Neutral Citation No.

- 2023:AHC:199091-DB
Reserved

- 5183 of 2017
With
. 10 of 2017

Surendra Koli ……..Appellant

Versus

State through Central Bureau of Investigation …….Respondent

With

- 4404 of 2017
With
10 of 2017

Moninder Singh Pandher ....Appellant

Versus

Central Bureau of Investigation and another …….Respondent

1. The Nithari incident (Para 3-15) 6-12

2. Disappearance of victim A (Para 16-19) 13-14
3. Documentary evidence of prosecution (Para-20) 14-22
4. Oral evidence of prosecution (Para 21) 23-26
4a. Statement of accused u/s 313 Cr.P.C. (Para 22-23) 26-27
5. Defence Evidence (Para 24-25) 27-28
6. Chronology of events (Para 26) 28-40
7. Issues framed during trial u/s 354(1)(b) Cr.P.C. 40-41
(Para 27-28)
8. Circumstances relied upon by the court of 41-42
Sessions to hold the accused guilty (Para 29)
9. Arguments in support of appeal (Para 30-73) 42-59
10. Arguments on behalf of the prosecution (CBI) 59-65
(Para 74-83)
11. Issues arising in the appeal (Para 84-87) 65-66
12. Law on recovery u/s 27 of the Indian Evidence 66-75
Act, 1872. (Para 88-96)
13. Analysis of evidence on the aspect of arrest of 75-96
accused, disclosure by him and the recovery
(Para 97-150)
 2

14. Evidence of previous recovery of biological 96-97

material from the same spot (Para 151-161)

15. Circumstance of accused SK luring girls and 97-100

cutting body parts before experts at AIIMS (para
153-161)
16. Circumstances leading to confession of accused 100-112
(Para 162-181)

17. Contents of transcription of recorded confession 112-140

(Para 182)

18. Retraction of confession by the accused (Para 140-145

183-186)

Law on confession:-
(i) Confession is viewed with circumspection 146-157
(Para 187-198);
(ii) Confession has to be read as a whole (Para 157-160
199-200);
(iii) If tainted in part, the taint attaches to each 160-161
part of the confession (Para 201-202)
(iv) Confession must be voluntary and true (Para 162-164
203-204);
(v) Burden to prove that confession is voluntary 164-168
is on the prosecution (Para 205-206);
(vi) Role/duty of court in recording confession 168-169
(Para 207-209)

19. Analysis of evidence on the aspect of confession 170

to ascertain Voluntariness and truthfulness:-
Prolonged police custody (Para 211-221); 170-178
Delayed confession to facilitate tutoring? 178-179
(Para 222-224);
Torture to accused (Para 225-234); 179-183
Confession letter to ACMM New Delhi (Para 183-184
235-237);
No proper medical examination of accused 184-185
SK (Para 238-241);
Prosecution stand on torture (Para 242); 185-186
Evidence on torture (Para 243-248); 186-187
Confession in view of Section 28 of the 187-188
Evidence Act (Para 249-250);
Facets of confession in this case (Para 251- 188-195
267);
Safeguards under Section 164 Cr.P.C. (Para 195-197
268-274);
No effective legal aid (Para 275-280); 197-200
Non compliance of procedural safeguards 200-203
under Section 164 Cr.P.C. (Para 281-288);
 3

No conclusive finding of voluntariness prior 203-204

to recording of confession (Para 289-290);
Confession not properly proved (Para 291- 204-207
297);
Confession not shown to be true, rather, 207-210
contradicted by other evidence? (Para 298-
299);
No independent corroboration of murder, 210-213
rape or cannibalism (Para 300-309);
Events mentioned in confession improbable 213-215
(Para 310-318);

20. Scientific evidence relied upon by 216-229

prosecution(Para 319-339)

21. Impact of previous judgment in the case of 229-269

'XYZ' :- (Para 340-408)

(i) Supreme Court in 'XYZ' only affirmed the

findings, conclusion and sentence of the High
Court in respect of accused SK; (Para 340-341)
(ii) High Court restricted its findings only to the
case of 'XYZ' and were not to apply in other
cases of Nithari killings, including this case; (Para
342-343)
(iii) Evidence in the case of 'XYZ' distinct from
the case of A; (344-365)
(iv) Judgment in 'XYZ' not an evidence in the
present case;(366-380)
(v) Can the judgment in 'XYZ' be a binding
precedent;(381-400)
(vi) Can previous judgment operate as issue
estoppel.(401-408)
22. Alternative hypothesis consistent with innocence 268-275
of accused relied upon by the accused SK (Para
409-424)

23. Analysis relating to judgment of Sessions 275-277

court (Para 425-429)

24. Analysis of evidence regarding Pandher (Para 278-295

430-467)

25. Conclusion:- (Para 468) 295-296

(a) On arrest (Para 469); 296
(b) On disclosure (Para 470-475); 296-298
(c) On recovery (Para 476-477); 298-299
(d) On confession (Para 478-481). 299-304

26. Concluding remarks (Para 482-491) 304-308

 4

- 5183 of 2017

With

10 of 2017

Surendra Koli ……..Appellant

Versus

State through Central Bureau of Investigation …….Respondent

Sri Yug Mohit Chaudhary assisted

by Ms. Payoshi Roy and Sri Siddhartha Sharma, Ms. Mary
Punch (Sheeba Jose) and Sri Mohd. Kalim.

A.G.A., Sri Amit Mishra, Sri Gyan

Prakash, Sri Jitendra Prasad Mishra and Sri Sanjay Kumar
Yadav.

With
- 4404 of 2017
With
10 of 2017

Moninder Singh Pandher ....Appellant

Versus

Central Bureau of Investigation and another …….Respondent

Manisha Bhandari, Omkar

Srivastava, Syed Mohammad Nawaz, Dhruv Chandra, Shashwat
Sidhant, Ayush Jain, Mohd. Abdullah Tehami and Shivam
Pandey

A.G.A., Sri Amit Mishra, Sri Gyan

Prakash, Sri Jitendra Prasad Mishra and Sri Sanjay Kumar
Yadav.

1. Accused appellants Surendra Koli S/o Shankar Ram Koli

(hereinafter referred to as ‘SK’) and accused Moninder Singh
 5

Pandher s/o Sampooran Singh (hereinafter referred to as

‘Pandher’) have been tried in Sessions Trial No. 440 of 2007,
arising out of CBI FIR No. RC 2(S)/07-SCB-I/DLI, under
Sections 302, 364, 376 r/w 511, 201 IPC and Sections 302 r/w
120B, 376/511 r/w 120B and 201 r/w 120B IPC, respectively
and convicted in the aforesaid sections vide judgment dated
24.07.2017. Accused SK is sentenced to death alongwith fine
of Rs. 10,000/- under Section 302 IPC with a direction to hang
the accused till death, subject to confirmation by the High
Court; life imprisonment alongwith Rs. 10,000/- fine under
Section 364 IPC; 10 years rigorous imprisonment alongwith Rs.
10,000/- fine under Section 376 r/w 511 IPC and seven years
rigorous imprisonment alongwith fine of Rs. 5,000/- under
Section 201 IPC. Default sentence has also been awarded for
non-payment of fine of six months under Section 302 IPC, four
months, each, in respect of offences under Section 364, 376 r/
w 511 and Section 201 IPC; whereas accused Pandher is
sentenced to death alongwith fine of Rs. 10,000/- under
Section 302 r/w 120B IPC with a direction to hang the accused
till death, subject to confirmation by the High Court; 07 years
rigorous imprisonment alongwith Rs. 10,000/- fine under
Section 376/511 r/w 120B IPC and 07 years rigorous
imprisonment alongwith fine of Rs. 5,000/- under Section 201
r/w 120B IPC. Default sentence has also been awarded for non-
payment of fine of six months under Section 302 r/w 120B IPC,
four months, each, in respect of offences under Section
376/511 r/w 120B and Section 201 r/w 120B IPC.

2. The court of sessions has forwarded the judgment dated

24.07.2017, alongwith records of the proceedings, for
confirmation of death sentence under Section 366 Cr.P.C. The
confirmation proceedings have accordingly been registered as
 6

Reference Case No. 10 of 2017. Jail Appeals are also filed by

accused SK and Pandher, which are registered as Capital
Criminal Appeal Nos. 5183 of 2017 and 4404 of 2017
respectively. The reference proceedings and the capital criminal
appeals arising out of the judgment dated 24.07.2017 have
been heard together and are being disposed of by this common
judgment. In order to protect identity of the unfortunate
victims of Nithari incident, their names are being anonymized.

3. Nithari is a village abutting Sector-31 of NOIDA, in

District Gautam Buddh Nagar of Uttar Pradesh. It suddenly
became infamous for its missing children and caused massive
uproar in the country. Various complaints were lodged in
respect of such missing children by their parents/guardians
which included the complaint of one Nand Lal, father of a
young girl namely L, who too had gone missing on 07.05.2006
and a complaint was lodged with Police Station Sector-20,
Noida. An application under Section 156(3) Cr.P.C. was filed by
the informant on 24.08.2006 against Moninder Singh and
Surendra residents of D-5, Sector-31, Noida for registration of
FIR against them. The Chief Judicial Magistrate, Gautam Buddh
Nagar ordered registration of first information report in respect
of missing girl L on 27.09.2006. It is pursuant to this direction
that Case Crime No. 838 of 2006 was registered at Police
Station – Sector-20, NOIDA, under Section 363, 366 IPC on
07.10.2006.

4. It transpires that progress of investigation in the case was

not satisfactory and consequently, a grievance was raised
before this Court relating to tardy process of investigation in
the case and consequently, directions came to be issued for the
 7

investigation in Case Crime No. 838 of 2006 to be pursued with

expedition. In compliance of such directions, orders were
issued by the Superintendent of Police for constituting special
team to investigate the case. Dinesh Yadav, Dy. S.P., Noida,
was to lead this special team. It is during investigation of the
case that role of accused Surendra Koli (SK) surfaced and the
police took him in custody on 29.12.2006. Accused SK
purportedly confessed to the killing of the missing girl L and
claimed to have chopped her body into pieces and dumped her
head and slippers in the enclosed gallery behind House No. D-
5, Sector–31, NOIDA, while other body parts were thrown in
the public drain passing in front of the house. Accused SK
allegedly volunteered to lead the police party to the particular
spot in enclosed gallery behind House No. D-5, Sector-31,
NOIDA where he had concealed the body parts of missing girl L
and her other belongings. The police party alongwith accused
SK came to the spot and as per the prosecution, on his pointing
out, the skull and other body parts of L was recovered. While
accused SK was at the place of recovery i.e. the enclosed
gallery behind House No. D-5, Sector-31, NOIDA, also
confessed to the killing of other missing women/children, in a
similar fashion, and fourteen more skulls were recovered on his
pointing out from the same enclosed gallery where digging had
already started. A recovery memo (Exhibit Ka-16), to such
effect, was drawn on the dictation of Dinesh Yadav (PW-40) to
Sub-Inspector Chhote Singh (PW-28) which is duly exhibited
during trial and is on record.

5. Ex.Ka.16 records that while the skull has been concealed

beneath the surface in the enclosed area behind House No. D-
5, Sector-31, NOIDA, the other body parts of L was discharged
in the drain flowing in front of the house. Accused SK also
 8

confessed to have hidden the knife used in the offence and

offered to get it recovered. A mud stained knife was later
recovered on the pointing out of SK from below a water tank
kept on the roof of House No. D-5, Sector-31, Noida
(Ex.Ka.17). A yellow Kurti, white Salwaar and a pair of slippers
was also recovered from a yellow plastic (Ex.Ka.50). During the
course of cleaning of drain in front of the House No. D-5,
Sector-31, NOIDA, recoveries were also made of bones,
bangles, slippers, etc., vide (Ex.Ka.18). On 5.1.2007 also
certain recoveries were made of suspected stains, kitchen
knife, Aari (iron blade), etc. The accused SK was also taken to
Gandhi Nagar in Gujarat for conduct of various scientific tests
(polygraph test, narco analysis test, brain mapping etc.) and
the reports obtained from these tests have also been relied
upon to implicate the accused SK.

6. For better appreciation of prosecution case, we consider it

expedient, at the outset, to refer to the site plan, prepared by
the Investigating Officer and exhibited as Paper No. Ka-74.
Rough layout plan of ground floor of House No. D-5 as well as
of the first floor has also been prepared in RC
2(S)/07-SCB/DLI. House No. D-5 situates on the main road
and sewer drainage passes between the road and the boundary
of House No. D-5. On one side of House No. D-5 is House No.
D-4 whereas on the other side is House no. D-6. House number
D-6 incidentally belongs to a doctor who apparently was a
suspect in a case of organ trade (kidney transplant). Behind
House No.D-4, D-5 and D-6 there is a service lane, which is
blocked by boundary from all sides. On the one side of it is the
boundary of house number D-5 and D-6 while on the other side
of this service lane, behind House No. D-5, D-6 is the 5 ft. high
boundary wall of U.P. Jal Nigam. Height of boundary is admitted
 9

to be about 25 ft. behind house number D-5. It is from this

enclosed gallery that biological remains (skulls, bones and
skeleton etc.) have been recovered.

7. Main gate of House No. D-5 is on the left of the plot and
has an open drive way leading to the servant room at the end.
This drive way is used for parking of car, etc. There exists a
drawing room, three bed rooms, dinning room, toilets, etc. on
the ground floor. There is also a kitchen and store adjoining the
drawing room. There is a open courtyard behind the
constructed portion on the ground floor which has a spiral iron
staircase for the servant room on the first floor attached to a
toilet. There is, however, no space for courtyard behind the
servant room. The attached bathroom on the first floor has a
window which opens in the enclosed service lane.

8. Page 914 of the paper book contains the site plan

(Ex.Ka.74), which is proved by PW-40. Place ‘A’ is shown in the
site plan, which situates in the enclosed gallery behind House
No. D-6 from where bones have been recovered. A-1 and B are
the other spots in the enclosed gallery behind House No. D-5
from where bones and clothes have been recovered. Point A-1
and B shown in the enclosed gallery behind House No. D-5
however, are abutting House no. D-6, from where most of the
recovery of bones/skeleton are made. No recovery of skeleton
or bones etc. are shown from enclosed gallery behind the
servant room or the toilet in the servant room. The width of the
enclosed gallery/service lane is specified as 3½ ft. The
enclosed gallery from which recoveries are made are outside
the boundary of House No. D-5 and D-6 as is clearly admitted
to the investigating officer (PW-40) in his testimony. The area
from which recovery has been made is shown as service lane
and according to PW-40 this land belongs to Noida and not to
 10

Pandher, who owned House No. D-5.

9. All the recoveries are either made from the enclosed

service lane which is shown in the map as no man’s land or
from the sewer drainage situated beyond the boundary of
House no. D-5 and D-6. None of the recovery of skull,
bones/skeleton is made from within the House No. D-5. The
only recovery from within the House No. D-5, Sector 31, Noida
is that of two knives and an axe, which admittedly are not used
for committing the offence of rape, murder etc. but are alleged
to have been used for cutting the body parts after the victims
were strangulated to death.

10. Seven member team from Forensic Science Laboratory,

Agra inspected House No. D-5, Sector-31, Noida for blood
stains, human remains etc. but except for a blood spot of
unknown origin in the bathroom sink and pipe, no other
biological or forensic material was found from the house. The
enclosed gallery behind House No. D-5 and D-6, Sector-31,
Noida was photographed and preliminary examination of blood
stains was conducted and maps of rooms etc of House No. D-5,
Sector-31, Noida was prepared. Various items were seized from
the house including portions of a pink mattress, a yellow bed-
sheet and sofa mattress. A semen stain of unknown origin was
found on sofa mattress which has not matched with the
accused SK. The enclosed gallery was also dug up and bones,
clothes and soil etc were seized.

11. Considering the gruesome killings of helpless women and

children of Nithari and the gravity of offence the ongoing
investigation in the case was transferred to Central Bureau of
Investigation on 09.01.2007. The C.B.I. took over the ongoing
investigation of Nithari cases on 11.01.2007. FIRs previously
 11

lodged were re-registered by the CBI and the custody of

accused SK was extended from time to time by the concerned
magistrate. Accused SK also made disclosure on 13.1.07 at
CBI office regarding the spot of killing and disposal of
bodies and recoveries of chappals etc from the enclosed
gallery behind House No. D-5, and D-6, Sector-31, Noida
and the Jal Board residential quarters.

12. The C.B.I. ultimately produced SK on 28.02.2007 for

recording his confession before the court of ACMM, Patiala
House Courts at New Delhi. On the directions of learned ACMM
the confession was recorded by the Metropolitan Magistrate,
Delhi on 1.3.2007, under Section 164 Cr.P.C. Accused SK
confessed to have raped and killed the victims and also
disclosed the manner in which he disposed of the victim’s
bodies. C.B.I. also conducted various scientific tests on the
accused SK and based upon the confession, recovery of
incriminating material under Section 27 of the Indian Evidence
Act, 1872 (hereinafter referred to as ‘the Act of 1872’) and the
scientific tests conducted in the case ultimately submitted
charge-sheets in all 16 cases before the concerned Magistrate.

13. As per the prosecution, Moninder Singh Pandher lived in

House No. D-5, Sector 31, NOIDA and would often call sex
workers and cavorted with them. Watching Pandher cavorting
with sex workers triggered an automaton state for the accused
SK, who enticed the victims on one pretext or the other;
immobilized them; attempted or raped the victim and then
killed them by strangulation. He then took their dead bodies to
the servant’s bathroom on the upper-floor of the house No. D-
5, Sector-31, Noida and cut the body parts of the dead victims
and eat some part of torso, and throw the skull and clothes,
 12

etc., partly in the enclosed space/gallery behind House No. D-5

and discharged rest of the body parts in the drain flowing in
front of the house.

14. Trials were conducted in 16 cases of Nithari killings. The

accused appellants were acquitted in three cases of victims
Pushpa, Harsh and Max by the Court of Sessions, while in
respect of remaining 13 cases the accused SK has been
sentenced to death. In one of these cases of victim 'XYZ' the
death sentence has been affirmed by this Court in Criminal
(Capital) Appeal No. 1475 of 2009, corresponding to Reference
No. 3 of 2009, by a co-ordinate bench of this Court on 11 th
September, 2009. The judgment of this Court in 'XYZ'’s case
has been affirmed by the Supreme Court in Criminal Appeal No.
(s). 2227 of 2010, decided on 15.2.2011, with summary
dismissal of appeal.

15. Separate and distinct trials have been held by the court of
Sessions in 12 remaining cases and the accused SK has been
sentenced to death by the Court of Sessions in all 12 cases. In
two, out of these 12 cases i.e. cases of victim A and C the
other accused namely Pandher has also been sentenced to
death by the trial court. In remaining 10 cases co-accused
Pandher has been acquitted, except in Sessions Trial No. 439 of
2007, wherein Moninder Singh Pandher has been convicted
under Section 3 and 5 of Immoral Trafficking (Prevention) Act,
1956 by the trial court. Thus aggrieved, 12 appeals have been
preferred by accused SK against his conviction and death
sentence while co-accused Pandher has filed two appeals
against his conviction and death sentence. The present appeal
relates to victim A.
 13

16. According to the prosecution case, the first informant in

the present case namely, Jatin Sarkar S/o Bhanu Sarkar R/o
Village Nithari made a written report stating that his daughter
A, aged 20 years, is married and has a son of one and a half
years who was with the informant. On 5.10.2006, Aleft the
house for work but did not return. Efforts were made to search
her, but she could not be traced. On 29.12.2006, the first
informant came to know that behind House No. D-5, Sector 31,
Noida, skull, bones and skeleton of missing women and
children as well as their clothes have been found. It is then that
he came alongwith his wife Vandana Sarkar and could identify
the Salwar Suit and Slippers of his missing daughter A. It
became apparent that owner of house No. D-5, Sector-31,
Noida i.e., Moninder S/o Sampooran Singh and his servant
Surender @ Satish Koli had called his daughter to the house
and after sexually assaulting her has hidden her body beneath
the soil behind his house. Since no previous information was
given to police, as such, a request was made to register a case
and take legal action. On the basis of such report, Case Crime
No. 1025 of 2006 was registered at Police Station – Sector 20,
Noida, under Sections 364, 376, 302, 201, 120B IPC at 3.25
am on 30.12.2006. The distance of police station was about 2.5
km. Later, investigation of the case was transferred to C.B.I.
and the FIR was re-registered as RC No. 2(S)/2007 against the
accused SK and Moninder Singh Pandher. However, only
accused SK has been charge-sheeted under Sections 302, 364,
376 r/w 511 and 201 IPC. Co-accused Moninder Singh Pandher
was later summoned under Section 319 Cr.P.C. and has also
been convicted and sentenced to death.

17. The prosecution version is essentially based upon detailed

 14

confession made by accused SK, as well as alleged recovery of

body parts etc., on his pointing out, immediately after his
arrest on 29th December, 2006 and on subsequent dates. The
recovery and confession both have been relied upon by the
courts below to send the accused to the gallows. Similarly,
complicity of co-accused Moninder Singh Pandher has also been
found in two out of 12 cases in eliminating the deceased.

18. It is in the above background that we are called upon to

examine the evidence on record of this case to determine the
question as to whether the prosecuting agency i.e. CBI herein,
has been able to establish the guilt of the accused appellants
beyond reasonable doubt and whether this case falls in the
category of rarest of rare case thereby meriting extreme
punishment of hanging for the accused.

19. Charges have been framed against the accused SK under

Sections 364, 376 r/w 511 IPC, 302 and 201 IPC by the
concerned court on 4.6.2007. The charges have been explained
to the accused SK, who has denied the accusations made
against him and has demanded trial.

20. Prosecution has relied upon following documentary

evidence in support of its case:-
15
16
17
18
19
20
21
22
 23

21. Oral evidence in the form of testimony of prosecution

witnesses are adduced by the prosecution in support of its
case. Description of prosecution witnesses, as also the
substance of their testimony, are extracted hereinafter:-

PW.No. Name Role

1 Anita Haldar Purnima's mother. Testified that when her
daughter, Purnima asked Koli for flowers from
the garden of D5 he had told her to come in
and take them.
2 Ashwini Kumar Singh Panch to Koli's disclosure on 13.1.07 at CBI
office regarding spot of killing and disposal of
bodies and recoveries of chappals etc from the
open space between D5, D6 and Jal Board
residential quarters. Co-panch Manoj Nonia.
3 Satish Chandra Panch to seizure of sofa, cushion, etc from D-
Mishra 5 and bones and biological material from the
open space between D5, D6 and Jal Board
residential quarters, and the drain on the main
road facing bungalow numbers D1-D6 on
12.1.07 and 13.1.07. Panchnama dt 13.1.07.
4 Mukesh Kumar JCB operator who cleaned the drain on the
main road facing bungalow numbers D1-D6
and took out debris on 15.1.07 and 16.1.07.
5 Dr. D.K. Sharma AIIMS Doctor. Proved Psychological
Assessment report of Koli dt. 24.7.07.
6 Dr. Mamta Sood Asst. Prof, AIIMS. Proved the Forensic
Psychiatric Assessment Report of Koli and
affirmed that he was fit to stand trial.
7 Dr. Manish Kummath ESL AIIMS. Witnessed seizure of samples of
sofa, cushion, etc from D-5, and bones and
biological material from the open space
between D5, D6 and Jal Board residential
quarters, and from the drain on the main road
facing bungalow numbers D1-D6 on 12.1.07,
13.1.07, 15.1.07 and 16.1.07. Proved AIIMS
forensic reports dated 15.03.2007,
16.03.2007 and 17.03.2007.
8 Virendra Singh Panch to S.27 recovery of axe on 18.01.2007
Dagar at Koli's instance.
9 Sanjeev Lalwani Assistant Professor, AIIMS. Received letter dt
3.2.07 from CBI to videograph Koli's
demonstration of how he cut the bodies.
Proved report dt. 23.8.07 regarding analysis
of knives and axe recovered at Koli's instance.
 24

10 Pappu Lal Father of F[victim in CC 7426/10]. Panch to S.

27 seizures of skulls and bones on 29.12.06,
31.12.06 from the open space between D5,
D6 and Jal Board residential quarters, and
from the drain on the main road facing
bungalow numbers D1-D6.
11 Chandrashekhar Metropolitan Magistrate, Patiala House, New
Delhi. Recorded Koli's confession dt. 1.3.08.
12 Nandineni CDFD Hyderabad did DNA tests and matched
Madhusudan Reddy profiles of bones with relatives of victim.

13 Kanika Haldar Employer of victim, who saw her last on

5.10.2006 and identified her clothes.

14 PC Gangadhar Recorded FIR on 30.12.06.

Sharma
15 Dr. S.L. Vaya Addl. Director, FSL, Gandhinagar conducted
Narco- Analysis, Polygraph, Brain Oscillation
tests and prepared a Forensic Report of Koli.
16 Gaurav Verma Addl. City Magistrate, Lucknow proved AIIMS
Identification forms of the parents of victim
from whom blood samples were taken for DNA
profiling.
17 Durga Prasad Father of Arti (victim in CC 4196/2010). Panch
to S. 27 recovery of knife on 11.1.07 at Koli's
instance.

18 Sapna Mishra SJM, CBI, Ghaziabad before whom clothes

were identified by family members on 7.4.07.
19 Dr. A.K. Mittal FSL Agra. Examined D5 from 4.1.07 to 6.1.07,
seized various household articles from D5 and
bones from D6. Issued Report on FSL articles
seized and handed over articles to CBI.
20 Manoj Kumar Saw a human hand in the open space between
D5, D6 and Jal Board residential quarters in
March 2005 while playing cricket.
21 Surendra Singh Informed Noida Police of the human hand in
the open space between D5, D6 and Jal Board
residential quarters in March 2005.
22 Dr. Rajendra Pradhan CFSL, Delhi. Went to spot on 12.1.07,
Singh 13.1.07, 15.1.07, 16.1.07 and witnessed
seizure of bones, clothes, etc from the open
space between D5, D6 and Jal Board
residential quarters, and from the drain on the
main road facing bungalow numbers D1-D6.
On 18.1.07 witness to s27 recovery of axe
from bushes at the instance of Koli. Examined
knives and axe recovered u/s 27 and filed
reports dt 15.3.07 and 23.08.07.
23 Ramesh Haldar Witnessed identification of victim's clothes by
her parents on 29.12.2006.
 25

24 Pratima Haldar Domestic Worker. Testified that Koli had called

her inside D-5 to do domestic work but she
refused.
25 Purnima Haldar Testified that when she asked Koli for flowers
from the garden of D5 he had told her to
come in and take them.
26 Ajay Singh Inspector, CBI. Received seized property from
FSL, Agra and deposited it with the CBI.
27 Sahastra Pal Singh SI, witness to seizures from drain on the main
road facing bungalow numbers D1-D6 on
31.12.06.
28 Chote Singh SI (SSP Ghaziabad), witness to Koli's arrest
and to recovery and seizure of human skull,
clothes etc from the open space between D5,
D6 and Jal Board residential quarters on
29.12.06.
29 Jagat Singh Bisht SI, CBI. Proved CBI Malkhana register.

30 Dr.A.K. Chaddha Part of expert Committee which visited the

spot on 12.1.07 and 13.1.07 and proved the
Forensic Reports submitted to the CBI.
31 Vandana Sarkar Mother of victim, identified the clothes of the
victim and deposed that Koli and Pandher
confessed to the crime before IO, Dinesh
Yadav, on 29.12.06, which he recorded in the
Case Diary.
32 Shiv Kumar Tyagi Clerk at District Supply Office. Presented
papers relating to Koli's ration card.

33 Subhash Kashyap PCO Owner who sold SIM cards to Koli.

34 Daulat Ram Assisted Koli with his ration card application.

35 Ram Kishan Atri, SI Delivered sealed articles to CFSL Chandigarh
(Ex. Ka. 64).
36 Layak Ram SI. Proved seizure of photos of deceased from
her family on 1.03.2007.
37 R.P. Sharma ASI, CBI, Delhi. Witness to disclosure
statement dt. 11.1.07 re manner of killing by
Koli.
38 Dr. B.K. Mahapatra Senior Scientific Officer, CFSL. Proved the
forwarding letters and forensic reports.
39 Dr. Chitranjan Asst. Professor, Forensic Medicine, MAMC.
Behera Proved the AIIMS forensic report regarding
examination of seized bones and skulls.
40 Dinesh Yadav Deputy S.P and IO, Sector 24 PS. Arrested the
accused, supervised recovery done on 29 and
30.12.2005. Took the Appellant to
Gandhinagar for Narco-test.
41 M.S. Pharthyal Inspector, CBI. Proved Accused's application
 26

for confession, IO's forwarding letter dated

28.2.07, application for copy of CD and
transcript and orders of Court regarding
recording of confession.
42 Ramesh Prasad Worked in D-6 and mentioned a faint smell
Sharma that would sometimes come from the open
space between D5, D6 and Jal Board
residential quarters.
43 Nirbhay Kumar SP, CBI. IO.
44 Rajvir Singh Proved GD entries of Sector 20 Noida Police
Station, Gautambudh Nagar for 29.12.06,
31.12.06, 6.1.07, 11.1.07 and 12.1.07.
45 Surendra Pal Singh, Prepared S. 27 memorandum and seizure
SI panchnama of knife dt. 11.1.07 at Koli's
instance.
46 A.K. Kaul IO, CBI.
DW 1 Pan Singh Driver
DW 2 Mohd. Ishrat Project Engineer, Noida
DW 3 R.K. Singh Nodal Officer Airtel Limited, New Delhi

22. Incriminating material adduced during trial by the

prosecution has been confronted to the accused appellant SK,
for recording his statement under Section 313 Cr.P.C. In reply
to Question No. 6 regarding his arrest the accused SK has
stated that on 27.12.2006 co-accused Pandher alongwith his
driver Pan Singh (DW-1) had brought him from his native
village in Uttaranchal and left him at the police station, Sector-
20, Noida. On 28.12.2006, he was taken out of the police
station and was not brought back. Accused has denied his
implication in the case/offence and has claimed that he was
tortured and that his nails were extracted, his genitals were
burnt and petrol was put in his anus. He offered to get himself
medically examined to prove his allegations. The accused SK
also claimed that he was extended other tortures and the
C.B.I. got his statement recorded on the threat that his
children are in the CBI custody. Fearing for life of his children
 27

the accused claims to have made confession to the magistrate.

Accused has also stated that police and CBI got his signatures
on blank pages and that no recovery was made from him or on
his pointing out. He has emphatically claimed that he has been
falsely implicated. Similarly, accused Pandher has stated that
he has been falsely implicated and neither he has committed
any offence, as alleged, nor any recovery has been made on
his pointing out.

23. Statements were recorded later also of accused wherein he

denied his arrest on 29.12.2006 and instead reiterated that on the
asking of police he had come to police station on 27.12.2006 and
was dropped at the police station by Pandher in his car. Accused SK
has denied having made any statement about beheading L and that
his signatures were obtained on blank pages. Accused SK has also
denied that he was taken to House No. D-5. He has also denied that
any recovery was made on his pointing out. He has also denied the
prosecution case with regard to his alleged disclosure made
facilitating the recovery of knife etc. He has also denied having made
any disclosure statement. Accused SK has also stated that he was
never taken to House No. D-5, nor the knife was recovered on his
pointing out. In reply to Question No. 62 the accused has stated that
he has been falsely implicated in order to protect doctor Navin
Chowdhary, owner of House No. D-6, Sector-31, Noida and that the
recovery has been falsely planted on him.

24. The defence has also adduced its evidence of Pan Singh
as DW-1, who happened to be the driver of Moninder Singh
Pandher. In his examination-in-chief, he has stated that
alongwith Pandher Saheb, he had brought SK to Sector 20
Police Station and handed him over to the police whereafter he
has not heard anything about him. He has also stated that
after he left SK outside the police station he does not know
 28

where accused SK had gone. The defence has also produced

Mohd. Ishrat (DW-2), Project Engineer, Noida, who has
produced registers to show that drain in front of House No. D-
5, Sector 31 was last cleaned between 20.12.2006 to
23.12.2006 and that previously also, drains were cleaned after
15 to 30 days. He has produced Paper no. 272-Kha, which has
been exhibited as Kha-1, as per which, the drain was cleaned
between 20.12.2006 to 23.12.2006. In his cross-examination
DW-2 has stated that the portion of drain in front of House No.
D-5 to D-6 is covered and that cleaning of drain by his
department is done on open drain and not on the covered
drain. He also stated that the drain was cleaned by Safai
Mazdoor with the aid of JCB Machines.

25. Defence has also produced R.K. Singh (DW-3), Nodal

Officer Airtel Limited, New Delhi. He has produced call records
of Phone No. 9810098644 of 28.12.2006 and 29.12.2006. The
mobile was in the name of Moninder Singh Pandher. He has
certified that on 29.12.2006 at 11:58:34 an sms was sent from
registered mobile no. 9350782306. He has proved the call
records which has been exhibited as Kha-2. He has admitted in
the cross-examination that mobile could be used by a person
other than the registered owner.

26. In order to appreciate the facts of the cases it would be

worthwhile to notice the chronology of events leading to the
award of death reference in this case. The chronology placed in
a chart during argument by the counsel for the appellants, on
which there is no serious objection, is reproduced hereinafter:-
 29

1 2004-05 There were repeated complaints of children going missing

from Nithari village but no action was taken.
2 Feb 04 Accused Pandher purchased bungalow D5, Sector 31, Noida.
He was living there with his wife, Devender Kaur (not
examined). Pandher employed a driver Pan Singh (not
examined by the Prosecution), driver Satpal (not
examined). a gardener (not examined), maid servant Maya
Sarkar (not examined) and another servant, Keshav (not
examined).
3 July 04 Koli employed as Pandher's servant in D5.
4 30.01.05 Pandher goes to Australia. He returns from Australia only on
14.2.05.
5 8.02.05 Disappearance of 'XYZ' (CC 1475/09).
6 March 05 Boys playing cricket notice a human hand in the open space
between bungalows, DS and D6 and the Jal Board
residential quarters. Elders in the locality call the police.
Police comes to the spot and says there is nothing to worry.
The police cover the hand with mud so that it is concealed.
7 15.3.05 J (CC 2/19) goes missing.
8 16.3.05 J's mother (CC 2/19) registers a missing
complaint in Sector 20 Noida Police Station.
9 5.4.05 J's father (CC 2/19) registers an FIR No 66/05 in
Sector 24 Noida Police Station.
10 4.06.05 Pandher leaves for Bombay on 4.6.05 and returns on
7.6.05.
11 4.06.05 H. (CC 147/13) goes missing.
12 07.06.05 H's father, Mukesh (CC 147/2013) registers a missing
complaint in the Sector 20 Noida Police Station.
13 21.6.05 K (CC 4/19) goes missing.
14 23.6.05 K's father Jhabbu Lal registers FIR No 448/05 u/s 363, 366
(CC 4/19) in Sector 20 Noida Police Station.
15 8.4.06 Pandher leaves for Chandigarh and returns on 13.4.06.
16 10.04.06 F(CC 7426/10) goes missing.
17 11.04.06 Missing persons report filed for F(CC 7426/10).
18 5.5.06 Pandher leaves for Chandigarh and returns on 8.5.06.
19 07.05.06 L. goes missing (case pending in the Trial Court).
20 May 06 L's father, Nand Lal, goes to Sector 26 Noida Police Chowki.
SI KP Singh sends policemen to D5 and brings Koli for
questioning. Koli is subsequently released.
21 June 06 SSP Noida, at the instance of L's father, Nand Lal, directs SI
Gajendra Singh to investigate into L's disappearance. SI
Gajendra Singh calls and interrogates Koli, Pandher and
others, and then releases them.
22 18.07.06 Pandher is in Punjab till the evening of 18.7.06.
23 18.07.06 G (CC 835/11) goes missing.
 30

24 29.06.06 On the complaint of Nand Lal, SSP directs SI Deepak

Chaturvedi, SHO, Sector 20 Noida Police Station, who
registers a missing report for L.
25 19.07.06 Missing person report is filed for G (CC 835/10).
26 22.07.06 Pandher is in Punjab from 22.07.06 to 30.07.06.
27 24.07.06 E goes missing (CC 2926/17). Her uncle files a missing
person report at Sector 20 Noida Police station.
28 24.08.06 L's father, Nand Lal, files a complaint u/s 156(3) CrPC before
CJM, Gautambudh Nagar.
29 25.9.06 Pandher is in his office in Sector 2, NOIDA from 11 am to
6:05 pm after which he goes to Faridabad.
30 25.9.06 I (CC 4196/10)) goes missing.
31 26.09.06 Missing person report is filed for I (CC 4196/10) by her
father.
32 27.09.06 CJM Gautambudh Nagar orders registration of an FIR on
Nand Lal's complaint.
33 05.10.06 Pandher goes to his office at 10 am. Thereafter, he leaves
for Dehradun at 1 pm and returns on 14.10.06.
34 05.10.06 A (CC 5183/17) goes missing.
35 07.10.06 On orders of CJM, Gautambudh Nagar, FIR 838/2006 is
registered u/s. 363 and 366 IPC against Koli and Pandher in
connection with the disappearance of L. Investigation is
entrusted to SI Simranjeet Kaur. Pandher is in Uttaranchal
from 8.10.06 to 14.10.06.
36 8.10.06 Pandher is in Uttaranchal from 8.10.06 to 14.10.06.
37 12.10.06 C (CC 196/18) goes missing.
38 31.10.06 Pandher leaves for his office in the morning. From there he
leaves for Chandigarh and returns on 1.11.07.
39 31.10.06 D (CC 2667/17) goes missing.
40 12.11.06 B(CC 3/21) goes missing.
41 27.11.06 Dy. SP Dinesh Yadav Noida starts investigation.
42 Nov 06 A hand is found during the cleaning of the drain on the main
road in front of the row of bungalows D1 - D6.
43 03.12.06 Both the accused are taken for questioning by the Noida
police.
44 20.12.06 The drain on the main road in front of the row of bungalows
to DI-D6 is cleaned by the Municipality.
23.12.06
45 25.12.06 Koli goes to his native place on leave.
46 29.12.06 Koli is arrested in connection with FIR No. 838/2006 u/s
8 to 8:15 363, 366 IPC concerning the disappearance of L. Koli has
am disputed this date and led evidence to show that he was
arrested two days earlier i.e. on 27.12.06.
47 29.12.06 Shortly after his arrest, Koli allegedly makes a confession
which includes a disclosure statement about the killing of L
and the location of her dead body. No fard is prepared
regarding the making of this disclosure statement or the
 31

words used. This confessional statement does not mention

any rape, nor does it mention any other victims.
48 29.12.06 Pandher is arrested outside D5. When the police and
11:00 am panchas arrive with Koli at D5 they find that digging had
already begun in the open space between D5, D6 and the
Jal Board residential quarters, and hat a huge crowd,
including civilian and media personnel, has collected there.
The Panch to the recovery, Pappu Lal (who is father of the
victim, Fin CC 7426/10), states that when he was called by
the police for this event, he was told that that clothes etc. of
the deceased have been recovered and he was required to
identify the same.
49 29.12.06 15 skulls, bones, slippers, clothes are seized from the open
space between D5, D6 and the Jal Board residential
quarters; a knife is seized from below the water tank on the
terrace of DS. The clothes seized include a semen stained
skirt belonging to I (CC 4196/10) and a semen stained
underwear, which on subsequent DNA analysis, do not
match the semen found on Koli's blanket.

Vandana Sarkar, the mother of victim A (CC 5183/2017)

states that when she reached the spot for identification of
clothes, she saw that Koli was giving a confessional
statement that the IO, Dinesh Yadav was recording and a
copy thereof was given to her husband Jatin Sarkar by the
IO, Dinesh Yadav. Vandana Sarkar was later threatened by
the CBI against producing the copy of the Case Diary before
the Sessions Court. As per this confession, Koli allegedly
would bring girls for Pandher, and after Pandher had raped
them he would tell Koli to do as he pleased with them and
dispose of them. Koli would then kill them, sever their
heads, and dispose of the bodies.
50 29.12.06 The seized biological material (skulls, bones) are sent for
post mortem, but no post-mortem examination report is
produced before the trial court though the reports were
received by the Police on 4.1.07 and handed over to CBI on
12.1.07.
Victims' relatives identify some of the clothes.
51 29.12.06 Both the accused are sent back to the Police Station.
8:15 pm

Both the accused are taken out of the Police Station for the

purpose of production in court.

Both the accused are produced before the learned JMFC for
the first time for remand. The IO has admitted that the
accused were produced before the Magistrate about 30
hours after arrest. As per the Remand Application filed by
10, Pandher and Koli jointly pointed out the place from
where 15 skulls were recovered, and the rest of the bodies
were still to be found. The learned JMFC's Remand order
notes that the joint disclosure of both the accused led to the
 32

recovery of skulls

and police custody was granted for them for two days

starting on 31.12.06.
52 30.12.06 Following FIRs are registered by Sector 20 Noida Police
3.25 am Station against Pandher and Koli u/s 363, 366, 376, 302,
201:
Victim
FIR No 1025/06 A
FIR No 1029/06 C
FIR No 1028/06 D
FIR No 1033/06 E
FIR No 1021/06 F
FIR No 1022/06 G
FIR No. 1032/06 H
FIR No 1024/06 I
FIR No. 1026/06 B
53 30.12.06 Both the accused are taken out of the Police Station for the
6:30 am purpose of production in court.
54 30.12.06 Both the accused are produced before the Ld Magistrate for
3:30 pm the first time for remand. The IO has admitted that the
accused were produced before the Magistrate about 30
hours after arrest. As per the Remand Application filed by
1O, Pandher and Koli jointly pointed out the place from
where 15 skulls were recovered, and the rest of the bodies
were still to be found. The learned JMFC's Remand order
notes that the joint disclosure of both the accused led to the
recovery of skulls and police custody was granted for them
for two days starting on 31.12.06.
55 30.12.06 Sector 20 Noida PS receive 16 post mortem reports but
19.10 these are never produced during any of the trial. C.B.I. has
hours filed these post-mortem reports on an affidavit before this
Court.
56 31.12.05 Both the accused are taken into police custody. However, no
interrogation or questioning is done on this day.
57 31.12.06 Hair, human bones, bangles, slippers and clothes are seized
from the drain on the main road facing bungalows D2 – D6.
The accused are not present for this seizure.
58 01.01.07 Permission is granted by the Ld CJM, Gautambudh Nagar on
an application to take both the accused for narco analysis to
Gujarat. As soon as police custody is obtained after the very
first remand, the Accused are sent for Narcoanalysis.
59 04.01.07- The 7 member team from FSL, Agra forensically inspects D5
06.01.07 for blood stains, human remains, etc but all that is found is
a blood spot of unknown origin in the bathroom sink and
pipe.
60 04.01.07 The open space between D5, D6 and Jal Board residential
quarters was photographed, Benjamin Test (preliminary
examination of blood stains) was conducted in D5 and maps
of various rooms of D5 were prepared.
61 05.01.07 The FSL, Agra team seizes 25 objects (including a kitchen
 33

knife from room no. 7) for forensic examination from D5 in

the presence of witness, Jhabbu Lal, father of victim K, but
nothing incriminating is found.
Seizure of portions of a pink mattress, a yellow bed-sheet
and sofa mattresses. A map of the house was prepared. [A
Semen stains of unknown origin are found on the sofa
mattress which do not match the semen stains found on
Koli's quilt seized subsequently.
Pieces of bones and bone ash seized from the furnace in the
backyard of D5 were not found to be human bones.
62 05.01.07- Brain mapping, narco analysis, lie detection, psychiatric
10.01.07 assessment and polygraph tests are conducted on both the
accused in Gandhinagar. As the UP Police had custody of Koli
only up till 5 pm on 10.1.07, SSP Gautambudhnagar
requests the learned CJM, Gautambudhnagar, for an
extension of remand till 12.1.07. CJM grants the same even
though the accused was not physically produced before the
Magistrate in terms of sec. 167(2)(b) Cr.P.C. which
mandates that if accused is in police custody he must be
physically produced before the Magistrate for remand.
63 06.01.07 The open space between D5-D6 and facing Jal Board
residential quarters is dug up and bones, clothes and soil
were seized and a map of the spot prepared.
64 09.01.07 UP government notifies the transfer of all the cases
pertaining to Nithari disappearances to the CBI under Sec. 6
of the Delhi Special Police Establishment Act (DSPEA).
65 10.01.07 The Central government issues a notification under Sec. 5 of
the DSPEA transferring the Nithari group of cases to the
CBI.
66 11.01.07 Both the accused are brought back to Noida from
10-11:00 Gandhinagar. A knife is recovered by the Noida police from
am the open space between D5, D6 and Jal Board residential
quarters pursuant to a sec. 27 confessional statement by
Koli where he states, inter alia, that he would cut off the
flesh from the bodies with a knive
67 11.01.07 Information is received by Noida police about the presence
11:35 am of a human hand in the drain on the main road facing
bungalows D2 to D6.
68 11.01.07 Following FIRS are re-registered by the CBI. The accused
are taken into CBI custody.
Victim
RC No. 2(S)/07/SCB/DLI A
RC No. 3(S)/07/SCB/DLI B
RC No. 6(S)/07/SCB/DLI C
RC No. 5(S)/07/SCB/DLI D
RC No. 9(S)/07/SCB/DLI E
RC No. 7(S)/07/SCB/DLI F
RC No. 8(S)/07/SCB/DLI G
RC No. 14(S)/07/SCB/DLI H
RC No. 10(S)/07/SCB/DLI I
RC No. 11(S)/07/SCB/DLI J
RC No. 16(S)/07/SCB/DLI K
 34

69 11.01.07 Accused SK allegedly makes a confessional statement to the

CBI stating that he strangulated his victims, and raped the
corpses of his victims.
70 11.01.07 The remand application submitted by CBI dt. 11.01.07 in RC
2/S/07.CBI.SCB I (FIR regarding victim, A) states that Koli
and Pandher had jointly admitted to kidnapping, raping and
murdering A. This stand of prosecution while seeking
remand is contrary to the prosecution version to implicate
only accused SK.
71 12.01.07 Items sent to FSL, Agra, are deposited in the CBI
Maalkhana.
72 12.01.07 A joint team of the CBI, CFSL and AIIMS comprising BK
Mahapatra, Dr. Rajendra Singh and others search D5 and
seize items from the house including a quilt from Koli's
room, samples of cushion and mattress covers from the
lobby etc.). DNA profiling of the semen found on the quilt
does not match the semen found on the mattress cover,
salwar, I's skirt and underwear recovered from the drain and
empty space behind D5-D6 between 29.12.06-31.12.06.
The wall behind D5 was broken, the open space between
D5, D6 and the Jal Board residential quarters was dug up
and bones, pieces of bangles, clothes soiled in mud were
seized.
73 13.01.07 The abovementioned CBI, AIIMS and CFSL team digs up the
open land between D5, D6 and Jal Board compound and
seize pieces of bones, clothes, slippers, locks of hair,
polythene pouch containing tissues and bones, plastic rope
and pieces of bangles. The drain on the main road was
dredged and additional clothes, shoes, slippers tissues.
muscles and bones were seized. Pursuant to this the search
of the open land behind D5, D6 is concluded.
74 13.01.07 Accused SK allegedly makes a confessional statement
stating that he would rape or attempt to rape his victims
while they were alive and after he would kill them. He shows
the places where he committed the crime as well as
disposed off the bodies.
75 15.01.07 Dredging of the drain on the main road in front of the
bungalows D1-D6 is done by the CBI, in the presence of
DSP, AGL Kaul and AIIMS-CFSL team. Additional human
remains were seized from the drain.
76 15.01.07 All items and documents of the case were transferred from
Sector 20, Police Station to the CBI.
77 16.01.07 More biological material was seized from the drain on main
road facing row of houses D1-D6 in the presence of DSP,
AGL Kaul.

