followed as many as thirteen trials against Koli and his employer Moninder Singh Pandher.
On October 16, 2023, a division Bench of Justices Syed Aftab Husain Rizvi and Ashwani Kumar Mishra of the Allahabad High Court acquitted Koli in 12 cases. The High Court held that the confession by Koli under Section 164 of CrPC could not be treated as voluntary or reliable.
The High Court highlighted that Koli had been kept in uninterrupted police custody for about sixty days before the confession was recorded, that there was no meaningful or private access to legal aid, that the recording Magistrate did not express the clear satisfaction on voluntariness that Section 164 of CrPC requires, and that the Investigating Officer was brought into the room at the outset and kept immediately available outside, which undermined voluntariness.
The High Court also flagged repeated assertions within the confession of tutoring and references to torture. It also highlighted that the alleged discoveries and recoveries under Section 27 of the Indian Evidence Act were inadmissible and unreliable. It also held that the prosecution did not prove any contemporaneous disclosure statement.
Importantly, the High Court also held that there were material contradictions between the panchnama narrative and the remand papers, including a reference to a joint disclosure by both the accused that could not stand with the later version that the petitioner alone led to discovery.
The High Court underscored that the evidence showed that members of the public and the police were already aware of body parts at the recovery site and that excavation had commenced before Koli arrived. The principal site lay in an open strip behind House No. D-5 and D-6 and in the drain on the main road, which was not under Koli’s exclusive domain. These features negated the essential element of discovery by the accused.
On the forensic record, the High Court found an absence of corroboration. Searches of House No. D-5 by expert teams did not yield human bloodstains or human remains that would be consistent with multiple homicides and dismemberment inside the house. There was no incriminating trace in the kitchen or on utensils.
The High Court held that a semen stain on a quilt did not match Koli or the identified victims.
The High Court also found that the recoveries of a knife and an axe did not advance the prosecution case. Neither implement bore human blood or tissue. The prosecution did not establish that the cut marks on bones, if any, were consistent with those implements or that these specific implements were used. There was no independent proof that Koli possessed the skill or capability to carry out the precise acts alleged with those implements.
The High Court criticised the investigation as botched and based on ‘shifting stands’, and recorded that material avenues, including the organ-trade angle noted by a committee of the Ministry of Women and Child Development, were not probed.
In two of the twelve matters, the High Court also acquitted Moninder Singh Pandher.
On July 30, 2025, a three-judge Bench comprising CJI Gavai and Justices Satish Chandra Sharma and K. Vinod Chandran of the Supreme Court dismissed the appeal filed by the State against the acquittal of Koli.
Rimpa Haldar case and curative petition
The curative petition pertained to Rimpa Haldar, a minor who went missing in 2005. In the Rimpa Haldar case, on February 13, 2009, the trial court convicted Koli under Sections 302, 364, 376 and 201 of the Indian Penal Code, 1860 and imposed the death sentence.
The trial court relied on a confession recorded on March 1, 2007 under Section 164 of the CrPC on recoveries said to have been made at Koli’s instance from House No. D-5, Sector 31, Noida, and on a chain of circumstantial facts.
The confession ran into several pages and stated that Koli lured the victim Rimpa Haldar into House No. D-5, strangled her with a chunni, engaged in sexual assault after death, dismembered the body, and disposed of parts in the rear gallery and in the stormwater drain. The trial court treated the confession as voluntary and truthful and found corroboration in the recovery of skulls and bones from the rear gallery and drain, in the identification of the victim’s clothing by relatives, and in DNA profiling reported by the Centre for DNA Fingerprinting and Diagnostics, Hyderabad, which matched remains with the blood samples of the victim’s parents.
On September 11, 2009, a division Bench of Justices Kashi Nath Pandey and
Imtiyaz Murtaza of the Allahabad High Court affirmed the conviction and sentence of death to Koli and acquitted the co-accused, Moninder Singh Pandher, in this case.
On February 15, 2011, a two-judge Bench of Justices Markandey Katju and Gyan Sudha Mishra of the Supreme Court affirmed the conviction and sentence of death to Koli.
On July 24, 2014, a two-judge Bench of the Supreme Court comprising Justices H.L. Dattu and Anil R. Dave rejected the review petition without an open court hearing.
Koli was set to be executed in the early morning of September 8, 2014.
The confession ran into several pages and stated that Koli lured the victim Rimpa Haldar into House No. D-5, strangled her with a chunni, engaged in sexual assault after death, dismembered the body, and disposed of parts.
Midnight intervention by the Supreme Court
On September 2, 2014, a Constitution Bench comprising the then CJI R.M. Lodha and Justices J.S. Khehar, J. Chelameswar, A.K. Sikri and Rohinton Fali Nariman, by a majority of 4:1 in Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India, directed that review petitions involving death sentences necessarily have to be heard in open court and that too by a three-judge Bench. Justice Chelameswar had dissented.
Armed with the ruling of the Constitution Bench, senior advocate Indira Jaising for Koli sought recall of the July 24, 2014 order by which Koli’s review was dismissed without open court hearing.