Case property seized thus far was taken to AIIMS for FSL
examination. Pursuant to this date no further search of the
drains was done.
78 18.01.07 An axe is seized from the front lawn of D5 pursuant to a s.
27 confessional statement by accused SK where he says
that he would use an axe to cut the bodies. SI, Rajender
 35

Singh states that the lawn had been dug up prior to

04.01.07. No blood stains are found on the axe.
79 19.01.07 Other case properties transferred to the CBI.
80 20.01.07 Remaining case properties transferred to the CBI.
81 20.01.07 Preliminary report of FSL, Agra team regarding the
recovered items between 04.01.2007-06.01.2007 is sent to
the Senior Police Superintendent, Gautambudh Nagar.
82 21.01.07 Case properties are taken to FSL, Hyderabad.
83 22.01.07 Report of the narco analysis and brain mapping tests etc.
sent to CJM, Gautambudh Nagar.
84 24.01.07 SP, SJM Gilani requests Director, CFSL, Delhi to analyse the
materials recovered till then.
85 25.01.07 IO, MS Phartyal claims that accused SK was badly beaten up
by advocates and the public upon being produced in the MM
Court, Ghaziabad. No medical report regarding the same js
produced nor is the magistrate before whom he is produced
informed of the assault. Further, the CBI continue to
produce accused SK before the same Court for subsequent
remands.
86 29.01.07 Case properties taken to CFSL, Delhi.
87 01.02.07 CFSL, Delhi receives a letter from SP, CBI, along with 1
unsealed and 55 sealed parcels for analysis.
88 02.02.07 Additional City Magistrate, Lucknow is informed that blood
samples of parents of victims needed to be collected in his
presence.
89 03.02.07 The blood samples of victims' parents are collected at AIIMS
for DNA.
90 04.02.07 Accused SK is brought by the CBI to AIIMS where he is
shown the seized human remains and other articles. He
identifies hair and a hair clip. He also demonstrates how he
would cut the bodies. In his Sec. 313 statement, accused SK
states that the cadaver shown to him already had black
markings which he was asked to trace with a chalk.
91 08.02.07 An application is made by the CBI to the learned CBI
Magistrate, Ghaziabad for remanding both the accused to
police custody for a further 14 days. The order dt. 08.02.07
is passed by the learned CBI Magistrate stating that remand
to further police custody is sought on the ground that "the
accused are also required for recovery of the body and
personal belongings of the missing woman D". D's clothes
were seized during the initial period and were identified by
her husband on 29.12.06. The memo of identification of D's
clothes by her husband dt. 29.12.06 is marked Exhibit Ka 30
in CC 2667/2017 and the same is corroborated by the
evidence of the Sahstra Pal Singh, PW 15 in CC 2667/2017.
All the skulls, bones and body parts had been excavated and
seized by the police / CBI between 29.12.06 and 16.01.07.
No excavations or seizures of body parts were made after
16.01.07. The excavated material was taken for forensic
analysis almost immediately after seizure by the team of
forensic experts who were present during the seizures. The
 36

reason given for obtaining further police custody was

deliberately misleading and a camouflage for something
else. Relying on these misleading statements, the learned
CBI Magistrate, Ghaziabad remands both the accused to
further police custody till 22.02.07.
92 09.02.07 CDFD, Hyderabad receives skeletons and blood samples
from AIIMS. DNA is attempted to be extracted from only a
small portion of the human remains / bones sent for
analysis. At least 15 separate DNA profiles are extracted. Of
these, only 8 match the DNA profiles extracted from the
blood samples of the parents of the missing persons.
93 12.02.07 CFSL, Delhi receives a letter from the CBI to give a report
on the materials sent to them.
94 13.02.07 The CBI request the Director, AIIMS to conduct psychiatric
tests on the accused.
95 20.02.07, Forensic Psychiatric Assessment of both the accused is
22.02.07 conducted at AIIMS.
&
23.02.07
96 22.02.07 Remand Application filed by the CBI before the learned SJM,
Ghaziabad, stating that accused SK and Pandher have
confessed to raping and killing 'XYZ' (CC 1475/09] The CBI
applies for
97 28.02.07 An application is made by the CBI to the learned ACMM,
Patiala House Court, New Delhi for recording accused SK’s
confession u/s 164 Cr.P.C. The application states that
accused SK was assaulted by the advocates and public when
produced in the Ghaziabad Court on 25.01.07 and prior to
that in Ghaziabad District Jail, and he, therefore, faces a
grave security threat. The application prays that for the
purposes of the confession accused SK be sent to Tihar Jail.
The application annexes an undated letter purportedly
signed by accused SK addressed to the learned ACMM, New
Delhi/CBI Magistrate Delhi stating that he wishes to confess
about the manner in which he first killed and then had sex
with the victims and prays that he should be presented
before the learned ACMM/CBI Magistrate so that he may
give a detailed description of his crime. The application is
written in formal language using legal terms that a lay
person would not be familiar with and that would be beyond
the capability of) servant who has only studied up till 7th
standard.
98 1.03.07 A legal aid counsel is appointed and granted five minutes
1.10 pm interview with accused SK in the court room itself "in the
interests of justice".
99 1.03.07 The learned ACMM directs the learned MM, Patiala House,
1:20 pm New Delhi, to record accused SK’s confession u/s 164 CrPC
and also to have it recorded on video.
100 1.03.07 The legal aid lawyer is not present during the video
recording of the confession. In this confession, accused SK
gives a detailed, graphic and highly repetitive account of
how he lured, attempted to rape, killed, dismembered, ate
 37

each of his victims and how he disposed of their bodies. In

his confession, he also informs the learned MM that he has
been, brutally tortured by the police, that he has been
extensively tutored by them and made to memorise parts of
his confession pertaining to the names of the victims, the
dates and times of their killings, the manner of their killing,
etc.
101 1.03.07 After recording the confession, the same is copied onto 4
CDs and the signature of learned MM and accused SK is
taken on all 4 CDs. Thereafter, transcription of the
confession commences and carries on till 10.15 pm but
cannot be completed. accused SK is produced before the
learned ACMM, who forwards accused SK to the learned MM
for transcribing the confession. Transcription is not
completed.
102 02.03.07 Accused SK is produced before the learned ACMM, who
forwards accused SK to the learned MM for transcribing the
confession. Transcription is not completed.
103 03.03.07 Accused SK is produced before the learned ACMM not by jail
officials but by Inspector Rakesh Sharma and the SHO from
Tilak Marg Police Station. The Ld. ACMM forwards him to the
learned MM and the transcription is completed.
104 08.03.07 The Serology Department, CFSL, Delhi files a report signed
by Dr. Singhla.
105 14.03.07 A detailed forensic report, signed by Dr. Rajinder Singh,
CFSL, Delhi, regarding the analysis of 13 seized knives is
prepared.
106 15.03.07 Another forensic report signed by Dr. Rajinder Singh
regarding the knives and axe recovered at accused SK’s
instance, the material of the clothes seized from the empty
space behind D5 and D6 and from the drain on the main
road facing the row of bungalows, and whether they would
be worn by males or females is prepared by CFSL Delhi.
107 16.03.07 A detailed forensic analysis report signed by Dr. Rajinder
Singh, CFSL, Delhi, of the seized material is prepared. The
DNA profile of the semen found on the quilt seized from
accused SK's bedroom does not match the DNA profile
extracted from the clothes recovered from the drain and the
open space between D5-D6 and the Jal Board residential
quarters.
108 20.03.07 Letter forwarding the 2 knives and an axe seized at accused
SK's instance u/s 27 is sent by SP, CBI to the Forensic
Department, AIIMS.
109 07.04.07 CBI moves an application before the SJM, Ghaziabad for
identification of clothes and items of the victims.
Identification is conducted in the court premises. Family
members of victims Rima (CC 1475/2009), F(CC
7426/2010), K (CC 4/2091), B(CC 3/2021), G (CC
835/2011), I ( CC 4196/2010) identified clothes as
belonging to the victims. Father of L (CC 147/2013) is
present in court but does not identify any of the clothes.
Family members ofE(CC 2926/2017), D(CC 2667/2017) and
 38

C(CC 196/2018) were not present in court for identification

of clothes.
110 13.04.07 Case properties taken to AIIMS for examination.
111 25.04.07 The protest petition of Jatin Sarkar, father of Aand
complainant in ST 440/2007, challenging the exoneration of
Pandher by the CBI and seeking further investigation
against Pandher and the role of Dy. S. P., Dinesh Yadav, is
transferred to the court of the learned Sessions Judge,
Ghaziabad.
112 11.05.07 The learned Sessions Judge, Ghaziabad dismisses the
protest petition holding that Pandher can be arraigned only
under sec. 319 CrPC. However, the Court allows the prayer
for further investigation against Pandher.
113 04.06.07 Charges under sec. 376, 364, 302, 201, 511 IPC are framed
by the learned Court against accused SK in ST 440/2007
(A).
114 16.07.07 Photographs of the victims along with the 19 skulls and skull
bones were sent to CFSL, Chandigarh for skull
superimposition.
115 23.08.07 An AIIMS report signed by Dr. Rajinder Singh and others
states that the injury and cut marks and dismemberment of
some of the soft tissue and bones could have been caused
by sharp edged weapons such as the forwarded knives and
axe.
116 31.08.07 A report by CFSL, Chandigarh is submitted stating that the
pictures of L, J, D, E, H and E are likely to be of the same
skulls as in Sets No. 1, 4, 6, 12, and 16. The report also
notes that human skulls in Sets No. 7, 10 and 13, though fit
for comparison did not match any of the photographs. Thus,
there is no DNA or skull super imposition match for the
skulls in Sets No. 7, 10 and 13, which shows that these
skulls do not belong to any of the victims in the present
group of cases.

Importantly, though the photograph of L (aged 27 years), is

found to match with the skull in Set No.1 as per the AIIMS
report dt. 15.03.07, the age of the skull in Set No.1 is
between 12-18 years.

Subsequently, the photographs of missing persons as per

missing complaints registered in Sector 24, Noida Police
Station were also sent for skull superimposition. Skull Set
No. 7 and 13 matched with the photographs of two of these
persons (Asha and Basanti). These persons, whose skulls
were also found in the open space behind D5 and D6 are not
named in accused SK's confession and it is not the case of
the prosecution that they were killed by him. It is also not
known whether they went missing before or after accused
SK started working for Pandher in July 2004. It is therefore
clear that persons other than accused SK were involved in
the killing and disposing of bodies in the open space
between DS-D6 and Jal Board residential quarters, which
falsifies the prosecution case.
 39

117 21.11.07 The learned Sessions Judge, Ghaziabad dismisses the CBI's
application to cross examine PW 31, Vandana Sarkar in ST
440/2007 (A) and rules that cross examination merely on
the ground that she had cast aspersions on the conduct of
certain CBI officers was not a just ground.
118 28.11.07 The learned Sessions Judge, Ghaziabad partially allows
Vandana Sarkar's application u/s 319 CrPC against Pandher
in ST 440/2007 (A) but dismisses the application to make
Dy.S.P. Dinesh Yadav also an accused.
119 16.07.08 Charges under s. 376, 302 r/w 120B and 201 are framed by
the learned Court against Pandher in ST 440/2007 (A).
120 13.02.09 Accused SK and Pandher are sentenced to death in ST
611/2007 ('XYZ').
121 11.07.09 This Hon'ble Court in CC 1475/2009 ('XYZ') upheld the
conviction and sentence of accused SK in ST 611/2007 while
Pandher is acquitted.
122 17.12.09 'XYZ''s father, Anil Haldar (complainant in ST 611/2007) files
SLP (Crl) No 608/2010 (Criminal Appeal No 513/2011)
before the Hon'ble Supreme Court challenging the acquittal
of Pandher in CC 1475/2009. The appeal has been admitted
and is pending hearing.
123 12.05.10 Accused SK is sentenced to death in ST 850/2007 (I).
124 28.09.10 Accused SK is sentenced to death in ST 696/2007 (F).
125 22.12.10 Accused SK is sentenced to death in ST 740/2007 (G).
126 15.02.11 The conviction and sentence of accused SK in ST 611/2007
('XYZ') is upheld by the Hon'ble Supreme Court in Criminal
Appeal 2227/2010 [SLP (Cri) 608/2010].
127 24.12.12 Accused SK is sentenced to death in ST 494/2007 (H).
128 02.04.13 Mercy Petition preferred by accused SK against the death
sentence awarded in the 'XYZ' case (ST 611/2007) rejected
by the Governor.
129 20.07.14 Mercy Petition preferred by Koli against the death sentence
awarded in the 'XYZ' case (ST 611/2007) rejected by the
President.
130 28.10.14 Hon'ble Supreme Court rejects Koli's Review Petition against
its order in Criminal Appeal 2227/2010 ('XYZ').
131 28.01.15 Koli's petition (Criminal Misc Writ Petition No. 23471/2014)
before this Hon'ble Court wherein the rejection of Koli's
Mercy Petition by the Governor and the President was
challenged, is allowed and the death sentence passed on
him in ST 611/07 ('XYZ') is commuted to life imprisonment.
132 07.10.16 Accused SK is sentenced to death in ST 550/2007 (D).
133 16.12.16 Accused SK is sentenced to death in ST 396/2008 (E).
134 24.07.17 Accused SK and Pandher are sentenced to death in ST
440/2007 (A).
135 08.12.17 Accused SK and Pandher are sentenced to death in ST
739/2009 (C).
 40

136 2.3.19 Accused SK is sentenced to death in ST 524/2008 (J).

137 6.4.19 Accused SK is sentenced to death in ST 930/2007 (K).
138 16.1.21 Accused SK is sentenced to death in ST 931/2007 (B)

27. The trial court framed following issues for determination

under Section 354(1)(b) Cr.P.C.:-

“1-Did the accused Surendra Koli commit the murder the

deceased A with the intention to kill her?
2-Did the accused abduct the deceased to commit murder?

3- Did the accused Surendra Koli attempt to sexually assault

the victim?

4- Did the accused Surendra Koli cause disappearance of the

dead body and evidence knowingly and having reason to
believe?
5- Did Moninder Singh Pandher raped the victim ?

6- Was the accused Moninder Singh Pandher involved in the

murder of the victim under criminal conspiracy?

7- Did the accused Moninder Singh Pandher help the

accused Surendra Koli in causing disappearance of the dead
body and evidence after the murder of victim?”

28. Trial Court has dealt with all issues together while
delivering its judgment. The court of Sessions has observed
that this is a case of circumstantial evidence and, therefore,
chain of events pointing to the hypothesis of guilt attributed to
accused has to be connected before the accused SK could be
held guilty of the offence alleged against him. The confession
made by accused SK before the Magistrate under Section 164
Cr.P.C. has been relied upon as the main evidence to implicate
the accused appellant alongwith the alleged recoveries made
on his pointing out under Section 27 of the Evidence Act.
Testimony of prosecution witnesses have also been relied upon
to hold that the accused SK used to lure the girls inside the
house and then strangulate and rape them. Reliance has also
 41

been placed upon the testimony of PW-12, as per which, the

DNA profile report shows that one of the recovered skeleton on
29.12.2006 is connected to Vandana Sarkar and Jatin Sarkar.
Sessions Court has also observed that the confession of
accused SK was voluntary as the accused was repeatedly
informed that he is not bound to make such a statement. The
trial court has referred to oral and documentary evidence and
has relied upon the confession of accused appellant SK as well
as the recovery allegedly made on his pointing out to return a
finding of guilt against the accused SK and Pandher and
sentenced them, as per above.

29. As the prosecution case is based on circumstantial

evidence, the court below has relied upon following
circumstances to hold the accused SK guilty and thereby
convict him:-

“1. Victim A D/o Jatin Sarkar residing at Sector 31 Noida,

never returned from work at D-91 and D-100 on 5.10.06.

2. Koli residing in D-5, Sector 31, Noida, Gautam Budh

Nagar during the time period of the incident.

3. A FIR was registered by victim A’s father against Koli and

Pandher subsequent to the recovery of and skeletal remains
and seizure of victim A’s clothes on 30.12.06. Both Koli and
Pandher were arrested u/s 364, 376, 302, 120B and 201 of
IPC.
4. On 29.12.06 Koli made a disclosure statement u/s 27
Evidence Act subsequent to which bones and skulls are
recovered from the open space between D5, D6 and Jal
Board Compound and a kitchen knife is recovered from the
terrace of house no. D5.

5. Whilst in police custody, on 29.12.06, Koli confessed to

luring and killing women and children before PW31 (mother
of victim A) and her husband.
6. The victim A’s clothes, seized from the open space
between houses no.D5, D6 and Jal Board Compound is
recognized by her mother (PW31) and employer (PW13).
 42

7. Koli habitually lured the women and girls walking past D-

5 either by promising treats or offers of domestic work.

8. The DNA extracted from a skull and some of the bones

seized in this case match the DNA of victim A’s parents.

9. Recovery of a kitchen knife on 11.1.07 and an axe on

18.1.07 pursuant to s.27 statement made by Koli.

10. Koli’s confession u/s. 164 Cr.P.C.”

30. On behalf of the accused appellant SK the conviction and

sentence is assailed by contending that there is no evidence of
accused SK ever being seen with the victim A, let alone
evidence of Abeing last seen alive with accused SK. It is also
urged that in the confession made by accused SK, there is no
reference to victim A and, therefore, the confession cannot be
relied upon against the accused in the present case. It is also
argued that confession is neither voluntary, nor is true and is
otherwise recorded in complete disregard of the procedural
safeguards stipulated under Section 164 Cr.P.C. and, therefore,
the confession is bad in law.

31. General principles for evaluating admissibility and

evidentiary value of confession under Section 164 Cr.P.C. has
been emphasized with the aid of various judgments in order to
contend that such retracted confession is judicially viewed with
suspicion. It is also urged that confession has to be read as a
whole and if even a part of confession is tainted, the taint
attaches to each part of the confession. It is then argued that
the Court must conclude whether confession is voluntary or
true. It is argued that burden of proving voluntariness of
confession is upon the prosecution and that the prosecution
has failed to discharge such burden in the present case.
Argument also is that there is no evidence to show as to how,
when, to whom and in what circumstance the accused first
 43

expressed his willingness to confess; giving of warning by

magistrate or voluntariness of confession is not conclusive in
this case; the accused has been tortured and; therefore, the
fear induced of torture would not be dispelled. It is then urged
that where accused is tortured, he would also be told about the
questions likely to be put to him and the answers to be given
by him. It is further argued on behalf of the appellant that the
allegation of torture ought to have been inquired into by the
concerned magistrate, which is not the case here. Learned
counsel has emphasized the role of court in playing affirmative
role in unearthing objective evidence forming the backdrop of
retraction. The accused ought to be given benefit of doubt in
such matters. An inverse presumption ought to be drawn from
absence of materials which could form the reason of retraction.
The court is also required to consider the circumstance on
record which casts doubt on the voluntary character of
confession.

32. Sri Yug Mohit Chaudhary, learned senior counsel for the
appellant has emphasized the prolonged and unexplained
police custody of SK prior to his confession as a material
circumstance to reject the confession as involuntary.

33. As per prosecution SK was arrested on 29.12.2006 and

was in police custody till he made the confession on 1.3.2007
i.e. an uninterrupted period of 60 days. It is urged that the
prolong and excessive police custody prior to making of
confession, by itself sufficient to hold the confession as
involuntary. It is urged that SK has only passed Class – VII
and, therefore, had virtually no legal knowledge and in the
absence of legal aid, he was kept absolutely in dark about his
rights during investigation and remand. The accused was also
not allowed to meet any other person, family member or
 44

friend, for 60 days. Argument is that this circumstance in itself

is sufficient to hold the confession inadmissible.

34. It is argued that it is the prosecution's case that on his

arrest on 29.12.06 SK gave a detailed confession to the police.
Thereafter on the same day he gave another detailed
confessional statement at the crime scene leading to recovery
of further bones, clothes, knives belonging to other victims. It
is also the case of the prosecution that on 3.1.2006 SK was
sent for narco analysis for which he is said to have given his
consent and once again he made a detailed confessional
statement. It is also the case of the prosecution that SK had
made two further confessional, statements on 11.1.07. The
investigation in the case was largely over by 18.1.07. No
evidence has been adduced which was obtained after 18.1.07.
In spite of his having allegedly confessed to the police on the
very first day, and repeatedly thereafter at great length, but
accused SK was surprisingly not produced before the
Magistrate to record his confession for about 1½ months
though the investigation in this case was complete for all
practical purposes. It is further submitted that the prosecution
has provided no explanation for this delay nor explained what
the police was doing with SK. In fact, further remand to police
custody was obtained on false statements. A perusal of the
remand applications and orders dated 8.2.07 and 22.2.07 show
that SK’s police custody was sought by the CBI on the pretext
of recovering the body parts and clothes of victims D and ‘XYZ’
as well as identification of the same. However the skulls and
clothes of these two victims had been recovered and identified
on 29.12.06 and 3.1.07 itself. Argument is that the obvious
inference therefore is that 2 months of excessive police custody
preceding the confession was required for three reasons: (a) to
 45

torture the accused and break his will so that he agrees to

submit; (b) give time for the torture injuries to heal; and (c)
give time to make the accused memorise the entire confession
which was tailored to suit the recovery evidence and which was
embellished with sensational and perverted details so that the
reader's critical senses be numbed and he feels a sense of
revulsion against the accused.

35. Learned counsel then submitted that SK allegedly was

arrested on 29.12.2006 and he also made his detailed
confessional statement, yet no further investigation was made
apart from recovery of skulls. The Investigating Officer made
an application to take SK for FSL and Narco Analysis instead of
taking steps to verify the confession and collect corroborative
evidence.

36. Sri Chaudhary has extensively read out the confessional

statement of SK in order to submit that his confession
contained repetition and, therefore, clearly suggested that he
was tutored. Accused SK has also stated clearly in his
confession that he was tutored on vital aspects of confession
i.e. names of victims, the time, method, manner of killing, etc.
On eighteen separate occasions accused SK has stated that he
cannot remember facts as were being uttered by him. He has
also stated that the police made him memorize the names of
victim and that all the names were told to him by the police. It
is also argued that the continued police custody apparently was
utilized to coerce SK into memorizing facts, etc., and the
consequential confession is thus involuntary.

37. In the confession, accused SK stated that UP Police ne

‘ratwaya’ regarding the names, times and manner of killing of
the victims. The term 'ratwaya' implies compulsion, coercion
 46

and interference by the police, negates the voluntariness of

confession. It cannot be ascertained what is voluntary and
true, and what is tutored and false. When there is evidence of
tutoring, it is impossible to identify which part of the confession
is tutored and which part is genuine. The taint attaches to the
entire document.

38. The accused also wrote a detailed letter to the learned

trial court dt. 25.11.08 and 16.3.09 stating, in detail, the brutal
methods employed by the police. Although these letters were
written generally to the trial court which was presiding over a
large number of trials involving SK, and not in any specific
case, these letters have been included at page 88 in the appeal
paper-book of Capital Criminal Appeal No. 4196/2010 and at
page 91 in in the appeal paper-book of Capital Criminal Appeal
No. 4196/2010. Furthermore, two additional letters dated
1.4.10 and 10.6.11 were written by accused SK to the trial
court in connection with ST No. 740/07 and ST No. 494/07
which are included in the paper-book of Capital Criminal Appeal
No. 835/11 at page 295 and in the paper-book of Capital
Criminal Appeal No. 147/13 at page 347. In the letter dated
16.3.09 he specifically states that he was repeatedly beaten by
the police. He further mentions that during police custody he
was beaten up and made to sign on several blank pages. In his
statement in letter dated 10.6.11 in Capital Criminal Appeal
No. 147/13, accused SK specifically requests that he be
medically examined as he still bears the scars of the torture
meted out to him. Further on 29.3.2010, accused SK wrote a
letter detailing the manner in which the CBI tortured him,
threatened and coerced him into making the confession. He
states that the CBI informed him that his family was in their
custody and if he did not confess, as per their say, they would
 47

leave the family to the mercy of the frenzied mob who were
baying for his blood.

39. Sri Chaudhary highlighted that the hand written

application of accused SK is addressed to the learned ACMM,
New Delhi and the SJM, CBI, Delhi. SK in his confession
categorically admits to having no knowledge of the name of the
Court where he has been produced. Had SK indeed addressed
the application to the ACMM, New Delhi, he would have also
known the Court in which he was being produced to record his
confession. Additionally, prior to 28.02.2007, SK was being
produced before the learned CJM Ghaziabad. Hence, it is
extremely unnatural that he would, on his own address his
letter to the ACMM, New Delhi. This further strengthens his
claim that he wrote the letter on the CBI's coercion.

40. Learned counsel also pointed out that the learned ACMM
had directed that before accused SK is handed over to DG
(Prisons) Tihar, he be medically examined. Contrary to the
learned ACMM's order, no medical examination of the accused
is done prior to handing him over to Tihar prison authorities.
The only medical report furnished is the one by the Jail Hospital
on 1.3.07 which too is not proved by producing the doctor.
Accused SK was produced for recording his confession on
28.2.07 after 60 days of uninterrupted police custody. It was
therefore crucial that a medical examination was conducted on
28.2.07, prior to transferring him to judicial custody to ensure
that the request to record a confession was not coerced by the
CBI. The CBI's failure to conduct a medical examination,
despite the Court's categorical order, is extremely suspicious
and gives rise to an adverse inference u/s 114(g) of the Act of
1872. This medical report on 1.3.07 has a noting to the effect
that 'No fresh injuries were seen’. This in itself implies the
 48

presence of older injuries on accused SK’s person and affirms

his submission of being tortured by the police. If older injuries
were present on accused SK’s body, they should have been
described, and their ages and causes ascertained. In his letter
to the learned Sessions court, accused SK categorically stated
that whenever the CBI took him for medical examination they
pressurised the doctor into not mentioning any of the accused's
injuries. The medical officer, who is the only person who could
have proved the medical report dated 1.3.07 or testified to the
nature of SK’s injuries has not been examined. Suppression of
this crucial testimony leads to an adverse inference u/s 114(g)
Evidence Act.

41. Learned counsel has further argued that CBI cannot

absolve itself of its responsibility of proving voluntariness of
confession on the ground that allegation of torture is against
U.P. Police and not CBI. In his confession, SK mentions that he
was induced by torture to confess regarding 2-3 photos. The
exact number of photos for which he was tortured has not been
clarified. The Magistrate should have immediately stopped the
recording of the confession and asked him about the torture
(how, where, why, by whom, etc). The Magistrate should have
then sent the accused for medical examination. In the absence
of any clarification, we cannot today draw an inference that the
torture was only for 2-3 photos.

42. It is further submitted that after having spent 60 days in

police custody the appellant was given only 5 minutes of legal
aid. He was also not given any medical assistance. Further the
I.O. was called into the room and made to state the allegations
against the appellant before the recording of the confession
and was directed to wait outside the room throughout the
period of the recording. During the writing of the transcript the
 49

appellant was handed over to the I.O. at the end of every day
for production before the learned ACMM. Thus not only were no
active steps taken to fully remove the impression of torture,
the recording of the confession in the presence of the police
and handing over the appellant to the I.O. reiterated the threat
of torture.

43. The circumstance of filing application at Delhi for

recording of confession under Section 164 Cr.P.C. is also
highlighted, inasmuch as, the CBI itself had produced SK
before the CBI Magistrate Ghaziabad on 8.2.2007 and
22.2.2007, much after the alleged incident of violence in
Ghaziabad Court on 25.1.2007 and, therefore, reason for
moving the application at Delhi stands falsified.

44. It is submitted that it is the CBI's case that SK was badly

beaten up by the advocates and public when he was produced
in the Ghaziabad Court on 25.1.07 and therefore faced an
absolute security threat and danger. However, the CBI did not
report the assault on accused SK to the Magistrate before
whom he was produced on 25.1.07. Further, the CBI did not
produce any medical treatment papers corresponding to the
said incident nor did they take any steps to provide accused SK
with any additional security. Moreover, not only did the CBI not
mention the assault on accused SK to the Magistrate on
25.1.07, they did not breathe a word regarding a security
threat to Magistrate subsequent to the day of assault. The first
mention of this threat is made only before the ACMM, New
Delhi, in the IO's application for recording his confession filed
on 28.2.07. The failure to mention the grave security threat
and a vicious physical assault on accused SK by advocates of
the court to the Magistrate is extremely suspicious. The
complete absence of any material corroboration of these
 50

incidents of violence can only have the following plausible

explanations: i) that the incident never took place and CBI is
offering false reasons to produce accused SK before a
Magistrate of their choice; ii) that the CBI has used this false
statement to explain any injuries that may have been found on
SK’s body in the medical examination or in case SK’s body was
inspected by the Magistrate. If before confessing, SK was
facing a threat at Gaziabad jail, as claimed by the CBI, this
threat would have increased manifold after his confession. It is
therefore inexplicable why, immediately after completion of the
confession accused SK was shifted back to Gaziabad Jail and no
threat was apprehended.

45. On behalf of accused the circumstance of police presence

during confession has also been highlighted in order to contend
that confession was not voluntary.

46. After identifying SK the learned Metropolitan Magistrate

had specifically directed the IO, M.S Phartyal to wait outside
the video-conferencing room. SK was well aware that the very
IO who had tortured him was close at hand and would have
been under the constant threat and fear of the IO. By asking
the IO to wait outside during the recording of the confession,
the learned Magistrate effectively continues the control of the
CBI over accused SK. In these circumstances any statement
given by the accused cannot be voluntary and no reliance may
be placed on the same.

47. It is clear that the CBI was waiting outside the video
conferencing hall in Patiala House where SK’s confession was
recorded and transcribed, was producing him before the
learned ACMM and taking him to Tihar jail every day for the
duration of the confession proceedings. Crucially the confession
 51

was signed only at the end of the third day on 3.3.07 and was
therefore not complete till then. Aware, that CBI officials were
waiting outside the room and were taking him to Tihar jail at
the end of every day, accused SK would naturally feel that he
was in the custody of the CBI and be mentally pressurised and
threatened by their presence. In these circumstances any
statement made by accused SK cannot be said to be voluntary
and free from coercion or duress.

48. Evidence on record has been highlighted on behalf of

accused in order to submit that the safeguards contemplated
under Section 164 Cr.P.C. has been fully bypassed; the accused
was not informed of reason of judicial custody/detention
period; no effective/meaningful legal aid was given; illegal
instructions were issued by learned ACMM to Metropolitan
Magistrate; non-application of mind by learned Metropolitan
Magistrate while recording the statement; the learned
Magistrate did not ask SK about the duration of police custody;
no action taken by Magistrate on complaint of torture; essential
responsibility of recording statement under Section 164 Cr.P.C.
has clearly been abnegated by the Magistrate, who appeared
as PW-11.

49. The Metropolitan Magistrate, PW-11 did not comply with

the mandatory requirements of being satisfied that the
confession is being made voluntarily. A perusal of the
confession itself reveals that he did not arrive at a conclusive
finding that the accused is confessing voluntarily but proceeded
on the basis of the assumption that it was voluntary. The
recording of the confession is initiated not on the basis of a
concrete finding of voluntariness but an assumption.

50. Memorandum required by sub-section (4) of Section 164

 52

Cr.P.C. was actually made two days later; memorandum was

not in accordance with Section 164 Cr.P.C.; violation of Section
164(6) Cr.P.C. and 281 (3) Cr.P.C.

51. Next submission advanced on behalf of the appellant is

that the confession of SK was not properly proved.

52. A reading of s. 164 CrPC makes it clear that the section

envisages a written contemporaneous record of the accused's
confession as only a written document can be
contemporaneously recorded, signed and have a memorandum.
While the 2009 amendment to the section 164 Cr.P.C. allows
for audio- video recording of confession in addition to the
primary written record and not as a substitute for the written
recording. Further the amendment came into effect much after
SK’s confession was recorded.

53. In the present case the prosecution has adduced the

audio-video recording as the primary evidence of accused SK's
confession u/s 164 CrPC. This falls foul of S. 164 CrPC as the
section does not permit for an audio-video recording to be the
primary proof of an accused's confession. Further the audio-
video recording has not been signed by either the accused SK
or the recording magistrate PW-11. Furthermore, no
memorandum as mandated u/s 164 CrPC has been appended
to the audio-video recording or dictated by the magistrate at
the end of the audio video recording. Thus, the audio-video
recording of SK’s confession does not comply with the mandate
of S. 164 CrPC. That the original memory chip of the video
camera used to record the confession would constitute primary
proof of the same. This chip has not been produced in court.
Whilst a copy of the confession has been adduced through a
CD, the same is not accompanied by a Section 65B certificate.
 53

Further the memory chip which is the primary document was

not sent to the trial court as mandated by s. 164(6) CrPC.
Thus, the CD of the confession Article No. 53 does not
constitute lawful proof of SK’s confession.

54. Accused SK did not receive any proper legal aid when his
confession was recorded. It was only when he was asked about
the confession during trial that he retracted the same. It is
precisely because of this that retractions at the stage of s. 313
Cr.P.C. are also taken into consideration while rejecting a
confession.

55. As mentioned above, it has to be shown that the

confession is both true and voluntary, and that the Court must
inquire into the truth of the confession only after it reaches an
affirmative conclusion about its voluntariness. The truth of the
confession is adjudicated by seeing whether it fits into the rest
of the evidence adduced by the Prosecution. If it is found that
any aspect of the confession is contradicted by any proved fact,
the entire confession has to be rejected. Confession must be
shown not only to be true but also to be in consonance with the
probabilities of the prosecution case on material points.

56. In the present case, the confession is contradicted on

material and significant aspects by the other prosecution
evidence placed during the trial.

57. On behalf of the appellant it is also claimed that changing

and conflicting versions were put-forth by the prosecuting
agency, to suit its convenience. Such shifting stands were in
keeping with the stage of investigation and the materials
allegedly collected by them. Argument is that the developing
story put-forth by the prosecution from 29.12.2006 to
 54

1.3.2007 is not of SK but is a progressive narrative concocted

by the investigating agency.

58. Sri Chaudhary also submits that there is no independent

corroboration of murder, rape or cannibalism attributed to the
accused appellant nor there exists any corroboration of the
alleged confession itself. He also submits that the events
mentioned in the confession are highly improbable. It is further
urged that the confession has been coerced and concocted to
save the actual culprit of the offence since the actual accused is
a powerful person. He also submits that SK hails from a very
poor dalit family based in Mangru Khal Village in Uttarakhand
and he came to Delhi as a migrant labour looking for work.
Accused dropped out of his school because of poverty and has
an old ailing mother, wife and two kids to take care of. He also
has no previous criminal history.

59. It is highly improbable that SK, who was a mere servant

drawing a salary of Rs. 2500 and who had been working for
Pandher only for 1.5 years, would have the courage and
confidence of using his employer's house for such criminal acts
while the house was occupied and used by his employer.

60. Learned counsel for the appellant has also invited

attention of the Court to report of the Ministry of Women and
Child Development, Government of India, under its mandate
for the protection and safety of children had constituted a high
level committee of seasoned bureaucrats to investigate into
allegations of large scale sexual abuse, rape and murder of
children in the Nithari village of Noida. The report's conclusions
casts doubt on the prosecution theory about the motive for this
offence and state that having embarked on its hypothesis the
police has not investigated the possibility of organ trade as the
 55

motive for the offence. The doubt expressed by the Expert

Committee in its Report receives support from the fact that the
very adjacent house (D-6) was occupied by a doctor who had
been charged in a case of organ trade. This fact was known to
the investigating agencies as is seen from the evidence of
Investigating Officer.

61. So far as the circumstance relating to disclosure

statement dated 29.12.2006 being admissible under Section 27
of the Evidence Act is concerned, it is submitted that disclosure
and recovery of skulls and bones are not admissible under
Section 27. It is also submitted that the statement attributed to
SK dated 29.12.2006 has not been proved. It is also alleged
that panchnama dated 29.12.2006 (K-16) is fabricated and
anti-dated.

62. It is submitted that as per the panchnama dated

29.12.06 (Ka 16) SK alone confesses to having killed L leading
to the consequent recovery of human bones. However as per
the remand application dated 30.12.06 submitted by IO, PW
40, as well as the attendant remand order dated 30.12.06 the
recovery of skulls on 29.12.06 was consequent to a joint
disclosure made by both the accused SK and Pandher.

63. These two versions are wholly incompatible and

contradictory and could not have existed at the same time. Had
panchnama dated 29.12.06 (Ka 16) existed at the time of the
remand it would have surely been placed before the learned
Magistrate along with the case diary and other papers relating
to the investigation, in light of the learned Magistrate could
have never passed an order observing that the disclosure was
jointly made by both accused. This clearly shows that the
panchnama dated 29.12.06 (Ka 16) did not exist up until the
 56

passing of remand order dated 30.12.06.

64. Various circumstances have been highlighted in order to

submit that the prosecution has not even orally proved the
contents of the disclosure statement. No independent person
otherwise witnessed the disclosure statement.

65. It is the prosecution's case that the contents of SK’s

disclosure statement has been orally proved by two witnesses
PW-40 (Dinesh Yadav) and PW-28 (Chote Singh). However, a
perusal of their testimonies makes it clear that their evidence
contradicts each other on the contents of SK’s disclosure
statement as well as the time, manner, and place of recording
the same which have been enumerated below. The stark
contradictions and variance in their evidences renders the same
unbelievable. Thus, the the contents of the disclosure
statement have not been proved by either of the two police
witnesses.

66. The panch witness, PW-10 Pappu Lal has deposed that
when he reached the spot along with the police and SK,
excavation of the spot where the biological material etc. were
recovered was already in progress. This clearly indicates that
police were already aware that the bones and clothes of
missing persons would be found in the open space behind D5
and D6 and facing the jal board compound. It is an impossible
coincidence that the panch to the recovery of L's skull was,
Pappu Lal PW-10, who just so happens to be the father of
another victim girl, F. This is only possible if the police already
knew about the existence of various skulls and body parts in
the relevant places, and arranged the seizures to be conducted
before the father of another missing child.
 57

67. It is urged that the police and public were well aware of
the presence of human bodies in the open space between D5,
D6 and Jal Board Compound and in the drain on the main road
facing houses D1-D6. Therefore, this evidence is not a
discovery u/s 27, and hence neither admissible nor
incriminating. it cannot be said that either this circumstance is
firmly established, or that it is incompatible with the innocence
of the accused and the guilt of another person.

68. It is also submitted that recovery made from a public

place cannot be said to be in the exclusive possession/control
of accused. It is further argued that seizures made do not
corroborate disclosure statement.

69. Recovery of kitchen knife on 29.12.2006 is also

challenged on the ground that time and manner of recovery is
redundant with inconsistencies. The recovery of kitchen knife
on 11.1.2007 and an axe on 18.1.2007 based on the alleged
disclosure of SK under Section 27 from the open place behind
the house and from the lawn in front of open space. It is also
alleged that the house had been thoroughly searched by police
and CBI earlier and, therefore, subsequent recovery cannot be
relied upon. No bloodstains, etc., were found on the knives and
axe nor the forensic report shows any blood etc on it. No
material/evidence is produced to show that the knives or the
axe were used in committing the offence. The identity of victim
is also questioned in the context of DNA report on the ground
that her age is stated to be 20 years; whereas in the DNA
report the age is shown as 12-18 years. Even the mother of
victim i.e. PW-31, has not testified that her blood sample etc.
was collected.

70. So far as the circumstance relating to recognition of

 58

clothes of victim Ais concerned, it is urged that the description

of clothes is made after the seizure of clothes and not before it.
This circumstance, therefore, would not be of much relevance.
It is further argued that the prosecution evidence that SK
habitually lured women inside House No. D-5 is also not
reliable, inasmuch as, no untoward activity on part of the
accused was reported. No prior complaint was otherwise made.
The witnesses were brought by CBI later in violation of Section
171 Cr.P.C. It is also stated that the fact of SK offering
employment to domestic workers cannot be viewed unnatural
as requirement of replacement would be necessary whenever
the maid went on leave etc.

71. Learned counsel has further argued that re-enactment of

the manner in which bodies were cut by SK before the medical
panel has rightly been disbelieved by the court below though it
was relied upon by the prosecution. Admittedly accused was in
CBI custody and any confession made during police custody
would be barred and, therefore, has rightly not been relied
upon. The mere fact that police personnel withdrew for
sometime would not nullify the evidentiary value of confession
in police custody. The right of accused to fair trial is also
alleged to have been violated on account of following reasons:-

(i) Improper and inadequate questions under Section 313

Cr.P.C.
(ii) Incriminating evidence not put to SK.
(iii) Incorrect/misleading questions put to accused.
(iv) Compound/composite questions put to accused.
(v) Questioning of accused under Section 313 Cr.P.C. improper,
inadequate and defective and has thereby prejudiced the
accused.

72. Arguments have also been elaborately made for the

 59

previous adjudication in 'XYZ'’s case not to have any bearing

on the present case. Argument, thus, in this regard shall be
extensively read with. It is also submitted that previous
judgment cannot act as evidence in the subsequent trial.
Question, as to what exactly constitutes a precedent, has also
been addressed. Argument is also advanced on the issue
whether previous judgment in 'XYZ' would constitute issue
estoppel for reception of evidence with respect to confession
under Section 164 Cr.P.C and recovery under Section 27 of the
Evidence Act.

73. Sri Chaudhary has also addressed the Court on the role of
High Court in confirmation proceedings under Section 366
Cr.P.C. as also the right of accused to a fair trial.

74. On behalf of CBI Sri Jitendra Mishra, Advocate alongwith

Sri Sanjay Kumar Yadav have placed heavy reliance on the
previous judgment of this Court in the case of 'XYZ' as well as
the judgment of Supreme Court in said case. It is contended
that findings returned by this Court and the Supreme Court
with regard to confession of accused SK as well as recovery are
not open to examination nor a contrary view can be taken in
the matter. Sri Mishra has taken the Court through the
evidence on record to submit that the fact with regard to
recovery of bones, skull and other body parts in front of House
No. D-5, Sector – 31 or behind it has to be viewed in light of
the confession made by accused before the Magistrate. The
confession as well as statement of the concerned Magistrate Sri
Chandra Shekhar has been highlighted in order to emphasise
that in fact it was the accused who had committed the offence
of rape and murder. Evidence on the aspect of recovery has
 60

also been highlighted on behalf of CBI. Scientific evidence etc

has also been highlighted to urge that the confession and
recovery is also corroborated by such scientific evidence and,
therefore, the finding of court below to hold the accused guilty
is merited from the evidence brought on record by the CBI
during trial. Sri Mishra has also attempted to give a counter
narrative to the arguments advanced by Sri Chaudhary on
various aspects which shall be dealt with at the time of analysis
of evidence. Sri Mishra has also placed reliance upon judgment
of the Supreme Court in State of Tamil Nadu Vs. Kutty, 2001
(6) SCC 550 (Para 9 to 12) in support of the confession.
Reliance has also been placed upon the judgment of the
Supreme Court in State of Maharashtra Vs. Damu Gopinath
Shinde, 2000(6) SCC 269 on the aspect of confession. On the
aspect of confession learned CBI Counsel has also placed
reliance upon the Supreme Court Judgment in Ahmed Hussein
Vali Mohammed Saiyed Vs. State of Gujarat, (2009) 7 SCC
254. Heavy reliance is placed upon Gauhati High Court
Judgment in Hem Chandra Nayak Vs. State of Assam, 1989
Crl.L.J. 2058.

75. Observations of the Supreme Court have also been relied

upon in the case of Jamiludin Nasir; Aftab Ahmed Ansari @
Aftab Ansari Vs. State of West Bengal, 2014(7) SCC 443 on the
aspect of confession. Reliance has also been placed upon the
judgment of the Supreme Court in Shankaria Vs. State of
Rajasthan, 1978 (3) SCC 435 as well as the judgment of the
Supreme Court in Ghanshyam Das Vs. State of Assam,
2005(13) SCC 387.

76. It is in the context of rival submissions made on behalf of

the appellant and the prosecuting agency that the confirmation
proceedings as well as appeal filed by the accused are required
 61

to be adjudicated.

77. We have already noticed the background in which village

Nithari, situated in Noida, suddenly acquired notoriety for its
missing children, mainly girls, for sometime. One of the cases
lodged in respect of such missing children was Case Crime No.
838 of 2006, Police Station – Sector 20, Noida in respect of
missing girl L. Directions were issued by this Court for
investigation in the case to be accorded primacy. Consequential
orders were passed by the Senior Police Officers and ultimately
investigation was entrusted to a special team led by Dinesh
Yadav, Dy. Superintendent of Police (PW-40). Accused SK was
arrested on 29.12.2006 and he purportedly confessed to killing
of missing girl L. SK then took the police to an enclosed gallery
behind House No. D-5, Sector 31, Noida where he had kept her
body parts and other articles. On the pointing out of SK the
skull and other body parts of L were recovered. SK also
confessed to killing of other missing children. It is at this stage
that news spread in and around Nithari that body parts and
clothes worn by missing children are found behind House No.
D-5.

78. Coming to know of it, parents of missing girl A came to

the House No. D-5 and identified the clothes worn by their
missing daughter. A complaint was registered against the
accused SK and Moninder Singh Pandher on 30.12.2006 being
Case Crime No. 1025 of 2006.

79. Jatin Sarkar has lodged the complaint on the basis of

which Case Crime No. 1025 of 2006 was registered on
30.12.2006. Jatin Sarkar, however, has not been produced in
evidence. It is the other parent of missing girl A namely
Vandana Sarkar W/o Jatin Sarkar, who has appeared as PW-31.
 62

She has deposed during trial that she was living in Sector 31,
Noida, for the last 17-18 years alongwith her son Sonu Sarkar,
daughter A and her husband Jatin Sarkar. Missing girl A also
had a son namely Amit Sarkar who was also residing in the
same house with PW-31. A went missing on 5 th October, 2006
and was not found. She was about 20 years of age then. The
missing girl A was working in a bungalow of Sector 30.
Bungalow No. D-5 of Sector 31 was on the way to the place
where A used to go for work. The missing girl was working in
the house of one Kanika Haldar. On 5 th October, 2006, A left
home at 7.00 am. At about 1.30 in the afternoon, she finished
her work and left the place of her work but did not reach home.
The witness has identified her daughter from her photograph
which has been exhibited as 10A/1. This photograph is on
record as material exhibit 33. The deceased was wearing white
salwar and yellow kurta and had put on rubber slippers. The
witness alongwith her husband had gone to the police station
to register missing report of her daughter. She has then stated
that she came to House No. D-5, Sector 31 with her husband
after hearing that bones and clothes of missing children were
found. Bones and clothes of the deceased were also recovered
and identified by her. She also claims that she had put her
thumb impressions on such recovery. Exhibit-Ka-50 has been
read out to the witness, who then asserted that the documents
of recovery are same which were prepared in her presence at
House No. D-5, Sector-31 and that she had identified the
clothes of her daughter which had been recovered from that
place. The clothes worn by her daughter had been given by
Kanika Haldar for whom the deceased was working as domestic
help. The clothes and rubber slippers have also been identified.
The salwar of deceased was identified and marked as material
exhibit 10 while kurta was marked as material exhibit 11 and
 63

slippers were marked as material exhibit 34.

80. PW-12 Dr. Nandineni Madhusudan Reddy, Staff Scientist,

Laboratory of DNA Finger Printing Services, CDFD, Hyderabad
has proved the DNA test report (Ex.Ka.15), as per which, the
blood sample of Vandana Sarkar (PW-31) and Jatin Sarkar
matches the DNA Profile of skeleton remains of their daughter
A.

81. PW-13 Kanika Haldar, R/o House No. D-91, Sector-30 has
also been produced and has stated that the deceased A was
working for the last four years in her house. The deceased was
doing domestic work of sweeping the floor and cleaning the
utensils etc. Deceased had come to her house on 5.10.2006 at
about 10.00-10.30 in the morning and after seeing T.V. Serial
Kumkum, she left about 12.30-1.00 pm. She has also identified
the clothes worn by the deceased which were produced as
material exhibit 10 and material exhibit 11. She has also
verified that on the last day when she came for work the
deceased had worn these clothes.

82. From the evidence on record, it is, therefore, established

that the deceased A was residing in Sector 31/Nithari and had
lastly gone for work to the House of PW-13, Kanika Haldar, and
that she left the house of Kanika Haldar at about 1.00 in the
afternoon on 5.10.2006. Having left the house of Kanika
Haldar, the deceased A never returned home. Her skeleton as
well as clothes have been recovered from an enclosed space
behind House No. D-5, Sector-31. The DNA report as well as
the recovered clothes goes to show that the deceased A was
done to death and her clothes and skeleton etc. had been
recovered from the enclosed space behind House No. D-5,
Sector-31. The prosecution, therefore, has clearly proved that
 64

while returning from work the deceased A went missing and

ultimately her clothes and skeleton have been found from the
enclosed space behind House No. D-5, Sector – 31.

83. The finding of the trial court that prosecution has proved
that victim A D/o Jatin Sarkar was residing at Sector-31, Noida
and she never returned from House No. D-91 to D-100 where
she had gone for work on 5.10.2006 is not in issue. The fact
that accused SK was residing in House No. D-5, Sector-31,
Noida during the time when the incident occurred is also not in
issue. It is further not in dispute that subsequent to recovery of
skeleton remains and the seizures of victim A’s clothes on
30.12.2006, the first information report was lodged with U.P.
Police. Accused SK was also arrested under Sections 364, 376,
302, 201, 120B IPC. The fact that clothes worn by deceased A
were seized from enclosed open space behind House No. D-5,
D-6, Sector-31 and Jal Board Compound and recognized by her
mother (PW-31)and employer (PW-13) are also not in issue.
The fact that DNA extracted from a skull and some of the
bones seized in the present case matched the DNA of victim A’s
parent is also not in issue. The above circumstances are not
disputed and would go to show that victim A had gone to work
on 05.10.2006 but she never returned. Her clothes and body
parts were found from the enclosed space behind House No. D-
5 and D-6, Sector-31, Noida is also established. The DNA
report shows that some of the bones recovered had matched
with the parents of victim A. Circumstances that the victim A
had not returned from work or that her body parts were found
behind House No. D-5 and D-6, Sector-31, Noida in itself
cannot be treated incriminatory against the accused appellant
SK. No further discussions are thus required in respect of the
above circumstances. Other evidence/circumstances relied
 65

upon by the prosecution to implicate the accused SK i.e.

recovery under Section 27 of the Act of 1872, confession of
accused SK made under Section 164 Cr.P.C. etc are the bone of
contention between the parties and thus requires determination
in this appeal.

84. The issues that survive/arise for consideration and

determination in this appeal are the admissibility of
circumstances, noticed hereinafter, to implicate the accused
appellant:-

“(i) The legality and admissibility of disclosure

statement made by accused SK on 29.12.2006, as
well as recoveries distinctly made pursuant to it of
biological materials (skull, bones and skeleton) and
clothes etc of the victim ?

(ii) Whether accused SK habitually lured women and

children walking pass D-5, Sector-31, Noida either by
promising offers of domestic work or offering
eatables/treats etc ?

(iii) Whether recovery of a kitchen knife on 11.1.2007

and an axe on 18.1.2007 pursuant to disclosure
statement made by accused could be read in
evidence under Section 27 of the Act of 1872.

(iv) Admissibility of the confession of accused made

under Section 164 Cr.P.C.”

85. The evidence on record of the present case, is therefore,

required to be minutely examined in order to determine as to
whether the circumstances, noticed above, are proved against
the accused appellant on the strength of evidence led during
trial by the prosecution, or not?

86. The prosecution case heavily relies upon the circumstance

of disclosure statement by the accused on 29.12.2006 as well
 66

as recovery of bones, skulls, clothes, knife, etc. under Section

27 of the Evidence Act. The prosecution evidence on the aspect
of disclosure and the recovery is, therefore, taken up at the
outset.

87. Circumstances relating to recovery of body parts of

deceased alongwith the clothes worn by her alongwith her
rubber slippers have been heavily relied upon by the
prosecution and accepted by the court of Sessions to hold the
accused guilty of the charges levelled against him. This
circumstance is allegedly proved on the basis of evidence
relating to:-

(i) information received from accused while in custody of the

police officer;

(ii) recovery of body parts etc. on the alleged pointing out of

accused SK.

88. Before embarking upon evaluation of prosecution

evidence on the above circumstance, we may gainfully refer to
the law applicable on the subject under reference. Chapter -II
of Part 1 of the Indian Evidence Act, 1872 contains provisions
relating to the relevancy of facts. Section 17 of the Act defines
admission as a statement, oral or documentary or contained in
evidence form, which suggests any inference as to any fact in
issue or relevant fact, made by any of the persons, and under
the circumstances, mentioned hereinafter. Confession is then
referred to in Section 24 of the Act. Though it is not specifically
defined in the Act of 1872, but is generally understood of same
genus but with distinct attributes. A confession lawfully
 67

recorded and admissible can sufficiently prove the guilt of the

maker. In contrast, an admission may fall short of it though it
may remain an incriminating fact. Section 24 ordains that
confession caused by inducement, threat or promise would be
irrelevant in criminal proceedings in the situation specified in
the section. Section 25 states that no confession made to a
police officer shall be proved as against a person, accused of
any offence. Confession by accused while in custody of a police
officer, unless it is made in the immediate presence of a
Magistrate, also cannot be proved in evidence against the
maker.

89. Section 27 begins with a proviso and states that when

any fact is deposed to as discovered, in consequence of
information received from a person accused of any offence, in
the custody of a police officer, so much of such information as
relates distinctly to the fact thereby discovered may be proved,
whether it amounts to a confession or not. What is taken out of
the purview of Section 24 and 25 of the Act, by virtue of
Section 27 of the Act, is the information that leads distinctly to
the discovery of a fact which is thus made admissible in
evidence.

90. Ingredients to attract Section 27 are by now, well-

established. The prosecution in order to secure admissibility of
evidence under Section 27 will have to prove that the
confessional statement has resulted in discovery of a fact which
was previously not known. The making of confessional
statement by the accused and discovery of fact, previously
unknown, would thus have to be proved.

91. The scope of Section 27 of the Act of 1872 as also its

necessary ingredients is no longer . In a series of
 68

judgments beginning from the celebrated decision of Privy

Council in Pulukuri Kotayya v. King-Emperor AIR 1947 PC 67 till
the recent decision of Supreme Court in Boby Vs. State of
Kerala, 2023 SCC OnLine SC 50, as reiterated in Rajesh & Anr.
vs. State of Madhya Pradesh 2023 SCC OnLine SC 1202 it is
consistently held that Section 27 provides an exception to the
prohibition imposed by the preceding provisions and enables
certain statements made by an accused in police custody to be
proved. The discovery of fact has to be shown to be a
consequence of information received from a person accused of
any offence, in the custody of a police officer, and thereupon so
much of information, as relates distinctly to the fact thereby
discovered may be proved.

92. In Boby (supra) the Supreme Court has meticulously

scanned the previous judgments on the subject, beginning
from Pulukuri Kottaya (supra) to observe as under:-

“27. As early as 1946, the Privy Council had considered the

provisions of Section 27 of the Evidence Act in the case of
Pulukuri Kotayya v. King-Emperor. It will be relevant to refer
to the following observations of the Privy Council in the said
case:
“The second question, which involves the construction of s.
27 of the Indian Evidence Act, will now be considered. That
section and the two preceding sections, with which it must
be read, are in these terms. [His Lordship read ss. 25, 26
and 27 of the Evidence Act and continued : ] Section 27,
which is not artistically worded, provides an exception to the
prohibition imposed by the preceding section, and enables
certain statements made by a person in police custody to be
proved.

The section
seems to be based on the view that if a fact is actually
discovered in consequence of information given, some
guarantee is afforded thereby that the information was true,
and accordingly can be safely allowed to be given in
evidence; but clearly the extent of the information
admissible must depend on the exact nature of the fact
 69

discovered to which such information is required to relate.

Normally the section is brought into operation when a
person in police custody produces from some place of
concealment some object, such as a dead body, a weapon
or ornaments, said to be connected with the crime of which
the informant is accused. Mr. Megaw for the Crown, has
argued that in such a case the “fact discovered” is the
physical object produced, and that any information which
relates distinctly to that object can be proved. On this view
information given by a person that the body produced is
that of a person murdered by him, that the weapon
produced is the one used by him in the commission of a
murder, or that the ornaments produced were stolen in a
dacoity, would all be admissible. If this be the effect of s.
27, little substance would remain in the ban imposed by the
two preceding sections on confessions made to the police,
or by persons in police custody. That ban was presumably
inspired by the fear of the legislature that a person under
police influence might be induced to confess by the exercise
of undue pressure. But if all that is required to lift the ban
be the inclusion in the confession of information relating to
an object subsequently produced, it seems reasonable to
suppose that the persuasive powers of the police will prove
equal to the occasion, and that in practice the ban will lose
its effect. On normal principles of construction their
Lordships think that the proviso to s. 26, added by s. 27,
should not be held to nullify the substance of the section. In
their Lordships' view it is fallacious to treat the “fact
discovered” within the section as equivalent to the object
produced; the fact discovered embraces the place from
which the object is produced and the knowledge of the
accused as to this, and the information given must relate
distinctly to this fact. Information as to past user, or the
past history, of the object produced is not related to its
discovery in the setting in which it is discovered.
Information supplied by a person in custody that “I will
produce a knife concealed in the roof of my house” does not
lead to the discovery of a knife; knives were discovered
many years ago. It leads to the discovery of the fact that a
knife is concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used in
the commission of the offence, the fact discovered is very
relevant. But if to the statement the words be added “with
which I stabbed A.”, these words are inadmissible since they
do not relate to the discovery of the knife in the house of
the informant.”

[Emphasis supplied]
28. It could thus be seen that Section 27 of the Evidence
Act requires that the fact discovered embraces the place
from which the object is produced and the knowledge of the
accused as to this, and the information given must relate
distinctly to the said fact. The information as to past user, or
the past history, of the object produced is not related to its
discovery. The said view has been consistently followed by
this Court in a catena of cases.
 70

29. This Court, in the case of Chandran v. The State of Tamil

Nadu5, had an occasion to consider the evidence of
recovery of incriminating articles in the absence of record of
the statement of accused No. 1.

. The
Court found that the Sessions Judge as well as the High
Court had erred in holding that the jewels were recovered at
the instance of accused No. 1 therein in pursuance to the
confessional statement (Ex. P-27) recorded before PW-34
therein. It will be relevant to refer to the following
observations of this Court in the said case:

“36. ……Thus the fact remains that no confessional

statement of A-1 causing the recovery of these jewels was
proved under Section 27, Evidence Act…..”
30.

31. It will also be relevant to refer to the following

observations of this Court in the case of State of Karnataka
v. David Rozario:
“5. ……This information which is otherwise admissible
becomes inadmissible under Section 27 if the information
did not come from a person in the custody of a police officer
or did come from a person not in the custody of a police
officer.

. The basic idea embedded in Section 27 of

the Evidence Act is the doctrine of confirmation by
subsequent events. The doctrine is founded on the principle
that if any fact is discovered as a search made on the
strength of any information obtained from a prisoner, such a
discovery is a guarantee that the information supplied by
the prisoner is true. The information might be confessional
or non-inculpatory in nature but if it results in discovery of a
fact, it becomes a reliable information.

Decision of the Privy Council in

Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ
533 : (1946-47) 74 IA 65] is the most-quoted authority for
supporting the interpretation that the “fact discovered”
envisaged in the section embraces the place from which the
object was produced, the knowledge of the accused as to it,
but the information given must relate distinctly to that
effect. (See State of Maharashtra v. Damu [(2000) 6 SCC
269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301].…..”
 71

[Emphasis supplied]
32. A three-Judges Bench of this Court recently in the case
of Subramanya v. State of Karnataka7, has observed thus:
“82. Keeping in mind the aforesaid evidence, we proceed to
consider whether the prosecution has been able to prove
and establish the discoveries in accordance with law. Section
27 of the Evidence Act reads thus:
“27. How much of information received from accused may
be proved.—
Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused
of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not,
as relates distinctly to the fact thereby discovered, may be
proved.”
83.

84. If, it is say of the investigating officer that the accused

appellant while in custody on his own free will and volition
made a statement that he would lead to the place where he
had hidden the weapon of offence, the site of burial of the
dead body, clothes etc., then the
 72

If we read the entire oral evidence of the

investigating officer then it is clear that the same is deficient
in all the aforesaid relevant aspects of the matter.”

33.

We are,
therefore, of the considered view that the prosecution has
failed to prove the circumstance that the dead body of the
deceased was recovered at the instance of Boby (accused
No. 3/appellant herein).”
(emphasis supplied)

93. Necessity of proving the exact words uttered by the

accused and proving the contents of discovery panchanama are
emphasized by the Supreme Court in Ramanand alias Nandlal
Bharti Vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396.
In para 54 to 56 of the report, the Supreme Court has been
pleased to hold as under:-

“54.

The
second reason to discard the evidence of discovery is that
the investigating officer has failed to prove the contents of
the discovery panchnama. The third reason to discard the
evidence is that even if the entire oral evidence of the
investigating officer is accepted as it is, what is lacking is
the authorship of concealment. The fourth reason to discard
the evidence of the discovery is that although one of the
panch witnesses PW-2, Chhatarpal Raidas was examined by
the prosecution in the course of the trial, yet has not said a
word that he had also acted as a panch witness for the
purpose of discovery of the weapon of offence and the blood
stained clothes. The second panch witness namely Pratap
though available was not examined by the prosecution for
some reason. Therefore, we are now left with the evidence
of the investigating officer so far as the discovery of the
weapon of offence and the blood stained clothes as one of
the incriminating pieces of circumstances is concerned. We
are conscious of the position of law that even if the
independent witnesses to the discovery panchnama are not
examined or if no witness was present at the time of
discovery or if no person had agreed to affix his signature
on the document, it is difficult to lay down, as a proposition
of law, that the document so prepared by the police officer
 73

must be treated as tainted and the discovery evidence

unreliable. In such circumstances, the Court has to consider
the evidence of the investigating officer who deposed to the
fact of discovery based on the statement elicited from the
accused on its own worth.
55. Applying the aforesaid principle of law, we find the
evidence of the investigating officer not only unreliable but
we can go to the extent to saying that the same does not
constitute legal evidence.
56. The requirement of law that needs to be fulfilled before
accepting the evidence of discovery is that by proving the
contents of the panchnama. The investigating officer in his
deposition is obliged in law to prove the contents of the
panchnama and it is only if the investigating officer has
successfully proved the contents of the discovery
panchnama in accordance with law, then in that case the
prosecution may be justified in relying upon such evidence
and the trial court may also accept the evidence. In the
present case, what we have noticed from the oral evidence
of the investigating officer, PW-7, Yogendra Singh is that he
has not proved the contents of the discovery panchnama
and all that he has deposed is that as the accused
expressed his willingness to point out the weapon of offence
the same was discovered under a panchnama. We have
minutely gone through this part of the evidence of the
investigating officer and are convinced that by no stretch of
imagination it could be said that the investigating officer has
proved the contents of the discovery panchnama (Exh.5).
There is a reason why we are laying emphasis on proving
the contents of the panchnama at the end of the
investigating officer, more particularly when the independent
panch witnesses though examined yet have not said a word
about such discovery or turned hostile and have not
supported the prosecution. In order to enable the Court to
safely rely upon the evidence of the investigating officer, it
is necessary that the exact words attributed to an accused,
as statement made by him, be brought on record and, for
this purpose the investigating officer is obliged to depose in
his evidence the exact statement and not by merely saying
that a discovery panchnama of weapon of offence was
drawn as the accused was willing to take it out from a
particular place.”

(emphasis supplied)

Reliance has been placed by Sri Chaudhary, learned

counsel appearing for the accused on a judgment of the
Supreme Court in H.P. Administration Vs. Shri Om Prakash,
(1972) 1 SCC 249 to submit that the Supreme Court has
cautioned that Section 27 is vulnerable to accused and that the
courts have to ensure that the police do not pass of a instance
 74

of seizure as being a discovery made pursuant to the disclosure

made by the accused. Para 8 and 15 of the report are relevant
in this regard and are reproduced hereinafter:-

“8. ……..But at the time when these seizures were made

the part played by the accused if any was not known,
and if at all PW 2, PW 8 and PW 13 who were witness to
the Panchnama had not been cleared from suspicion.

15. We then come to the recovery of the Second

February of pant, the account books and the vouchers.
These, however, cannot in our view be relied upon
because PW 28 had information relating to them which
had been furnished by the accused more than 24 hours
before and the description given by him was such that
they could have been discovered. At any rate the long
delay does not lend assurance to the discovery. It
appears from the application made on February 2, to the
Magistrate that the accused was arrested on February 1,
1967, and at his instance and from his possession one
sweater, one coat and one blanket blood stained, have
been recovered and in addition one blood stained warm
pant, one duster, one bag containing 5 registers are still
to be recovered on the pointing out of the accused but
the remand of the accused is due to expire at 1 p.m. and
accordingly it was requested that a further remand for 7
days be given and the accused made over to the police
and orders be passed. The accused is alleged to have
given the information that he had hid them under the
stone slab near Krishna Nagar Ganda Nala which he had
thrown away in the sewage and which he said will point
out and get them recovered. The recovery itself is under
Ext. P-7, to which PW 2, PW 13 and Manohar Lal, PW 14
who was picked up on the “rasta” when he was
summoned by the constables are witnesses. According to
PW 14 the Thanedar was going ahead and went down to
the Nala, when the constable summoned him and he
went there. He further says that the Thanedar sent a
constable down. The accused had a talk with Thanedar.
The constable took out from below a stone slab five
registers in a bag, the accused was standing on a stone.
At this stage the prosecutor sought permission to cross-
examine the witness and it was given. In the cross-
 75

examination he denied having signed the Memo at the

spot and said that he had signed it at the Thana. He also
said it was incorrect to suggest that the Memo was read
over to him and he signed it. Whether the articles
recovered were planted at the place from where they
were alleged to be recovered or not as suggested by the
learned Advocate for the accused, the evidence referred
to certainly goes against the prosecution version that the
account books, vouchers and the pant were recovered at
the instance of the accused.

.”

(emphasis supplied by us)

On behalf of the appellants reliance is also placed upon

para 13 of the judgment of Supreme Court in State of Haryana
Vs. Ram Singh, 2012 (2) SCC 426. Supreme Court in State of
Himachal Pradesh Vs. Jeet Singh, 1999(4) SCC 370 has held
that to invoke Section 27, the concealment and exclusive
knowledge of maker must be established before protection of
Section 27 could be claimed.

96. It is in the context of the above settled principles of the

law that the prosecution evidence is required to be considered.

97. We have carefully examined the evidence brought on

record of the present proceedings for confirmation of death
reference and appeals of the accused, with the able assistance
of Sri Yug Mohit Chaudhary, learned Senior Counsel for the
accused appellant and Sri Jitendra Mishra for the CBI. The
prosecution case is that the investigating officer of the Case
Crime No. 838 of 2006 under Section 363, 366 IPC relating to
victim L during investigation saw the accused SK and arrested
him. The accused was going on a Rikshaw. He was arrested
 76

around 8.30-9.00 in the morning. Although people were

moving on the road, yet, none from public was made a witness.

98. It is admitted fact on record that no arrest memo was

prepared regarding arrest of accused SK. The evidence of
prosecution relating to arrest of SK consists only of the oral
testimony of two police officers namely Sri Dinesh Yadav,
Investigating Officer (PW-40) and his colleague of police team
Sri Chottey Lal, Sub-Inspector (PW-28). Their testimonies are
relevant both in respect of arrest of accused SK as also in
respect of their interrogation, wherein he (accused SK)
allegedly made a disclosure.

99. Though PW-40 and PW-28 are consistent about the time
and place of the arrest of accused SK i.e. around 8.30-9.00 in
the morning on the main road but their version on material
aspects is starkly inconsistent.

100. PW-40 has stated that accused SK jumped off the

Rikshaw and fled but the version of PW-28 is not so dramatic
on this aspect. PW-40 moreover states that the confessional
statement of accused SK was recorded first at police outpost at
Sector 26 and then in the police station, but PW-28 states that
confessional statement was recorded at the place of arrest
itself i.e. on the road and not at the police outpost or at the
police station. The specific utterances of these witnesses i.e.
PW-40 & PW-28, made during the trial, in Hindi, are extracted
hereinafter to demonstrate their inconsistent version:-

“ -40
X X X X

838/06 363, 366

L
 77

26 26 29-12-06

8.30, 9.00

26

A
20

0-5 31 20
29-12-06 0-5
11.00

A
30-12-
06 4.00

0-5
0-6 -6
-6

0 0 0
01

X X X

0
0-5
29-
12-06
30-12-06, 31-12-06

-28 :-
“…...
 78

10.30 -
5 31 15
-5 ,
(emphasis supplied by us)

101. What is surprising to note is that PW-40 stated

specifically that the peshkar (staff) of PW-40 had noted the
disclosure made by accused SK, on his dictation, but a contrary
version is made by PW-28 who stated that all writings (paper-
work) was done by PW-40 himself. No such disclosure
statement has nevertheless been produced, much less
exhibited or proved by the witnesses.

102. The place where such disclosure was made is also not
proved and the only two police witnesses of fact, in this regard,
have come out with distinct versions that are mutually
inconsistent.

103. On the point of arrest we may refer to the statement of

accused under Section 313 Cr.P.C, as also the testimony of
defence witnesses Pan Singh (DW-1). The accused SK and DW-
1 have stated that the accused SK was brought from his home
in Uttaranchal to Noida on 27.12.2006, on the instructions of
police. The accused was dropped at the police station Sector-20
by DW-1 on 27.12.2006 and the accused was not seen
thereafter. The testimony of DW-1 is specific in that regard. No
suggestion is given to the witness DW-1 that his statement is
false or wrong as would be seen from his testimony,
reproduced later.

104. In additional statement of accused SK, recorded under

Section 313 Cr.P.C., he has clearly stated as under in reply to
 79

question no.6:-

105. Again in the additional statement of accused SK while

replying to question no.4, the accused has stated as under:-

106. DW-1 Pan Singh was working as driver with Moninder

Singh Pandher (owner of House No. D-5, Sector 31) and has
been produced by the defence to prove that accused SK was
handed over to police of Police Station- Sector-20, Noida on
27.12.2006 in order to contradict the prosecution case of arrest
of accused SK on 29.12.2006. The testimony of DW-1 is short
and thus extracted hereinafter:-

“ :-
27.12.2006 ,
20

X X X X
PP CBI

(emphasis supplied)

107. The specific case of defence is that accused SK was

handed over to police at Police Station Sector-20, Noida on
27.12.2006. The defence witness Pan Singh who claims to have
dropped SK at police station has not been
challenged/questioned by the prosecution and no question is
posed to him in regard to his version of having dropped
 80

accused SK at Police Station on 27th December, 2006.

108. As against the specific defence case of accused SK being

taken in police custody on 27.12.2006, the prosecution case
about arrest is not very inspiring. We may at this stage refer to
the testimony of PW-40 who claims to have arrested accused
SK on 29.12.2006. In his examination-in-chief PW-40 has
stated that he saw the accused for the first time on 29.12.2006
near Police outpost at Sector 26. However, in his cross-
examination PW-40 has admitted that he had interrogated
accused SK for the first time on 3.12.2006. His version that
accused SK was seen for the first time on 29.12.2006, or was
got identified by the informer, is thus inconsistent and
contradictory.

109. PW-40, moreover, has not disclosed anything about the

interrogation made from accused SK on 3.12.2006 or the
information elicited from him during such interrogation. The
prosecution version about arrest of accused SK on 29.12.2006
at 8.30-9.00 am therefore seems doubtful.

110. The prosecution witnesses on the aspect of disclosure

made by accused SK is also inconsistent. We have already
noticed that no written disclosure statement has been placed
on record. The prosecution witnesses PW-40 and PW-28 come
up with different version of the place where the disclosure
statement was made by the accused SK. The prosecution
witnesses of disclosure made by accused SK namely PW-40 and
PW-28 admit that no independent person was associated
during the arrest, interrogation or even during the recording of
disclosure statement.
 81

111. The prosecution has failed to place on record any reason

or justification for not associating an independent witness for
recording the disclosure statement. As per PW-28 the
disclosure was made by accused at the place of his arrest
which is a busy road connecting Atta market in Noida to ONGC.
It is admitted to prosecution witnesses that people were
moving on the road and therefore presence of independent
witnesses at the place of interrogation was not in doubt. It is
also not the case of prosecution that any independent person
was approached to witness the recording of disclosure and such
independent person declined to act as a witness.

112. Requirement of proving the information received from the

accused in custody as also the manner of its recording is well
settled. It is by now well settled that the investigating officer
must draw a panchnama in the presence of two independent
witnesses and the exact information disclosed by the accused
in custody must be proved. The consistent decisions on the
point right from Pulukuri Kotayya (supra) to Ramanand @
Nandlal Bharti (supra), Boby (supra) and the recent decision of
Supreme Court in Rajesh (supra) makes it imperative for the
investigation to follow the procedure of not only drawing and
proving the panchnama (disclosure statement) but also prove
the exact contents of the information furnished by the accused
while in custody.

113. In the facts of the case neither any panchnama

(disclosure statement) is drawn in the manner specified in law
nor is produced during trial or proved. The contents of the
information allegedly furnished by the accused SK is also not
recorded or proved. In its absence we cannot rely on the
prosecution case of receiving information from accused SK for
acceptance of such evidence under Section 27 of the Act of
 82

1872.

114. The investigating officer of this case namely Dinesh Yadav

was Deputy Superintendent of Police, Noida and was expected
to be aware of the elementary procedures required to be
followed for recording the disclosure statement (Panchnama) or
proving its contents, as also of proving the exact information
received from the accused in custody particularly in a serious
and sensational case of this kind where multiple murders were
being confessed by the accused. The other police witness
Chottey Singh (PW-28) was also a Sub-Inspector and expected
to be aware of such basic procedures. The non-recording of
disclosure statement (panchnama) in the presence of an
independent witness as well as the failure to prove the
contents of information disclosed by accused SK is a serious
lapse which has neither been explained during trial nor during
the course of hearing of the present appeal.

115. Non-recording of disclosure statement (panchnama) has

exposed the prosecution case to a serious risk. What exactly
was the disclosure made by accused SK is not known. Neither
the specific words spoken by him are placed on record nor even
the substance thereof is proved.

116. PW-40 and PW-28 have stated that disclosure statement

was recorded. If it was so, as is alleged by the prosecution
witnesses, there is no reason why was it not produced and
exhibited during the trial. PW-40 has, during cross-examination
stated that the disclosure statement was got recorded in the
case diary but the case diary is neither got exhibited nor was it
proved by any of the prosecution witnesses. Even otherwise
the law required the disclosure statement (panchnama) to be
prepared in the presence of two independent witnesses and its
 83

recording in the case diary would not suffice particularly when

the contents of information are otherwise not proved.

117. Our attention has been invited to Exhibit 103-Ka which is

the GD entry. It shows that the entry has been made at 11.20
PM on 29.12.2006 in respect of day’s investigation and does
not contain a contemporaneous recording of the disclosure
statement of accused SK. The case diary also is not shown to
record the contents of the disclosure statement attributed to
the accused SK.

118. The only recorded text of the alleged disclosure made by

accused SK is contained in the recovery memo exhibited as Ka-
16. The memo is extracted hereinafter:-

“ , (
) 0 0 0 838/2006,
366/376/302/201/120 . . . -20
:-
29-12-2006
. . . . .
, . . . ,
. . , . . , . .
, / , / , / ,
/ , / , /
/
( )
D-5 31 ,
L

,
, L
,

D-5 31
, ,
,

/
D-5 31
 84

D-5
31
D-5 . .
. . , . . ,
. . ( ) / , /
( ) 0

/
20 ,
,
20
-2
D-5

-
-2 D-5

( )
, D-
5
15

20

0 -

29-12-06
29-12-06

:-
,

29.12.06”

119. The above document is not a disclosure statement

(panchnama) as is required in law inasmuch as Ex.Ka.16 is
 85

apparently drawn not at the time of making declaration of

providing information but much after the recovery itself was
made. This document otherwise does not specify the time,
place or manner in which the disclosure statement was made
by accused SK. Ex. Ka-16 merely shows that accused SK
confessed to murdering of victim L and of concealing the skull
in the open space enclosed by boundary behind the house and
throwing other parts in the drain/nala flowing in front of the
house. He also confessed to concealing of the knife inside the
house and volunteered to the recovery of such items. On this
information the accused was brought to house no. D-5
alongwith police force. Interestingly, the disclosure made by
accused SK, as recorded in Exhibit Ka-16, on the basis of which
accused SK was brought to the place of recovery (enclosed
gallery behind house no. D-5, Sector-31, Noida) did not contain
any reference to the other 15 skulls or body parts hidden at the
spot in question.

120. No confession was even made, till then, about killing of

other missing children or recovery of their body parts as per
Ex.Ka.16, which is the only document of prosecution referring
to disclosure/information leading to recovery under Section 27
of the Act of 1872.

121. Exhibit Ka-16 further shows that accused SK alongwith

police party entered the enclosed space behind the house by
using stairs through the wall of the authority and allegedly dug
out a human skull. While such digging a pair of slippers was
also found and the accused asserted that it belonged to L. A
separate memo was prepared in respect of recovery of slippers.

122. In case the recovery memo (Ka-16) is taken on its face

value it merely refers to the disclosure by accused regarding
 86

murder of L and concealing her skull at the place of recovery.

The disclosure by accused SK didn't extend to skulls of other
missing children having been concealed at such spot, or for its
recovery, which was the reason for taking accused SK to the
place of recovery.

123. Ex. Ka-16 shows that the accused SK after getting the
skull of L recovered from the enclosed place behind the House
No. D-5 informed that he had concealed other skulls also, in
the same enclosed gallery, and dug out 15 other human skull
and skeletons in respect of which inquest was prepared and
sent for postmortem.

124. Strangely no inquest or postmortem reports are exhibited

during the trial. The postmortem reports are filed before this
Court alongwith an affidavit by CBI without any attempt made
to prove such materials either by complying with Section 391
or 367 Cr.P.C. Absolutely no reasons are disclosed for not
producing such evidence during the trial by the prosecution and
adverse inference would have to be drawn against the
prosecution for not producing such material during trial.

125. So far as the recovery of skull of victim L is concerned,

the skull recovered allegedly of L is not proved as that of L
since the DNA report in respect of the victim has not matched.
Thus the only disclosure made i.e. Ex.Ka.16, prior to his
brought to the place of recovery is not proved in terms of
Section 27 of the Evidence Act.

126. The recovery of other 15 skulls during digging of the

earth for recovery of victim L can at best be a case of seizure
of 15 skulls etc., and in the absence of any prior disclosure
made by the accused SK, in that regard, it cannot be treated to
 87

be an evidence saved under Section 27 of the Act of 1872.

The testimony of PW-40, moreover, is contradicted on the

aspect of disclosure made by accused SK vide Ex. Ka-16,
inasmuch as PW-40 claims that accused SK had in fact
disclosed about concealing of 15 skulls during his disclosure
statement, pursuant to which he took accused SK to the
enclosed place behind the House No. D-5 for recovery, whereas
Ex. Ka-16, drawn on the dictation of PW-40 himself, only refers
to the murder of L and recovery of her skull from the open
place behind House No. D-5 without any reference to the other
14 skulls.

In the absence of any disclosure statement (panchnama)

of accused SK, prepared in the presence of two independent
witnesses, and proved by way of oral testimony of attending
witnesses, it would not be open for the Court to believe the
prosecution case regarding making of disclosure statement by
the accused leading distinctly to the recovery of skull and other
body parts of 15 missing persons, including the victim A from
the place of recovery.

Similarly, other confessional statements of accused SK

allegedly made before UP Police or CBI fail to qualify the test
laid down in law inasmuch as all such confessional statements
neither have been recorded in the presence of two independent
witnesses nor any panchayatnama is drawn in the manner
required by law. The contents of such confession are also not
proved in the manner specified in law. Subsequent confessions,
claimed to have been made by accused SK before the police or
the CBI are thus equally fallacious and cannot be relied upon.
 88

129. Any recovery to be admissible in evidence, by virtue of

Section 27 of the Act of 1872, would have to be backed by a
proper disclosure statement and panchnama of accused SK.
Once it is found lacking, the recovery looses much of its sheen.
The evidence of recovery in this case is Ex.Ka.16. It is the
recovery memo of 15 human skulls dated 29.12.2006 and has
been proved by the independent witness Pappu Lal (PW-10).
PW-10 has also proved Ex.Ka.17 and Ex.Ka.18. Ex.Ka.17 is the
recovery memo of knife recovered on 29.12.2006. Ex.Ka. 18 is
the recovery memo of human bones recovered on 31.12.2006
pursuant to disclosure made by the accused SK on 29.12.2006.
Since these three recoveries have only one independent
witness to prove, therefore, we are required to examine the
testimony of witness Pappu Lal. Pappu Lal lives in servant
quarter of D-2 Sector-31. He has proved Ex.Ka.16 and
Ex.Ka.18. As per him he was called upon by the police and his
signatures were obtained on the memo of recovery. In the
cross-examination, PW-10 has stated that he has six children
apart from his wife in his family. PW-10 has lost his daughter,
namely, victim Fin nithari killings. He is the only person, who
has been produced to prove the recovery. As per the witness
his daughter disappeared in April, 2006 and he had lodged a
missing report on 11.04.06. From 11 April till 29, December,
2006 he did not came across any information about his
daughter having gone missing from the same area. As per the
witness he was called by police on 29.12.06. When he reached
the House No. D-5, there were large number of people already
present there. The drain in front of house D-5 was covered.
This witness has specifically stated that when he reached the
place of occurrence he found that the excavation/digging was
already going on. His statement reads as under:-
 89

130. He has also admitted that when he arrived at house,

there were large number of people already present there.

131. It is the case of the prosecution itself that when the police
reached House No. D-5 on 29.12.06 a large crowd had already
gathered there, and fearing a law and order situation the police
had deputed personnel to control the mob. The Panch witness
Pappu Lal states that when he reached the spot a large crowd
was standing there. The presence of people in such large
numbers, at the place of recovery indicates that it was public
knowledge that bones were present in the space behind D-5.

132. The panch witness, PW-10 Pappu Lal has deposed that
when he reached the spot along with the police and accused
SK, excavation of the spot where the biological material etc.
were recovered was already in progress. This clearly indicates
that police were already aware that the bones and clothes of
missing persons would be found in the open space behind D5
and D6 and facing the jal board compound.

133. It is too much of an coincidence that the panch to the

recovery of L's skull was, Pappu Lal PW-10, who just so
happens to be the father of another victim girl, F. This is quite
probable that the police already knew about the existence of
various skulls and body parts at the relevant places, and
arranged the seizures to be conducted before the father of
another missing child.

It is the case of the prosecution that accused SK was

arrested based on the information given by a secret informant.
The I.O. PW-40, states that he had informed the entire police
force of PS Sector 20 Noida, PS Nithari police outpost, as well
 90

as the SOG team to be present for the arrest. Thereafter the

entire arrest force proceeded to House No. D5 for the recovery.
It is an admitted position that accused SK had been
cooperating with the investigation since 3.12.06. Thus the
presence of such a large force was entirely unnecessary and
unwarranted. It is probable that the force was summoned not
for the arrest of the accused, or because the IO was
apprehensive of accused SK fleeing but because the police
were aware that the subsequent recovery of such a large
number of bones and skulls and clothes of missing children
would lead to a law and order problem and large force would
be necessary for crowd control.

135. It is argued that the police and public were well aware of
the presence of human bodies in the open space between D5,
D6, Sector-31, Noida and Jal Nigam Compound and in the drain
on the main road facing houses D1 to D6. Therefore, this
evidence is not a discovery u/s 27, and hence neither
admissible, nor incriminating. It cannot be said that either this
circumstance (discovery of bodies u/s 27) is firmly established,
or that it is incompatible with the innocence of the accused and
the guilt of another person.

136. On the strength of evidence referred to above, the

possibility of police and public being aware of the presence of
human bodies in the enclosed service lane behind House No. D-
5, D-6 and Jal Nigam Compound and in the drain on the main
road facing House No. D-1 to D-6 cannot be ruled out. This is
particularly so as evidence has been placed to show that
biological materials were found at the same spot earlier also.
This aspect shall be taken up, separately, a little later. For
attracting Section 27 of the Act, concealment and exclusive
knowledge must be established by the prosecution.
 91

137. In Makhan Singh Vs. State of Punjab AIR 1998 SC 1705

the Supreme Court examined the issue of recovery of a dead
body from an open field. The Court found that recovery was not
from a place about which knowledge could be attributed only to
the accused. In that context, the Court observed as under in
para 14 of the judgment:-

138. We have carefully analyzed the evidence both on the

aspect of making of this disclosure statement by the accused
SK and the consequential recovery vide Ex.Ka.16 to Ex.Ka.18
and do not find it safe to rely upon the prosecution evidence to
hold the circumstance of disclosure by the accused and alleged
consequential recovery as admissible against the accused. It is
not necessary to reiterate that neither there is any disclosure
statement (panchnama) produced during trial nor it is proved
and the oral evidence of prosecution witnesses PW-28 and PW-
40 are not consistent. The statement of PW-40 is contradicted
by Ex.Ka.16 on material aspects. In light of the law settled by
the Supreme Court, we, therefore, have no hesitation in
holding that the prosecution has not succeeded in proving the
circumstance of disclosure and consequential recovery against
the accused appellant.

Circumstance of recovery of kitchen knife on 29.12.06 as

well as recovery of kitchen knife on 11.01.07 and axe on
18.01.07 rests on the disclosure statement of accused accused
SK, which again is not inspiring. Existence of kitchen knife or
axe are common in a house. All these recoveries are made
 92

from the House No. D-5 one after the other. The prosecution
has also placed reliance upon recovery of kitchen knife
allegedly recovered on the pointing out of accused on
29.12.06. This recovery is alleged to be distinctly in
consequence of the disclosure statement made by the accused.
We have already disbelieved the prosecution case on the aspect
relating to making of disclosure statement. Once that be so,
the recovery of knife cannot be read as a circumstance against
the accused under Section 27 of the Evidence Act. The
recovery of knife otherwise is evident with inconsistencies,
inasmuch as PW-40 has stated that knife was seized from the
terrace of D-5 whereafter the skeleton remains were recovered
from the gallery. However, the other prosecution witness on the
aspect of recovery, namely, Sub-Inspector Chhotey Lal PW-28
has stated that they proceeded straight to the gallery for
recovery of skull and has said nothing about the recovery of
knife. The knife had no blood stains on it. No forensic report
has found existence of blood on the knife. Mere recovery of a
knife from the house cannot be treated to be an incriminating
fact in light of the observations made by the Supreme Court in
Baksheesh Singh vs. State of Punjab (1971) Vol 3 SCC 182
wherein the court observed as under in para 8:-

In the absence of any forensic evidence linking the knife

 93

to the crime, the mere recovery of a kitchen knife otherwise

cannot form any admissible evidence to implicate accused
appellant. Sri Chaudhary has placed reliance upon para 16 of
the Supreme Court judgment in Anter Singh vs. State of
Rajasthan (2004) 10 SCC 657 to submit that the recovery is
wholly unreliable.

In Anter Singh (supra) the Supreme Court relied upon the

judgment of Privy Council in Pulukuri Kottaya and Udai Bhan
vs. State of U.P. AIR 1962 SC 1116 to summarize the
ingredients of Section 27 of the Act of 1872 in following
words:-

PW-10, moreover, has admitted that by the time he

reached the spot the digging had commenced in the enclosed
gallery. It would thus have been difficult for PW-10 to have
witnessed the seizure of knife. The knife was also not shown to
 94

PW-10 for identification. There is also no description of size of

knife seized in the seizure memo. The prosecution case is that
the knife was recovered with mud. This also appears to be
improbable as the knife was recovered from concrete platform
under the tank on the terrace of D-5. Its nobody’s case that the
knife was buried or kept in a muddy area. The presence of mud
deposit on knife also questions the credibility of its recovery.

143. The other circumstance relied upon by the prosecution

against the accused is of recovery of kitchen knife on 11.01.07
and axe on 18.01.07 based on the disclosure made by accused
SK under Section 27.

It is the admitted position of the prosecution that after

29.12.06, House No. D-5 and the enclosed gallery behind it as
well as the surrounding areas were thoroughly searched.
Similarly, prior to the seizure on 18.1.07, the Noida police and
the CBI had thoroughly searched the premises of the house on
5.1.07, 12.1.07 and 13.1.07. Infact, PW18 categorically admits
to searching the exact same area where the axe was found on
4.1.2007 itself.

145. Recovery of an article from a space which is in control of

police does not amount to discovery. Thus, when the police had
already searched the premises prior to the disclosure and not
found any weapon the subsequent recovery becomes doubtful.

146. There is no noting of the knife or axe having blood stains

or fragments of flesh, skin or bone on them either in the
panchnama or in the deposition of the witness. There is no
forensic evidence linking this knife or axe to the crime. In the
absence of such evidence the mere recovery of the knife and
axe u/s 27 cannot implicate the accused in any way. In any
 95

case, the mere recovery of a kitchen knife can hardly be

incriminating.