Since Koli was set to be executed in the early morning of September 8, 2014, an urgent application was moved at the midnight of September 8, 2014 itself at the residence of Justice Dattu seeking stay of the execution in light of the judgment in Mohd. Arif @ Ashfaq. A Bench of Justices Dattu and Dave, who had rejected the review petition, stayed the execution for a week.
Eventually the matter was listed before a three-judge Bench comprising CJI Dattu and Justices Dave and S.A. Bobde. They eventually dismissed the review petition on October 28, 2014 after granting open court hearing.
Curative Petition
In the curative filed this year, Koli raised the limited issue, namely whether two sets of outcomes of the Supreme Court can stand together when they rest on an identical evidentiary foundation. The first was the decision of February 2, 2011 affirming Koli’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 passed as recently as on July 30, 2025 by a three-judge Bench dismissing the State’s appeals and thereby affirming twelve acquittals where the very same confession and the very same class of Section 27 material were rejected as legally unreliable.
Arbitrary disparity in outcomes on an identical record is inimical to equality before the law
Writing the judgment for the Bench, Justice Nath observed that to allow a conviction to stand on an evidentiary basis which the Supreme 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 of the Constitution, since like cases must be treated alike. Arbitrary disparity in outcomes on an identical record is inimical to equality before the law. The curative jurisdiction exists to prevent precisely such anomalies from hardening into precedent,” the Bench ruled.
The Bench agreed with the Allahabad High Court’s reasoning regarding the nature of the evidence through which it had acquitted Koli in 12 cases. The Bench noted that Koli’s Section 164 CrPC statement was recorded after about sixty days of uninterrupted police custody without meaningful legal aid. The recording Magistrate did not record the clear, unqualified satisfaction that the statute demands. 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 Bench underscored that the text of the statement itself repeatedly adverted to tutoring and prior coercion. These features attracted the bar under Section 24 of the Evidence Act and rendered the confession inadmissible as a matter of law.
“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 said.
The Bench underscored that the text of the statement itself repeatedly adverted to tutoring and prior coercion.
The Bench referred to the Allahabad High Court’s observations to the effect that the evidence also 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.
These features, the Bench held, negate the essential element of discovery by the accused and reduce the exercise to a seizure from an already known place.
The Bench highlighted 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.
“The failure to secure prompt and independent medical documentation during the long spell of police custody, the perfunctory legal-aid arrangement at the moment of confession, the presence and influence of the Investigating Officer during the Section 164 procedure, the contradictions in remand and recovery papers, and the neglect of material avenues of inquiry, including the organ-trade angle flagged by a governmental committee, cumulatively undermine confidence in the prosecution’s case theory. We find ourselves in agreement with that assessment. The same infirmities, viewed through the lens of the present record, cannot yield a different legal conclusion,” the Bench held.
The Bench held that the supposed discoveries did not satisfy the statutory preconditions for admissibility. The forensic and investigative record did not supply the missing links.
“Once those keystones are removed, the circumstantial chain no longer holds”, the Bench ruled.
The Bench went on to state that the conviction cannot be sustained without departing from principles that now stand authoritatively applied to indistinguishable prosecutions arising out of the same occurrence.
“For these reasons, we hold that the petitioner has established a fundamental defect that impeaches the integrity of the adjudicatory process,” the Bench held.
Suspicion, however grave, cannot replace proof beyond reasonable doubt:
The Bench regretted that, despite prolonged investigation, the identity of the actual perpetrator has not been established in a manner that meets the legal standards.
It laid importance on principle that the criminal law does not permit conviction on conjecture or on a hunch.
“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, and when the proof fails the only lawful outcome is to set aside the conviction even in a case involving horrific crimes”, the Bench highlighted.
The Bench observed that in the Nithari case, negligence and delay corroded the fact-finding process and foreclosed avenues that might have identified the true offender.
The Bench observed that in the Nithari case, negligence and delay corroded the fact-finding process and foreclosed avenues that might have identified the true offender. It highlighted:
the scene was not secured before excavation began;
the alleged disclosure was not contemporaneously recorded;
the remand papers carried contradictory versions;
Koli was kept in prolonged police custody without a timely, court-directed medical examination;
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 House No. D-5 yielded no incriminating traces that could be forensically anchored to the alleged events;
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.
The Bench said each lapse weakened the provenance and reliability of the evidence and narrowed the path to the truth.
In the Nithari killings case, multiple FIRs were registered on December 30, 2006 regarding different missing persons. On January 9, 2007, the Uttar Pradesh Government transferred investigation to the Central Bureau of Investigation under the Delhi Special Police Establishment Act, 1946.
In this same case, the Allahabad High Court on January 28, 2015, had commuted the death sentence imposed on Koli to life imprisonment in writ jurisdiction over prolonged delay in deciding on his mercy petition.
With his curative petition having been allowed, he is all set to walk free.
Notably, the case trajectory of the Nithari killings and Surendra Koli’s acquittal after sixteen years on death row brings to fore the immense significance of the Supreme Court-innovated extra-ordinary jurisdiction of curative, specifically in cases concerning life and liberty and death penalty. It must, nonetheless, be pointed out that in this case even if the curative plea were dismissed, Koli would not have faced the death penalty since that sentence had already been commuted by the Allahabad High Court in 2015.