147. The knife allegedly recovered by UP police on 11.01.07 is

proved by the testimony of PW-17 Durga Prasad. He claims
that the knife was recovered from behind the house concealed
below the electricity pole. It is difficult to comprehend as to
how the knife can be recovered by the UP police when the
place had been thoroughly searched earlier by them
repeatedly. The knife otherwise has no blood stains or fragment
of flesh or skin or bone and in the absence of any forensic
evidence linking the knife to the crime, the mere recovery of
knife cannot constitute any basis to implicate the accused. The
mere recovery of axe on 18.01.07 from the lawn in front of
House No. D-5 cannot be given much importance as the same
site had been earlier searched by the police on 04.01.07 itself.
The axe is not shown to have any blood stains or fragment of
flesh or skin or bond and there is no forensic evidence linking
the axe to the crime. Merely on the strength of recovery of
knife and axe, therefore, the accused cannot be implicated.

Neither the IO, nor the witnesses to the recoveries of the

two knives and the axe depose to the weapons having any
blood stains on them. Further neither do the seizure
panchnamas mention the presence of any blood stains on any
of the recovered knives. While the seizure panchnama for the
axe mentions suspicious stains, the forensic report shows that
no blood was found on the same. Existence of axe in a garden
otherwise cannot be frowned upon.

The prosecution case against the accused is primarily

based upon the confessional statement of accused SK wherein
he has not even alleged to have killed any of the victim either
 96

by knife or by axe. There is no evidence on record to show that

any of the victim had been done to death by the accused by
the use of knife or the axe. The recovery of knife or axe
therefore are not of much significance, otherwise, for such
reasons.

As per the prosecution the victim had been strangulated

by the use of chunni (scarf) which has not been produced in
evidence during trial. The knife and axe apparently have been
used, by the accused, as per the prosecution, for dissecting the
body parts of victim after she had been done to death. The
recovery of knife and axe, therefore, do not lend any support
to the prosecution case, even otherwise.

Prosecution has also adduced testimony of Manoj Kumar

(PW-20), who was residing in House No. 1, Water Works
Compound, Sector 31, Noida. This witness has stated that he
was playing cricket with his friends in March, 2005 and the
cricket ball fell in the enclosed space (service lane) behind
House No. D-5, Sector-31, Noida. PW-20 claims that he jumped
the wall in order to find the ball. He saw a human hand with
flesh covered in a polythene and he got scared. He found the
ball and jumped out of the enclosed service gallery. He
informed elders about human hand lying and never ventured to
visit that place again. He claims that on enquiry from elders he
was informed that police had come and assured that there is
nothing to worry. It is after two years of such incident that his
statement was again recorded by CBI. In the cross-
examination also this witness has remained firm.
 97

Prosecution has also produced Surendra Singh (PW-21)

who has referred to the incident of March, 2005 when children
were playing cricket and their ball fell in the enclosed gallery.
The witness has stated that after he returned from duty late in
the night he was informed by PW-20 about the incident. PW-21
has asserted that number of persons visited police outpost,
Sector 26 and four policemen came to the spot. These
policemen jumped the boundary and saw the enclosed space
and said that there is nothing to worry about. They claimed
that same may be of some animal or someone has thrown it
after consuming the flesh. He also stated that the police had
put soil and assured that there is nothing to be worried about.
It is after two years that his statement has been recorded by
the CBI. From the testimony of PW-20 and 21, it is apparent
that much prior to the incident in question the residents had
seen human hand lying in the enclosed gallery. On the strength
of the statement of PW-20 and 21, it is alleged by the defence
that existence of human hand at the place of recovery was
within the knowledge of the residents and had also been
brought to the notice of the police. It is, therefore, urged that
the fact about human skeleton lying in the enclosed gallery
behind House No. D-5 and D-6 is, therefore, well known to the
police and it is not on the basis of any disclosure made by the
accused that such recovery has been made from the area.

153. One of the circumstances relied upon by the prosecution

against the accused appellant SK also is that he used to lure
women and girls walking past House No. D-5, Sector-31, Noida
and would call them inside the house for committing the
offence. In order to prove such case, the prosecution has relied
upon the testimony of PW-1, PW-24 and PW-13. We have
 98

perused the testimony of three witnesses and none of them

have alleged any untoward activity on part of accused at any
time or that anything suspicious was done by him or said by
him. Statement of none of these witnesses have ever been
recorded either by the police or the CBI and no prior complaint
was made by them. The fact that accused SK used to offer
employment to women and girls passing House No. D-5 is a
normal activity as engagement of servants would be natural for
managing the affairs of the house. None of the acts alleged by
these witnesses can therefore be considered incriminating.

154. Prosecution has also relied upon the circumstance of the

manner in which bodies were cut by the accused before the
medical panel at AIIMS.

155. This circumstance has not been relied upon by the court
of sessions to convict the accused. As per the prosecution the
accused SK, while in custody, on 04.02.07 was produced before
a medical panel at AIIMS. He was shown the recovered bones
on 19 tables and asked about the identification of few of the
items even asked to demonstrate the manner in which he cut
the bodies. The mean act of the manner in which bodies are
cut was also video-graphed.

156. The evidence of prosecution with regard to the manner in

which the bodies were cut cannot be given any weight-age as
the accused was in CBI custody when he was presented before
the AIIMS panel.

157. By virtue of Section 26 of the Evidence Act, any

confession made to any person during the police custody would
not be admissible unless it is in the immediate presence of a
Magistrate.
 99

158. It is well settled that when once an accused is arrested by

a police officer and is in his custody and is temporarily left in
charge of a private individual, that does not terminate the
police custody and the accused shall still be deemed to be in
police custody.

In Kishore Chand vs. State of Himachal Pradesh, (1991)

SCC 1 Page 286, the Supreme Court dealt with the confession
made by accused while he was in police custody. The accused
was left in the company of a pradhan before whom the
confession was made by the accused. The Court disbelieved the
prosecution theory of confession having been made voluntarily
in para 8 of the judgment which is reproduced hereinafter:-
 100

160. The factual scenario in the present case is similar to the

one arising in Kishore Chand (supra) inasmuch as, the accused
SK was in custody of CBI when he was produced before the
team of doctors at AIIMS, New Delhi. Any confession/statement
made by him would clearly be hit by Section 24 to 26 of the Act
of 1872.

161. Even otherwise mere drawing of lines on a body does not

reveal the fact that accused had the skill and equipment to do
the same with a kitchen knife or that in fact he had actually
committed such crime.

The sheet anchor of prosecution case is the alleged

confession made by him before the Magistrate under Section
164 Cr.P.C. and has been relied upon as the
circumstance/evidence to hold him guilty.

163. Substantial arguments are advanced on behalf of accused

 101

to submit that neither the confession is voluntary nor is it

otherwise true. Trial court has held the confession to be
voluntary and relying upon it the accused has been awarded
death penalty. The circumstances of the case would, therefore,
require a careful scrutiny in order to ascertain whether the
confession is voluntary or not ?

The factual background leading to the recording of

confession is enumerated hereinafter:-

(i) Accused SK is arrested in connection with FIR No.838 of

2006, under Section 363, 366 IPC concerning the
disappearance of L. on 29.12.2006 at 8.00-8.15 am. The
date and time of arrest is disputed, and in view of the
defence evidence as also the version of accused under
Section 313 Cr.P.C. we have already observed that the
arrest of accused is not proved by the prosecution on
29.12.2006.

(ii) Accused is produced before the learned Magistrate,

Gautam Buddh Nagar, Noida for the first time for remand.
The production of accused is after 24 hours of arrest. The
remand application moved by IO Dinesh Yadav (PW-40) on
30.12.2006 is extracted hereinafter:-

(iii) The Remand Magistrate at Gautam Buddh Nagar has

referred to the request of prosecution for remand of accused
SK and Moninder Singh Pandher on the basis of their
confessional statement made under Section 161 Cr.P.C.,
wherein 15 human skulls and skeletons have been
recovered on the pointing out of the accused (Surender Koli
 102

and Moninder Singh Pandher). The Magistrate allowed

remand of accused SK and Pandher for two days beginning
9.00 am on 31.12.2006 to 5.00 pm on 1.1.2007. The
accused was directed to be medically examined prior to
police remand and also at the time of return of judicial
custody from the police remand.

(iv) On 1.1.2007 the Magistrate allowed ten days

remand of accused SK to police custody in the FIR No.838 of
2006 (relating to victim L.).
(v) On 11.1.2007 remand application is submitted by
CBI in the FIR lodged regarding the victim A. This
application of CBI states that Koli and Pandher have jointly
admitted to kidnapping, raping and murdering A. The
Magistrate grants police remand to CBI on 25.1.2007.

(vi) The Investigating Officer of CBI M.S. Phartyal

claims that the accused is badly beaten up by the Advocates
and the public upon being produced in the Ghaziabad Court
for remand. However, the Magistrate is not informed of
physical assault of accused nor any document relating to
medical treatment offered to accused are produced. The
Magistrate vide order dated 25.1.2007 in respect of
disappearance of missing girl H. allows remand to police
custody till 8.2.2007.
(vii) On 8.2.2007 an application is filed by CBI before
the learned CBI Magistrate, Ghaziabad for further police
remand of accused SK for a period of 14 days. Ostensible
ground for such remand is that the accused are needed for
recovery of the body and personal belongings of missing
women D.
(viii) The defence contends that recovery of skulls, bones
and body parts had already been made by the UP Police/CBI
between 29.12.2006 and 16.1.2007. No excavations or
seizures of body parts are made after 16.1.2007. Clothes of
D has already been seized and identified by her husband on
29.12.2006. The memo of identification of D’s clothes by her
husband dated 29.12.2006 is proved by PW-15 in Capital
Case No.2667 of 2017.
(ix) Vide order dated 8.2.2007, the accused was
remanded to police custody till 22.2.2007 in case pertaining
to victim D.

(x) Again on 22.2.2007 an application for police remand was

moved by CBI IO MS Phartyal stating as under:-

“That custodial interrogation of accused Surender Koli is

necessary in the proper and just investigation of the case
and for recovery of the dead body/body parts and other
belongings of Ms. ‘XYZ’. Accused Pandher is also required to
be interrogated regarding bribing of the police officers and
other facilities provided to the police for not conducting
investigation against him and his servant accused Surender
Koli. Vouchers relating to payments made to police, railway
tickets provided to them etc are to be recovered from and
 103

through accused Moninder Singh Pandher. Accused Surender

Koli is to be interrogated regarding the missing 'XYZ' and for
making recoveries of the body parts and other belongings of
Ms. ‘XYZ’. Both the accused are to be interrogated regarding
recovery of the skulls, bones and other body parts from the
premises with reference to the case of alleged rape, murder
of Ms. 'XYZ' since the DNA test report on the skulls etc.
recovered from the premises is awaited which will
conclusively prove the murder of Ms. 'XYZ' in the premises
of accused Moninder Singh Pander and Surender Koli. The
accused are also required to be subjected to various
scientific tests.”

165. On behalf of accused appellant, it is pointed out that the

clothes etc. of victim 'XYZ' was already recovered and
recognized on 3.1.2007, and therefore prayer for extension of
police remand on such ground is wholly arbitrary. Special
Judicial Magistrate (CBI) passed an order on the custody
application of CBI on 22.2.2007 extending the police remand of
accused till 2.3.2007.

166. Interestingly, all orders of Remand Magistrate extending

the police remand of accused directed his medical examination
to be conducted both, at the time he was taken from the court
and again after the CBI remand. However, there is nothing on
record to show that such medical examination was conducted
of accused.

167. Non production of report of medical examination of

accused while in police custody is a serious lapse on part of the
investigation. No explanation is furnished for such lapse. The
police custody of accused was for almost sixty days and the
fact that not even a single medical examination report is
produced by the prosecution, despite directions of the
magistrate to do so, necessarily leads to adverse inference
being drawn against the prosecution.

168. It is in the above context that notice has to be taken of a

handwritten application moved by the accused SK before the
 104

court of ACMM, New Delhi, for recording his confessional

statement. The contents of handwritten application of accused
SK is reproduced hereinafter:-

(
)

-5 31
,
,

The application of accused has been moved before the

court of ACMM, Patiala House, New Delhi in the case of rape
and murder of Ms. 'XYZ'. The application moved by CBI
requesting the recording of confessional statement of accused
dated 28.2.2007 is extracted hereinafter:-

“1. On the request of Government of UP and on the

Notification issued by the Central Govt., in accordance with
law, the CBI has taken up investigation of cases relating to
the kidnapping of children, abduction of women, rape and
murder, disposal of dead bodies etc. in Nithari village by
accused Moninder Singh Pandher and Surender Koli of D-5,
Sector 31, Noida, Gautam Budh Nagar, UP.
2. That accused Moninder Singh Pandher and Surender Koli
are in CBI police custody remand in the above case.
3. That accused Surender Koli has expressed a desire to
make a true confession of the facts and circumstances
relating to the crimes mentioned above committed by him.
He has addressed an application to the Hon'ble Court, to
this effect, which is forwarded herewith for kind perusal and
consideration of this Hon'ble Court.
4. It is further submitted that accused Surender Koli was
 105

arrested by the NOIDA Police on 29.12.2006 and recoveries

of skulls/bones and other belongings of the victims were
recovered from the said premises on his disclosure and
pointing out and when the accused was lodged in Ghaziabad
Jail for a day, he was very badly beaten up by the jail
inmates. Further, when the accused were produced in the
Ghaziabad Court by the CBI on 25.1.2007, they were badly
beaten up by the advocates and the public. Such incidents
of security threat to the accused also came to notice when
the accused were produced in the Court of CJM, NOIDA,
earlier.
5. That there is absolute security risk and danger to the
accused in the jail as well as outside from the public or jail
inmates etc. If the public or the jail inmates comes to know
that the accused is going to make a confession of the true
facts, then also there is threat to his safety.

PRAYER
In view of the above facts and circumstances it is humbly
prayed that:-
(i) this Hon'ble Court may be pleased to record the
confessional statement of accused Surender Koli u/s 164
Cr.PC, as per law.

(ii) if the accused makes a confession statement or not, he

may be sent in judicial custody to Tihar Jail with appropriate
directions to the Jail Supdt. for providing safety to the
accused, in public interest.

It is prayed accordingly.”

170. On the basis of application moved by CBI, learned ACMM,

New Delhi passed following orders on 28.2.2007:-

“Application has been filed by Insp. M.S. Phartayal, CBI,

SCR-III/SCB, Delhi for recording the confession statement of
the accused Surinder Koli. The said application is also
accompanied by a hand written request of the accused
Surinder Koli to the effect that he had been indulging into
sex and killing of minor girls and ladies and now in order to
lesson the burden on his conscious he wants to make a
detailed statement to this effect.
It is submitted that when the accused was lodged in
Ghaziabad Jail for a day, he was very badly beaten up by
the jail inmates and further when he was produced in the
Ghaziabad Court by the CBI on 25.1.07 he was also beaten
up by the Advocates and the public.

I have given a personal hearing to the accused in the

Chamber. He was in the custody of local police of Ghaziabad
from 29.12.06 to 11.1.07 and thereafter in CBI Custody
since 11.1.07.

In this background, it is necessary to ensure that the

 106

accused is voluntarily wanting to make a confession without

any influence having remained with the local police and the
investigating team of CBI for the last almost two months. In
this view of the matter, the accused who has been produced
by the Investigating Officer of CBI is directed to be handed
over to the Director General (Prisons), Tihar to be kept in
some secluded place which may be a Solitary Ward where it
shall be ensured that he does not mix up with any person
including the other inmates and is isolated from all kind of
influences. He is directed to be produced before this court
thereafter at 1:00 pm for 1.3.07. Before handing over the
accused to the Director General (Prisons), Tihar his medical
examination be got conducted.
Similarly, before his production in the court on 1.3.07, his
medical should also be got conducted.
The accused shall be personally handed over to the Director
General (Prisons) today by the officials of CBI after his
medical examination and shall be produced before this court
by the Jail Authorities who shall ensure that he is brought to
the Court in a separate vehicle.

Needless to say that during the stay of the accused Surinder

Koli in Tihar Jail all necessary arrangements would be made
by the Prison Authorities to ensure the safety and security
of the accused. A copy of this order be given dasti to the IO
and one copy be sent to the Director General (Prisons),
Tihar immediately through Special Messenger.”

171. The Superintendent, Centra Jail, Tihar submitted a

medical report before the learned ACMM, New Delhi on
1.3.2007, which reads as under:-

“Surender Koli S/o Shankar Ram, 31 Yrs, M, Medical

Examination is conducted in CJ-I at 11.20 AM, Dated
01.03.2007.
Patient came in CJ-I on 28.02.2007 and his medical
examination was done on 28.02.2007.
On examination - patient conscious and oriented and
responding to verbal commands and oriented to time, place
and person.

Vitals – Pulse – 80/min.

B.P. - 126/76 mm Hg

S/E – Chest B/L Clear

CVS – S1S2 Normal

CNS – Pupils B/L Symmetrical and ictrus to light

P/A – Soft, bowel sound present

No fresh external injury seen.

 107

According to patient puts No History of Addiction

Pt. is fit from medical examination.

Point of view and fit for statement ”

172. The medical examination was conducted at 11.20 am on

1.3.2007. Though it is alleged that medical examination was
also conducted on 28.2.2007 but such report apparently has
not been placed on record.

173. On 1.3.2007, orders were passed by learned ACMM at

different intervals, which are extracted hereinafter:-

“Present: Accused has been duly produced in muffled face

by SI Samu, 3rd Bn. Central Jail, Tihar.
Since the accused is not assisted by any counsel, the legal
aid counsel attached to this court Ms. Sangita Bhayana has
been directed to assist the accused before any proceedings
are conducted. The accused has been asked by this court if
he wants the assistance of the counsel to which he has
stated that he cannot afford a counsel. He has been
informed that a counsel from the legal aid can be provided
to him, to which he has no objection.
At this stage Ms. Sangita Bhayana Advocate has appeared.
She has refused to provide any legal assistance to the
accused stating that it is against her conscious.

Under these circumstances, Secretary DLSA is requested to

immediately depute a legal aid counsel for the assistance of
the accused.
At this stage medical report of the accused has been
received. The same be placed on record.
Be awaited.

ACMM/1.3.0
7

1.10 pm.
Application is taken up again.

This court is informed that no legal aid counsel is available

at the moment. It is directed that any legal aid counsel
present in the complex attached to any other court should
be requested to assist the accused.

At this stage since no legal aid counsel has come. Sh.

Gurinder Pal Singh and Sh. Aman Sarin Advocates who are
present in the court have volunteered to provide legal
assistance to the accused. Now at this stage Sh. Neeraj
Aggarwal, legal aid counsel attached to the court of Sh.
 108

Sunil Chaudhary, MM has appeared to assist the accused. In

the interest of justice five minutes legal interview is granted
inside the court itself.
Be awaited.

ACMM/1.3.07
1.20 pm

Application is taken up
Present: Insp. M.S. Phartayal, CBI SCR-III/SCB, Delhi.

Accused has been produced from Central Jail, Tihar by SI

Samu, 3rd Bn., Central Jail, Tihar with Sh. Gurinder Pal
Singh, Sh. Aman Sarin and Sh. Neeraj Aggarwal Advocates.
The accused present in the court submits that he wants to
make statement. On being asked the accused who is
present in the court alongwith his counsels has submitted
that he has understood the consequences of his making a
statement and is also aware that he is not bound to make
any statement but all the same insist upon making the
same.

Under these circumstances application of the CBI is being

marked to Sh. Chandrashekhar, MM, New Delhi for recording
the statement of the accused.
However, keeping in view the peculiar nature of the case,
the gravity and sensitivity of the allegations involved, it is
directed that in case if the Magistrate proceeds to record the
statement it would be only be appropriate in the interest of
justice that the statement should be audio recorded and
also video graphed.
Before proceeding to record the statement of the accused,
the Magistrate shall ensure that the statement is voluntary;
accused is free from all kind of influence and pressure; he
has been warned of the consequences of the same; he shall
also ensure that the accused has not been given any hope
of release. The Magistrate shall duly explain to the accused
that his statement is being videographed and the audio
recording of the same is also being done. It is further
directed that after the statement is completed, the copies of
the recordings shall be prepared in the presence of the
Magistrate and the accused and the original copies of the
same shall also be sealed in the presence of the accused.
The transcript of the same shall be prepared and got signed
from the accused thereafter.
It is desirable that care should be taken while recording of
the statement and the same be recorded without any break
and if the Magistrate at any point of time feels that the
accused is straying from the arena of allegations involved,
he would be at liberty to put necessary questions to the
accused. Further in case if the Magistrate requires the
assistance of Video Operator the same can be taken.

A copy of this order be sent to Sh. Chandershekhar, MM,

 109

New Delhi immediately. One copy of this order be also sent

to the DCP, New Delhi and Incharge Lock Up to make
necessary arrangements.
ACMM/1.3.07”

174. Learned Metropolitan Magistrate, Patiala House, New

Delhi, accordingly, videographed and audiographed the
confessional statement of accused SK. The order passed by the
Metropolitan Magistrate dated 1.3.2007 is reproduced
hereinafter:-

“Today an application was marked to me by Ld. ACMM, New

Delhi for recording the statement of accused Surender Koli
in CBI Case No RC 17(S)/07/SCB-I/Delhi Video graphy and
preparing of CD and thereafter recording the same in
transcription. The order was received by me after lunch
hours. It took some time in the arrangement for recording
the statement of accused Surinder Koli through Video
Graphy in the office. Video Conferencing room with the
apparatus already installed there. The statement of accused
Surinder Koli has been video graphed and audio graphed as
per direction, however, making transcription of it is taking a
lot of time as it is a slow and lengthy process and it is
already 10:15 PM and it seems that much more time shall
be required for completing the further transcription. It
seems that it is not practically possible today therefore
accused is required for completion of transcription by 10 am
on 2-3-2007 therefore appropriate orders may be passed in
this regard.

Today, statement of accused has been video graphed and

audio recorded and has been completed and four copies of
video graphed CD have been prepared. The original has
been sealed in the presence of accused with the signature of
under signed and the accused and sealed with the court
seal. The other three copies of the CDs are also sealed in
the presence of the accused bearing the signature of the
undersigned and the accused and the same shall be opened
in the presence of accused tomorrow for completing of
transcript. Shyam, Video Operator has closed the system in
my presence and it ensured that none can have access to
it.”

175. The accused was then produced before the ACMM on

1.3.2007 pursuant to the order passed by Sri Chandrashekhar,
learned Metropolitan Magistrate. The ACMM passed following
orders on 1.3.2007:-

“Present: Accused with SI Samu Murmu, 3rd Bn. DAP.

 110

Accused has been produced by the order of Sh.

Chandershekhar, MM, New Delhi.

As per the report sent by the learned MM the confessional

statement has already been videographed and audio
recorded, however the transcripts could not be completed,
for which the accused is again required to be produced
before the concerned MM at 10.00 am on 2.3.07.
In view of the above, he is being handed over to the
Director General (Prisons), Tihar to be kept in some
secluded place which may be a solitary ward where it shall
be ensured that he does not mix up with any person
including the other inmates and is isolated from all kind of
influences as per the directions dated 28.2.07. The accused
shall be brought to the court in a separate vehicle. A copy of
this order be given dasti to IO-CBI and SI Samu Murmu, 3 rd
Bn. DAP for compliance.”

176. On 2.3.2007 the accused was produced before the

learned ACMM, who directed the accused to be produced before
Sri Chandrashekhar, Metropolitan Magistrate, immediately.

177. The work of transcription could not be concluded on

2.3.2007 till 10.55 pm, and therefore the Metropolitan
Magistrate passed following orders on 2.3.2007:-

“Today as per the orders of learned ACMM, Inspector Sajan

Singh has produced the accused in the Video Conferencing
Room. In the presence of the accused the seal of the one
CD was broken and CD was taken out and the work of
transcription was initiated. It was continued without break
up except for sometime when some food was to be provided
to the accused and some remand work was to be done by
the Video conferencing. The work of transcription is very
lengthy and slow process and it needs several times
corrections, therefore it could not be completed till this
time, it is already 10:55 PM and still some transcription
work is to be done and it seems that it shall not be feasible
to do the same today. Therefore, accused is directed to be
produced before learned ACCM, for further appropriate
orders. Mr. Shaym who is handling the work of operating CD
is directed to close the computer and he has complied and it
is confirmed that none can access to the computer. CD is
again sealed with the court seal bearing the signature of the
accused and myself. It is requested to the learned ACMM
that necessary directions may be given to the concerned
authority to produce the accused tomorrow at 10 am, so
that further work of transcription can be completed at the
earliest.”

Learned ACMM passed following orders on 2.3.2007 at

 111

11.00 pm:-

“Present: Accused with Insp. Sajjan Singh, 3rd Bn. DAP.

Accused has been produced by the direction of Sh.
Chandershekhar, MM, New Delhi.
As per the report sent by the Ld MM the transcripts could
not be completed being lengthy and time consuming.
Hence, in this background the accused is again required to
be produced before this court at 10:00 am on 3.3.07.
The accused is being handed over to the Director General
(Prisons), Tihar to be kept in some secluded place which
may be a solitary ward where it shall be ensured that he
does not mix up with any person including the other
inmates and is isolated from all kind of influences as per the
directions dated 28.2.07. The accused shall be brought to
the court in a separate vehicle. A copy of this order be given
dasti to IO CBI and Insp. Sajjan Singh, 3rd Bn. DAP for
compliance.”

On 3.3.2007 the accused was produced by Inspector

Rakesh Kumar alongwith SHO, P.S. Tilak Marg and was directed
to be produced before Sri Chandrashekhar, MM for completion
of his statement. The order dated 3.3.2007 is extracted
hereinafter:-

“Present: Inspector Rakesh Kumar alongwith SHO PS Tilak

Marg has produced the accused Surinder Koli.

He is directed to produce the accused Surinder Koli before

Sh. Chander Shekhar, MM immediately for completion of his
statement.”

180. On 3.3.2007 learned ACMM passed following orders:-

“Present: Insp M.S. Phartyal, CBI SCR III/SCB/Delhi.

Accused has been produced by Inspector Rakesh Kumar, 3 rd

Bn. DAP.

The entire transcription has been completed as per the

report sent by Sri Chandrashekhar, MM Delhi. Since the
accused had made confession, hence he cannot be handed
back to the CBI. The I.O. CBI submits that the accused has
been arrested and in judicial custody in four other cases i.e.
R.Cs. No. 1(S)/07/SCB-I, 2(S)/07/SCB-I, 5(S)/07/SCB-I
and 11(S)/07/SCB-I by the order of the concerned Court at
Ghaziabad and was on CBI remand in the present case
when produced before the court for recording of his
statement.

Under these circumstances Director General (Prisons),Tihar

 112

is directed to produce the accused Surender Koli before the

Special Judicial Magistrate, CBI/Duty Magistrate, Ghaziabad
at the earliest, for deciding the further custody. Once copy
of this order be given dasti to Inspector Rakesh Kumar 3 rd
Bn. DAP for compliance and one copy be given to Inspector
MS Phartyal IO-CBI.”

181. An application apparently was moved by Inspector, CBI,

MS Phartyal on 1.3.2007 for providing copy of the confessional
statement in Audio and Video recording, if any. The other
application was then moved by Sri MS Phartyal on 2.3.2007,
which came to be allowed. The application was allowed on
3.3.2007. The acknowledgement is made by the Inspector that
one transcripted copy running into 48 pages and two CDs. were
received by him on 3.3.2007.

The transcripted version of video and audio recording of

confessional statement of accused SK is reproduced
hereinafter:-

“CBI Case No. RC 17(S)/07/SCB-L/Delhi

U/s 376/302/201 IPC
State (CRD) Vs. Surinder Koli & Ors.
Confession of the Accused Surinder Koli S/o Shri
Shankar Ram Kohli Present Address: D-5. Sector
31. Noida, Uttar Pradesh. Postal Address: Gram
Mangroo Khaal, Thana Jaali Khan, Tehsil Molia
Khal, District Almora, Uttranchal.
Under Section 164 Cr.P.C

TRANSCRIPTED VERSION AFTER VIDEO AUDIO

RECORDING
Today an Order dated 1 March 2007 was passed by
learned ACMM and IO Inspector M.S. Phartyal from
CBI has appeared and he made some submissions
while appearing in my court. I have noted down
proceedings in the court and as per the directions
of learned ACMM, I have come, thereafter, in the
Video Conferencing Room for the purpose of
 113

recording the statement of confession of the

accused Surender Koli.
Before, actually recording the statement of
the accused, it shall be proper that what ever
proceeding has been taken place in my court, shall
be readover, so that it should become the part of
the statement or the proceedings.
Today IO inspector M.S. Phartyal, CBI
SCR-IIUSCB Delhi had appeared in the court. He
stated that Accused Surender Koli has been
produced today from JC by Supt from Tihar Jail
and it has been stated by the 10 that an
application for recording of confession statement
was moved before learned ACMM on 25-2-2007.
The accused was produced there in police custody.
learned ACMM sent the accused in JC and directed
vide order dated 28-2-2007 with the direction that
he should be produced on 1-3-2007 before her.
Today, the accused was produced from JC in
compliance of the order dated 28.2.2007. Now, an
order has been passed, today, and the application
for recording the statement of the accused has
been marked by the learned ACMM to this court for
recording of the confession statement of the
accused Surender Koli. He requests that statement
of the accused may be recorded. I have considered
the submissions and perused the application
moved by the 10 which is Mark A. The hand
written application in the name of learned ACMM is
Mark 'B'. The order dated 28- 2-2007 is Mark 'C'
and the order of the learned ACMM passed today is
Mark 'D'.
It is observed that offence alleged against
the accused Surender Koli are of serious nature
and are exclusively triable by the Sessions Court.
The case is still at the stage of investigation and
the application has been forwarded in this court for
recording of confession of the accused. It is
observed that learned ACMM has pointed out
certain guidelines as safe guards to be observed
while recording the statement of confession of the
accused. Such are:-
"Before proceeding to record the
statement of the accused the Magistrate shall
ensure that the statement is voluntarily given.
Accused is free from all kind of influence and
 114

pressure. He has been warned of the consequence

of the same. He shall also ensure that the accused
has not been given any hope of release. The
Magistrate shall duly explain to the accused that
his statement is being video graphed and audio
recorded. It is further directed that after the
statement is completed. It is further directed, after
the statement is completed, the copies of the
recording shall be prepared in the presence of the
Magistrate and the accused and the original copies
of the same shall also be sealed in the presence of
the accused. The transcript of the same shall be
prepared and got signed thereafter.
It is desirable that care should be taken
while recording the statemem and the same be
recided without any break and if the Magistrate at
any point of time feels that the accused is straying
from the arena of allegation involved. He would be
at liberty to put necessary questions to the
accused. Further in case the Magistrate requires,
assistance of the Vedio Operator same may be
taken. I have considered the instructions
mentioned in the order",
I have perused the provisions of U/s 164
Cr.P.C and the relevant provisions such as Section
24 and Section 28 etc of the Evidence Act. It
seems that it shall be proper, in the present case,
to record the statement of the accused U/s 164
Cr.P.C and the same be video graphed also. So that
the demeanour of the accused may be reflected
and, the manner in which the confession statement
has been recorded, can be shown for proper and
better appraisal of the trial court. In compliance of
the order of learned ACMM passed today. I have
given direction to the concerned persons to make
arrangements in video conferencing room for
recording the statement of the accused.
Now, I have reached in Video Conferencing
Room. The accused has been produced by the Jail
Authorities and the SI Shamu, third Batallian,
Central Jail. 10 will be called just now and he will
be asked to identify the accused.
Call the IO.
IDHAR AAYEYE AAP
Now IO!
 115

NAM BOLIYE APNA

M.S. Phartyal Inspector, Inspector M.S. Phartyal is
present.
YE KAUN HAI?
Surender Koli Hanji.
INKEY KHILAF KYA HAI?
He has committed certain act of rape and murder
at D-5. Nithari, NOIDA.
So do you identify him?
Yes, I identify him
Ok. Kindly leave the video conferencing room and
wait outside.
The IO has left the video conferencing room and is
waiting-outside.
Before actually recording the statement I
have checked that video conferencing room is safe
and nobody can see from the outside and you are
Shyam? Yes! Shyam is handling the video camera.
Now accused Surinder Koli is before me and before
I record the statement of the accused he should be
put certain question in Hindi. As it has been told to
me that accused understand Hindi language only
KYA NAAM HAI AAPKA?
MERA NAM SURENDER KOLI HAI.

OR BHI KISI NAM SE JANTE HAI APKO?

MERA BACHPAN KA NAM SADA RAM KOLI HAI, SADARAM.

SADARAM KOLI HA!

KISI AUR NAM SE BHI JANTE HAI AAPKO?

YAHI DO NAM HAIN MERE.

YAHI DO NAM HAI APKE?

HANJI
ABHI APKO PICHILI RAT TO KO KAHAN RAKHA GAYA THA?,
KAHAN THEY AAP? A JO RAT GAI HAI, KAHA THEY AAP?
KAHA RAKHA GAYA THA?

MAIN CENTRAL JAIL ME.

CENTRAL JAIL MEIN THAY AAP. HANJI CENTRAL JAIL SE AAP
KO KAHA PESH KIYA SEEDHA AAJ?
COURT KA NAM TO PATA NAHI HAI
 116

COURT MAIN PESH KIYA GAYA HAI AAPKO?

COURT KA NAM MUJHE PATA NAHI HAI

ACHHA!
MAIN APKO BATA DON KI MAIN METROPOLITAN
MAGISTRATE HOON! JUDGE HOON: AUR APNE APPLICATION
LAGANE KI REQUEST KI THI KI MAIN BAYAN DENA
CHAHATA HOON. ISLIYE JAHAPAR APNE APPLICATION
LAGAI THI, UN JUDGE SAHAB NE WO APPLICATION MEREKO
MARK KI HAI, KI MAIN APKA STATEMENT RECORD KARU.
HANJI SIR THEEK HAI AUR RECORD KARNE SE PAHLE, MAIN
APKO AHA BATANA CHAHATA HU KI AYE APKI APNI MARJI
HAI KI AAP APNA BAYAN DENA CHAHATE HAI YE NAHI DENA
CHAHATE HAI, KOI BHI ADMI APKO FORCE NAHI KAR
SAKTA, KYA MALOOM HAI APKO.

HANJI
KYA MALOOM HAI APKO?

MAIN KISIKE DABAW MAIN AAKAR NAHI KAHANE AYA

HOON NAHI KAR RAYE AAP KISI KE DABAW MEIN? OR AGAR
AAP APNI MARJI SE HANJI BAYAN HANJI RECORD KARATE
HAI TO WO LIKHA JAYAGA HANJI AUR WO BAD MEIN APKE
KHILAF BHI PADA JA SAKTA HAI, MALOOM HAI AAPKO?
HANJI
LEKIN PHIR BHI AAP APNEE MARJI SE BAYAN DENA
CHAHATE HAI.

HANJI
KYO

KIYONKI MAIN ADALAT KI MADAD KARNA CHAHATA HU,

ACHHA! OR KANOON KI MADAD KARNA CHATA HU

HA! ISLIYA KIYONKI MAIN BAHUT GAREEB PARIWAR SE HU

HAN! HAN! MERE PASS NA TO CASE LADNE KE LIYA KOI
SADHAN HAI OR NA HI GHAR MEIN KHANE KE LIYA
SADHAN HAI

NAHI WO EK ALAG BAT HAI. LEKIN AGAR APKO YE SAB

CHEEZEY DE JAYE TO ISKA MATLAB HAI KI AAP CASE
LADOGE?
NAHEE PHIR BHI MAIN BAYAN JAROOR DUNGA. SACHAI KE
SATH HI CHALOONGA
AAP SACH BATANA CHAHATE HO?

SACH BATANE CHAHATA HU

ISLIYA AAP JO HAIN KYA KAHATEY HAIN? AAPNE
APPLICATION LAGWAI HAI?
HANJI

ACHHA! MAIN APKO EK BAR PHIR BATA RAHA HU KI AGAR

APNA BAYAN NAHI BHI DENA CHAHATE HANJI! COURT MEIN
 117

APNA BAYAN NAHI DENA CHAHATE HO PHIR BHI HAM APKO

POLICE KE PASS NAHI BHEJENGE, CHAHE AAP APNI MARJI
SE BAYAN DE YA NA DE. YA AAP BAYAN RECORD KARWANA
CHAYE YE NA KARWANA CHAYE, KISI BHI HALAT MEIN HUM
AAPKO DUBARA SE POLICE KE HATHON MEIN NAHI
BHEJENGE. KAHI AISA TO NAHI KI AAP AISA SOCH RAHE
HAI POLICE KA DABAW HOGA, POLICE HAME MARENGE,
PEETENGE YA KUCHH KAREEGE YA DABAW DALEGI.

"DEKHO ABHI BHI TUM CHAHO TO MUJHSE SAB KUCH KAH

SAKTE HO, TUMHE KISI BAAT KA KOI DAR NAHI HAI, JO
MAN MAI TUMHARE HAI VO SAB KUCH MUJHE BATA SAKTE
HO, KISI BHI BAAT KA DABAV, DAR, KISI NE BHI KAHA HO,
AAJ TUMHARE PAAS MAUKA HAI, IS BAAT KO KEHNE KA,
THEEK HAL TUM CHAHO TO AGAR KUCH AISA HAI KISI BHI
AADMI KA KOI DABAV HAI YA LALAC HAI, TUM MUJHE BATA
DO? NAHI AISA KUCH NAHI HAI

KUCH NAHI HAI, TO KYA TUM APNI MARJI SE BAYAN DENA

CHAH RAHE HO?

HANJI
TO THEEK HAI TO PHIR BATAIYE? KYA KEHNA CHHAHTE
HO? MAI YE KEHNA CHHAHTA HOON, KI MAI 1993 MAIN
SCHOOL CHHOD KAR GAON SE APNE JEGIAJI KE SAATH
YAHA DELHI MAI AAYA, NOIDA MAIN AYA AUR MAINE US
TIME 1993 SE 1998-1999 TAK 646, SECTOR-29 BRIGADIOR
ŞAHAB KE GHAR PAR KAAM KIYA, USKE BAAD MAINE JO
HAI, KUCHH DIN MAHINA KE KAREEB GHAR GAYA HUA THA,
WAHA PEY AAKAR KE 216 SECTOR 29 VAHI KAAM KIYA.
HAN! USKE BAAD MAI FIR 2000 MAI MERE SHAADI HUI,
USKE BAAD MAI 2000 MAY SHAADI HONE KE BAAD PHIR
MAI 225 SECTOR 28 ME MAJOR SWARAN SINGH KE PAAS
KAAM KARNE LAGA THA USKE BAAD VAHA SE MAI CHUTTI
GAYA HUA THA TO MAJOR SWARAN SINGH NE NAYA AADMI
RAKH LIYA THA, AUR MUJHE KAAM PAR NAHI RAKHA, USKE
BAAD UNHONE MERE KO 2004 MAIN D-5, SECTOR 31 MAI
KAAM PEY LAGAYA. MOHINDER SINGH KE GHAR MAIN, KAM
PAR LAGAYA, MOHINDER SINGH DAILY JO HAI MATLAB JAB
MADAM HOTI THI TO THEEK REHTE THAI, AUR JAB MADAM
NAHI HOTI THI TO VO DAILY CALL GIRLS VAGARAH LE KAR
KE AATA THA, ACHAA! TO YE DAILY MATLAB, ISKE DOST
BHI KABHI, ISKE DOST BHI AA JATE THE, AUR KABHI YE
MATLAB KHUD AKELE HI DO-DO TEEN TEEN LADKIYO KE
SAATH RAHTA THA EK BAAR POLICE KI RAID BHI PADI THI
GHAR MAI,
KYA UMAR HAI UNKI?

UNKI UMAR HOGI 50-52 50-55 SAAL KI HOGI, MEREKO

PATA NAHI HAI KITNEY SAAL KI LEKIN HOGI ITNI KAREEB
50-55 SAAL KI HOGI,
ACHHA!

KYA KAAM KARTE THE?

UNKA JCB KA SERVICE CENTRE HII, D-9, SECTOR 2 MAIN,
 118

THEEK HAI
TO VAHA PE MAI JO HAI KAAM KARTA THA AUR YE JITNI
BHI LADKIYA AATI THI MAI UNKO KHANA EANATA THA
KHILATA THA INKO DEKH DEKHA KAR MERE KO BHI MERA
10 HAI MATLAB MEIN AKELA THA. TO MERE MAN MAI
PRESSUR: BANA SEX KE SEX KARNE KA, USKE BAAD
DHEER DHEERE KARKE, MATLAB, DEKHTE DEKHTE MERE
MAN MAI, GALAT BHAVNAI AANE LAGI, MATLABKI, GALAT
BHAVNAI KYA AAIE MERE MAN MEIN, KEMISE AAL JAISE KI
MATLAB MAI KISI JAISE AATE HAI KISI KO MAAROO KATOO,
KHOON IS TARAH KI GALAT BHAVNAI MERE MAN MAIN
AANE LAGI ACHHA! JO MAI YE LAGATAR AATE REHI JAB
MAIN MATLAB APNA MIND BILKUL CONTROL KARNE KI
KOSHIS KARTA,

NAHI AAATI RAHI, APNE KAHA KATTON, KHAOON KA

MATLAB KYA HAI?

YE MERE MAN MAIN FEELING AATI THI IS TARAH KI,

YE FEELING KYO AATI THI?

YE FEELING MERE MAN MAIN IS TARAH SE AATI THI KI,

MATLAB, MERE APNE AAP PE, MATLAB, MAIN ME PATA NAHI
KAY PRESSURE IS TARAH KA BANTA THA. ACHHA! JISKI
VAJAHA SE YE ISTARAH SE MATLAB MERE MAN MAI AATI
THI TO FIR USKE BAAD FIR MAINE PAHLE TO MAIN EK DIN,
DO DIN, TEEN DIN CONTROL KARNE KI KOSHISH KARTA
THA, JAB MEREKO KUCH PATA HI NAHI RAHTA THA MATLAB
KYA HO RAHA HAI, USKE BAAD MAIN, MATLAB, GHAR KE
BAHAR JA KAR GATE KE PAAS JAR KAR KHADA HO JAATA
THA, JO BHI MERE KO MATLAB LADKI YA AURAT BACCHA JO
BHI MILA BULA KAR KE LEKE AA JATA THA
KAHA LE AATA THA?

GHAR KE ANDAR, KOTHI MAIN LE AATA THA, MAIN

DARWAJE SE, MAIN DARWAJI SE, KAUN SE KOTHI MAIN?

D-5. SECTOR 31 MAIN

ACHHA! HANJI

MAI GHAR KE AAGE SE NITHARI GAON KE LIYE RAASTA

JAATA HAI. ACHHA! AUR VAHI PE MATLAB RASTE MAI
HAMARA GHAR HAI, D-5. SECTOR 31 HAI, MAIN VAHA PAR
NAUKRI 2000 JULY, 2004 SE NAUKRI KAR RAHA HOON
VAHA PAI, TO USKE BAAD FIR MAI GATE PAR KHADA HO
KAR AA JATA THA, TO MAIN PURI TARAH SE PATA NAHI HAI,
LEKIN 2005 SHURU SHURU KI BAAT HAI. TO JANUARY YA
FEBRUARY KI BAT HAI, TO US TIME MAI GHAR PE AKELA HI
THA, TO AIK LADKI SECTOR 30 KE TARAF SE NITHARI KI
TARAF AA RAHI THI, JO JISKA NAAM DIKHANE PAR AUR
BAAD MAI PATA CHALA KI ISKA NAAM 'XYZ' HAI, FIR ISKO
KAAM KI LIYE MAINE BULA LIYA ANDAR, USKO ANDAR
LAATE HI MAINE, USKO BALA, KI SAMNE SE MATLAB JO
HAI, ABHI MADAM AA RAHI HAI, MAI PAISE KI BAAT KARWA
DETA HOON, HAN AUR JAISE HI WO ANDAR KO DEKH RAHI
THI, MAINE PEECHE SE ISI KI CHUNNI SE ISKA GALA DABA
 119

KAR AUR ISKO BEHOSH KAR DIYA, AUR USKE BAD ISKE
SAATH SEX KARNE KA KOSHISH KIYA, AUR SEX KARNE KA.
KOSHISH KIYA, THODI DER KOSHISH KARNE KE BAAD, JAB
SEX NAHI HO PAYA MERE SE, MAINE GALA DABA KAR ISKO
BHI MAR DIYA USI KI CHUNNI SE
ACHHA! KYON MAR DIYA

BILKUL, MAN MAIN ISI TARAH KA PRESSURE BANA THA KI

ISKO KAAT KAR KHOON KARKE, ACHHA! TO USKE BAAD
TURNAT BAAD ISKO UPAR BATHROOM MAI LE KAR GAYA,
USI TIME MERE KO KOI YE NAHI THA KI MATLAB, KABHI
KOI GHAR PAR AA JAIGA YA KOI BAAT HO JAIGI, YA KUCH
HO JAIGA MATLAB MUJHE IS CHEEZ KA KOI WOI NAHI THA
MATLAB PATA HI NAHI LAGA, FIR MAINE USKO UPPAR
BATHROOM MAI LE KE CHALA GAYA, UPAR BATHROOM ME
LE JAR KAR, NEECHE AYA FIR KITCHEN MAI AAKAR
CHAAKOO LE KE GAYA AUR USI TIME ISKO TURANT KAT
KAR KE AUR ISKA MAINE BAJU AUR YE SEENE KA AIK PIECE
BHI KHAYA THA, ACHHA! HANJI, JO MAINE, GHAR MAI HI
MATLAB KITCHEN MAI BANAYA THA
KITCHEN MAI BANAYA THA?

HANJI. AUR JAB MATLAB MATLAB SHAM KO KITNA KHAYA

YE MERE KO PURI TARAH SE DHYAN NAHI HAI, SHAM KO
JAB MERE KO CHAR PANCH BAJE MATLAB JAB PURE TARAH
SE MAN SHANT HUA, USKE BAAD MAINE DEKHA KI MATLAB
KI DRAWING ROOM ME HEE ISKE SARE CHAPPAL WAGARAH
SAB DRAWING ROOM MAI HI PADI HUI THI TAB TAK,
MATLAB, TAB KOI WO NAHI THA, MATLAB ACHHA! JAISE
NASHA TYPE KA, MAI KUCHH NAHI KARTA JAISE MAIN
DAROO, PAAN, BEDI CIGARETTE GUTKA KUCH BHI NAHI
KHATA, ACHAA! TO IS TARAH KA MERA, MERE KO MAN MAI
FEELING HOTI THI, KISI KO KATOON KHAOON KAR KE, KI
THODE DIN KE BAAD KI BAAT HAI, KAREEB MAHINA BHAR
KE BAAD KI BAAT HAI, USKE BAAD USI LADKI KO MAINE
SHAAM KE TIME MAIN JITNA KHAYA USKE BAAD, USSE MAN
SHANT HO GAYA. AUR USKE BAD MAIN UPPAR BATHROOM
ME GAYA UPAR DEKHA, TO BATHROOM ME USKO KAT KE
SAB FAILI HUI THI VO. JO MERE KO US TIME KATNE KE
TIME KUCH PATA HI NAHI THA KI

MAINE ISKO KYA KIYA HAI KARKE. ACHHA! AUR USKE BAAD
FIR MAINE USKO DAR KE MAARE FATA FAT PANNIYON ME
BHAR KARKE USKO BATHROOM ME RAKH DIYA AUR DHO KE
RAAT KO BAKI UKKO MATLAB GHAR KE PEECHE EK GALLERY
HAI, JAHYA MATLAB KOI AA JA NAHI SAKTA HAI, WHA
GALLERY MAI FAIK DIYA THA USKO. ACCHA! USKE BAAD
MAI, KUCH DIN BAAD KI BAAT HAI KAREEB MAHINA KE
KAREEB KI BAAT HAI.

NAHI EK BAT YE BATAON TUMNE KAHA KI KAATOO KAHO KI

FEELING HO RAHI HAI, YE KAB SE HO RAHI HAI? YE ABHI
MATLAB JAB LADKIYO KO DEKH KAR HOTI THI PAHLE BHI
MATLAB LADKIYO KO DEKH KAR BAHUT JY ADA PRESSURE
HO KE HUA HAI YE KI JAB MATLAB LADKIYON KA AANA
JANA BOHOT JADA SHURU HO GAYA, ACHHA! AUR ISKO
DEKH DEKH KAR MATLAB KI, MAI BHL AKELA HOON AUR YE
 120

DO DO. TEEN TEEN LADKIYON KE SAATH ANDAR SAUTA

HAI, MAI INKO KHILATA PILATA HOON, ACHHA! ISKI VAJAH
SE JO HAI MERE MAN PE PRESSURE PADA MATLAB SEX KA.
ACHHA!

SEX KA PRESSURE TO SAMAJH ME AATA HAI, LEKIN YE

KATOON KHAOON KYA?

MAN MAI JO HAI YE HI FEELING AATI THI, THEEK HAI! TO

SEX KA JO HAI MAI, BATA RAHA HOON MAI AAPKO KI MAIN
SEX KARTA BHI THA YA NAHI US TIME MEIN IS TARAH SE
REHTA THA KI MAN MAI MERE CONTROL HI NAHI REHTA
THA, ACHHA! TO IS TARAH KA HOTA THA MERE KO, ISI KE
BAAD KAREEB EK MAHINE KE BAAD KI BAAT HAI, EK AUR
LADKI MATLAB AISE HI SUBEH BAHOOT VO THA DIMAG
MAIN FIR SAVERE GATE KE PAS CHALA GAYA US DIN BHI
EK AISI HI GORI SI LADKI THI SECTOR TEES KI TARAF SE
SECTOR EKATEES NITHARI KI TARAF AA RAHI THI TO
MAINE USKO KAAM KE BAHANE PUCHA KI KAAM KAREGI,
TO USNE KAHA, HANJI, MAINE KAHA KI AAJAO BAAT
KARWAA DETA HOON PAISE KI, USKO BHI YE KEH KAR KE
ANDAR LE KAR KE AA GAYA GHAR PAR KOI THA NAHI,
JAISE HI USKO DRAWING ROOM MAI LE KAK KE AAYA
MATEN DARWAJE SE, USI TIME MAINE USI FIR USI KI
CHUNNI SE USKA GALA DABA KAR USKO MAAR DIYA, USKE
SAATH BHI SEX KARNE KA KOSHISH JO MERE KO THODA
BOHOT MATLAB ANDAJE SE JITNA DHYAN HAI MATLAB
KOSHISH KARTA THA SHAYAD SAB KE SAATH HI

TO YE KYA UMAR THI IS LADKI KI?

LADKI KAREEB TERAH CHAUDAH SAAL KI RAHI HOGI,
ACHHA!, HANJI TO TERA CHAODAH SAAL KI LADKI THI,
USKE BAAD FIR MAINE ISKO BHI MAINE ISI KI CHUNNI SE
GALA BABA KAR BEHOSIT KIYA THA, SEX KOSHISH KARNE
KE KOSHISH KI JAB NAHI HUA, TO USKO BHI UTHA KARKE,
UPAR BATHROOM MAI LE KAR CHALA GAYA, AUR GALA
DABA KE ISKO BHI MAAR DIYA, NEECHE KITCHEN MAI AAYA
AUR CHHAKU LE KAR KE GAYA AUR ISKO BHI MAINE USI
TIME KAAT PEET KAR KE ALAG KAR DIYA, AUR ISKA BHI
MAINE SEENE KA EIK PIECE KHAYA THA, BANA KAR KE, US
DIN BHI ISI TARAH SE MATLAB RAAT KO ANDHERA HONE
KE BAD SHAM KO FIR MAINE JO HAI ISKO BHI PANNIYO
MAI BHAR KAR KE BATHROOM MAI DHO DHA KAR KE ISKO
BHI MAINE, JO HAI, PEECHE WALI GALI MAI WAHI FAIK
DIYA THA,

GALI MAI MATLAB YA?

GHAR KE PECHEY BANDH GALLERY THEE

GALLERY MEIN FANKH DIYA THA?

GHAR KE PECHEY GALLERY HAIN

WO GHAR KE BOUNDARY KE ANDAR HE HAIN? GHAR KE JO

CHAR DIWARI HAI?

NAHEIN CHAR DIWARI SE THORA BAHAR HAI MATLAB,

LEKIN HAI, GHAR KEE HEE HAI, ENKEY CHAR KEE
 121

GHAR KEE HEE HAIN?

HANJI

ACHHA THEEK HAI!

PECHI JO MATLAB PECHI UPNE EDHAR SE TO COVER KAR
RAKHA HAI LOHE KA ANGLE LAGA HUWA HAI ACHHA!
PECHEY JO GALI JA RAHI HAI TO WO GALI JO HAIN
CHOROO TARAF HAS COVER HAIN WO
ACHHA!

HANJI GHAR KE PUCHEY GALI JO HAI VO, WO GALI PECHEY

SE COVER HAIN SAREE.

THEEK HAI!
TO MAIN USKO TO WO KAR DIYA. USKEY KUCH DIN KEY
BAD KI BAAT HAI. SUBHAI SAHAB OFFICE CHALEY GAYE TO
RAAT KO 2-3 LADKIAN AYEE HUYEE THI INKEY GHAR MEIN.
SUBHAY SAHAB OFFICE CHALEY GAYEY. TO MUJHEY BHI YE
LOG THAY TO YAHIN NOIDA MAIN HI OR MADAM YAHI THI
LEKIN US TIME GHAR PER KOY! NAIN THA KYA NAAM HAI
MADAM KA? MADAM KA NAM TO NAHI MALUUM HAI

ACHCHA!
THIK HAI, KIS SAMAI KI BAAT RAHI HOGI YE?

KARIB SHAM TO 4½ 5 BAJE KEY ASSPASS.

ACHHA! NAHIN MAIN PUNCH RAHA HOO KAUN SE SAN
MAHINE KUCHH YAD HAIN?
SAN TO 2005 HAIN LEKIN MAHINA DYAN NAHI HAI

ACHHA THEEK HAIN!

TO US TIME MATLAB YE LOG GAYE HUYE THEE GHAR PER
NAHIN THA KOI BHI TO 2-3 DIN SE ISEE THARAH SE HO
RAHA THA TO US TIME KOI NAHI THA FIR US TIME BHI
MEIN BAHAR GATE PER CHALA GAYA. EK LADKI MERE GHAR
KE AGEY KHEL RAHL THE NAM PHOTO DEKNEY KEY BAD
PATA CHALA KI ISKA NAM L HAIN AUR USKO MEINEY GATE
KE PASS ISHARA KARREY BULAYA WO KHEL RAHI THI
WAHA GATE KEY BAHAR GATE KE PASS BULAYA USKO OR
ISHARA KARKEY USKO BOLA TOPHEY DUNGA TEREKO WO
LADKI KAREEB 6-7 SAAL KI RAHI HOGI ACHA TO YE AA
GAYE MERE SATH ISKO BHI MAINE LATEY HEE ISKO MAINEY
GALA DABAKEY BEHOSH KAR DIYA. USKEY BAD ISKEY SATH
BHEE SEX KARNEY KA KOSHISH KIYA SEX MEIN KISHI KAY
SATH NAHI KAR PAYA USKEY BAD MAINEY USKA BHI GALA
DABAKAR UPPER BATHROOM MEIN RAKH DIYA NECHEY AYA
ISKO NECHEY AAKARKEY, SUTLEE KA, BORE KA KATTA THA
OR USKO UPPER BATHROOM MEIN LEKAR GAYA OR USMEIN
DALKAR KEY BATHROOM MEIN HEE RAKH DIYA. SAAM KO
ISKO BHI GHAR KEY PECHEY GALLERY MEIN FAINKH DIYA
AUR USKEY KUCHH DIN KEY BAD KEE BAT HAIN KI MAIN
CHHUTEE GHAR GAYA HUWA THA TO US TIME MATLAB
MADAM FIR CHANDIGARH SHIFT HO GAYI THI, MADAM
CHANDIGARH CHALEE GAYEE THI, JUNE KEE BAT HAIN,
 122

USKEY BAD US DIN BHI AYSA HUA, US DIN SAHAB JO HAI,

GHAR PE SAHAB AUR MEIN HEE THEE TO SAHAB JO HAI
OFFICE CHALEY GAHEY AUR RAT KO US DIN RAT KO BHI
LADKI AYEE THI. SUBERY JO HAI MERE MAN MEIN USEE
THARAH KEE PHIR 2-3 DIN SEY WAHI MAROO KATOO
KHANE WALI PHIR WAHI AA RAHI THI FEELING AA RAHI
THI TO MAIN CONTROL NAHI KAR PAYA. EK LADKI MAIN
UPPER CHHAT PEY GAYA OR CHHAT PEY SE PANI DEKNEY
KE LIYA GAHA THA OR PANI NAHI AA RAHA THA MAIN
UPPER CHHAT PER CHALA GAYA DEKHNEY KEY LIYA TABTAK
MEINEY DEKHA KI UDHAR EK LADKI AA RAHI HAI, JISKA
NAM IYOTI THA WO GHAR PEY PAHELEY BHI GHAR PEY
KAPRE WAPREY LENEY KEY LIYEY ATTI THI GHAR PEY.
ACHHA! TO DHOBI KI LADKI THI TO PAHELEY BHI HAMAREY
GHAR PAR EK DO BAR BHAI BAHAN KEY SATH KAPRE LENEY
KEY LIYA AYYEE THI TO MAINEY - USKO AWAZ LAGAKEY
USKO KAHA KAPREY LEJA PRESS KEY. TO WO AAGAYEE.
AAGAYEE TO MAINEY USKO GHAR KEY ANDAR HEE BULA
LIYA OR USSEY PUCHA KI TOO KAYA SE AA RAHI HAI TO
USNEY KAHA KI MAIN CHUNI PEEKO KARAKEY AA RAHI
HOON TO WO CHUNI PIKOO KARA KEY AA RAHI HOON PHIR
USKEY BAD JO HAI USKO MAIN KAHA KAPREY GIN LE. WO
KAPRE GINNEY LAGI OR CHUNI USNEY SIDE MAIN RAKH
DIYA. MAINEY USEEKEE CHUNI SE USKA GADA DABA KE
USKO BEHOSH KAR DIYA. JISKEE UMMAR KAREEB 10-12
SAAL KI THI OR ISKO BHI BEHOSH KAR DIYA AUR USKEY
BAD USKBY SATH SEX KARNEY KA KOSHISH KIYA AUR NAI
HO PAHA OR USKEY BAD, USEEKEE CHUNI SE USKA GALA
DABA KARKEY PHIR USKO UPAR BATHROOM MEIN RAKH
DIYA OR BATHROOM MEIN RAKHNEY BAD PHIR NEECHEY
AYA OR NEECHEY AA KAR KEY EK KATTA LE KAR KEY GAYA
OR KATTA MEIN DAL KAR KEY USKO RAKH DIYA OR SHAM
TAK YE WAHI BATHROOM MEIN HI PARI THI. US DIN SAHAB
GHAR MEIN THEY, MOHINDER SINGH GHAR PE HE THAY,
LEKIN USKO PATA HAIN YA NAHIN YE MEREKO PATA NAHIN
HAI USKEY BAD PHIR MAINEY, RAT USKO BHI APNEY GHAR
KEY PECHEY KI GALLERY MEIN FANKH DIYA THA ACHHA. OR
PHIR USKEY BAD, PHIR KUCH DIN KEY BAD, GHAR ME
PHIR, KUCH DIN PHIR BEECH MEIN KAM WAM CHAL RAHA
THA OR ISKEY DOST KA LADKA AYA HUWA THA

KIS THARAH KA KAM CHAL RAHA THA? YEE MISTRY

WAGARAH KA KAM CHAL RAHA THA GHAR MEIN.

KAYA BAN RAHA THA

REPAIRING WAGARAH HO RAHEE THI GHAR MEIN OR
UPPER EK KAMRA BANA THA CHHAT PEY EK.
ACCHA!

TO US TIME MATLAB INKA DOST KA LADKA BHI AAYA HUWA

THA YEE USKEY SAMNEY MATLAB LADKIYA NAHI LEKEY
AYYE TO JITNEY DIN MATLAB LADKA YAHA GHAR PAR RAHA
TO UTNEY EK BHI DIN LADKI NAHI LEKEY AYA TO UTNEY
DIN MERA MAN BILKUL CONTROL SEE, THORA THORA
KARKEY MATLAB CONTROL HO GAYA. MAN SHANT HO GAYA
USKEY BAD PHIR JAISE HEE LADKA CHALA GAYA, USKEY
 123

BAD PHIR ISNEY 2-2, 3-3 LADKIYA PHIR LANA SHUPU KAR
DIYA.

KAUN, KYA NAM THA US LADKEY LA JO WAHA AYA THA?

USKA NAM THA SABI KHAN

SABI KHAN ?
HANJI

KAUN HAI WO?

YEE ENKEY FRIEND KA LADKA, FRIEND KA LADKA HAIN.
HASAN KHAN KA?
HASAN KHAN KA?

JO MATLAB LUCKNOW MAIN RAHATEY HAIN OR YAHA INKEY

PASS ATEY JATEY RAHTEY HAIR OR TO VO LADKA YAHA PAR
USTIME MATLAB BAHAR JANEY KEY LIYA KAHI BHI JAHA
PAR WO PADTA HAI WO, WAHA JANEY KEY LIYA KAGAJ
WAGAJ LANA RAHE THAY YE MERE KO PATA NAHI HAI
HOON!

TO US TIME, WO YAHA PAR 5-6 MAHINEY RAH KE GAYA

HOON!

ITNEY DIN TAX YAHA LADKI NAHI AYEE TO MERA BHI MAN
BILKUL SHANT RAHA.

HOON! ACHHA
TO USKE BAD.

TO KUCHH DIN BAD YE PHIR LADKIYA LEKEY ANA SURU

KAR DIYA ISNEY.

HOON! HOON!
(At this stage it is found that already it is 10.15 PM and
making transcription of the videography is taking a lot of
time. It is slow and lengthy process and it seems that much
more time is required for continuing and completing the
further transcription which is not possible today. Therefore,
the work of transcription is stopped here and the computer
is shut down and CDs are sealed with the court seal in the
presence of accused and accused is directed to be produced
before learned ACMM New Delhi for further appropriate
orders with request that he should be produced on 2.3.2007
for further continuation of the transcription work.

RO & AC
Chandra Shekhar
Metropolitan
Magistrate Patial
House Courts,
New Delhi 1.3.2007

A separate order mark ‘E’is also passed and the same is

given to the IO for production the accused before L.d ACMM,
 124

New Delhi for appropriate further orders.

Chandra Shekhar
Metropolitan Magistrate
Patiala House Courts,
New Delhi 1.3.2007
2.3.2007

An order Mark 'E' was received alongwith order

dated 2.3.2007 Mark 'G' and the accused is produced by
Inspector Sajan Singh as per directions of learned ACMM,
New Delhi

In presence of accused the seal of one CD is

broken, CD is taken out and the transcription work is further
initiated:
USKEY JATEY HEE PHIR SE LADKIYA ANEE SURU HO GAI.

PHIR MERE KO PHIR VAHI PRESSURE BANNA SHURE HO

GAYA MERE KO, PAHLE JAISI HALAT HONE LAGI PHIR MAIN
APNE AAP KO CONTROL TO BOHOT KARTA THA LEKIN FIR
NAHI HO PATA THA KYONKI ISKO DEKH DEKH KAR MERE
KO MATLAB BAHOT TENSION SA HO JATI THI DIMAG MAI,
AUR FIR VAHI HALAT MERI HONE LAGI, AUR PHIR SHAM KO
EK DIN SHAAM KO ITNA WO THA MAIN LADKI SAMAJH KE
EK LADKE KO HI UTHA KAR LE AYA ANDAR. ITNA PRESSURE
THA DIMAG MEIN TO USKO OTHAKARKE LE AYA SHAM KO
KARIB SADE PAANCH CHAI BAJE KE ASS PASS KI BAAT HAI
AUR JAB USKO LE AAYA ANDAR, USKA MAINE NAAK MUH
DABAYA, AUR USKO MATLAB BEHOSH KAR DIAYA, BAAD
MAI MAINE USKI SALWAR KHOLI TO PATA CHALA KI YE
LADKA HAI, PHIR MAINE USKO DEKHA KI MAINE USKA
NAAK MUH DEKHA, PAR HAATH LAGAYA TO DEKHA KI VO
PAHLE HI MAR CHUKA THA, ACHHA. PHIR MAI USI TIME
USKO BATHROOM ME LE KAR GAYA.
TO YE SAB JO NAAK MUH DABANE WALI BATENY HAIN
KAHA KARTE THEA TUM?
SAB CHEESZ MAI GHAR KE ANDAR DRAWING ROOM MAI HI
KARTA THA AUR KAT PEET TO VAHI GHAR KE ANDAR HI
BATHROOM BANA HUA THA EK SEDIYO KE PASS

KAUN SA NEECHE YA KAHA PAR?

JO MARTA PEETTA THA WO DRAWING ROOM MEIN UPAR
NEECHE JO DRAWAJE SEE ENTER KARTE HI DRAWING
ROOM MAI. JO MATLAB BATHROOM HAI VO UPAR MAT LAB
KI SEEDHIYA CHADH KAR KE THORA UPPAR HAI
ACHHA!

HANJI, TO EK HARSH NAM KE LADKE KO LE AYA MEIN. TO

WO MAR CHUKA THA. TO MAN ME KAFI TEJ BHAWNAYE HO
RAHI THI MEIN USI TIME UPPAR BATHROOM MEIN LE KE
GAYA USKO BHI MAINE CHAKOO SE KATA OR USKO BHI
MAINE KAAT PEET KAR SARA ALAG ALAG KAR DIYA AUR
MERE KO PURI TARH DHYAN NAHI HAI LEKIN, MERE KO
SHAYAD JAHA TAK HO RAHA HAI KIYONKI MAINE TO
MUJHEY DHYAN HAI MAINEY SHAYAD USKA KALEJA KHANE
 125

KI KOSHISH KI HAI YA KALEJA KAYA HAI, PURI TARAH

MEREKO ITNEE TEJ VO HO RAHI THI KI MAN MEIN MERE KO
PATA HI NAHI HAI MATLAB BAD MEIN JAB MAN SHANT
HUWA TAB PATA LAGA KI MAINE YE SAB IS TARAH SE KAR
RAHA RAKHA HAI ISTARAH KI HALAT HO GAI THI MERI
MATLAB JIS SAMAY TUMEY? TUM YE KAHANA CHAHATE HO
KI JIS SAMAI TUM YE KAM KARATE THEA US SAMAI TUMEH
PATA NAHI LAGTA THA?

JIS SAMAI MAIN KAAM KARTA THA, PURI TARAH NORMAL

REHTA HI NAHI THA.

ACHHA!
US SAMAI AYSEE HO JATA THA JAISE NASHE MEIN KAM KAR
RAHA HOON. TO MATLAB JIS KE GHAR PE MAIN KAAM KAR
RAHA HOON JAHA JAHA BHI MAINE KAAM KIYA HAI SABKO
PATA HAI KI MAINE, KUCHH BHI NASHA WAGARAH AUR TO
AUR KABHI BEEDI CIGRETE BHI NAHI PEE HAI AAJ TAK, TO
YE TO BAHUT DOOR KI BAT HAI, ACHHA. IS TARAH KA
MERE KO HO JATA THA.

KITNI DER BAD YE SHANT HOTA THA MAN?

KAM SE KAM DO GHANTA DHAI GHANTA, TEEN GANTA ITNA
CHAR GHANTE BHI LAG JATE THAY ACHHA! AUR KABHI
KABHI DO DO TEEN TEEN DIN TAK PRESSURE BANTA HI
REHTA THA. IS TARAH KA MERE KO HOTA THA.
KIS CHEEZ SE SHANT HOTA THA MAN?

APNE AAP HI SHANT HO JATA THA, JAISE KI MATLAB KI

MAIN KOI KAM KAR LIYA USSE KYA PATA KYA TASALLI HOTI
THI, PATA NAHI KYA HOTA THA MERE KO MUJHE ISKA VO
NAHI HAI. ACHHA! TO MATLAB MAN TAB MERA SHANT HO
JATA THA,
KYA TUM YE KEHNA CHAHTE HO KI TUM, KISI KO UTHA
LETE THE, YE BACCHE KO UTHA LE TE THI, NARTE THE
KATTEY THE, USKE BAD VO SAB KAR NE KE BAAD TAB MAN
APNE AAP SHANT HOTA THA?
HAN TAB MAN SHANT HOTA THA MERA

YE KEHNA CHAHTE HO? HOON ACHHA!

TO ITNA PRESSURE BAN JATA THA MERE MAN MEIN TO
USKE BAAD FIR JAB KUCH DIN KE BAAD KI BAAT HAI FIR
DOPAHAR KE KAREEB AISE HI EK DIN DOPAHAR MAI
KAREEB BARAH EK BAJE KE AAS PAAS KI BAAT HAI TO EK
FNAAM KI LADKI HI VO VAHI PAR KAAM KARTI THI, THODA
SA HAMARE GHAR SE AAGE JA KAR KE, VAHA PAR
CHOWKIDARI KARTE HEIN WAHAPAR USKO BHI, US LADKI
KO BHI MAINE PAHLE HI DEKHA HUA THA, AATI JATI RAHTI
THI EK DIN MAINE USKO BULA LIYA DOPAHER KE TIME
MEIN PHIR MEINE USKO BATAYA JAB MAI TERE LIYE
KHILONA LAYA HOON, USNE BOLA DIKHAU KAHA HAI AUR
USKE BAAD JAB MEIN ISKO GHAR KE ANDAR LE AYA, AUR
DUSTING KE KAPDE SE ISKA GALA DABA KAR KE ISKO
BEHOSH KAR DIYA AUR ISKO ISKE PAJAMA KHOL KAR KE
 126

ISKE SATH BHI SEX KARNE KI KOSHISH KIYA LEKIN SEX

NAHI HUWA, USKE BAAD ISKO MAR KAR KE UPAR
BATHROOM MAI RAKH DIYA, AUR BATHROOM MEIN RAKHNE
KE BAAD NEECHE AAYA AUR NEECHE SE AA KAR KE EK
KATTA LE KAR KE GAYA KATTE YE HAMARE JO HAIN AUR
CHANDIGARH SE ATTA AATA THA KATTO MEIN
CHANDIGARH MEIN GHAR HAI SARDAR JI KA TO WAHA, YE
JATE REHTE THE, KATTO MAI ATTA AATA THA, TO ISLIYE
KATTE GHAR PARE HOTE THEA TO MAIN MATLAB USKO
DAAL KAR RAKH DIYA BATHROOM MAI, HOON! HOON! ISKE
BAAD RAAT KO USKO BHI SHAM KO MATLAB KAR KE
PEECHEY GALLARY MAI FAIK DIYA, ACHHA! USKE FIR USI
DIN KI BAAD KI BAAT HAI, MATLAB MUSHKIL SE MAHINA
DIN PANDRAH DIN BEES DIN MAN KO CONTROL KAR PAATA
THA BAS, IS SEE JYADA NAHI HOTA THA FIR DUBARA VAHI
FIR HO JOTA THA, TO IS TARAH SE YE HOTA RAHA MERE
SATH, FIR KUCH DIN KE BAAD KI BAAD KI BAAT HAI,
NAHI EK BAAT YE HAI ABHI TUM KAHATE HO KE VO SAB
LADIES LADKIYA VAHA AATI THI, TO TUM TO TUMHARA
KAAM TO SIRF UNKO KHANA KHILANA HI THA, USKE BAAD
FIR MAN KHARAB KYO HOTA THA,?
SEX KI JAGRITI KYONKI MAIN GHAR ME MAIN AKELA MAIN
BHI GHAR MAIN HOON UNKO BANA RAHA HOON, KHILA
RAHA HOON, IS TARAH KA HAI KARKE

KYA TUM UNKO DEKHTE THE?

HANJI MAIN DEKHTA TO LADKIYO KO GHAR PAR.
HAAN, KE GHAR MAIN DO DO TEEN TEEN, LADKIYA EK
ADMI KE LIYA OR ENKE DOST BHI AATE THE

DOST KA NAAM?
JO GHAR MAI AAYA JAYA KARTA THA VO AVNISH PRATAP
HAI, AVNISH PARTAP HANJI YE JCB KA HI KOI HAI AFSAR,
MUJHE PAT NAHI KYONKI, GHAR MAI AATA JATA HAI LEKIN
OFFICE ME MAIN JATA NAHI HOON MAIN BOHOT KAM JATA
HOON, THEEK HAI YE DONO HI JYADA SAATH REHTE THE
GHAR MAI JAB POLICE KA JIS DIN RAID PADI THI GHAR
MAI, POLICE ENKO PAKARKE LE GAI THI, DO LADKIYO KE
SAATH AKELA SO RAHA THA SARDAR JEE, TO US DIN JAB
POLICE PAKAD KAR LE GAI THI POLICE RAAT KO DO DHAI
BAJE, USDIN BHI AVNISH GHAR MAI HI THALEKIN AVNISH
PARTAP DOOSRE KAMRE MEIN SO RAHA THA SARDAR DO
LADKIYO KE SAATH AKELA HI SO RAHA THA GHAR MAI TO
ISIKO LE KE GAI THE, VO DUSRE KAMRE MAI AKELA SO
RAHA THA ACHHA! AUR VO RAAT MAI HI USKO PAISE VAISE
DE KAR YA PATA NAHI KAISE, VO RAAT KO HI VAPAS GHAR
AA GAYA THA, ACHHA! HANJI, TO ISI TARAH MATLAB MERE
MAN MAIN ISI TARAH KI VAJAH SE JYADA PRESSURE BANA,
WO ISI WAJAH SE BANA HAI, NAHI TO MAIN PAHALEY BHI
BOHOT JAGAH KAAM KIYA HAI MATLAB PANCH PANCH CHAI
CHAI SAAL MAINE, KOTHIO MAIN KAM KIYA HAI, AUR
SHURU SE JAB MAI AAYA HOON KOTHIYO MAI HI KAAM KAR
RAHA HOON, USKE SIRF DAID SAAL HI MAINE, JAB KAAM
KUCH NAHI THA MERE PAAS, TABHI MAINE BAHAR MATLAB
 127

REHDI ROOHDI DYARE WHYARE KA KAAM KIYA HAI MATLAB

AUR BAAKI MATLAB MAINE SHURU SE HI KOTHIYO MAI HI
KAAM KIYA HAI AUR KAHI BHI MAINE MATLAB AAJ TAK
PEHLE BHI MERE MATLAB, KOI IS TARAH KI KOI VO NAHI
HUA
AGAR MAIN IS TARAH KA KARTA TOO JINHONE MERE KO
INKE GHAR PAR LAGAYA THA MAJOR SWARAN SINGH NE
UNKE GHAR PAR MAINE SAAL DAID SAAL KAAM KIYA HAI
HOON AGAR MAIN INKE GHAR PE KAHI BHI AIK RUPAY KI
BHI HERA PHERI KARTA TO MATLAB YE MERE KO APNI GADI
MEIN BITHAKAR UNKE GHAR KAM PAR LAGA KAR NAHI
AATE ACHHA! HANJI TO MAI MATLAB IN CHEESO SAI MAI
BOHO JYADA DARTA THA, YE SAB KARNE SE KI MAI AIK
GARIB AADMI HOON KAL KO KOI BAAT HO GAI TO IN
CHEEZO SAI BOHOT ZYADA DARTA THA, KYONKI MAI TO
APNE GHAR MAI HI MERE KO TO DO PAISE MILTA HAI USI
SE MAIN APNE GHAR KHUSHI SE CHALA LETA HOON, AUR
BAAD MAI USKE ALAVA MERE PAAS NA TO KHETI HAI AUR
NA MERE GHAR HAI AISE HI LAKDI PATHAR KO LEKAR
JHOPDI PITAJI NE BANA RAKHI HAI US TIME, BEES
PACCHIS SAAL PEHLE KI, VAHI HAI USKE ALAWA MERE
PAAS KUCH HAI BHI NAHI HAI, MERA BILKUL HI KACCHA
PARIVAR HAI, TO MAI YAHA PAR AANE KE BAAD, MERI
ZINGDGI PURI TARAH SE BARBAD HI HO GAI HA, TO USKE
BAAD FIR MAI FKE BAAD FIR EK LADKI AUR PUSHPA NAAM
KI LADKI THI, NAAM MEIN PHOTO DEKH KAR KE NAAM KO
SAB MERA YE POLICE NE RATVAYA HAI, UP POLICE NE.
KYA RATVAYA HAI?

YE MATLAB JAB UP POLICE NE JAB MEREKO PAKDA THA US

TIME MEIN MATLAB KI INHONE MERE KO YE SAARE PHOTO
DEKH DEKH KAR SAB KA INKA NAAM WAGARAH INHONE HI
HAI MATLAB KI ISKA YE NAAM HAI, ACHHA! YE TIME
WAGARAH KA AUR IS TARAH KA LEKIN TIME KA TO MERE
KO ABHI PATA ABHI BHI NAHI HAI PATA, YE BATAYA THA
MAI BHOOL GAYA,
TO YE LADKI SUBAH TO PHOTO TUM KAISE PAHCHANTE HO
HANJI
PHOTO KAISE PAHCHANTE HO?

YE MERE KO POLICE WALO NE BATAYA HAI SARI, SARI

PHOTO, US TIME TO MERE KO PURE TARAH SE NASHE TYPE
KA REHTA THA. TO MERE KO KUCH PATA HI NAHI CHALTA
THA, JO MAI AAPKO BATA RAHA HOON KI MAIN UNKE
SAATH SEX KARNE KA KOSHISH KARTA THA, ISKA BHI
MERIKO PURI TARAH SE PURI TARAH SE ANDAAZA NAHI
THA KI MAIN KARTA THA, MAIN KOSHISH KARTA HI THA.
JAHA TAK KI HAI KI MERA MATLAB ANDAZA HI THA PAR
MARTA MALZAROOR THA
MERE KEHNE KA MATLAB YE HAI KI TUM JIN BHI BACCHO
KO LAATE THE, YA LADKIYO KO LAATE THE, HANJI, UNKA
PHOTO KAISE PAHCHANTE HO? PHOTO?

KISI KISI KA MATLAB?

 128

JAISE MATLAB. SHAM KI TIME MAN SHANT HO JATA THA

MATLAB AU SHAAM KO JAB RAKHA HOTA THA BATHROOM
MAI KATTA PITTA AUR - SHAM KE ALAWA TO FIR HOTE THE
TO PATA LAG JATA THA KI IS TARAH SE HUA HAI MATLAB KI
POLICE WALON NE, BATAYA KE YE KAAM VAAM VALI HAI,
TO WO MATLAB INHONE MERE KO BATAYA KE HAAN YE
KAAM VALI AURAT YE HAI, YE KAR KE
NAHI TO JIN BHI BACCHO KO YA AURTO KO TUMNE MARA
HAI YA KAATA HAI JAISE KI TUMNE ABHI BATAYA HAI HANJI
TO VO LOG TUMHE, TUM UN LOGO KO PAHLE SE JANTE
THE?
MAIN KISI KO PEHLE SE NAHI JANTA THA, JO MAI PEHLE SE
JANTA THA VO MAINE AAPKO BATA DIYA HAI, KAUN KAUN?
KI MAI LAGBHAG MAI THOD THODA SA AIK TO MAI, K
NAAM KI LADKI KO JAANTA THA, AIK DO BAAR PEHLE BHI
APNE BHAI BEHNO KE SAATH KAPDE LENE HAMARE GHAR
MAI AAI HAI ACCHA! AUR AIK JO HAI HAMARE GHAR KE
AAGE SE AATI JATI HAI, EK FNAM KI LADKI THI, JO MAINE
JISKA NAANA JI DO NUMBER MAI KAAM KARTE HAI VO
CHAUKIDARI KARTE HAI VAHA PE BAS INKE ALAWA AUR
KISI KO NAHI JANTA INME SE.
ACHHA!

HANJI.
THEEK HAI!

BAAKI YE JO BHI NAM WAGARAH MAIN BATA RAHA HOON

YE SARE MAIN YE SAARE NAAM MERE KO JO HAI PHOTO
DEKH DEKH KE HE MATLAB POLICE WALON NE BATAYA HAI,
POLICE WALON NE BATAYE HAI?

HANJI, NAAM SHAYAD. YE NAAM HAI AUR YE MATLAB

PHOTO TO JAB MAIN SHAAM KE TIME JAB FAIKTA THA JAB
MAN SHANT REHTA THA DEKHTA THA, TAB JA KAR KE TO
MERE KO THODA THODA DHYAN THI TO PHOTO MAINE
BATAI HAI KI YE MAINE KIYA HAI KARKE.
HAAN, NAHI YE BAAT TO THEEK HAI KI TUMHE NAAM PEHLE
NAHI PATA HONGE? HANJI LEKIN JO PHOTO POLICE WALE
TUMHE DIKHATE THE UNKO, DEKHNE KE BAAD TUMHE YE
SAMAJH MAI AA JATA THA KI TUMNE IS AURAT KE SAATH
YA IS BACHE KE SAATH YA IS LADKI KE SAATH INKO
MAARA HAI YA KAATA HAI,
THODA THODA DHUNDLA DHUNDLA YAAD THA MERE KO
ISLIYE MAINE UNKO BATAYA HAI UNKO
DHUNDLA DHUNDLA YAAD THA IS LIYE BATAYA?

ISLIYE BATAYA HOON SAHAB ACHHA! ISI LIYE MAINE YAHA

BHI SARA BAYAN YAHA KI HANJI YE MAINE KIYA HAI YE
SARA MAINE KIYA HOON, KYONKI SHAAM KE TIME JAB
MAN, JAB MAI FAIKTA THA TO US TIME MAN SHANT HI
REHTA THA, ACHHA! JYADATAR MAN US TIME SHANT HI
RAHA HAI KYONKI KABHI KABHI YE HUA KI JAB MAIN USI
TIME, MATLAB UTHAYA MAINE AUR PEECHHE GALARY MAI
FAIK DIYA LEKIN, KABHI KABHI MAN THODA SHANT HUA
 129

THA THODA THODA MATLAB JAB PHOTO VO JAB CHEHRA

DEKHA DALTE TIME, MATLAB PANNI MAI BHAR KAR DALATA
TIME JAB MAIN, DALTA THA UNKA HOON HOON JAB INKO
KATTA THA PANNI MAI BHAR KE DALTA THA, TAB JA KAR KE
MUJHEY JO HAI DHUNDLA DHUNDLA YAAD HAI YAAD HAI,
MAINE SAARA UNKO BATAYA, AUR PHOTO DEKHA KAR
HANJI YE HAI, ACHA, THEEK HAI! JISME SE DO TEEN
PHOTO AISI THI MATLAB USME SE MERE KO KAAFI
TORTURE KIYA AUR TAB JA KAR KE MATLAB JO INHONE
MERE KO KABOOL KARVAI THI, ACCHA! BOHOT JYADA
TORTURE KIYA GAYA THA MERE KO, ACHHA TO JISKI VAJAH
SE UNHONE MERE KO YE DO TEEN PHOTO JO HAI MATLAB
ISME SAI KUCH WO KARVAI THI, JO MAINE YAHA CBI MAI
AAKAR MANA KAR DIYA KI AAP CHAHE KUCH HI KAR LO
LEKIN YE MAINE KIYA HI NAHI HAI,
ACHHA!

TO ABHI AGAR AAPKO HAM VO PHOTO DIKHAI JAYE TO VO

BATA SAKETE HO KAUN KAUN SI LADKIYO, YA AURTO YA
BACCHOO KE SAATH AAPNE KIYA HAI, UNKO MAARA HAI
KAATA HAI, YA JO BHI APNE BATAYA UNKE BAARE MAI?
HANJI PEHCHAAN SAKTE HO?
HANJI, SEX KIS KIS KE SAATH KIYA HAI ISKA NAHI BATA
PAUNGA KYONKI MAI US TIME CONTROL MAI NAHI REHTA
THA, THEEK HAI! LEKIN AGAR PHOTO DEKH LOONGA TO
PEHCHAAN JAOONGA ACHHA!
HANJI,
AUR KYA BATA RAHE THE BATAIYE?
AUR ISKE BAAD FIR EK PUSHPA NAAM KI LADKI THI, HAAN,
YE SUBERE KE KAREEB AATH NAU BAJE KE KAREEB KI BAAT
HAI, TO YE SUBERE 30 KI TARAF MATLAB, NITHARI GAON
KI TARAF SE 30 SECTOR KI TARAF KAAM PE JA RAHI THI,
HOON ISKI UMR KAREEB 11-12 SAAL KE RAHI HOGI, TO
11-12 SAAL KI LADKI THI, KAAM PAR JA RAHI THI SECTOR
30 KI TARAF TO ISKO MAINE. TO ISI TARAH SE PRESSURE
THA MAN MEIN, MAINE ISKO BULAYA AUR KAHA KAAM
KAREGI IS NE KAHA, HANJI. TO ISKO MAINE KAHA MAI
ANDAR AAJA MAI PAISE KI BAAT KARWA DETA HOON, ISKO
MAI ANDAR LE AAYA OR ANDAR LEKAR KE AA GAYA. SATH
HE SATH USKO MAINE USEE TIME MAINE ISKO DUSTING KE
KAPRE SE ISKA BHI GALA DABA KAR KE OR ISKO BHI
MATLAB BEHOSH KAR DIYA OR ISKAY BAD BHI SEX KARNE
KA KOSISH KIYA. KOSHISH KARNE KE BAD NAHI HO PAYA
JAB TO USEE TIME MAINEY USEE KAPRE SE GALA DABA
KARKEY USKO UPPER BATHROOM MEIN RAKH DIYA
BATHROOM MAIN RAKHNEY KEY BAD MAIN NECHEY AAYA,
NECHEY AA KARKEY EK KATTA LE GAYA OR ISKO BHI
BANDH KARKEY KATTE MEIN UPPER BATHROOM MAIN RAKH
DIYA. SAREY DIN YE BATHROOM MAIN PARE RAHI OR SAM
KO MATLAB MAINEY ISKO GHAR KE PECHEY FENKH DIYA
THA OR USKEY BAD EK HARSH NAM KA LADKA THA JISKO
MAINEY LADKI SAMAJH KARKEY BULA LIYA THA. EK DIN
DOPAHAR MAIN DO DHAI BAJE KE ASS PASS KI BAT HAIN.
MAINE ISKO BULAYA, AUR CHOCKLETE DONGA YE
 130

KAHKARKE MAIN ISKO ANDAR LEY AAYA OR ANDAR LANE

KE BAD MAINE ISKA BHI NAK MU DABAKARKE ISKO BHI JO
HAI BEHOSH KAR DIYA ISEE TARAH SE MATLAB BEHOSH
KAR DIYA. AUR BEHOSH KARNEY KE BAD JAB ISKA BHI
MAINEY KAPRA KHOLA TO YE BHI LADKA THA. ISKO BHI
MAIN USEE TIME BATHROOM MAIN LEKARREY AUR USKO
BHI MAINE KAPRE WAPRE KHOLKARKEY MAINE OR USKO
BHI KAT KARKEY OR WAHI MATLAB CHHOR DIYA AISAY HI
OR YE BHI MAIREKO DYAN NAHI KI MAINEY KOI KISI KA
PEES KHATA THA BHI YA NAHI BHI KHATA THA YA KHALI
MAN MAIN FEELING HI AATI THI, YA HAKIKAT MAIN MAINEY
KHAYA HI HAIN KISI KA. LEKIN JO DO LADKIYO KA MAINEY
SHUROO MAINEY BATAYA HAIN KI HA MAINEY KHAYA HOON
ISLIYE KYONKI MERA MAN SHANT HOTA THA TO SABSE
PEHLE LADKI KO KIYA THA TO USKA CHAPPAL DRAWING
ROOM MAIN HE RAH GAYE THE, TO WO MEREKO TAB JAKAR
DHYAN AYA KI MAINEY USKA BANA HUWA COOKAR ME
DEKHA THA, JAB MAN SHANT HUWA TO MAINE DEKHA KI
MAINEY USKA COOKAR MAIN MEAT BANAYA HUWA HAIN.
ACHHA!

HANJI
TO ITNA MATLAB PARESHAN HO JATA THA MERE DIMAG
MAIN KOI WAHI NEHI RAHTA THA MATLAB IS TAHAR KI
HALAT THI MERI. TO USKE BAD JAB MAINEY MEX KO MARA
TO USKO BHI FIR USKO BHI KAT PEET KAR WAHI
BATHROOM MEIN RAKH DIYA. BAD MAIN USKO NEECHEY
AYA, PANNIYA LE KARKEY GAYA OR BHARKAR KEY WAHI
RAKH DIYA AUR FIR BATHROOM DHO DIYA. USKEY BAD,
USKEY MAINEY KAPRE UTHAI, KAPRE THEY AUR JUTEY
THAY USKEY PAHENEY HUYE, DOOSRE TYPE KE WO PAHNEY
HUYE THAY USNEY, SAR USKA UTHAYA OR GHAR KE PECHEY
FENKH DIYA OR BAKI UDHAYA USKO OR GHAR KE AGEY
AISEE NALI HAI AUR NALI MEIN DAL DIYA. ACHHA!, ISKEY
DO TEEN DIN KE BAD KI BAT HAIN, EK L NAME KI CALL
GIRL THEE, JO HAMARE GHAR MEIN AKSAR BAHUT MATLAB
MATHAB ATTEE RAHATI THEE. SARDAR KE PASS KAI BARI
MATLAB KAI BAR. RAT BITANEY KE LIYA AAYEE HUWI THI
WAHA PAR TO ATTEE JATEE RAHATEE THI YE, PHIR NA
JANEY KYA HUWA. RAT KE TIME MAIN HI MATLAB YE DONO
DRAWING ROOM BAITH KAR KEY YE DAROO PE RAHE THE,
TO KITCHEN MAIN SEE JO CALL GIRL AATEE THI WO
KITCHEN MAIN NAHI ATTEE THI OR DRAWING ROOM OR
BED ROOM MAIN HEE IDHAR HI GHOOMTI RAHTI THI GHAR
MAIN MATLAB JO BHI LADKIYA, TEEN CHAR LADKIYA
EKKHATTI LATA THA, YEE GHAR MAIN DISCO BHI KARTE
THE MATLAB APNA MUSIC LAGA LIYA OR LACHTE RAHTE
THE TO MAIN INKO MATLAB KOI CHEES BANAKAR KEY
KHILATE PILATE RAHATA THA OR INKO DEKHTA REHTA THA
MATLAB TO IS TAHARA SE JO HAI MATLAB MERA MAN MAIN
PURA PRESSURE BANTA THA. MAINE ISKO L KO JO HAI
AAYEE HUWEE THI KITCHEN MEIN AAYEE TO MAINE YE
KAHKARKE ISEY PHONE NUMBER LAY LIYA THA KI MAIN
TUJHSE KIS PARTY SE BAT KARWANI HAI. TOO TU APNA
NUMBER DE JA, TO ISNEY MEREKO APNA APNA NUMBER DE
DIYA TO MAINE USKO PHONE KAR KE BULAYA TU USNE
 131

KAHA ABHI TO MAI KAHI GAI HUI HOON. TO ABHI TO NAHI

AA SAKTI, KAL AAONGI. TO MAINE KAHA THEEK HAI, BUS
ITNA KAH KAR KE MAINE PHONE RAKH DIYA, USKE BAAD
DUSRE DIN JAB SHAAM KO JAB YE AAI TO SUBAH SE HI
MAI VAHI DO TEEN DIN SE HO HI RAHA THA, DO TEEN DIN
SUBAH SE BOHOT ZYADA PRESSURE BANA HUWA THA. JAB
MATLAB YE LOG KAHIN CHALE JATE THE TO AYA BHI
CHHUTEE MAR JATE THI TO GHAR MAI KAAM KARNE WALI
AA JATI THI
KYA NAAM THA USKA?

USKA NAAM MAYA HAI, VO BHI KABHI KABHI BEECH

BEECH. MAI MATLAB MAHINE MAI, AIK DO CHUTTI KARTI
THI VO BHI, US DIN BHI JAHAN TAK HAI KI MAYA BHI AAI
THI YA NAHI AAI THI YA MAYA AAA KAR KE KAAM KAR KE
CHALI GAI THI, KYONKI YE KAREEB CHAR SADECHAR BAJE
KE KAREEB AAI THI GHAR PE, AUR JAB MAINE ISKO JAB YE
GHAR KE ANDAR ENTER KIYO TO USI TIME, ISI KI CHUNNI
SE MAINE ISKO DRAWING ROOM MAIN ATE HEE EKDUM SE
GHUMA KAR KE NEECHE GIRA DIYA MATLAB, JAB NEECHE
GIRANE KE BAAD ISKO BEHOSH KAR DIYA AUR BEHOSH
KAR NE KE BAAD ISKO ISKE SAATH SEX KARNE KE
KOSHISH KIYA, MUJHE LAGTA HAI JAHA TAK HAI ISKE
SAATH MAINE SEX KIYA HAI. ACCHA!, PAR SACH KYA HAI
VO MERE KO PURI TARAH SE DHYAN NAHI HAI PAR MERE
KO YE HAI KI MAINE ISKE SATTH SEX KIYA HUOON KARKE
USKE BAAD FIR MAINE ISKO BHI GALA DABA KE PURI
TARAH SE MAAR DIYA AUR ISKO UTHA KAR UPAR
BATHROOM ME RAKH DIYA AUR BATHROOM MAI RAKHNE
KE BAAD ISKO BHI MAINE KAAT PEET KAR KE VAHI CHOOD
DIYA AUR YE KYA HAI NEECHE SE AAKAR KE PANNNI LE
KAR KE GAYA, AUR PANNI ME DAL KAR KE ISKO RAKH
DIYA, PANNIYO MAI DAL KAR RAKHNE KE BAAD, SHAAM KO
ISKO BHI FIR MAINE ISKA SER AUR KAPDE AUR CHAPPAL
AUR ISKE HAATH MAI AIK PURSE THA LAL SE RANG KA
JISME 30-32 RUPAY THE JO MAINE 30-32 RUPAY AUR ISKA
MOBILE JO HAI, MOBILE THA ISKE HAATH MAI.

WO MOBILE MAINE USME APNE NAM SE SIM CARD DAL KAR

KE ISKA MOBILE USE KIYA HAIN AUR ISKO MAINE JO HA
ISKE KAPRE AUR CHAPPAL JO HAI PECHHE FENK DIYA THA
AUR BAKI ISKO BHI GHAR KE AGE DAL DIYA THA USKE BAD
DAS YA GYARAH TARIKH KI BAT HAI NAND LAL GHAR PE
AYA EK DIN, ISKE BAP KA NAM NAND LAL THA.

KAUN SE MAHENE KI ABHI KAH RAHE HO NA? DAS GYARAH

RAEEKH KI BAT HAI KOI MAHINA?

MAY KI BAT HAI, YE MAY KI BAT HAI. HAA MAY 2006 KI BAT
HAI, YE TO NAND LAL JO HAI MATLAB ISKO JO HAI BAP HAI
MATLAB WO CHAR PANCH DIN KE BAD JO HAI GHAR PE
PATA KARNE KE LIYE GHAR PAR AYA TO WO YAHA AISE KAM
SE AYEE THI. YAHAN ANE KE LIYA BOL KE GAI THI KYONKI
USKO PATA THA KI YE AISE KAAM KARTE HAI AUR LEKIN
USNE POLICE KO BATAI THA KI MATLAB YE NAUKRI KE LIYA
WAHA GAI THEE JAB KI USKO YE PATA THA KI WO AISEE
KAM KE LIYA, AUR AISAY KAAM KARTEE HAI MATLAB
 132

HAMARE PASS AYEE THEE, USNE ATTE HI MERE SE

PUNCHHA KI WO YAHA AAEE THI AUR WO SAHAB KA
MOBILE NUMBER WO LIKH KAR LEKE AYE THEA WO EK
KAGAJ PAR HOON HOON! AUR MERE KO KAHA KI IS
NUMBER PAR PE PHONE GAYA THA AUR MATLAB JO HAI
YAHA BOL KAR GAI HAI AUR YE NUMBER DEKAR GAI HAI
AUR YE KAHA HAI KI IS NUMBER SE PHONE AYA HAI AUR
MERE KO WAHA JANA HAI MATLAB WO YAHA AYEE THEE
AUR CHAR PANCH DIN HO GAYE HAI JO ABHI GHAR NAHI
GAI HAI AUR KAHA BHEJHA HUWA HAI USKO HAME PHONE
NUMBER AUR ADDRESS DE DO WAHA KA. HUM APNE AAP
USKO YAHA LE AYANGEY. TO USKO MAINE PAHLE HEE MAR
DIYA THA LEKIN MAINE UNKO BHI NAHI BATAYA AUR
POLICE KO BHI NAHI BATAYA. SIRJI ACHHA! ACHHA! FIR
USKE BAD KUCHH HI DIN KE BAD KE BAD KI BAAT HAI FIR
EK G NAM KI LADKI THEE JISKI UMAR CHAR SE BARAH
SAAL YA BARAH TERAH SAAL RAHI HOOGE, BARAH TERAH
SAAL KE KAREEB KI THI TO WO SECTOR TEES KI TARAF SE
DOPAHAR KO DUS GYARAH BAJE KI BAAT HAI GYARAH
BARAH BAJE KI BAAT HAI, WO TEES SECTOR KI TARAF SE
EKATEES KI TARAF AA RAHI THEE TO MAINE USKO BULAYA
KAHA KAAM KAREGE USNE KAHA HANHI TO FIR MAIN
PAISE KI BAAT KARNE KE LIYA ANDAR LEKAR AA GAYA AUR
PAISE KI BAAT KARNE KE LIYE ANDAR LE AYA

PANI PIYOGE KYA? PEELO, PEENA HAI TO?

TO USKO MAIN PAISE KI BAAT KARNE KE LIYE ANDAR LE
AYA THA. HOON! HOON! AUR THORA THORA DHUNDHLA
DHUNDLA USKA CHEHARA YAAD THA ISLIYE USE MATLAB
POLICE KO BATAI THA KI HAA YE LADKI HAI KARKE JAB
UNOUNNE MERE KO PHOTO DIKHAI THEE, KARKE NAAM KA
MERE KO PATA NAHE THA, NAAM TO MERE KO KISI KA BHI
YAAD NAHI. NAAM MERE KO SARE UNNONE HI BATAI HAI
PHOTO MERE KO THORI THOKI DHUNDLI YAAD THI TO
MAINE BATAYA KI HA MAINE IS TARAH KI HAI FIR USKE
BAD MEIN US LADKI KO BHI UPPAR BATHROOM MEIN
LEKAR GAYA TO USEE TIME MAINE KAT PEET KAR KE
BATHROOM MEIN KAKH KAR CHHOR DIYA AUR NEECHE AYA
AUR PANNIYON MEIN LEKAR KE GAYA AUR PANNIYO MAIN
DAL KAR USKO BHI AUR BHAR KE WAHI BATHROOM MEIN
WAHI RAKH DIYA. AUR RAAT KO USKO BHI MATLAB JO HAI
USKO BAKI TO GHAR KE AAGE NALI MEIN DAL DIYA AUR
SIR KAPRE AUR CHAPPAL YE GHAR KE PEECHE KO US
GALLERY MEIN DAL DIYA AUR BATHROOM SAAF KAR DIYA
(At this stage it is already 10.55 PM. The work of
transcription is very lengthy and slow process and it needs
several times corrections, therefore it could not be
completed till this time and still some transcription work is
to be done and it seems that it shall not be feasible to do
the same today. Therefore, accused is directed to be
produced before Ld. ACCM, for further appropriate orders.
Mr. Shaym who is handling the work of operating CD is
directed to shut down the computer and he has complied
and it is confirmed that none can access to the computer.
CD is again sealed with the court seal bearing the signature
of the accused and myself.)
 133

RO & AC
Chandra Shekhar
Metropolitan Magistrate
Patiala House Courts,
New Delhi 2.3.2007
In this regard a separate order was passed and was given to
the IO for producing accused before Ld. ACMM. Same is
Mark 'H'

Chandra Shekhar
Metropolitan Magistrate
Patiala House Courts,
New Delhi 2.3.2007
03.03.2007

Today order dated 2.3.2007 which is mark ‘J’ and

order dated 3.3.2007 which is mark ‘K’ is received from the
court of Ld. ACMM, New Delhi and accused is produced by
Inspector Rakesh Kumar alongwith SHO PS, Tilak Marg. The
seal of the CD is broken in presence of accused and the
work of transcription is initiated further:-

AUR KUCHH DIN BAAD KI BAAT HAI DOPAHAR KE KAREEB

BARAH EK BAJE KE KAREEB KI BAAT HAIN EK CHHOTEE SEE
GANJI SEE LADKI THEE JISKA NAM PHOTO DEKHNE KE
BAAD PTA CHALA KI USKA NAAM I HAI AUR USKA NAAM I
HAIN, USKO BULAYA MAINE AUR YE KAHKAR KE KI MATLAB
KI MEIN TERE KO CHOCELETE DOONGA. WO AA GAYEE.
USKO KAHA KI ANDAR AAKE DOONGA. ANDAR AA GAYEE.
ANDAR LE AYA USKO DUSTING KE KAPRE SE USEE TIME
USKA GALA DABA DIYA AUR GALA DABAKAR USEE BEHOSH
KARKE USKEY SATH BHI SEX KARNE KA KOSHISH KIYA AUR
SEX KARNE KA KOSHISH KIYA. USKE BAD SEX NAHI HUWA
AUR USKO BHI UTHAYA MAINE AUR UPPAR BATHROOM
MEIN RAKH KE AA GAYA AUR BATHROOM MEIN RAKHNE KE
BAD FIR MEIN JAB NEECHE AYA AUR NEECHE AA KAR KE
CHAKOO LE KAR KE GAYA AUR PANNI LE GAYA AUR USEE
TIME USKO KAT PEET KARKE MAINE PANNIYON MEIN DAL
KAR KE MAINE RAKH DIYA AUR PANNIYON MEIN DAL KAR
RAKH DIYA AUR USKE BAAD USKO BHI RAAT KO SIR KAPRE
AUR CHAPPAL USKE GHAR KE PEECHHE GALEERY MEIN
FENK DIYA AUR USKO BHI BAKI GHAR KE SAMNE WALI
NALI MEIN DAL DIYA THA TO FIR USKE BAAD KUCHH DIN
BAD KI BAT HAI EK NEPLAI TYPE KI EK LADKI THI TO
MATLAB SECTOR TEES SE EATEES KI TARAF JA RAKHI THEE.
SUBAHRE SADE AATH NAU BAJE AAS PASS KI BAAT HAI TO
USKO BHI MAINE AISEY HI BULA DIYA, USKO MAINE
PAHLEY EK BAR WAHI NITHARI GAON MEIN KISI CHAWMIN
WALON KE PASS WAHI PEECHEE GHAR KE PEECHHE WALI
GALLERY MEIN CHAWMIN KI DUKAN HAIN WAHA CHAWMIN
KI DUKAN PE USKO PEHLE EK DIN KHARE DEKHA THA TO
USEE MAINE YE PUNCHHA KI KYA TOO CHAWMIN WALE KI
BETI HAI KYA. TO USNE KAHA HANDI. MAINE KAHA
CHAWMIN MANGANI HAI AUR CHAWMIN MANGANI HAI,
USKE BAD FIR ANDR AAJA PAISE LEJA, WO ANDAR AA
 134

GAYEE, ANDAR AATE HI MAINE PEECHHE PEECHHE USKE

AYA AUR DUSTING KE KAPRE SE USKA BHI GALA DABAKE
USKO BHI SEX MARJE KA KOSHISH AUR NAHI HO PAYA.
USKE BAD USKO BHI GALA DABAKAR KE MAAR KE UPPAR
BATHROOM MEIN RAKH DIYA AUR USKO BHI MATLAB
USSEE TIME KAAT PEET KE UPPAR BATHROOM MEIN AISEE
HI CHHOR DIYA MATLAB JAB BATHROOM MEIN KATA HUWA
RAHATA THA TO MATLAB KABHI KABHI SHAM KE ADE
PANCH CHAI BAJE TAK BHI AISEE HI PADI PADI RAHTI THI.
BATHROOM MEIN FIR JAB MAIN KAAT PEET KAR AISEY HI
KYONKI JAB MATLAB MAN SHANT HOTA THA USKE BAD TAB
JAKAR KE TAB MATLAB DYAN HOTA THA KI KUCHH MATLAB
JAB BATHROOM GAYA TAB DYAN HOTA THA KI KUCHH
MATLAB JAB BATHROOM GAYA TAB DYAN ARYA AISA HOTA
THA ACHHA !. TO MAINE UPPAR BATHROOM MEIN RAKHA
KAAT PEET KAR KE UPPAR RAKHA HUWA THA FIR MAIN
NEECHHEY AA KAR KE PANNIYON WANNIO MAIN DAL KAR
KE LEKAR KE GAYA UPPAR AUR PANNIYON MEIN DAL KAR
KE USKO BHI AUR BHAR KE RAKH DIYA AUR RAAT KO USKO
BHI ANDHERA HONE KE BAAD USKE KAPRE AUR CHAPPAL
AUR SIR YE SAB MAINE GHAR KE PECHHE FENK DIYA THA.
AUR BAKI USKO BHU GHR KE AAGEE NALI ME DAL DIYA
THA. FIR KUCHH DIN KE BAD KI BAAT HAI, EKEWO!ENAHI
EK AURAT THI, USKO MAINE DOPAHAR KO KAREEB DAID
DO BAJE KE AAS PASS KI BAAT HAIN, TO DAID DO BAJE KI
BAAT HAI, MAINE USKO KAAM KE LIYE BULAYA AUR YE
KAHKE ANDAR LE AYA KE ANDAR AJA MAIN TERE PAISE KI
BAAT KARWA DETA HOON WO JAISE HI ANDAR AAYEE AUR
ANDAR AATE HI MAINE USKE PEECHHE PEECHHE AA RAHA
THA AUR USEE KI CHUNNI SE USKO BHI GALA DABA KARKE
USKO BHI GALA DABA KARKE USKO FIR EK DUM SE
NEECHHE FIR MATLAB CHUNNI SE JHAPAT KAR KE USKO
PEECHEY NEECHE GIRA DIYA AUR USKO CHUNNI SE
PEECHHE NEECHE GIRANE KE BAD USKO BEHOSH KAR
DIYA. BEHOSH KARNE KE BAAD USKE SAATH BHI SEX KIYA
YA NAHI YE MERE KO PURI TARAH SE DHYAN NAHI HAI.
LEKIN SEX KARNE KI KOSHISH MAI KIYA HOON YE DHYAN
HAI MERE KO MAINE SEX KARNE KI KOSHISH KI HAI KAR
KE TO, USKE BAAD FIR MAINE USKO KAPRE PAHNAI AUR
VAISE HI UTHA KAR KE UPPAR BATHROOM MAI LE KAR KE
CHALA GAYA, AUR MATLAB US TIME MAIN ITNA PRESSUE
REHATA THA KI MERE KO YE BHI NAHI HIMMAT MATLAB
SAMAJH NAHI AA RAHA KI ITNI BHARI AURAT KO UPAR
BATHROOM MAIN KAISE LE KAR KAB CHALA JATA THA MAI
AB SOCHTA HOON MAIN IS CHEEZ KO US TIME MERE KO IS
CHEEZ KA PATA BHI NAHI LAGTA THA, MEIN UPPAR UTHAKE
KAISE LE KE CHALA JATA THA TO MATLAB YE HAI KI
MATLAB YAHI DHYAN HAI KI KANDHE PAR RAKH KAR LE
JATA THA ISLIYE MAINE BATAYA MAINE KI MAI KANDHE PAR
LE JATA THA HANJI.

DEKHO YE SAB KANE KE BAAD YAAD KAISE AA JATA THA

SAM KI TUMNE KYA KIYA HAI YE SAB YAAD KAISE AAA
GAYA?
KYA CHEEZ.

JAISE MATLAB YE HAI KI MATLAB MAN SHANT HO GAYA

 135

JAISE MAINE UPAR BATHROOM MEIN KAAT PEET KAR

RAKHA HUA HAI TO PANNIYON ME MAIN MATLAB BAD MEIN
BHARTA THA JAISE, MAINE JAISE YA USI TIME BHAR LIYA
PANNI BHARE HUWI RAKH LEE MATLAB SHAM KE TIME
MEIN BATHROOM MAIN FELA HI RAHTA THA VAISE HI, TO
AISE HI MATLAB SAB PADA HAI TO USKE BAD SHAM KO
JAISE HI BATHROOM GAYA DOPAHAR KE BAD KYONKI WO
US SE KARNE KA VAHI BATHROOM THA MERA ACHHA! TO
MAIN BATHROOM GAYA JAISE TO WAISE MAI DO GHANTE
MAIN DHAI GHANTE MAI, GHANTA BHAR MAIM MAN SHANT
HO GAYA TO EKHA MATLAB UPPAR MAINE AISE HALAT KAR
RAKHI HAI TO AB JAKAR KE MATLAB PANNIYON MAI BHAR
KAR RAKH DETA THA ACHHA! TO IS TARAH MATLAB THODA
THODA MATLAB JO HAI HEI CHEHRA TO CHEHRA TO
MATLAB KHAS TOOR PE CHEHRE KA DHUNDLA DHUNDLA
YAAD HAI TO MAIN BATA RAHA HOON, SEX KARTA THA YA
NAHI KARTA THA, KOSHISH BHI KARTA THA YA NAHI KARTA
THA, YE NAHI KARTA THA, KOSHISH BHI MARTA THA YA
NAHI MARTA THA, YE NAHI MERE KO POORI TARAH SE YAD
HAI LEKIN MAINEYE BATA RAHA HOON KI MAIN SEX KI
KOSHISH KARTA THA ISLIYE BATAYA HAI KARKE, USKE
BAAD FIR MAIN USKO BHI MAINE UTHA KAR KE BAHTROOM
MEIN LE GAYA AUR KAAT KAR KE RAKH DIYA USKE BAD FIR
MAINE PANNIYON MAI BHAR KR USKO BHI AUR RAKH DIYA,
SHAAM KO ANDHERA HONE KE BAAD USKO BHI SIR USKEY
AUR KAPDA CHAPPAL MAIN SAB GHAR KE PEECHHE FENK
DIYA GALLERY MAI AUR BAKI UTHA KAR KE USKO BALTI
MAI DAL KE NAALI MAI DAL KAR AA GAYA AUR USKE KUCH
DIN BAAD KI BAAT HAI USKE BAAD AIK AUR AURAT THI, VO
BHI SAFAI WALI THI SUBERE KI BAAT HAI KAREEB AATH
SARE AATH, NAU BAJE KI BAAT HAI KE AAS PAAS KI BAAT
HAI, SECTOR TEES SE EKATEES KI TARAF SE NITHARI
GAON KE TARAF AA RAHI THI USKO MAINE POOCHHA KAAM
KAROGI TO ISNE KAHA, HANJI, ISKO HI WAISEE HI PAISE
KI BAAT KARWANE KE LIYE ANDAR LE AAYA ANDAR LANE
KE BAAD FIR MAINE ISE JAISE HI YE ANDAR AA GAI AUR
USEE TIME FIR ISI KI CHUNNI SH JHAPAT KAR ISKA GALA
DABA KAR KE, ISKO BHI NEECHE GIRA DIYA AUR GALA
DABA KE BEHOSH KAR DIYA ISKO. BEHOSH KARNE KE
BAAD ISKE SATH BHI SEX KIYA, SEX KARNE KE BAAD ISKA
GALA DABA KAR KE AUR UPPAR BATHROOM MAI LE GAYA,
AUR ISKO BHI KAAT KARKE BATHROOM MAI RAKH DIYA
AUR NEECHE AAYA AUR PANNIYON MAI BHAR KAR AUR
RAKH DIYA VAHI BATHROOM MAI AUR BATHROOM SAAF
KAR DIYA AUR RAAT KO ANDHERA HONE KE BAAD ISKO
BHI MAINE, KAPRA CHAPPAL OR SIR ISKE GHAR KE PEECHE
FAIK DIYA THA GALLERY MAIN AUR BAAKI JO HAI, GHAR KE
AAGE NALI MAI DAL DIYA THA, USKE BAAD USKE KUCH DIN
BAAD KI BAAT HAI EK DNAM KI AURAT THI, YE HAMARE
GHAR MAI PAHALE BHI PAANCH CHHAI MAHINE KAAM KAR
KE GAI HUI THI AUR KAAM KAR KE GAI HUI THI, EK DIN YE
SECTOR KI 30 KI TARAF SE AA RAHI THI, KAHA SE AA RAHI
THI YE NAHI MERE KO MALOOM SECTOR TEES SE NITHARI
GAON KI TARAF AA RAHI THIM, AUR YE PEHLE KAAM KAR
KE GAI HUI THI ISKA BACHA HUWA THA ISLIYEY KAAM
CHHOOD KAR KE CHALI GAI THIM, USKI JAGAH MEN
MATLAB USKI JAGAH MEIN EKENAAM KI AURAT NE KAAM
 136

KIYA MAHINA DAIR MAHINA AUR USNEY CHHOOD DIYA

USKE BAAD FIR MAYA KAAM KARNE LAG GAYEE. USKO TIME
NAHI THAEKO. VO SECTOR 30 MAI KAHIN PE HOSTEL MAI
KAAM KARTI HAI, ACHHA! JI SIR! TO USKI JAGAH MEINENE
KAAM KIYA, DKI JAGAH US DIN WO POOCHHNE KE LIYE
AAYEE TO MATLAB KAAM PAR KAB SE AAON MAI AUR USKE
BAAD JAB VO AAI TO MAINE USEE TIME ANDAR BULAYA KI
AAJA CHAI WAI PEE KE CHALE JANA AUR YE KEH KAR USKO
ANDAR LE AYA, ANDAR LAATE HI MAINE USKO FIR USI KI
CHUNNI SE USKO USKO BHI GALA DABA KAR BEHOSH KAR
DIYA AUR BEHOSH KARNE KE BAAD, BEHOSH KARNE KE
BAAD USKE SSATH BHI SEX KIYA. AUR SEX KARNE KE BAD
USKO TO MATLAB KAPDE PEHNA KAR KE USI KI CHUNNI SE
USKA GALA DABA KAR KE USKO MAAR DIYA. AUR UPAR
BATHROOM MEIN LE JAA KAR KE RAKH DIYA. AUR
BATHROOM MAI LE JAA KAR RAKH DIYA AUR KAAT PEET
KAR KE CHHOD DIYA AUR USKE BAAD USKO BHI NEECHE
AAYA AUR PANNIYON MEIN, PANNIYON KO LEKAR KE GAYA
AUR ISKO BHI PANNI MAI ISKO BHAR KAR BHAR KAR
BATHROOM MAI RAKH DIYA AUR RAAT KO USKA BHI SIR,
KAPDA AUR CHAPPAL GHAR KE PECHHE FENK DIYA THA
AUR BAAKI USKO BHI NAALE MAI DAAL DIYA THA, USKE
BAAD AIK BNAAM KI LADKI THI, JISKEE UMAR KAREEB
ATTHARAH SE BEES SAAL KI THI, ATTARAH SE BEES SAAL
KI WO LADKI THI EK. TO SUBERE KE SADE AATH NAU BAJE
KE AAS PAAS KI BAAT HAI TO WO SECTOR 31 KI TARAF SE
TEES SECTOR KI TARAF JA RAHI THI TO SECTOR TEES KI
TARAF JA RAHI THI AUR MAINE USKO SUBAH USKO AAWAI
LAGA KAR BULAYA KI, KAAM KAREGI USNEY KAHA HANJI,
MAINE KAHA AAJAO PAISE KI BAAT KARWA DEETA HOON,
YE KAHKAR USKO ANDAR LE AYA AUR ANDAR LAANE KE
BAAD MAINE USEE KI USI KI CHUNNI SE, JAISE HI VO
ANDAR AAI AUR MAINE USEE KI CHUNNI SE USKA GALA
DABAR KAR KE USKO BEHOSH KAR DIYA, USKE BAAD USKE
SAATH SEX KARNE KA KOSHISH KIYA, AUR USEE KI CHUNI
SE USKA GALA DABAKAR KE USKO MAAR DIYA, FIR USKEY
BAD USKO BHI UPAR BATHROOM MAI LEB JA KAR KE AUR.
KAAT KAR KE VAHI RAAKH DIYA AUR BAD ME USKO
PANNIYON MAL BHAR KAR KE BATHROOM MAI RAKH DIYA
AUR RAAT KO FIR USKE SIR KAPDE AUR CHAPPAL YE SAB
GHAR KE PEECHE FAIK DIYA THA AUR BAKI USKO BHI
GHAR KE AAGE NAALI MAI DAL DIYA THA, ISMEI SE KUCH
LOG TO AISE HAI JO MATLAB KI JAISE KI MATLAB KABHI
KABHI AISEY BAHOOT BAR HUWA MATLAB JAISEY KABHI
SARDAR MATLAB BODY UPPAR BATHROOM PADI HUWI HAI
KATEE HAI YA SABOOT HAI YA JAISE BHI HAI SARDAR
GHAR MEIN HAI AUR SARDAR GHAR MEIN AA GAYA. USKE
BAD MAINE FIR FENKA HOON AND KYONKI WO MATLAB JO
HAI LADKIYON KE SAATH EK DUM WO JO HAI LADIYON KE
SAATH WO GHAR PE AAKEY WO BILKUL WO HO JATA THA.
KYA KAHTE HAI USKO MATLAB MAST RAHTA THA MATLAB
LADKIYON KE SAATH HI WO SAB BHI DAROO WAROO PEETI
THI LADKIYA BHI DAROO WAROO PEETI THI YE BHI BEER
WAGARAH PEETA THA AUR INKO MATLAB ISKEY GHAR PER
RAHTI THI KAYEE BARI YE AISEY HUWA HAI MATLAB YE
GHAR PER AA GAYA HAI AUR BATHROOM MEIN BODY PADI
HUWI HAI JO MAINE BATAYA THA EK I NAM KI LADKI THI
 137

US DIN BHI YE GHAR MEIN THA US TIME NAHI THA GHAR

PE LEKIN US TIME BHI YE GHAR YEE THA MATLAB OFFICE
GAYA HUWA THA, YE USKE BAAD YE GHAR PER AA GAYA
AUR JO L KA MOBILE JO MAI USE KAR RAHA THA TO ISKO
MERE SE BHI NAHI PUCHHA KI YE MATLAB MOBILE TERE
PASS KAHAN SE AAYA YA KAISE AYA, YA TO ISKO MOBILE
KE BARE MAI JANKARI THI KYONKI L JAB USKE PASS AATI
THI TO MOBILE TO SAATH MAI HI REHTA THA USKE, TO
HUM DONA EK HI CHARGER SE MATLAB MOBILE CHARGE
KARTE THE MAI BHI APNA MOBILE USEE SEE CHARGE
KARTA THA AUR SAHAB BHI APNA MOBILE USEE CHARGER
SE MATLAB CHARGE KARTE THEE MAIN UNEEKA CHARGER
USE KARTA THA AUR DRAWING ROOM MEIN KARTA THA
ACHHA! TO SAHAB NE MATLAB MOBILE DEKHA HUWA THA.
MOBILE MERE PASS LEKIN UNHOONEY KABHI MERE SE YE
NAHI PUUCHHA KI TERE PASS YE MOBILE KAHA SE AYA
AUR NA HI MAINE UNKO YE BATAYA KABHI KI YE MOBILE JO
HAI L KA HAI TO SARJI YE HAI KI MATLAB MAIN YE SACHAI
BAYAN KARNE KA MATLAB ISLIYA HAI KI AAP MERE LIYE
COURT BHI HAI, JUDGE BHI HAI, SUB KUCHH AAP HI HAI
MERE LIYE MAIN ISLIYE SACH SACH BATAYA KI TAKI MERE
KO MATLAB JO HAI SACHAI SE JO HAI SACHAI KE RASTE
PER JO CHALUNGA TO SHAYAD TO KUCHH NA KUCHH
RIYAHAT BHI MIL SAKTI HAI AUR JO AAP KAHA RAHE HAI
KI MATLAB JO HAI YE BAYAN DENE SE SAJAI MAUT BHI MIL
SAKTI HAI TO MUJHE JO BHI MATLAB HAI SACHAI KE
RASTE PER CHALNE SE CHAHE JO BHI SAJA HOGI MUJHEY
MANJOOR HAI AUR MAIN BAHUT GAREEB PARIWAR SE
HOON MERA
HA YE BATAO KI YE KEHTE HO KI ITNI JALDI TUM KAHTE
HO KI MAI KAAT LETA THA, SUBKUCH AUR YE KAISE
SAMBHAV HAI KI TUMNE PAHLE ISKA MATLAB TUMNE
PAHLE BHI KUCHH KIYA HAI YA JANTE THE IS BARE MAI KI
KAISEY KATNA HAI AUR KAISE NAHI KATNA?

SIRJI
IS SEE PAHLE MAINEY KABHI KUCHH NAHI KIYA THA
ACHHA! IS SEE PAHLE KABHI KAHI BHI KUCHH BHI NAHI
KIYA, KAHI BHI AAJ TAK NA TO KABHI MAI KISHI KE CHORI
KE KISHI BHI ILZAM MEIN AAJ THAN POLICE KE PASS GAYA
HOON NA PAKRA GAYA HOON NA MAIN POLICE KE BARE
MEIN MERI ITNI JANKARI THEE SUNA HAI MATLAB KI KOI
GALAT KAAM HOTA HAI TO POLICE USAY PAKADTI HAI,
SAJA MILTI HAI, CBI KEY BARE MAI SUNA HAI LEKIN ABHI
TAK MUJHE PATA NAHI THA KI. CBI KYA CHEEZ HOTI HAI

AB KUCHH AUR KAHANA CHAHATE HO?

KAHANA YAHEE CHAHATA HOON SIR MERE LIYE TO SAB
KUCH AAP HI HAI
THEEK HAI!,

HANJI,
NAHI KUCH AUR BATANA CHHAHTE HO? MAINE KAHA

PATA NAHI BUS SIR BASJI YE JO HAI MAINE SACCHAI

 138

BAYAN KAR DI HAI

JO KUCH TUM JANTE THE VO TUMNE BATA DIYA HAI, YA
KUCH AUR BHI BAAKI HAI BATANE KE LIYE?
SIR JITNA MUJHE YAAD THA UTNA MAINE SAB KUCH BATA
DIYA HAI.
ACHHA! AUR BAAKI AB JO BHI HOGA KYONKI KI MAI TO
MERE BIBI AUR BACCHE HAI UNKA MERE ALAWA IS DUNIYA
MEIN AUR TO KOI HAI NAHI SATH PESATH (60-65) SAAL KE
MAMMI HAI AUR, EK BACCHHA HUWA HAI ABHI JANUARY
LAST MAI HUA HAI,

THEEK HAI BUS

WO SAB CHEEZE NAHI BAAS YE JANNA CHAHTE THAY KI JO
TUM KUCH KEHNE AAI HO VO TUMNE KAH DIYA HAI YA
NAHI? HANJI BUS YE CHEEZ AB HO GAI HAI

YE CHEEEZ COMPLETE HO GAI HAI AB ISKO BANDH KAR

DIYA JAI?

THEEK HAI JAISEE APKI ICHHA

ACCHA!

The statement of the accused Surinder Koli

has been completed and it has been audio graphed
and video graphed and the cassettes are required
to be scaled as per the direction of the learned
ACMM, and transcription shall be made, thereafter
the proceedings are ended here. The necessary
certificate as per law and the memorandumi shall
be given while writing the transcription.
Chandra Shekhar

Metropolitan Magistrate
Patiala House Courts,
New Delhi 3.3.2007
(As the Statement of the accused has been Video
Graphed and Audio Gruphed and it was stated at
the end of the Videography that the Memorandum
and Cenificate shall be given at the time of
Transcription). The same is given as under:-
MEMORANDUM
I have explained to accused Surender Koli
that he is not bound to make any confession and
that if he does so any confession it may be used as
evidence against him and during the Video Graphy
whatever the accused stated in his confession
statement was given by the accused was
voluntarily. Moreover the accused Surender Koli
 139

remained present always during the work of

transcription since 1-3-2007 to 3-3-2007 till the
whole work is being completed and he has heard
and seen the recording several times and has tried
to clarified certain words and sentences by his own
without even asking by me. It seems that
whatever he has stated is by his free will.
Moreover, during the Video Graphy and aforesaid
transcription I have also asked several times and
on 3-3-2007 A morning and on 3-3-2007 in
morning and at the end of the proceedings also
that even at this stage if he wants to refuse from
his confession or if he wants to say anything he
may do so. However he has stated that whatever
he wanted to say he has already said and he has
told the truth.
Whatever, has been recorded above the
same was done in my presence and on my
dictation and hearing and was readover to accused
Surender Koli and it has been admitted by him to
be correct and it contains the full and true account
of the statement made by him.

Chandra Shekhar

Metropolitan Magistrate
Patiala House Courts,
New Delhi 3.3.2007

CLARIFICATION
Due to inadvertence it has been stated by
me during Video Graphy that Video Cassettes are
prepared but infact the video CDs are prepared
therefore the word Cassettes may be read as CDs.
CERTIFICATE
It is certified that the above recorded
proceedings have been recorded by me truly and
correctly and nothing to been added, subtracted or
concealed therefrom and it is a true and full
account of the proceedings. The proceedings were
continued since the time it was marked to me in 1-
3-2007 to 3-3-2007 till 09:00 PM continuously
except for breakage for taking meals only, during
lunch hours. In completing the proceedings two
Stenographers, namely, Shri Praveen Singhania
 140

and Shri Kripal Singh Sajwan, who were deputed

for this specific purpose have completed the work
diligently and industriously and one Shri Shyam
Jaiswar has industriously assisted me in
completing the proceedings
The annexures which have been
mentioned in the proceedings are Marked from
Mark A to Mark L. There is no such document as
Mark I. Proceedings are completed and the same
are comprised 48 pages.
The two CDs and one copy of the
transcription be given to the IO Inspector M.S.
Phartyal, CBI SCR-III/SCB Delhi, as per his request
vide application Mark L, against a proper receipt
for the purpose of further investigation and the
Two CDs are kept on record which are duly sealed
with the court seal and bearing the signature of
accused and myself. Ahlamd is directed to seal the
above said proceedings with the court seal and
sent to the court of Ld. ACMM, Patiala House
Courts, New Delhi, at the earliest.
The accused is directed to be produced
before Ld. ACMM. Patiala House Courts, New Delhi,
immediately, for further appropriate orders.
(Chandra Shekhar)

Metropolitan Magistrate
Patiala House Courts,
New Delhi 03.03.2007”

183. The records further reveal that accused SK retracted his

alleged confession during the course of trial itself by sending
repeated letters to the court concerned. The first letter on
record has been filed in Capital Case No. 4196 of 2010 and is
at page 88 of the paper book, which is reproduced hereinafter:

“ s/o
25.12.06
26.12.06

26.12.06
 141

9 0 2 27.12.06
27.12.06
0 20

1-
2500

5 31 24.7.05

6 31
5
31 L

2005

L
 142

25.11.08”

184. The next letter at page 117 of Capital Case No. 4196 of
2010 is dated 16.3.2009 and is extracted hereinafter:-

“ s/o 25
12.06
26.12.06

27.12.06 9
2 27.12.06
20

2500

5 31
24.7.05

,
 143

6 31

5
31
5 31
L

-2

2006

. .
 144

14-14

16.3.09”
185. There is yet another letter on record of Capital Case No.
835 of 2011 at page 295 of the paper book dated 1.4.2010 is
also on record. In addition to his statement recorded under
Section 313 Cr.P.C. where the accused specifically alleged
torture at the hands of the police and CBI for extracting his
confessional statement. Accused has also submitted his written
statement under Section 313 Cr.P.C., which is on record of
Sessions Trial No. 494 of 2007 and is extracted hereinafter:-

“ o 313
:-
,
1.

2.
,

3.

4.
 145

5. 22.02.07
1.03.2007
164

6.

7. 22.02.2007

164

? 164
164

8.

,
9.

10.

:- 10/6/11

186. It is in the context of the above referred material on

record that we are required to examine the question as to
whether accused SK had voluntarily made confession and
whether his confession is true for being relied upon as evidence
to implicate the accused.
 146

187. On behalf of appellants, it is argued by Sri Chaudhary

that confession of an accused is viewed with suspicion as
possibility of such confession having been procured in an
improper manner is largely seen. In Mst. Bhagan Vs. State of
Pepsu, AIR 1955 Pepsu 33, the Court has been pleased to
observe as under in para 8:-

“(8) There is no eye-witness to the murder.

Prosecution case entirely rests on the
circumstantial evidence and confessions made by
the convict. If the judicial confession is voluntary
then this is a very strong piece of evidence
connecting the appellant with the crime.
In order to make such confession relevant under S.
24, Evidence Act it must be shown that it was
made voluntarily by the person accused of an
offence. So to base conviction on such a confession
the court must satisfy itself that it was voluntary
and true. Unfortunately in this country It appears
to be well known that the police are in the habit of
extorting confessions by illegal and improper
means. Confessions obtained in this manner must
be excluded from evidence as it is not safe to
receive a statement made by an accused person
under any influence of fear or favour. I am inclined
to the view that the burden of proving the
voluntary nature of the confession lies on the
prosecution; at any rate the onus, if on accused, is
very light.
Section 24, Evidence Act reads as follows:
"A confession made by an accused person is
irrelevant in a criminal proceeding, if the making of
the confession appears to the Court to have been
caused by any inducement, threat or promise
having reference to the charge against the accused
person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the
accused person grounds which would appear to
him reasonable for supposing that by making it he
would gain any advantage of avoid any evil of a
 147

temporal nature in reference to the proceedings

against him".
The word 'appears' indicates a lesser degree of
probability than the word 'proof as defined in S. 3
of the Act. It was designedly used by the
legislature in the interest of the accused. More
often than not, accused is alone in police custody
when he is induced or threatened to make a
confession. In such cases it is well high impossible
for him to adduce positive proof in support of such
inducement, promise or threat offered to him by
the police. Section 24, therefore, does not require
positive proof of improper inducement etc., to
justify its rejection. A well grounded suspicion
based on facts and surrounding circumstances,
therefore, is sufficient to exclude confessions from
consideration. It is entirely for the Court to decide
whether the confession was voluntarily made and
was not the result of inducement, threat or
promise.”

188. In Nagraj Vs. State of Tamil Nadu, (2015) 4 SCC 739, the
Supreme Court has observed as under in para 16:-

“16. We also think that it was incumbent on the

High Court to deal with the so-called confession in
detail. It is far from unknown that confessions are
extracted from an accused under myriad threats,
including his own physical safety. We must hasten
to clarify that a reading of the judgment does not
immediately reveal whether the conviction of the
accused by the courts below was predicated on his
alleged confession.”

189. Similar observations have been expressed by the

Supreme Court in Arup Bhuyan Vs. State of Assam, (2011) 3
SCC 377 in paras 4 & 5, which are reproduced hereinafter:-

“4. Confession is a very weak kind of evidence. As

is well known, the widespread and rampant
practice in the police in India is to use third-degree
methods for extracting confessions from the
alleged accused. Hence, the courts have to be
cautious in accepting confessions made to the
police by the alleged accused.
 148

5. Unfortunately, the police in our country are not

trained in scientific investigation (as is the police in
western countries) nor are they provided the
technical equipments for scientific investigation,
hence to obtain a conviction they often rely on the
easy short cut of procuring a confession under
torture.”

190. Sri Chaudhary has laid emphasis upon the observation

made by the Supreme Court in D.K. Basu Vs. State of West
Bengal, (1997) 1 SCC 416, wherein the Court made
observations in paragraphs 18, 24 and 29, which are
reproduced hereinafter:-

“18. However, in spite of the constitutional and

statutory provisions aimed at safeguarding the
personal liberty and life of a citizen, growing
incidence of torture and deaths in police custody
has been a disturbing factor. Experience shows
that worst violations of human rights take place
during the course of investigation, when the police
with a view to secure evidence or confession often
resorts to third-degree methods including torture
and adopts techniques of screening arrest by
either not recording the arrest or describing the
deprivation of liberty merely as a prolonged
interrogation. A reading of the morning
newspapers almost everyday carrying reports of
dehumanising torture, assault, rape and death in
custody of police or other governmental agencies
is indeed depressing. The increasing incidence of
torture and death in custody has assumed such
alarming proportions that it is affecting the
credibility of the rule of law and the administration
of criminal justice system. The community rightly
feels perturbed. Society's cry for justice becomes
louder.
24. Instances have come to our notice where the
police has arrested a person without warrant in
connection with the investigation of an offence,
without recording the arrest, and the arrested
person has been subjected to torture to extract
information from him for the purpose of further
investigation or for recovery of case property or for
extracting confession etc. The torture and injury
 149

caused on the body of the arrestee has sometimes

resulted in his death. Death in custody is not
generally shown in the records of the lock-up and
every effort is made by the police to dispose of the
body or to make out a case that the arrested
person died after he was released from custody.
Any complaint against such torture or death is
generally not given any attention by the police
officers because of ties of brotherhood. No first
information report at the instance of the victim or
his kith and kin is generally entertained and even
the higher police officers turn a blind eye to such
complaints. Even where a formal prosecution is
launched by the victim or his kith and kin, no
direct evidence is available to substantiate the
charge of torture or causing hurt resulting in
death, as the police lock-up where generally
torture or injury is caused is away from the public
gaze and the witnesses are either policemen or co-
prisoners who are highly reluctant to appear as
prosecution witnesses due to fear retaliation by the
superior officers of the police. It is often seen that
when a complaint is made against torture, death or
injury, in police custody, it is difficult to secure
evidence against the policemen responsible for
resorting to third-degree methods since they are in
charge of police station records which they do not
find difficult to manipulate. Consequently,
prosecution against the delinquent officers
generally results in acquittal. v.
[(1995) 4 SCC 262 : 1995
SCC (Cri) 715 : (1995) 3 Scale 343] is an apt case
illustrative of the observations made by us above.
In that case, Nathu Banjara was tortured at police
station, Rampura during the interrogation. As a
result of extensive injuries caused to him he died
in police custody at the police station. The defence
set up by the respondent police officials at the trial
was that Nattu had been released from police
custody at about 10.30 p.m. after interrogation on
13-10-1981 itself vide entry Ex. P/22-A in the
Roznamcha and that at about 7.00 a.m. on 14-10-
1981, a death report Ex. P/9 was recorded at the
police station, Rampura, at the instance of Ramesh
Respondent 6, to the effect that he had found “one
unknown person” near a tree by the side of the
tank wriggling with pain in his chest and that as
soon as Respondent 6 reached near him, the said
 150

person died. The further case set up by SI Trivedi,

Respondent 1, in charge of the police station was
that after making a Roznamcha entry at 7.00 a.m.
about his departure from the police station he
(Respondent 1-Shyamsunder Trivedi) and
Constable Rajaram respondent proceeded to the
spot where the dead body was stated to be lying
for conducting investigation under Section 174
CrPC. He summoned Ramesh Chandra and
Goverdhan — respondents to the spot and in their
presence prepared a panchnama Ex. P/27 of the
dead body recording the opinion therein to the
effect that no definite cause of death was known.
29. How do we check the abuse of police power?
Transparency of action and accountability perhaps
are two possible safeguards which this Court must
insist upon. Attention is also required to be paid to
properly develop work culture, training and
orientation of the police force consistent with basic
human values. Training methodology of the police
needs restructuring. The force needs to be infused
with basic human values and made sensitive to the
constitutional ethos. Efforts must be made to
change the attitude and approach of the police
personnel handling investigations so that they do
not sacrifice basic human values during
interrogation and do not resort to questionable
forms of interrogation. With a view to bring in
transparency, the presence of the counsel of the
arrestee at some point of time during the
interrogation may deter the police from using
third-degree methods during interrogation.”

191. Reliance has been placed by CBI upon judgment of the

Supreme Court in State of Tamil Nadu Vs. Kutty, 2001 (6) SCC
550 in order to contend that confession is reliable in the facts
of the present case. Para 9 to 12 of the judgment are relied
upon which are reproduced hereinafter:-
 151

192. The judgment of Supreme Court in the case of State of

T.N. vs. Kutty (supra) was delivered in peculiar facts of its own
where independent evidence existed on record to corroborate
the confession of accused. Para 21 of the judgment takes note
of such evidence and the same is extracted hereinafter:-
 152

(emphasis supplied by us)

193. Reliance has also been placed upon the judgment of the
Supreme Court in State of Maharashtra Vs. Damu Gopinath
Shinde, 2000(6) SCC 269 in order to contend that challenge to
voluntariness of confession is misplaced. In State of
Maharashtra vs. Damu (supra) the confession of accused was
relied upon by the court of Sessions to convict the accused as it
had also led to recovery etc. The High Court took a different
view which was not approved by the Supreme Court. The
argument that confession was induced by the police was
rejected after noticing the facts of the case, particularly the
considerable time gap between the police custody and the
confession. This would be apparent from the following
observations of the Court in Damu (supra):-
 153

“4. The Investigating Officer (PW42) has not

explained how he knew that Balu Joshi(A-4) was
willing to make a confession to him. Learned
judges draw an inference like the following:-

"If the circumstance, that the Police Station is

adjacent to Sub-Jail, Newasa, is taken into
consideration, then an inference can very well be
drawn that nobody but Police contacted Balu
Joshi(A-4) and Police informed mr.
Suryawanshi(PW 44) that the accused was willing
to make confessional statement."

We have considered the above reasons and the

arguments addressed for and against them. We
have realised that those reasons are ex facia
fragile. Even otherwise, a Magistrate who
proposed to record the confession has to ensure
that the confession is free from police
interference. Even if he was produced from police
custody, the Magistrate was not to record the
confession until the lapse of such time, as he
thinks necessary to extricate his mind completely
from fear of police to have the confession in his
own way by telling the magistrate the true facts.

In fact, A4 (Balu Joshi) remained in police custody

only till 26.4.1995 and the confession was
recorded only on 25.5.1995, which means, there
was an interval of almost a full month after he
was removed from police custody to judicial
custody.

The geographical distance between the two

buildings - sub-jail and the police station - should
not have been a consideration to decide the
possibility of police exerting control over a
detenue. To keep a detenue in the police fear it is
not necessary that the location of the police
station should be proximal to the edifice in which
the prisoner is detained in judicial custody. In
many places judicial courts are situated very near
to police station houses, or the offices of higher
police officers would be housed in the same
complex. It is not a contention to be
countenanced that such nearness would vitiate
the independence of judicial function in any
 154

manner.”

(emphasis supplied)

194. The aforesaid judgment of Supreme Court in Damu

(supra) is also in the facts of its own where the plea of
influence by police was found untenable since the confession
itself was made after a month of police custody. Such is not the
case here.

195. On the aspect of confession learned CBI Counsel has also

placed reliance upon the Supreme Court Judgment in Ahmed
Hussein Vali Mohammed Saiyed Vs. State of Gujarat, (2009) 7
SCC 254. We do not find the judgment to be of much relevance
in the facts of the present case as the judgment in Ahmed
Hussein (supra) was in respect of confession made before the
authorities under Terrorists and Disruptive (Prevention) Act
which permits reliance on such confessions, which is not the
case here.

196. Observations of the Supreme Court have also been relied

upon in the case of Jamiludin Nasir; Aftab Ahmed Ansari @
Aftab Ansari Vs. State of West Bengal, 2014(7) SCC 443 on the
aspect of confession. Para 21 to 23 of the judgment in
Jamiludin Nasir (supra) contains the observations of the Court
on the aspect of confession and are therefore reproduced
hereinafter:-
155
156
 157

197. The caution and concern, noticed by the courts in respect

of the confession, are judicially well accepted and are to be
kept in mind by the Court while analysing the confession of
accused in the facts and circumstances of each case. The Court
will have to be satisfied that the procedural safeguards
specified under Section 164 Cr.P.C. for recording confession is
scrupulously complied. The Magistrate has thus to play a
proactive role in order to ensure that the confession is
voluntary and is not obtained by any
coercion/intimidation/force etc.

198. The observations of the Court, while sounding the note of

caution for the Magistrate/Court to comply with the safeguards
enumerated under Section 164 Cr.P.C. or those that are
judicially evolved are intended to ensure that confession
remains voluntary. These observations do not, in any manner,
however, impact the credibility of confession, if it is otherwise
voluntary and true.

199. It has also to be borne in mind that while examining the

confession of an accused the courts have generally read the
entire confession as a whole and not read it selectively. In
Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119, the
 158

Supreme Court observed as under in para 12 to 14 and 16:-

“12. Shortly put, a confession may be defined as

an admission of the offence by a person charged
with the offence. A statement which! contains self-
exculpatory matter cannot amount to a confession,
if the exculpatory statement is of some fact which,
if true, would negative the offence alleged to be
confessed. If an admission of an accused is to be
used against him, the whole of it should be
tendered in evidence and if part of the admission is
exculpatory and part inculpatory, the prosecution
is not at liberty to use in evidence the inculpatory
part only. The accused is entitled to insist that the
entire admission including the exculpatory part
must be tendered in evidence. But this principle is
of no assistance to the accused where no part of
his statement is self-exculpatory, and the
prosecution intends to use the whole of the
statement against the accused.
13. Now, a confession may consist of several parts
and may reveal not only the actual Commission of
the crime but also the motive, the preparation, the
opportunity, the provocation, the weapons used,
the intention, the concealment of the weapon and
the subsequent conduct of the accused.

Each part
discloses some incriminating fact, i.e., some fact
which by itself or along with other admitted or
proved facts suggests the inference that the
accused committed the crime, and though each
part taken singly may not amount to a confession,
each of them being part of a confessional
statement partakes of the character of a
confession. If a statement contains an admission
of an offence, not only that admission but also,
every other admission of an incriminating fact
contained in the statement is part of the
confession.
14. If proof of the confession is excluded by any
provision of law such as S.24, S. 25 and 26 of the
Evidence Act, the entire confessional statement in
 159

all its parts including the admissions minor

incriminating facts must also be excluded, unless
proof of it is permitted by some other section such
as S. 27 of the Evidence Act. Little substance and
content would be left in Ss. 24, 25 and 26 if proof
of admissions of criminating facts in a confessional
statement is permitted.
16. If the confession is caused by an inducement
threat or promise as contemplated by S. 24 of the
Evidence Act, the whole of the confession is
excluded by S. 24. Proof of not only the admission
of the offence but also the admission of every
other incriminating fact such as the motive, the
preparation and the subsequent conduct is
excluded by S. 24. To hold that the proof of the
admission of other incriminating facts is not barred
by S. 24 is to rob the section of its practical utility
and content. It may be suggested that the bar of
S. 24 does not apply to the offer admissions, but
though receivable in evidence, they are of no
weight, as they were caused by inducement, threat
or promise. According to this suggestion, the other
admissions are relevant, but are of no value. But
we think that on a plain construction of S. 24,
proof of all the admissions of incriminating facts
contained in a confessional statement is excluded
by the section. Similarly, Ss. 25 and 26 bar not
only proof of admissions of an offence by an
accused to a police officer or made by him while in
the custody of a police officer but also admissions
contained in the confessional statement of all
incriminating facts related to the offence.”
(emphasis supplied)

200. Even previously, in Hanumant Govind Nargundkar and

another Vs. State of M.P., AIR 1952 SC 343, the court observed
as under in paragraph 23:-

“23. It was further held that the evidence of

experts was corroborated by the statements of the
accused recorded under Section 342. The accused
Patel, when questioned about this letter, made the
following statement:
“Exhibit P-31 was typed on the office typewriter
Article B. Ext. P-24 being my personal complaint
 160

letter was typed by my Personal Assistant on one

of the typewriters which were brought in the same
office for trial, with a view to purchase. As this was
my personal complaint no copy of it was kept in
the Correspondence Files, Ext. P-34 and Ext. P-35
just as there is no copy in these files of my tender,
Ext. P-3A.… In the months of September, October
and November 1946, several machines were
brought for trial from various parties in our office
till the typewriter, Article A was purchased by
National Industrial Alcohol Ltd. Company.”
If the evidence of the experts is eliminated, there
is no material for holding that Ext. P-24 was typed
on Article A. The trial Magistrate and the learned
Sessions Judge used part of the statement of the
accused for arriving at the conclusion that the
letter not having been typed on Article B must
necessarily have been typed on Article A. Such use
of the statement of the accused was wholly
unwarranted. It is settled law that an admission
made by a person whether amounting to a
confession or not cannot be split up and part of it
used against him. An admission must be used
either as a whole or not at all. If the statement of
the accused is used as a whole, it completely
demolishes the prosecution case and, if it is not
used at all, then there remains no material on the
record from which any inference could be drawn
that the letter was not written on the date it
bears.”
(emphasis supplied)

201. The observations made by the Supreme Court in Aghnoo

Nagesia (supra) are emphatic that if concession is tainted, the
taint attaches to each part of the confession.

202. In Sevantilal Vs. State of Maharashtra, (1979) 2 SCC 58,

the Supreme Court has observed in paragraph 9 that if
confession appears to be untrue in any material part, it has to
be rejected. Para 9 of the report is reproduced hereinafter:-
 161

“9. After hearing learned counsel for the parties at

length we find ourselves unable to uphold the
impugned judgment insofar as Accused 13 is
concerned. The circumstances that he was found
peeping into the flat, that he tried to run away on
seeing the Customs Officials searching the
premises, that he was in possession of duplicate
keys of the flat and that he was found wearing a
bandi similar to bandi, Ext. J-2 are not
incompatible with his innocence. He was a close
relation of Accused 12 who has been found to be
the person really incharge of the flat and it would
thus be natural for him (Accused 13) to share the
flat with the permission of Accused 12. In so living
with his brother-in-law he may have been given to
wear the bandi found on his person not for the
purpose of carrying gold but just for use as
ordinary raiment. Again, in a city like Bombay it is
not unusual for persons sharing a particular
accommodation to be provided with separate sets
of keys for each in order to facilitate ingress or
egress at will. Further, an innocent man finding his
premises being watched by persons in authority
may well feel funky at the prospect of a false
implication on the basis of a mere suspicion (which
may or may not be well founded) and may try to
make himself scarce. Without more, the
circumstances covered by Heads (b), (c), (d) and
(e), therefore, cannot be regarded as incriminating
circumstances. So the conviction really rests on
the confession attributed to the appellant. If it is
found to be voluntary and true, it may receive
some support from the four heads of evidence just
above described. If, on the other hand, the
confession appears to be either untrue in any
material particular or having been caused by any
inducement, threat or promise such as is described
in Section 24 of the Evidence Act, it must fall and
with it fall the other heads of evidence, leaving no
material to support the conviction. As it is, we find
that the appellant has been able to prove the
existence of circumstances which make it highly
probable that his confession is hit by the mandate
in Section 24 above mentioned. Our reasons for
coming to this conclusion follow.”
(emphasis supplied)
 162

203. It is otherwise settled that before a confession is relied

upon the Court must evaluate and conclude that confession is
voluntary and true before it is acted. It is equally settled that
the court must come to a definite conclusion that confession is
both voluntary and true before it is acted upon. It is equally
settled that Court has to first determine the voluntariness of
accused in making the confession and only if it concludes that
confession is voluntary then the court will examine whether it
is true or not. In Aloke Nath Dutta Vs. State of West Bengal,
(2007) 12 SCC 230, the Supreme Court observed as under in
paragraph 87 to 90:-

“87. Confession ordinarily is admissible in

evidence. It is a relevant fact. It can be acted
upon. Confession may under certain
circumstances and subject to law laid down by
the superior judiciary from time to time form the
basis for conviction. It is, however, trite that for
the said purpose the court has to satisfy itself in
regard to: ( ) voluntariness of the confession; ( )
truthfulness of the confession; ( ) corroboration.
88. This Court in v.
[(1978) 3 SCC 435 : 1978 SCC (Cri) 439] stated
the law thus: (SCC p. 443, para 23)
“ . This confession was retracted by the
appellant when he was examined at the trial
under Section 311 CrPC on 14-6-1975. It is well
settled that a confession, if voluntarily and
truthfully made, is an efficacious proof of guilt.
Therefore, when in a capital case the prosecution
demands a conviction of the accused, primarily
on the basis of his confession recorded under
Section 164 CrPC, the Court must apply a double
test:
( ) Whether the confession was perfectly
voluntary?
( ) If so, whether it is true and trustworthy?
 163

Satisfaction of the first test is a for

its admissibility in evidence. If the confession
appears to the Court to have been caused by any
inducement, threat or promise such as is
mentioned in Section 24, Evidence Act, it must be
excluded and rejected . In such a
case, the question of proceeding further to apply
the second test, does not arise. If the first test is
satisfied, the Court must, before acting upon the
confession reach the finding that what is stated
therein is true and reliable. For judging the
reliability of such a confession, or for that matter
of any substantive piece of evidence, there is no
rigid canon of universal application. Even so, one
broad method which may be useful in most cases
for evaluating a confession may be indicated. The
Court should carefully examine the confession
and compare it with the rest of the evidence, in
the light of the surrounding circumstances and
probabilities of the case. If on such examination
and comparison, the confession appears to be a
probable catalogue of events and naturally fits in
with the rest of the evidence and the surrounding
circumstances, it may be taken to have satisfied
the second test.
89. A detailed confession which would otherwise
be within the special knowledge of the accused
may itself be not sufficient to raise a presumption
that confession is a truthful one. Main features of
a confession are required to be verified. If it is
not done, no conviction can be based only on the
sole basis thereof.
90. In v. [1951 SCC
1020 : AIR 1954 SC 4 : 1954 Cri LJ 236] this
Court opined: (AIR p. 5, para 8)
“ . The only reason the High Court gave for
accepting the confession is because the learned
Judges considered there was intrinsic material to
indicate its genuineness. But the only feature the
learned Judges specify is that it contains a wealth
of detail which could not have been invented. But
the point overlooked is that none of this detail
has been tested. The confession is a long and
rambling one which could have been invented by
an agile mind or pieced together after tutoring.
What would have been difficult is to have set out
 164

a true set of facts in that manner. But unless the

main features of the story are shown to be true,
it is, in our opinion, unsafe to regard mere wealth
of uncorroborated detail as a safeguard of truth.”
(emphasis supplied)

204. Similar views are expressed in Shivappa Vs. State of

Karnataka, (1995) 2 SCC 76 in para 5, which are reproduced
hereinafter:-

“5. The only piece of evidence relied upon against

the appellant is the confessional statement
recorded by PW 17 on 22-7-1986. A confession, if
voluntary and truthfully made is an “efficacious
proof of guilt”. It is an important piece of evidence
and therefore it would be necessary to examine
whether or not the confession made by the
appellant was voluntary, true and trustworthy. The
statutory provisions dealing with the recording of
confessions and statements by the Metropolitan
Magistrate and Judicial Magistrates are contained
in Section 164 CrPC and the rules framed by the
High Court containing guidelines for recording of
confessions. Unless the Court is satisfied that the
confession is voluntary in nature, it cannot be
acted upon and no further enquiry as to whether it
is true and trustworthy need be made.”
(emphasis supplied)

205. Burden of proving that confessional statement is

voluntary, truthful and that all safeguards were complied with
is on the prosecution. The prosecution has also to show the
circumstance in which the accused offered to confess.
Observation made by the Supreme Court in Nathu Vs. State of
U.P., AIR 1956 SC 56 Para 6 is apposite and is reproduced
hereinafter:-

“6. It is contended for the appellant that this confession

cannot be acted upon, firstly because it is not voluntary, and
 165

secondly because there is no evidence worth the name to

corroborate it. On the question whether Exhibit P-15 was
voluntary, the cardinal feature to be noted is that the
appellant was kept separately in the custody of the C.I.D.
Inspector (PW 33) from the 7th August to 20th August, and
the confession was recorded on the 21st August. It appears
to us that the prolonged custody immediately preceding the
making of the confession is sufficient, unless it is properly
explained, to stamp Exhibit P-15 as involuntary. PW 33
made no attempt to explain this unusual circumstance. It is
true that with reference to this matter the appellant made
various suggestions in the cross-examination of PW 33, such
as that he was given bhang and liquor, or shown pictures, or
promised to be made an approver, and they have been
rejected—and rightly—as unfounded. But that does not
relieve the prosecution from its duty of positively
establishing that the confession was voluntary, and for that
purpose, it was necessary to prove the circumstances under
which this unusual step was taken. There being no such
evidence, we are unable to act upon Exhibit P-15, as a
voluntary confession. It was argued that better evidence
was not forthcoming, as the investigation by PW 32 was, as
already stated, half-hearted and perfunctory, and no
adequate steps were taken to secure evidence before PW 33
took up the matter on 18-7-1952. All this is true, and the
result is no doubt very unfortunate; but that does not cure
the defect from which Exhibit P-15 suffers. It was also
argued that both the courts below had found that Exhibit P-
15 was voluntary, and that that was a finding with which
this Court would not interfere in special appeal. But then,
the courts below have, in coming to that conclusion, failed
to note that PW 33 has offered no explanation for keeping
the appellant in separate custody from the 7th to 20th
August, and that is a matter which the prosecution had to
explain, if the confession made on 21-8-1952 was to be
accepted as voluntary. In this view, the only substantive
evidence against the appellant. Exhibit P-15, falls to the
ground, and in strictness, the further questions whether that
has been corroborated by the evidence of PWs 13 and 15,
and whether Exhibits P-5 and P-6 lend assurance to it do
not arise.”
(emphasis supplied)

206. Similar views have been taken by this Court in one of the
earliest judgments on the issue in Nazir Vs. Emperor, AIR 1933
Allahabad 31. This Court has not only sounded the words of
caution in entertaining plea of conviction based on confession,
rather has suggested a proactive role in collection of such
evidence considering its rampant reliance by the prosecution to
secure conviction which, very often than not are retracted at
 166

the first opportunity. Paras 13 to 15 of this Court’s judgment

contain sound principles and advise that are relevant even as
on date and are reproduced hereinafter:-

“13. The above statement was recorded by the learned

Sessions Judge himself, and if he had applied his mind to all
the circumstances, beginning with the arrest of Ilias and
Nazir on the 10th, the request of the police that their
confessions be recorded, their being kept separate from
other under-trial prisoners under the orders of a Magistrate,
their refusal to make a confession when first questioned and
their readiness after a few minutes, which they spent in
police custody, to, make confessions, and the confession
itself in the case of Nazir followed by a retraction when
pardon was given to Ilias and not to Nazir, the learned
Sessions Judge would not have made the remark which I
have quoted above namely that there was nothing
suspicious about the confession. To my mind, the inference
is irresistible that a promise of pardon had been held out to
Nazir and Ilias, and relying on that promise they agreed to
make confessions. The police requested, on the faith of their
readiness to confess, that their statements be recorded. The
effect of the promise lasted on their minds till they were
placed before the Magistrate, whose warning opened their
eyes and they refused to make any confession.
Subsequently they were persuaded to believe that the
warning given by the Magistrate was of a stereotyped and
formal character and should carry no significance. Nazir
made a confession, but subsequently, when he discovered
that Ilias was the favoured individual and that no pardon
would be given to him, he retracted. Section 24 of the
Indian Evidence Act does not require the same cogency of
evidence as is necessary to establish a fact. It merely
requires that if it “appears” to the court that a confession
was induced by threat or promise proceeding from a person
in authority in relation to the charge against the accused, it
shall be inadmissible in evidence. It has been held in
numerous cases that if circumstances create a probability in
the mind of the court that the confession was improperly
obtained, fit should he excluded from evidence. In the
present case, as already stated, the circumstantial evidence
is so strong as to establish the fact that Nazir was induced
to make a confession by a promise of pardon held out by
the police. A very eminent Judge of this Court expressed
himself on the subject of retracted confession in the
following terms:

“To repeat a phrase I used on a former occasion, instead of

working up to the confession they (the police) work down
from it, with the result that frequently find ourselves
compelled to reverse convictions simply because, beyond
the confession, there is no tangible evidence of guilt.
Moreover, I have said and I repeat now, it is incredible that
the extraordinarily large number of confessions which come
before us in the criminal cases disposed of by this Court,
 167

either in appeal or revision, should have been voluntarily

and freely made in every instance as represented. I may
claim some knowledge of, and acquaintance with, the ways,
and conduct of persons accused of crime, and I do not
believe that the ordinary inclination of their minds, which in
this respect I take to be pretty much the same with
humanity all the world over, is to make any admission of
guilt. I certainly can add that during fourteen years' active
practice in the criminal courts in England I do not remember
half a dozen instances in which a real confession, once
having been made, was retracted. In this country, on the
contrary, the retraction follows almost invariably as a matter
of course, and though I am well aware how this is sought to
be explained by a suggestion of the influence brought to
bear upon the confessor by other prisoners in havalat, the
fact remains as an endless source of anxiety and difficulty to
those who have to see that justice is properly administered.”
14. The remarks hold good today no less than they did
when they were made by Straight, A.C.J. I respectfully
agree with every word of what he said. In most cases of
serious gravity or difficulty we are faced with the problem of
retracted confession and the value to be assigned to it
against the person making it or his co-accused. In a large
number of such cases there is little or no reliable evidence
in corroboration. To do lip service to the doctrine which
requires corroboration and to accept such evidence in
corroboration, for the sake of formality, as a Judge would
not conscientiously believe, is not in keeping with judicial
integrity.
15. It has been stressed over and over again that when a
confession is made and subsequently retracted the
committing Magistrate and the Sessions Judge should
inquire into all circumstances in which it was made and
those in which it was subsequently retracted. One, however,
seldom comes across a case in which any serious effort is
made either by the Magistrate or the Sessions Judge to
explain the phenomenon that a person who took every
precaution of concealing his crime and suppressing evidence
which could implicate him becomes so full of remorse and
penitence when he comes face to face with the police that
he makes a “free and voluntary confession”, but
subsequently refracts it at the inquiry, the remorse and
penitence, which are supposed to have acted on his mind
before, ceasing to influence it in the slightest degree. While
it is true that in some cases voluntary confessions are made
and while it is permissible for police officers to resort to
legitimate devices to obtain useful information from
prisoners, it is inconceivable to me, as it was to STRAIGHT,
A.C.J., that ordinarily a dacoit or murderer would make a
voluntary confession. It is, therefore, necessary that when a
confession is firs made and is subsequently retracted with
allegations against the police, the Magistrate and the
Sessions Judge should probe the matter for their own
satisfaction. What is, however, done in practice is to record
a confession with due formalities and subsequently to record
 168

the retraction thereof, leaving it to the accused to get over,

if he can, the effect of the confession which stands against
him in spite of retraction. It is impossible for the accused,
even if he is defended, to adduce any reliable direct
evidence of maltreatment or inducement while he was in
police custody. His allegations, when put to the investigating
officers, are naturally denied. But the matter should not be
allowed to rest there. The Judge, with whom the
responsibility lies for acting upon the confession, should
satisfy himself by putting searching questions to such
witnesses as had anything to do with the confession. The
first question that ought to strike every Judge is, “Why the
accused made the confession?” It is very important to
ascertain, from those in whose custody the accused was,
the circumstances in which the question of confession first
arose, how the accused expressed his willingness to be
placed before the Magistrate and his readiness to make a
confession. Similar questions arise as regards retraction. It
is only if circumstances make it reasonable to believe that
the accused voluntarily made the confession and agreed to
make it before the Magistrate that an inquisitive mind can
be, satisfied. In the present case the statement of the
investigating officer, made before the Sessions Judge, does
not betray the slightest anxiety on the part of the learned
Sessions Judge to elicit any information as regards those
circumstances. Such of them as could be ascertained from
the record failed to attract his attention. For all these
reasons, I am in entire agreement with my learned
colleague in holding that Nazir's confession is wholly
inadmissible in evidence and should be excluded from
consideration.”

207. In Aloke Nath Dutta (supra) the Supreme Court and this
Court in Nazir Ahmad (supra) has observed that the court must
play an affirmative role in unearthing objective evidence
forming the backdrop of retraction. Where none exists the
court must give benefit of doubt to the accused and an inverse
presumption must be drawn from the absence of such material.
Para 108 of the report is relevant and is reproduced
hereinafter:-

“108. The courts while applying the law must give due
regard to its past experience. The past experience of the
courts as also the decisions rendered by the superior courts
should be taken as a wholesome guide. We must remind
ourselves that despite the fact that procedural safeguards
contained in Section 164 CrPC may be satisfied, the courts
 169

must look for truthfulness and voluntariness thereof. It

must, however, be remembered that it may be retracted
subsequently. The court must, thus, take adequate
precaution. Affirmative indication of external pressure will
render the retracted confession nugatory in effect. The court
must play a proactive role in unearthing objective evidence
forming the backdrop of retraction and later the
examination of such evidence of retraction. However in
cases where none exists, the court must give the benefit of
doubt to the accused. Where there is no objective material
available for verifying the conditions in which the confession
was retracted, the spirit of Section 24 of the Evidence Act
(irrelevance of confession caused by inducement) may be
extended to retracted confession. An inverse presumption
must be drawn from absence of materials.”
(Emphasis supplied by us)

208. The Courts are also enjoined to see whether there are
any circumstance on the record which casts doubt on the
voluntary character of confession. Supreme Court in Babubhai
Udesinh Parmar Vs. State of Gujarat, (2006) 12 SCC 268
clearly mandates the court to examine the circumstance on
record which casts a doubt on the voluntary character of
confession.

209. Section 24 of the Evidence Act also acts as a guide for the
Court while evaluating the admissibility of confession made by
an accused. The law requires that any confession appearing to
have been procured by threat or promise is inadmissible.
Section 24 of the Evidence Act is reproduced hereinafter:-

“A confession made by an accused person is irrelevant in a

criminal proceeding, if the making of the confession
appears to the Court to have been caused by any
inducement, threat or promise having reference to the
charge against the accused person, proceeding from a
person in authority and sufficient, in the opinion of the
Court, to give the accused person grounds which would
appear to him reasonable for supposing that by making it
he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against
him.”
 170

210. The circumstance existing on record of the present case

on different aspects of voluntariness and truthfulness of the
confession are required to be scrupulously examined in order to
come to a correct conclusion on the point of its admissibility.

211. The prosecution admits to have arrested the accused SK

on 29.12.2006. His police custody and later custody with CBI
was uninterrupted for 60 days, till the accused made his
confession on 1.3.2007. The first circumstance highlighted on
behalf of the accused to doubt voluntariness of confession is
the prolonged and unexplained police custody of accused prior
to his confession. Alternatively, it has been argued that this
prolonged police custody at least creates a reasonable doubt
about the voluntariness of confession.

212. The uninterrupted police custody of accused SK for 60

days i.e. from 29.12.2006 till he made the confession on
1.3.2007 is clearly admitted on record.

213. The accused herein has limited educational exposure

having studied only upto Class VII and, therefore, the accused
cannot be expected to have knowledge of the working of legal
process. It is admitted on record that for this entire period of
60 days during which his police custody was extended by the
concerned jurisdictional magistrate, on different occasions,
absolutely no legal aid of any kind was extended to the
accused. There is nothing on record to show that the family
members of the accused were allowed to meet him or his
 171

physical or mental condition was observed. Strangely, there is

not a single medical report on record of the accused for this
entire period of 60 days when he was kept in police custody.
The only material on record is a medical examination report of
accused of 1st March, 2007 at 11.20 am. This report is wholly
deficient. What it observes is that there are no fresh marks of
injury on the accused.

214. The purpose of directing medical examination of accused

during police custody is to ensure that possibility of any third
degree measures on the accused during police custody is ruled
out. The only medical report on record does not subserve this
objective. The fact that there were no fresh injuries on the
accused merely suggested that there were no marks of injury
during the last about 24 hours. In the present case, the
accused was in police custody for the last 60 days. During this
entire period of 60 days the accused has not been got
medically examined by the prosecution at any stage. This is an
alarming situation, inasmuch as, the court while examining the
voluntariness of confession is expected to hold a deep probe so
as to rule out any mischief on part of the police to extract
confession. The fact that no medical examination report exists
on record during the prolonged police custody of 60 days of
accused raises a question mark on the voluntariness of
confession.

215. We have carefully examined the facts of the case and we

find that it is admitted to the prosecution that during police
custody of accused he was physically assaulted. It is the case
of the prosecution that lawyers and members of public
assaulted the accused on 25.1.2007 while he was produced
before the court of magistrate at Ghaziabad. This fact is clearly
admitted in the application filed by CBI, Inspector M.S. Phartyal
 172

for recording of the statement of accused appellant. This

incident, in fact, has been used as the ground to justify
production of accused before the magistrate at Delhi rather
than the jurisdictional magistrate where he was produced on all
other dates for remand. Though, this aspect is admitted to the
prosecution and the incident of 25.1.2007 otherwise occurred
while investigation was entrusted to CBI, yet there is no
evidence on record to show that the accused was medically
examined, even after the incident of assault on 25.1.2007.

216. We are at a loss to understand, as to why the accused,

who was in police custody then, was not got medically
examined, nor such medical report is produced despite the
admission of prosecution of his physical assault. What exactly
is the nature of injuries caused to him on 25.1.2007 remains
unknown. Why was the accused not examined medically by the
prosecution is unknown. In case the accused was examined
medically then the non-production of such medical report is a
matter of still greater concern. The manner in which the
accused has been dealt with by the prosecution during the
period of 60 days remains unknown.

217. The fact that accused has limited access to education and
otherwise had no criminal antecedents is also a factor to be
kept in mind. The fact that he was not provided any legal aid
during this period of 60 days of police custody nor there is any
medical examination of his physical condition during this 60
days and the accused otherwise was not allowed to meet any
family member, etc., are serious issues, which cannot be
overlooked.

218. We may note that prolong police custody has otherwise

been viewed with suspicion by the courts in India. Police
 173

custody of 14 days, prior to making of confession, unless

sufficiently explained has been held to be sufficient to stab the
confession as involuntary. Para 6 of the Supreme Court
Judgment in Nathu (supra) is already extracted above to
substantiate the position in law.

219. In Babubhai (supra), the Supreme Court rejected the

confession by holding it to be involuntary where the accused
was produced after 16 days of police custody and the
magistrate did not examine the body of the accused. Para 5 to
8 of the judgment in Babubhai is reproduced hereinafter:-

“5. The confession was recorded on 7-9-2000. He was in

judicial custody for a period of 16 days. His statement is as
under:
“The incident is two years' old; I do not remember the
exact date. On that day I was at my house and at
night say around 12.00 I went to the field which is
opposite Karamsad Petrol Pump. I don't know whose
field this is. On reaching the field I saw that there was
one shed with a …, and under that shed one girl was
sleeping. I lifted her. I don't know the age of the girl.
As soon as she wanted to shout I have closed her
mouth, and behind that field one canal is there and I
have taken the girl in that canal, there was a field near
the canal, and in that field one tree namely baval was
there and one floor was constructed thereon. I had
taken the girl to that field, I have removed the clothes
of the girl in the field, the mouth was shunted (sic)
and have raped her, and thereafter I have tied the
noose on the neck with her frock as a result of which
the girl died. And I have taken the girl to the corner of
the field and left the field after keeping the girl in the
corner of the field. I have not told anybody about the
incident; this is my confession regarding the offence.”
6. It was preceded by routine questions. It was accompanied
by a certificate in usual form.
7. The learned Magistrate examined himself as PW 2. In his
deposition he reproduced the statements of the appellant. In
his cross-examination, he accepted that the confession
started at about 11.15 a.m. and was completed at about
11.30 a.m. He did not remember that on the same day he
recorded another confession of the appellant in relation to
Sessions Case No. 298 of 2000. He, however, accepted that
he had done so when it was brought to his notice. Recording
of that confession was completed at 11.45 a.m. Till then no
legal aid was provided to him.
 174

8. He did not examine the body of the accused. He asked

only the routine question as to whether he was ill-treated by
the police. He accepted that the accused was produced
before him under police protection and was also taken back
under the police protection. He stated:
“… two things are to be noted in the confession statement
regarding voluntarily (sic) and reality. I cannot say that
the accused has shown the reality or not ….””

(emphasis supplied)

220. Police custody of 27 days immediately preceeding the

confession by accused has also been frowned upon and the
confession held unreliable in Bhagwan Singh Vs. State of M.P.,
(2003) 3 SCC 21. Para 27 and 30 of the report are reproduced
hereinafter:-

“27. With regard to the judicial confession made by the

acquitted accused Pooran Singh to the Judicial Magistrate,
there are many striking features casting great doubt on the
genuineness of the extra-judicial confession which was
retracted in writing by the accused Pooran Singh in the
course of his examination under Section 313 CrPC. The
accused Pooran Singh was also arrested along with the co-
accused under arrest memo (Ext. P-18) on 12-3-1984. His
extra-judicial confession was recorded by the Judicial
Magistrate (PW 1) on 9-4-1984 when he was produced
handcuffed before him in police custody. The fact that
Pooran Singh was produced handcuffed in police custody on
9-4-1984 has been admitted by the Judicial Magistrate as
PW 1 in statement made by him in the cross-examination. If
Pooran was in police custody, in accordance with the
requirement of Section 164 CrPC the Magistrate should have
taken care to ascertain that there had been no third-degree
methods used by the police against him to extract a
confession. The Magistrate in deposition as PW 1 does say
that he questioned the accused Pooran Singh and the latter
confirmed that he was making a statement voluntarily
without any pressure. But the record of confession (Ext. P-
1) does not show that any specific questions were put to the
accused Pooran Singh, whether any physical or mental
pressure was put on him by the investigating agency. The
first precaution that a Judicial Magistrate is required to take
is to prevent forcible extraction of confession by the
prosecuting agency (see State of U.P. v. Singhara Singh
[AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)] ). It was also
held by this Court in the case of Shivappa v. State of
Karnataka [(1995) 2 SCC 76 : 1995 SCC (Cri) 323] that the
provisions of Section 164 CrPC must be complied with not
only in form, but in essence. Before proceeding to record
the confessional statement, a searching enquiry must be
made from the accused as to the custody from which he
was produced and the treatment he had been receiving in
 175

such custody in order to ensure that there is no scope for

doubt of any sort of extraneous influence proceeding from a
source interested in the prosecution.
30. It has been held that there was custody of the accused
Pooran Singh with the police immediately preceding the
making of the confession and it is sufficient to stamp the
confession as involuntary and hence unreliable. A judicial
confession not given voluntarily is unreliable, more so when
such a confession is retracted. It is not safe to rely on such
judicial confession or even treat it as a corroborative piece
of evidence in the case. When a judicial confession is found
to be not voluntary and more so when it is retracted, in the
absence of other reliable evidence, the conviction cannot be
based on such retracted judicial confession.”

(emphasis supplied)

221. The duration of police custody prior to confession has

otherwise been recognized as an important factor to construe
the voluntary nature of the confession by the courts in India. In
Sarwan Singh v. State of Punjab, 1957 SCC OnLine SC 1; AIR
1957 SC 637, the Court observed as under in para 10:-

“10. That takes us to the case of Accused 3 Sarwan Singh.

We have already pointed out that the order of conviction
passed against Sarwan Singh is in the words of the
judgment of the High Court based on the fact that “there is
the evidence of the approver and it is corroborated in every
particular by his own confessional statement”. Besides,
there is other circumstantial evidence to which reference
has already been made in narrating the prosecution story at
the beginning of this judgment. It would at once be noticed
that, if we come to the conclusion that the approver is an
unreliable witness, the basis of the evidence of the approver
on which the learned Judges of the High Court proceeded
even while dealing with the case against Sarwan Singh has
been shaken. If, in our opinion, the approver is unworthy of
credit, then it would not be possible to consider the question
of the corroboration that his evidence receives from the
confessional statement made by Sarwan Singh himself. It is,
however, true that Sarwan Singh has made a confession and
in law it would be open to the court to convict him on this
confession itself though he has retracted his confession at a
later stage. Nevertheless usually courts require some
corroboration to the confessional statement before
convicting an accused person on such a statement. What
amount of corroboration would be necessary in such a case
would always be a question of fact to be determined in the
light of the circumstances of each case. In the present case,
the learned Sessions Judge has considered the question
about the voluntary character of the confession made by
Sarwan Singh and has found in favour of the prosecution.
The judgment of the High Court shows that the learned
 176

Judges agreed with the view of the learned trial Judge

mainly because the evidence of the Magistrate who recorded
the confession appeared to the learned Judges to show that
the confession was voluntary. It is this view which is
seriously challenged before us by Mr Mathur on behalf of
Sarwan Singh. Prima facie whether or not the confession is
voluntary would be a question of fact and we would be
reluctant to interfere with a finding on such a question of
fact unless we are satisfied that the impugned finding has
been reached without applying the true and relevant legal
tests in the matter. As in the case of the evidence given by
the approver, so too unfortunately in the case of the
confession of Sarwan Singh the attention of the learned
Judges below does not appear to have been drawn to some
salient and grave features which have a material bearing on
the question about the voluntary character of the
confession. Sarwan Singh was arrested on November 25.
His clothes were found bloodstained and he is alleged to
have been inclined to help the prosecution by making the
statement which led to the discovery of incriminating
articles. All this happened on the 25th itself and yet, without
any ostensible explanation or justification, Sarwan Singh
was kept in police custody until November 30. That is one
fact which is to be borne in mind in dealing with the
voluntary character of his confession. What happened on
November 30 is still more significant. On this day he was
sent to the Magistrate to record his confessional statement.
The evidence of the Magistrate Mr Grover shows that the
accused was produced before him at about 2.30 p.m. He
was given about half-an-hour to think about the statement
which he was going to make and soon thereafter the
confessional statement was recorded. It is true that the
Magistrate did put to the accused the questions prescribed
by the circulars issued by the High Court of Punjab. Even so,
when the learned Magistrate was asked why he did not give
more time to the accused before his confessional statement
was recorded, his reply was frank and honest. He said that
the accused seemed to insist upon making a statement
straightaway. The Police Sub-Inspector who had taken the
accused to the Magistrate was apparently standing in the
verandah outside in the Magistrate's office. The doors of the
office were closed but the fact still remains that the Sub-
Inspector was standing outside. The evidence of the
Magistrate also shows that, soon after the statement was
finished, the Sub-Inspector went to the Magistrate's room
again. The person of the accused showed some injuries and
yet the learned Magistrate did not enquire how the accused
came to be injured. It is in the light of these circumstances
that the question falls to be considered whether the
confession made by the accused can be regarded as
voluntary. It is hardly necessary to emphasize that the act
of recording confessions under Section 164 of the Code of
Criminal Procedure is a very solemn act and, in discharging
his duties under the said section, the Magistrate must take
care to see that the requirements of sub-section (3) of
Section 164 are fully satisfied. It would of course be
necessary in every case to put the questions prescribed by
 177

the High Court circulars but the questions intended to be

put under sub-section (3) of Section 164 should not be
allowed to become a matter of a mere mechanical enquiry.
No element of casualness should be allowed to creep in and
the Magistrate should be fully satisfied that the confessional
statement which the accused wants to make is in fact and in
substance voluntary. Incidentally, we may invite the
attention of the High Court of Punjab to the fact that the
circulars issued by the High Court of Punjab in the matter of
the procedure to be followed, and questions to be put to the
accused, by Magistrates recording confessions under Section
164 may be revised and suitable amendments and additions
made in the said circulars in the light of similar circulars
issued by the High Courts of Uttar Pradesh, Bombay and
Madras. The whole object of putting questions to an accused
person who offers to confess is to obtain an assurance of
the fact that the confession is not caused by any
inducement, threat or promise having reference to the
charge against the accused person as mentioned in Section
24 of the Indian Evidence Act. There can be no doubt that,
when an accused person is produced before the Magistrate
by the investigating officer, it is of utmost importance that
the mind of the accused person should be completely freed
from any possible influence of the police and the effective
way of securing such freedom from fear to the accused
person is to send him to jail custody and give him adequate
time to consider whether he should make a confession at
all. It would naturally be difficult to lay down any hard and
fast rule as to the time which should be allowed to an
accused person in any given case. However, speaking
generally, it would, we think, be reasonable to insist upon
giving an accused person at least 24 hours to decide
whether or not he should make a confession. Where there
may be reason to suspect that the accused has been
persuaded or coerced to make a confession, even longer
period may have to be given to him before his statement is
recorded. In our opinion, in the circumstances of this case it
is impossible to accept the view that enough time was given
to the accused to think over the matter. Indeed, any
Magistrate with enough criminal experience would have
immediately decided to give longer time to Sarwan Singh in
the present case for the obvious reason that Sarwan Singh
appeared to the learned Magistrate to be keen on making a
confession straightaway. The learned Magistrate himself has
fairly stated that he would have given him longer time but
for his insistence to make a confession without delay. This
insistence on the part of Sarwan Singh to make a confession
immediately should have put the learned Magistrate on his
guard because it obviously bore traces of police pressure or
inducement. Unfortunately, the effect of the failure of the
learned Magistrate to grant enough time to the accused to
consider the matter has not been considered by the learned
Sessions Judge and has been wholly ignored by the learned
Judges of the High Court. Besides, in neither court below
has any attention been paid to the fact that Sarwan Singh
appeared to have been kept in police custody without any
justification between November 26 and November 30. We
 178

have carefully considered all the relevant facts bearing on

this question and we see no escape from the conclusion that
the failure of the learned Judges of the High Court to take
into account these material facts has introduced a serious
legal infirmity in their conclusion that the confession made
by Sarwan Singh is voluntary. That is why we think we must
reverse this conclusion.”
(emphasis supplied)

222. According to the prosecution, the accused was arrested

on 29.12.2006 and on that day itself he made a detailed
confession to the police. The accused also allegedly made a
confessional statement at the crime scene leading to the
recovery of bones, clothes belonging to other victims.
According to prosecution, the accused was sent for narco
analysis test etc. on 3.1.2006 and he again made a detailed
confessional statement. Accused is said to have made further
confessional statement on 11.1.2007, 13.1.2007 and
18.1.2007. Not much progress is shown to have been made in
the investigation after 18.1.2007. Surprisingly the accused,
however, was not produced before the magistrate for recording
of his confession though repeated confessional statements are
alleged to have been made by the accused before the police.
None of these confessional statements adhere to the
safeguards contemplated in law for ascertaining the
voluntariness of accused SK. It is almost after two months of
uninterrupted police custody that the accused has been
produced before the magistrate for recording his confession.

223. The prosecution has not placed on record any credible

material to demonstrate the progress of investigation for over a
month and a half after 18.1.2007. The applications for remand
successively made by the prosecution came up with
contradictory versions of the police on the need for further
 179

custody of the accused. The remand application made on

8.2.2007 and 22.2.2007 shows that police custody of accused
SK was sought by the CBI on the pretext of recovering the
body parts and clothes of victims D and 'XYZ' as also its
identification. However, this Court in the judgment rendered in
the case of 'XYZ' has clearly noticed that skulls and clothes of
victim had been recovered and identified on 29.12.2006 and
3.1.2007 itself. Similar recoveries were also made in respect of
victim D before moving of application for remand. It is in this
context that we are required to examine the argument of
defence that purpose of prolong police custody prior to his
confession was to secure; (a) the consent of accused to submit
to the prosecution on account of torture; (b) allow time for
torture injuries to heal and; (c) allow time to accused to
memorise the entire confession tailored to suit the recovery
evidence.

224. According to defence the object was to sensationalise the

crime with such perverted details that the reader’s critical
senses are numbed and the sense of revulsion, sprung against
the accused.

225. In Babu Singh Vs. State of Punjab, 1964 (1) Cr.L.J. 566
the Supreme Court dealt with a case of prolong police custody
prior to confession where substantial period of police custody
was not explained for the investigation. An inference was
drawn by the court by relying upon the incident of unexplained
and prolong police custody that the period was utilized to
torture the accused and to tutor him extensively about the
contents of what he was required to show by way of confession
by memorizing the script.
 180

226. Throughout his confession, accused SK repeatedly states

he has been tutored by the police on vital aspects of the
confession, including the names of the victims, the time,
method, manner of killing etc. On 18 separate occasions, he
states that he cannot remember. For example, in his confession
accused SK states as follows:

“(i) He says that the police made him memorise the names
of the victims by showing him photographs.

Question: What have they made you memorise?

Answer: When the UP police arrested me they made me see
these photos again and again and told me the names of
these people. For each photograph, they told me the name,
the time, the manner, etc. But I don't know about the time
even now. They had told me all this but I have forgotten.

(ii) He says that whatever names he has given for the

victims he was told them by the police while showing him
the photographs.
Question: When the police showed you the photographs,
would you remember that you had killed that person, etc.?
Answer: I remembered very little and very faintly and that
is what I have told them.
(iii) He says he does not remember anyone's name and all
the names were told to him by the police.”

227. The above-quoted illustrative extracts from the confession

supports the inference that the confession was not based on
accused SK’s personal knowledge but on what he had been
tutored to say by the investigative agencies. This also lends
credence to the defence version of it being the reason for
unusually prolonged police custody prior to the recording of his
confession, namely to ensure that he could remember and
recite the confession taught to him by the investigative agency.

228. Tutoring by its very nature implies compulsion and falsity

and is hit by Section 24 of the Evidence Act. The fact of
tutoring is not limited to the names of the victims but also the
time, method and manner of the killings etc. Tutoring with
 181

regard to even one of these aspects would attract the bar u/s
24 Evidence Act.

229. It is extremely unnatural and defies logic that accused SK

has no clear recollection of the nature and manner in which he
disposed off the bodies or whether he had sex with them or
whether he ate parts of them, but has a clear and categorical
recollection of the time, sequence and manner of entrapping
his victims. It is also surprising that he does not remember the
names of the victims, or the date of each offence but he is able
to chronologically narrate the sequence of killings in his
confession. This further strengthens the argument that accused
SK was tutored by the investigating agency and the same was
done to ensure that the confession is in consonance with the
prosecution case.

230. In the confession, accused SK states that UP Police ne

ratwaya regarding the names, times and manner of killing of
the victims. The term 'ratwaya' (made to memorize) implies
compulsion, coercion and interference by the police, negates
the voluntariness of a confession. It cannot be ascertained
what is voluntary and true, and what is tutored and false.
When there is evidence of tutoring, it is impossible to identify
which part of the confession is tutored and which part is
genuine. The taint attaches to the entire document.

231. We have been taken through the confessional statement

in great detail by Sri Chaudhary. In his confessional statement
also the accused has alleged that he was tortured. Following
extract of the confessional statement is on record of the
confession itself and is reproduced hereinafter:-

“Jismesein 2-3 photo aisi thi matlab usme se mere ko kaafi

torture kiya aur tab ja kar ke matlab jo inhone mere ko
 182

kabool karvai thi. Bohot zyaada torture kiya gaya tha

mere ko. To jiski vajah se unhone mere ko ye do-
teen photo jo hai matlab isme se kuch wo karwai thi, jo
maine yahaan CBI main aakar mana kar diya ki aap chahe
kuch bhi kar lo ye maine kiya hi nahi hai.”

232. The above statement categorically mentions in the

confession itself that the accused has been severely tortured
and coerced to confess. The statement testifies to the coercive
manner in which the confession has been extracted from
accused SK and signifies the involuntary nature of it. There is
otherwise no clarity with regard to which of the photograph
that he was tortured. The possibility of accused having been
tortured of the photograph of victim is, therefore, borne out on
record.

233. The Accused also wrote a detailed letter to the Learned

Sessions Judge dt. 25.11.08 and 16.3.09 stating, in detail, the
brutal methods employed by the police to secure his
confession. Although these letters were written generally to the
trial court which was presiding over a large number of trials
involving accused SK, and not in any specific case, these letters
have been included at pg 88 in the appeal paperbook of CC
4196/2010 and at pg 91 in in the appeal paperbook of CC
4196/2010. Furthermore, two additional letters dated 1.4.10
and 10.6.11 were written by accused SK to the trial court in
connection with ST No 740/07 and ST No 494/07 which are
included in the paperbook of CC 835/11 at pg 295 and in the
paperbook of CC 147/13 at pg 347. In the letter dt. 16.3.09 he
specifically states that he was repeatedly beaten by the police.
He further mentions that during police custody he was beaten
up and made to sign on several blank pages (pg 91 in CC
4196/2010). In his statement in letter dated 10.6.11 in CC
147/13, accused SK specifically requests that he be medically
examined as he still bears the scars of the torture meted out to
 183

him. Further on 29.3.2010, accused SK wrote a letter (pg 736

in the paperbook) detailing the manner in which the CBI
tortured, threatened and coerced him into making the
confession.

234. It has been judicially accepted that it is almost impossible

for an accused in custody to prove torture. As long as the
proved facts give rise to a reasonable probability that the
confession is a product of a threat or inducement it must be
disregarded. In his statement u/s 313, while describing the
brutal torture inflicted on him and had left marks on his body
the accused SK also offered to get himself medically examined
to prove the torture. However, neither the learned Sessions
Court Judge nor the learned Magistrate who recorded the
confession took any steps to have the accused SK medically
examined.

235. It is also pertinent to note that the application of accused

for confession is addressed to the learned ACMM, New Delhi
and the SJM, CBI, Delhi. Accused SK in his confession
categorically admits to having no knowledge of the name of the
Court where he has been produced. Had accused SK indeed
addressed the application to the ACMM, New Delhi, he would
have also known the Court in which he was being produced to
record his confession. Additionally, prior to 28.02.2007,
accused SK was being produced before the learned SJM
Ghaziabad. Hence, it is extremely unnatural that he would on
his own address his letter to the ACMM, New Delhi. This further
 184

strengthens his claim that he wrote the letter on the CBI's

coercion.

236. Furthermore, the letter by itself is in the nature of a

confession, wherein he states he wants to confess regarding
the manner in which he killed the victims, then had sex and
disposed the bodies. This is contrary to the confession itself,
wherein he mentions having sex and then killing. This contrary
phrasing further strengthens the case that the letter was
written on CBI's coercion.

237. Accused SK had worked as a labourer and servant all his

life and had barely studied till the seventh standard. He admits
to never having been in a Court or having any knowledge of
legal proceedings. However, the letter is written as a legal
application in formal Hindi, using official vocabulary that can
only be known by someone who is familiar with the legal
system and routinely writes formal applications to the court.
Words such as "Samaksh, prarthi, nivedan, prastut" are not
used in colloquial speech but are part of a legal vocabulary
which would have been beyond accused SK's knowledge. The
language of the letter strongly suggests that the contents were
dictated by a police officer.

238. The learned ACMM had directed that before accused SK is

handed over to DG (Prisons) Tihar, he be medically examined.
Contrary to the learned ACMM's order, no medical examination
of the Accused is done prior to handing him over to Tihar
prison authorities. The only medical report furnished is the one
done by the Jail Hospital on 1.3.2007. Accused SK was
produced for recording his confession on 28.2.07 after 60 days
 185

of uninterrupted police custody. It was therefore crucial that a

medical examination was conducted on 28.2.07, prior to
transferring him to judicial custody to ensure that the request
to record a confession was not coerced by the CBI. The CBI's
failure to conduct a medical examination, despite the Court's
categorical order, is extremely suspicious and gives rise to an
adverse inference u/s 114(g) of the Evidence Act.

239. This medical report on 1.3.07 has a noting to the effect

that 'No fresh injuries were seen’. This in itself does not rule
out the presence of older injuries on accused SK's person and
supports his allegation of torture by the police. If older injuries
were present on accused SK's body, they should have been
noted by the doctor, and their ages and causes ought to have
been ascertained. However, due sensitivity on part of the
magistrate to this aspect of vital concern is clearly overlooked.

240. In his letter to the Learned Sessions Court, accused SK

categorically stated that whenever the CBI took him for
medical examination they pressurised the doctor into not
mentioning any of the accused's injuries.

241. The medical officer, who is the only person who could
have proved the medical report dated 1.3.07, or testified to the
nature of accused SK's injuries, has not been examined.
Suppression of this crucial testimony leads to an adverse
inference u/s 114(g) Evidence Act.

242. Learned counsel for the CBI, Sri Jitendra Mishra has
argued that the reference of torture in confession was only with
regard to 2-3 photographs and the allegation of torture
 186

otherwise is against the U.P. Police and not the CBI. It is also
argued that the attending facts and circumstances are
suggestive of the complicity of accused and, therefore, the
isolated statement in his confession referring to torture must
be confined to 2-3 photographs and would not vitiate the
confession.

243. The argument of CBI counsel Sri Mishra does not appeal
to the Court, inasmuch as, the exact number of photographs
for which he was tortured has not been clarified. Once the
accused during the course of confession had alleged torture,
the magistrate ought to have been alarmed and was expected
to have probed about the torture. When was the torture made;
how was it made; where it was made; who made it, etc. were
obvious questions and were required to be asked from the
accused and then probed. The magistrate otherwise should
have directed the accused to have been medically examined.
Necessary inquiry by the magistrate at the time of recording of
confession by the accused has therefore not been made by the
magistrate.

244. The argument of CBI that torture of accused by U.P.

Police would not create any taint in the confession made by
accused during his custody with the CBI is also not acceptable.
The accused, herein, was initially in the custody of U.P. Police
and was later in the custody of CBI.

245. We find substance in the argument of Sri Chaudhary that

mere fact that allegation of torture is against previous
investigation agency and, therefore, confession made without
specific allegation of torture by subsequent investigating
 187

agency (CBI, herein) would not eliminate the confession from

the taint of torture and make it voluntary. The argument of
CBI, if accepted, would run counter to Section 24 of the
Evidence Act.

246. The language of the confession is unclear and does not

lead to a clear conclusion about what was induced by torture
and what was not. Accused SK keeps mentioning that his
memory is faint. Thus, it cannot be stated with any degree of
certainty that the torture was only for few photos and not the
rest.

247. If there is evidence of torture, how can one say which

part is induced by torture and which part is not? When a
confession follows torture, it raises the presumption that it was
induced by torture.

248. A confession needs to be clear, unequivocal,

unambiguous, convincing, consistent with the internal evidence
and capable of only one meaning. It should be such that it can
be believed blindfolded. The truthfulness and voluntariness
must attach to each and every part of the confession. If there
is evidence of coercion, it cannot be determined as to which
part of the confession is coerced and which part is not?

249. The Prosecution has relied on S. 28 of the evidence act to

argue that accused SK's Section 164 Cr.P.C. confession is
admissible as it was made after the removal of the impression
caused by torture. The prosecution relies on accused SK's stray
statement that he refused to admit to have killed the victims in
certain photographs before the CBI. The Appellant submits that
 188

S. 28 has no application in the present case.

250. For S. 28 to be applicable the "impression" of threat,

promise or inducement needs to be fully removed. The term
"impression" is far less fragile than either memory, impact,
effect or even consequence. The term "impression" is
synonymous or comparable with a vague subconscious feeling.
The legislature has deliberately used the term "impression" and
held that for a confession to be admissible even the vague
subconscious memory of the torture should have been fully
removed.

251. We cannot suppress our concern and surprise at the

manner in which legal aid for five minutes was provided to the
accused and has been found sufficient by the learned ACMM,
New Delhi. Giving of five minutes time for legal aid to the
accused was not only highly insufficient but virtually amounted
to a farce. Legal Aid counsel will require lot more time to even
understand the case of accused much less the time required to
ascertain as to what was required to be done to secure his
interest. Accused was not given any medical assistance. The
investigating agency was also called inside the photography
room and made to state the allegations against the appellant
before the recording of confession. The CBI I.O. was also
directed to wait outside the room throughout the period of
recording. During the writing of transcript the appellant was
handed over to I.O. at the end of everyday for production
before the learned ACMM.

252. The confession transcription clearly notes at the end of

proceedings on 1.3.2007 that the accused was given to I.O. for
 189

his production before the Additional Chief Metropolitan

Magistrate much after 10.00 pm. The Metropolitan Magistrate,
even on 2nd March, 2007, has clearly recorded that a separate
order was passed and was given to the I.O. for producing the
accused before learned ACMM. These two orders clearly proves
that on the night of 1st March, 2007 and again after conclusion
of recording of transcript on 2nd March, 2007, the accused was
given in the custody of the Investigating Officer of CBI who had
initially produced him for recording confession. This direction of
the magistrate clearly shows that the I.O. was not only present
outside the room throughout the recording of transcript but
was given the custody of the accused at the end of the day.
The admitted access of I.O. to the custody of accused is a
matter of serious concern. This circumstances would clearly
lend credence to a reasonable doubt in the minds of the
accused and it cannot be said that the accused SK was
completely free of influence of the Investigating Agency when
his statement was recorded or transcribed.

253. Given the intrinsic nature of torture, it is almost

impossible to eradicate the "impression" of brutal police torture
that is stamped deep into a person's sub conscious. The
gruesome details of the torture given by the appellant in his
retraction letters and statement u/s 313, if true, would forever
haunt a person. Unfortunately, no effort was made by the Court
of Sessions to ascertain its correctness. The manner in which
the appellant mechanically parrots the confession including the
details that he himself states were tutored and had been
coerced to remember 'ratwaya' clearly indicates that he was
still reeling under the impression of the torture and tutoring.

254. That even though the appellant lets accidentally slip that
he was tortured, it would have been impossible for him to
 190

continue to give the full details of the same knowing that the
IO was standing outside the room. Further, at this point even
the recording magistrate does not give him any assurance that
he should be free of fear or ask him further details regarding
who tortured him or the manner of the same. Thus, a stray line
that the Appellant did not concede to killing the victims in two
photographs before the CBI does not substantiate the
prosecution's submission that the effect of torture has been
fully removed.

255. In Pyare Lal Bhargava vs State of Rajasthan AIR 1963 SC

1094, the Supreme Court has observed as under in para 4 and
5 of the report:-

“4. The first question turns upon interpretation of the

provisions of Section 24 of the Evidence Act and its
application to the facts found in this case. Section 24 of the
Evidence Act lays down that a confession caused by
inducement, threat or promise is irrelevant in criminal
proceedings under certain circumstances. Under that section
a confession would be irrelevant if the following conditions
were satisfied : (1) it should appear to the court to have
been caused by any inducement, threat or promise; (2) the
said threat, inducement or promise must have reference to
the charge against the accused person; (3) it shall proceed
from a person in authority; and (4) the court shall be of the
opinion that the said inducement, threat or promise is
sufficient to give the accused person grounds which would
appear to him reasonable in supposing that he would gain
an advantage or avoid any evil of a temporal nature in
reference to the proceedings against him. The crucial word
in the first ingredient is the expression “appears”. The
appropriate meaning of the word “appears” is “seems”. It
imports a lesser degree of probability than proof. Section 3
of the Evidence Act says:
“A fact is said to be ‘proved’ when after considering the
matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists”.

Therefore, the test of proof is that there is such a high

degree of probability that a prudent man would act on the
assumption that the thing is true. But under Section 24 of
the Evidence Act such a stringent rule is waived but a lesser
degree of assurance is laid down as the criterion. The
standard of a prudent man is not completely displaced, but
 191

the stringent rule of proof is relaxed. Even so, the laxity of

proof permitted does not warrant a court's opinion based on
pure surmise. A prima facie opinion based on evidence and
circumstances may be adopted as the standard laid down.
To put it in other words, on the evidence and the
circumstances in a particular case it may appear to the court
that there was a threat, inducement or promise, though the
said fact is not strictly proved. This deviation from the strict
standards of proof has been designedly accepted by the
legislature with a view to exclude forced or induced
confessions which sometimes are extorted and put in when
there is a lack of direct evidence. It is not possible or
advisable to lay down an inflexible standard for guidance of
courts, for in the ultimate analysis it is the court which is
called upon to exclude a confession by holding in the
circumstances of a particular case that the confession was
not made voluntarily.
5. The threat, inducement or promise must proceed from a
person in authority and it is a question of fact in each case
whether the person concerned is a man of authority or not.
What is more important is that the mere existence of the
threat, inducement or promise is not enough, but, in the
opinion of the court the said threat, inducement or promise
shall be sufficient to cause a reasonable belief in the mind of
accused that by confessing he would get an advantage or
avoid any evil of a temporal nature in reference to the
proceeding against him : while the opinion is that of the
court, the criterion is the reasonable belief of the accused.
The section, therefore, makes it clear that it is the duty of
the court to place itself in the position of the accused and to
from an opinion as to the state of his mind in the
circumstances of a case.”

256. In Aloke Nath Dutta (supra), the Court has observed as

under in para 108:-

“108. The courts while applying the law must give due
regard to its past experience. The past experience of the
courts as also the decisions rendered by the superior courts
should be taken as a wholesome guide. We must remind
ourselves that despite the fact that procedural safeguards
contained in Section 164 Cr.P.C. may be satisfied, the courts
must look for truthfulness and voluntariness thereof. It
must, however, be remembered that it may be retracted
subsequently. The court must, thus, take adequate
precaution. Affirmative indication of external pressure will
render the retracted confession nugatory in effect. The court
must play a proactive role in unearthing objective evidence
forming the backdrop of retraction and later the
examination of such evidence of retraction. However, in
cases where none exists, the court must give the benefit of
doubt to the accused. Where there is no objective material
available for verifying the conditions in which the confession
was retracted, the spirit of Section 24 of the Evidence Act
(irrelevance of confession caused by inducement) may be
 192

extended to retracted confession. An inverse presumption

must be drawn from absence of materials.”

(emphasis supplied)

257. Use of word "appears" in Section 24 of the Act of 1872 is

intentional with the object of securing absolute fairness in
admitting confessions into evidence and discarding it if a
reasonable apprehension arises, on facts, of it being caused by
inducement, threat or promise. "Appears" has been deliberately
used by Parliament, for it is impossible for the accused to prove
torture/inducement/ threat since he is alone in police custody.
Positive proof of torture is not required and a well-grounded
suspicion may also suffice.

258. If the facts and circumstances surrounding the making of

a confession appear to cast a doubt on the veracity or
voluntariness of the confession, the Court may refuse to act
upon the confession even if it is admissible in evidence. In
Dagdu v. State of Maharashtra (1977) 3 SCC 68 the Supreme
Court held as under in para 51:-
 193

259. Supreme Court in Mohd Ajmal Amir Kasab v. State of

Maharashtra (2012) 9 SCC I has authoritatively pronounced
that if a doubt is created regarding the voluntariness of the
confession, the confession is to be trashed. In para 457 of the
report the Court has observed as under:-

260. Similarly in Mohd. Jamiludin Nasir v. State of WB (2014)

7 SCC 443 the Court has held that if the court has an iota of
doubt, it should reject the confession.

261. Apart from the attending circumstances creating serious

doubt upon the voluntariness of confession we find that the
confession of accused SK itself mentions that pressure was
exerted by the police which clearly goes against the
prosecution case. Allegation of torture is made in the
confession itself and therefore not much endeavour is required
to be made to raise a doubt upon it.
 194

262. Strict proof is otherwise not required and the sufficiency

of threat or inducement is to be seen from the perspective of
the accused. It is settled that if the accused would have a
reasonable belief that by, confessing he would gain an
advantage or avoid an evil, it cannot be relied upon.

263. The question whether a particular confession attracts the

frown of S.24 has to be decided from the point of view of the
confessing accused as to how the inducement threat or
promise proceeding from a person in authority would operate
on his mind.

264. The CBI moved an application to record the confession of

accused SK before the learned ACMM, Patiala House Courts,
New Delhi citing prior incidents of violence in the Ghaziabad
Court premises during remand proceedings on 25.01.07.
However, the CBI deliberately suppressed the fact that accused
SK had been produced before the learned CBI Magistrate,
Ghaziabad, on two further occasions i.e. on 8.02.2007 and
22.02.2007, without any incident. Therefore, the reason for
moving the application at Delhi also remains questionable.

265. It is the CBI's case that accused SK was badly beaten up

by the advocates and public when he was produced in the
Ghaziabad Court on 25.1.07 and therefore faced an absolute
security threat and danger. However, the CBI did not report the
assault on accused SK to the Magistrate before whom he was
produced on 25.1.07. Further, the CBI did not produce any
medical treatment papers corresponding to the said incident
nor did they take any steps to provide accused SK with any
additional security. Moreover, not only did the CBI not mention
the assault on accused SK to the Magistrate on 25.1.07, they
did not breathe a word regarding a security threat to
 195

Magistrate subsequent to the day of assault. The first mention

of this threat is made only before the ACMM, New Delhi, in the
IO's application for recording his confession filed on 28.2.07.

266. The failure to mention the grave security threat and a

vicious physical assault on accused SK by advocates of the
court to the Magistrate is not substantiated and sounds
suspicious.

267. If before confessing, accused SK was facing a threat at

Ghaziabad jail, as claimed by the CBI, this threat would have
increased manifold after his confession. It is therefore
inexplicable why, immediately after completion of the
confession accused SK was shifted back to Gaziabad Jail and no
threat was apprehended.

268. The law imposes safeguards u/s. 164 Cr.P.C. to ensure

that the confession is voluntarily given and free from any
compulsion or coercion. The safeguards aim to ensure that the
confessor has completely understood the consequences of
making a confession and still makes one by exercising his free
will. According to the defence the mandatory safeguards under
s. 164 were allegedly not complied with in this case, and this
non-compliance renders the confession inadmissible, unreliable
and unworthy of credit.

269. In Shivappa vs. State of Karnataka (1995) 2 SCC page

76, the Court has clearly observed that non-compliance with
the provisions contained under Section 164 Cr.P.C. renders
confession unworthy of credit. It is held that procedural
requirement of Section 164 must be complied with in letter and
 196

spirit. Any failure to comply with the requirement under Section

164 Cr.P.C. impairs the evidentiary value of confession.

270. It is well established that before the Magistrate records

an accused's confession he should tell him that he is giving him
some time to think over whether or not he wants to confess
and for this purpose he is sending the accused to judicial
custody where he will be beyond the control of the police.
Unless the accused is informed of the purpose of sending him
to judicial custody, this salubrious provision will lose its
meaning and efficacy. In the present case, accused SK was
perfunctorily sent to judicial custody by the learned ACMM who
was not the Magistrate who recorded the accused's confession.
Moreover, the Learned ACMM did not inform accused SK that he
was being sent to judicial custody in order to give him some
time to think over whether or not he wants to make the
confession and during this period the police will not be allowed
to contact him. Consequently, when accused SK was remanded
to judicial custody he did not know why he was being sent
there. Judicial custody in the absence of any information
regarding the purpose behind the same is of no value.

271. In Babu Singh v. State of Punjab 1964 (1) Cri LJ 566 the
Supreme Court has emphasized the need to give reasonable
time to the accused to deliberate on the need to make a
confession. The fact that Magistrate had not recorded in the
proceedings about giving of opportunity to think over the issue
has also been held to be a circumstance to discard confession.

272. Further, even the Magistrate who recorded accused SK's

confession also did not give him an opportunity to think over
the matter by remanding him to judicial custody before
recording his confession. Nor did he enquire with accused SK
 197

whether he had thought over the matter, or whether he wants

some more time to think over the matter. Instead, he
proceeded to forthwith record accused SK's confession without
satisfying himself about grant of opportunity to the accused SK
to deliberate over the issue.

273. It is by now well settled that the Magistrate has to inform

the accused before sending him to judicial custody for
reflection time that he was not bound to give a confession, that
he should think it over, that the confession could be used to
convict him in a capital case. He must be made to realise the
consequences of making a confession which will send him to
the gallows.

274. Accused SK was sent to judicial custody for merely 24

hours. Judicial custody of merely 24 hours is grossly insufficient
when the accused has been in police custody for 60 days. The
duration of reflection time is dependent on the duration of the
preceding police custody and the time necessary to neutralize
the influence of the police. The accused SK otherwise was not
informed that even this 24 hours time is being given to him to
ponder over the issue of making confession.

275. Sri Chaudhary for the appellant submits that the

concerned ACMM at New Delhi court merely did the formality of
legal aid to the accused. On 28.02.2007 when the accused was
produced before the concerned ACMM with an application for
recording his confession, the court concerned remanded him to
judicial custody ostensibly with the purpose of allowing him the
opportunity to rethink without specifying the purpose. The
learned ACMM, however, did not think it fit to provide any legal
 198

assistance which was crucial for an accused contemplating to

make a confession which can take him to the gallows. It was
only on the next day that the Judge granted five minutes
interview in the interest of justice to the accused inside the
court.

276. Given the importance of the course about to be adopted

by accused SK in voluntarily confessing before a Magistrate,
the potential prejudice it could cause to his case, and the
serious punishment it would expose him to, it was absolutely
essential that he was thoroughly counselled by the legal aid
lawyer who would primarily need to ascertain the allegations
against the accused, the stage of the investigation, the reasons
for the accused wanting to confess, how he had been treated in
custody and whether the accused has been coerced or tortured
in any way. The counsel would then need time to explain the
implications of such a confession to him. It would be impossible
for the legal aid counsel to do any of this in the allotted 5
minutes. Moreover, the presence of the police in the court room
and the absence of any privacy would have further inhibited
accused SK from saying anything to the legal aid counsel.

277. Every person accused of an offence has a constitutional

right under Article 20 to, remain silent and not incriminate
himself in the police station, during investigation and finally
during trial. If a person is going to make a confessional
statement, he must be made aware of the constitutional
protection afforded to him before he surrenders his right
against self-incrimination. This is all the more necessary in
capital cases and where the accused is poor and illiterate. The
need for legal aid to be provided to the accused at every stage
of legal proceedings from the time of arrest is well established
in our law. In Mohd Ajmal Amir Kasab v. State of Maharashtra
 199

(2012) 9 SCC 1 the Supreme Court noted that the accused had
the right to have a legal aid lawyer from the very first remand
and especially before his confession. The absence of a legal aid
to the accused during remand and before confession has been
cited by the Supreme Court as a reason to reject the
confession.

278. In Babubhai v. State of Gujarat (2006) 12 SCC 268 the

Supreme Court has held in para 19 of the report that absence
of legal aid to the accused during remand and at the time of
making confession is mandatory. Para 19 of the judgment is
reproduced hereinafter:-

279. Supreme Court in the parliamentary attack case, State of

NCT vs Navjot Sandhu, (2005) 11 SCC page 600 emphasized
the importance of legal aid to the accused and the consequence
of its denial where the accused makes a confession while
interpreting the provisions of Prevention of Terrorism Act,
2002. The right of accused to consult a lawyer during
investigation was highlighted and on its failure the confession
itself was discarded. In DK Basu (supra) 1997 1 SCC 416, the
Supreme Court categorically held that the arrestee should be
permitted to meet his lawyer during interrogation. This
direction is similar to the provision for legal aid under
Prevention of Terrorism Act, 2002. The guidelines issued in the
case of DK Basu was fully applicable in the facts of the present
 200

case.

280. Right to legal aid assumes importance where the accused

intends to make a confession before the court. The
consequence which may flow for an accused on account of such
confession are extremely severe and harsh. A fair procedure,
which is otherwise a part of Article 21 of the Constitution of
India, would thus necessarily require providing of legal aid to
the accused in a case of confession. The legal aid otherwise
cannot be an empty formality as is clearly shown to be the case
herein. Providing of five minute legal aid apparently serves the
requirement of form rather than the substance. The manner in
which the accused has been denied legal aid before recording
of his confession, therefore, has seriously caused prejudice to
the accused appellant and has given a legitimate grievance to
the accused appellant of his Constitutional Rights under Article
21 by denying him fair procedure during trial. Denial of legal
aid, in the facts of the present case is therefore clearly shown
to have violated the right of fair trial to the accused SK.

281. Section 164 Cr.P.C. requires the recording magistrate to

take certain precautions and perform certain responsibilities in
order to ensure that the confession recorded is voluntary. In
the present case the non-application of mind extended so far
that the recording Magistrate abdicated each of these functions
and left it to the satisfaction of the ACMM which is not
contemplated in law.

282. As enumerated above the Magistrate did not send the

accused SK for a cooling off period after giving him a warning
 201

and telling him the consequences of making a confession.

Neither did he ask accused SK about the duration of his police
custody, have him medically examined or even inspect the
medical reports produced from Tihar jail. He did not stop or
take any action on hearing complaints of torture. Further when
cross- examined the learned Magistrate (PW-11) stated that as
these steps had already been taken by the Learned ACMM, he
did not feel the need to repeat them.

283. Further the learned Magistrate even refrained from

remanding the accused to judicial custody during the typing of
the transcript of the confession. Instead of personally ensuring
that the accused was protected from the police and remanding
him to judicial custody, the Magistrate handed accused SK over
to the IO for production before the Learned ACMM for remand
proceedings.

284. Whilst the recording of a confession by a non-

jurisdictional magistrate is permitted, the splitting of essential
functions that can statutorily be performed only by the
recording magistrate is not curable. The jurisdiction of the
recording magistrate under Section 164 Cr.P.C. is coupled with
the responsibilities to be performed by him, and it is not open
to split the two. In that case, the recording Magistrate will not
be in a position to record his satisfaction about voluntariness of
confession.

285. S. 164 CrPC confers the recording magistrate with certain

powers and responsibilities that the recording magistrate alone
can perform. As it is the recording magistrate's conclusion of
voluntariness that will determine the admissibility of the
confession u/s 164 CrPC, these functions cannot be exercised
by anyone other than the recording magistrate. The Learned
 202

ACMM could have recorded the confession herself or as in the

present case directed the Metropolitan Magistrate (PW-11) to
record the same. However, once the Learned ACMM had
directed PW-11 to record the confession the scheme of S. 164
CrPC implicitly bars anyone else except the recording
Magistrate (PW-11) from performing the functions qua the
proceedings u/s 164 CrPC.

286. Even the remand orders passed by learned ACMM

contains directions with regard to the manner in which the
confession is to be recorded and thereby usurped the
jurisdiction of the recording magistrate (PW-11). On facts, it is
shown that the directions of learned ACMM have been dutifully
followed by PW-11 which clearly amounts to surrendering of his
jurisdiction to learned ACMM. This is wholly impermissible in
the scheme of Section 164 Cr.P.C.

287. The only person who could have sent accused SK to

judicial custody for cooling off was PW11, that too after
explaining the consequences of making the confession to him.
The Learned Metropolitan Magistrate was required to enquire
about the duration of accused SK's police custody and have
him medically examined such that he could determine the
duration of cooling off necessary to remove the effects of police
custody. Further he was required to personally remand accused
SK to judicial custody throughout the recording and
transcribing of the confession such that he could ensure that
the accused SK was protected from any coercive or police
influence. Crucially the confession was signed only on the third
day and was therefore incomplete till 3.3.07. Since the
Magistrate failed to take the steps required at his level, in law,
the satisfaction recorded by him under Section 164 Cr.P.C.
cannot be held to be valid satisfaction.
 203

288. A careful analysis of the evidence on record regarding

confession by accused clearly indicates that the magistrate
concerned (PW-11) has not exercised due care and precaution
expected of him as per law. The manner of exercise of power
by the recording magistrate lends support to the defence
argument that the magistrate abdicated his jurisdiction while
recording confession and blindly followed the commands of
learned ACMM thereby he has deprived himself of the
subjective satisfaction of voluntariness necessary to record a
confession u/s 164 CrPC, rendering accused SK's confession
inadmissible.

289. PW-11, moreover, did not comply with the mandatory

requirements of being satisfied that the confession is being
made voluntarily. A perusal of the confession itself reveals that
he did not arrive at a conclusive finding that the Accused is
confessing voluntarily but proceeded on the basis of the
assumption that it was voluntary. This is reflected in the
following lines found in the document:

"It that he is still willing to get his statement”.

“From the above questions which I have put just now to the
accused in Hindi it that there is no force, coercion or
undue influence on his mind and it that he is ready to
get his confession recorded voluntarily."

290. Section 164(2) Cr.P.C. mandates that before recording

any such confession the Magistrate must not only explain to
the person making it that he is not bound to make confession
and that, if he does so, it may be used as evidence against him
and that such confession shall not be recorded by the
Magistrate unless, upon questioning the person making it, has
 204

that it is being made voluntarily. The

standard of satisfaction on part of the recording Magistrate, for
ascertainment of voluntariness, is intended to be higher when
the legislation uses the expression . It indicates
definiteness on his part regarding voluntariness of confession
and imposes a higher degree of satisfaction. As against this,
the term , employed by the recording Magistrate merely
conveys impression of being voluntary, and not definiteness, as
is required in law. Therefore, the recording of the confession is
initiated not on the basis of a concrete finding of voluntariness,
as was mandatorily required under Section 164 Cr.P.C. Non-
observance of mandate of law has thus exposed the confession
to challenge on such ground.

291. The sine qua non of a lawful confession under S. 164

CrPC is that (i) the confession must be properly recorded (ii)
the confession must be signed by the accused and the
recording magistrate (iii) the confession must contain a
memorandum stating the Magistrate's belief in the
voluntariness of the confession. If any of the above ingredients
are missing the confession is rendered inadmissible.

292. A reading of s. 164 CrPC therefore makes it clear that the

section envisages a written contemporaneous record of the
accused's confession as only a written document can be
contemporaneously recorded, signed and have a memorandum.
While the 2009 amendment to section 164 allows for audio-
video recording also of confession but the same is allowed in
addition to the primary written record and not as a substitute
for the written recording. Further the amendment came into
effect much after accused SK's confession was recorded.
 205

293. In the present case the prosecution has adduced the

audio-video recording as the primary evidence of accused SK's
confession u/s 164 CrPC. This falls foul of S. 164 CrPC as the
section does not permit for an audio-video recording to be the
primary proof of an accused's confession. Further the audio-
video recording has not been signed by either the accused SK
or the recording magistrate PW11. Furthermore, no
memorandum as mandated u/s 164 CrPC has been appended
to the audio-video recording or dictated by the magistrate at
the end of the audio video recording. Thus, the audio-video
recording of accused SK's confession does not comply with the
mandate of S. 164 CrPC.

294. The original memory chip of the video camera used to

record the confession would constitute primary proof of the
recording of confession. This chip has not been produced in
court. Whilst a copy of the confession has been adduced
through a CD, the same is not accompanied by a certifcate in
terms of section 65B of the Act of 1872. Further the memory
chip which is the primary document was not sent to the trial
court as mandated by s. 164(6) CrPC. Thus, the CD of the
confession (Article No. 53) does not constitute lawful proof of
accused SK's confession.

295. PW-11, the learned MM, Patiala House, states that

accused SK’s confession was audio and video-graphed and
identifies the two CDs that were prepared in court which are
marked as Article No. 53. However he later admits in his cross-
examination that the CDs marked as Article No. 53 do not bear
his signatures or the signatures of accused SK and are not the
original CDs prepared by him. It is therefore evident that the
CD played and proved in court is not the original CD prepared
by PW-11 on 1.3.07. Following passage from the cross-
 206

examination of PW-11 are reproduced hereinafter:-

“ . .-17/2017
. .-2/2007
. . . .
. .
. . . .

-53
. . . . . .

13 19
. . " "

292 /56 292 /57

25.1.2007
-

08.02.2007
22.02.2007
08.02.2007
22.02.2007
292 /58 . . .

296. The transcript of the confession moreover is not proved to

have been sent to the trial court as is mandated u/s 164(6)
CrPC. The magistrate specifically records that he only sent the
CDs to the ACMM for further proceedings. The prosecution has
failed to establish the chain of custody and the manner in
which the transcript reached the Sessions Court where trial got
conducted. In these circumstances the transcript of the
confession does not satisfy the essential requirements of s. 164
 207

CrPC and does not constitute lawful proof of the confession.

297. It is clear from the statement of the Magistrate that no

legal aid was provided to the accused SK during recording of
his confession. It was only when he was asked about the
confession during trial that he retracted the same. It is
precisely because of this that retractions at the stage of
recording of statement under section 313 Cr.P.C. are taken into
consideration while analysing its voluntariness.

298. As mentioned above, it has to be shown that the

confession is both true and voluntary, and that the Court must
inquire into the truth of the confession only after it reaches an
affirmative conclusion about its voluntariness. The truth of the
confession is adjudicated by seeing whether it fits into the rest
of the evidence adduced by the Prosecution. If it is found that
any aspect of the confession is contradicted by any proved fact,
the entire confession has to be rejected. Confession must be
shown not only to be true but also to be in consonance with the
probabilities of the prosecution case on material points. If the
confession appears to be untrue in any material particular, it
has to be rejected. The test to determine the voluntary nature
of a confession is that it must fit into the proved facts and not
run counter to them.

299. In the present case, the confession is not explained in

view of other prosecution evidence in the following manner:

(i) It is an admitted position that no torsos were found in the

bones recovered from the gallery or the drain. The absence of
 208

any torsos and recovery of only skulls, hands and feet does not
support the sexual motive proffered by the prosecution.

(ii) As per the confession, the polythene bags containing the

body parts were merely thrown into the gallery behind D-5. If
this was the case, the bags would have been found piled up
one on top of the other. The confession does not state that the
plastic bags were buried deep into the ground. However, as per
Ex. Ka 16, the seizure panchnama dt. 29.12.06, the skulls and
bones were buried in the ground.

(iii) As per the prosecution case, no intact bodies were found,

and only different body parts were discovered. It is also the
prosecution case that these body parts had been severed
before being put in the drain. It is also the prosecution case
that the DNA of K and F's parents matched some of the body
parts that were discovered. However, as per the confession, the
bodies of four victims L, K, Fand Pushpa - were not cut but
were simply thrown in their entirety in the drain in front of D-5.
The discovery of the severed body parts of K and Ffalsifies the
confession on a material point.

(iv) As per the confession and disclosure statements made by

accused SK the bodies were thrown from accused SK's toilet on
the first floor into the enclosed gallery behind House No. D-5. A
look at the site plan reveals that the toilet and the servant
room are adjacent to House No. D-4 whereas most of the
recoveries have been made towards the other side i.e. House
No. D-6. If the prosecution version is to be accepted then all
the remains should have been recovered from beneath the
window or in the enclosed gallery behind House No. D-4 or
adjoining areas of enclosed gallery behind House No. D-5.
However, as seen by the recovery map, majority of the skeletal
 209

remains were recovered from the enclosed gallery behind

House No. D-6 or adjoining areas towards House No. D-5.

(v) The IO, Chote Singh admits that the window in the servant
quarter facing the gallery was at a height of 25 feet. It is
beyond the realm of possibility that packets containing
dismembered bodies could be thrown from the height of 25ft
without leaving any blood splatter on the wall. The complete
absence of blood stains on the wall of D5 facing the gallery
falsifies the narrative proffered in the confession.

(vi) In the confession the accused states that he would cook

the liver and other body parts of the victims in the pressure
cooker and eat it. This could have easily been corroborated and
there was strong likelyhood of biological stains being found in
the utensils used to cook the body parts. It may be noted that
a seven-member team from FSL Agra searched D5 thoroughly
between 4.1.07 and 6.1.07 and seized all material with even
the slightest hint of a suspicious stain. The complete absence
of any forensic evidence of the cooking of body parts does not
corroborate the allegation of cannibalism.

(vii) It is the case of the prosecution that the skulls recovered

from the gallery were buried beneath the mud and a spade was
used to unearth the same. In fact S.I Chote Singh, states that
many people were digging the ground and recovering the skulls
and that they were covered with 2- 3 inches of mud. Yet the
confession narrated by accused SK, which is otherwise filled
with the minutest detail regarding the offence and the
chronological sequence of events in the manner of luring the
victim and rendering her unconscious, the attempt to rape, the
killing, and the manner of cleaning and disposal of bodies is
conspicuously silent about burying of the skulls.
 210

(viii) As per the confession, the offences were committed

wholly by accused SK with no involvement of Pandher. However
as per the remand application and order dt. 30.12.06 and
remand application dt. 11.1.07 both accused SK and Pandher
confessed to raping and killing the children going missing from
Nithari Noida, including the victim in the present case.
Therefore, it is not possible to both convict Pandher u/s 302 r/
w 120B and also to believe the confession. Further not only is
Pandher charged u/s 302 r/w 120 B IPC he is also convicted u/
s 302 r/w 120 B IPC. Once the Court concludes that there is
sufficient evidence to convict Pandher, it can no longer rely on
accused SK's confession u/s 164 CrPC if it is to be logically
consistent.

300. There is no evidence that any killing ever took place

inside House No. D-5. If accused SK had indeed killed and
dismembered 16 bodies inside the house, there was strong
likelihood of presence of some blood stains on articles in the
house and on his clothes. Further, fragments of human skin,
flesh and bones would have certainly been found in the
bathroom and in other parts of the house. A team of experts
from FSL Agra conducted a thorough examination of House No.
D-5 and seized all articles with even the hint of any suspicious
stains. The CBI also constituted a team of experts from AIIMS
who examined House No. D-5 minutely and collected various
samples on 12.1.07 and 13.1.07. However, neither any human
remains, nor blood-stained clothes, nor any blood-stained
articles such as carpets etc. were found.

301. A perusal of the CFSL report dated 16.3.07 and 8.03.07

 211

shows that a drop of blood was found on the pipe collected

from accused SK's bathroom on 5.1.07. However, it could not
be determined whether the blood was human or not. A drop of
blood was also found on the tile and wash-basin pipe collected
from the bathroom on the first floor of the house on 12.1.07.

302. A perusal of the CFSL report shows that no other article

collected from the house were stained with blood.

303. If accused SK had indeed been cooking and eating human

body parts some biological stains would have been found on
the utensils in the kitchen. But no such stains are found. In fact
other than the statement in the confession there is no evidence
of cannibalism.

304. As per accused SK's confession dated 1.3.07, accused SK

had strangulated and killed a many of his victims with a
dusting cloth. This cloth is not found anywhere in the house.

305. The prosecution has not adduced any independent

evidence on the charge of rape. Even the semen and blood
found on victims' clothes recovered from the gallery between
D-5, D-6 and the Jal Nigam residential quarters and the drain
on the main road facing row of houses does not match the
semen found on accused SK's quilt.

306. Accused SK retracted his confession in his statements

under section 313 Cr.P.C, and provided specific details of the
torture inflicted on him by the police. It is well settled in law
that a retracted confession by itself is a weak piece of evidence
and needs full and strong corroboration in material particulars
by independent evidence both as to the crime and as to the
accused's connection with that crime.
 212

307. The prosecution has attempted to create a perfect crime

for which there can be no corroboration possible. In any
ordinary circumstantial evidence case, evidence of the following
circumstances are ordinarily collected by the investigation
agency:

(i) Last Seen

(ii) Witness who has seen or heard the Victim near the spot
(iii) Motive
(iv) Witnesses to preparation
(v) Post Offence Conduct
(vi) Recovery of blood-stained weapons
(vii) Forensics Blood on clothes used by the accused.
(viii) Forensics-DNA or semen on the spot of victim's clothes
(ix) Forensics- Blood on the Spot.

308. Curiously, no evidence on the above circumstances are

collected or proved by the prosecution in this case.

309. The confession of accused SK is tailor-made to suit the

prosecution case. The prosecution story is that the
promiscuous acts of Pandher generated pressure on the
accused SK who would then act in an automaton state to call
young girls so as to satisfy his lust. This prosecution version
would not have explained the Nithari killings which included
boys as well. To explain this aspect, the accused in his
confession stated that pressure on his mind was so extreme
that he would overlook the sex of victim and bring even boys to
satisfy his lust and thereafter kill them in similar fashion. This
part of confession is even foreign to the prosecution case and
appears to have been introduced only to explain the
circumstances of missing boys from Nithari. We find
considerable force in the argument of Sri Chaudhary that
 213

contents of confession were planned only to suit the

prosecution case and the manner in which it (confession) has
been obtained and produced renders the confession wholly
unsafe and unreliable.

310. : At several points the confession states

that bodies were kept in the bathroom for many hours and the
clothes were strewn around the drawing room. This allegedly
occurred even when people were in the house. It is highly
improbable that for many hours the people in the house would
not notice the clothes strewn around the drawing room, or the
smell coming from the bathroom. Moreover, the other servants
would have also been using the bathroom allegedly used by
accused SK to keep and carve up the bodies. It is difficult to
believe that they too did not notice any of the 16 killings
mentioned in the confession. Further, no blood stains were
seen in the bathroom or stench noticed during this long period.

311. : As
per the confession, accused SK would enter into an automaton
kind of state during which he would lure the victims into the
house, kill them, attempt to have sex with their inert bodies,
carry them to the upstairs bathroom, carve up their bodies,
cook and eat their flesh and then put their body parts in
different bags and throw these bags in the drain or the gallery.
It is highly improbable that not even once in any of these 16
killings was the Accused interrupted or disturbed by a door bell,
the arrival of vendors/ visitors, or the call of his employers/
fellow servants for work that needed to be done.
 214

312. It is also improbable that in the process of luring victims,

killing them, raping them and the eating and disposing of the
bodies, there were no aborted attempts or failures.

313.
Accused SK states in his confession that he had never indulged
in any criminal activity or ever cut human flesh prior to these
killings. He also admits to being afraid of the police. Yet in the
confession there is no mention of even a single instance of
accused SK having failed to carry out the killings or of him not
being able to strangulate the victim to make her unconscious
(but not kill her) to facilitate rape. The 100% success rate for
someone with no prior history is completely improbable.
Strangulation to ensure unconsciousness but not death is not
something most people would know how to do. Further, for a
person with no knowledge of cutting of human flesh and bones,
it is highly improbable that he would have been able to cut the
bodies with such precision.

314. : Each of the 16 killings take place in

the identical manner. There is no variation whatsoever in the
manner and sequence of events for any of the killings.

315. : According, to
the confession a total of 16 bodies were disposed by accused
SK over a span of 1½ years. The flesh of all the 17 bodies must
have started decomposing and the entire place would be
smelling and this stench would have aroused a lot of suspicion.
Infact, the prosecution witnesses deposed that the recovered
material was smelling at the time of recovery. Yet the IO
admits that there was no complaint of any bad smell in the
area.
 215

316.
Accused SK and
Pandher were named as accused in the FIR registered on
7.10.06. Both accused SK and Pandher were under police
surveillance since May, 2006 and were called on multiple
occasions for interrogation. The IO Dinesh Yadav also admits to
calling the Accused for interrogation on 3.12.06. Therefore, it is
improbable that despite being under police surveillance
accused SK continued to commit murders.

317.
In the confession, accused SK provides specific
explanations to some of the unbelievable averments in the
confession. For instance, on the point of carrying a rather big
built adult victim upstairs, he states that he himself was
shocked at his ability to do so. This clarification by accused SK,
without being asked, reflects that the police while tutoring the
confession, were aware of the possible objections which could
be taken to the fact and in anticipation tutored accused SK to
explain it.

: During his
confession, accused SK states that he cannot remember
various details at 18 different instances. He also says that he
does not remember the names of any of his victims and that all
names were told to him by the police. Though he allegedly
identified the A's personal artifacts at AIIMS accused SK does
not even name her in his confession. Thus, it is clear that
whilst in police/CBI custody accused SK was made to learn the
names of the victims and was confessing not to what he had
done or what he himself knew but what had been taught to
him.
 216

Prosecution in support of its case has also relied upon

psychological assessment report, polygraph test report, narco
analysis, brain electrical oscillation signature profile report and
comprehensive forensic report of the same day i.e. 11.9.2007
which are duly exhibited as Paper No. Ex.Ka. 31/1 to
Ex.Ka.31/5. These reports have been proved by PW-15 Dr. S.L.
Vaya. PW-15 was the Dy. Director in the Directorate of Forensic
Sciences, Gandhi Nagar, Gujrat. She has experience of
conducting 5000 polygraph and 180 narco and 220/230 brain
profile tests. She has also done about 4000 psychological
assessment. Her credentials as an expert in the field of forensic
sciences are not in dispute. All the four tests are conducted by
the forensic department. The procedure for conduct of test has
been specified by PW-15 in her examination-in-chief. The narco
test is conducted by administering sodium pentothal medicine
to induce sleep for the person undergoing test who can freely
speak without any inhibition. Psychological assessment report
and polygraph report are also scientific processes by which
information is compulsorily extracted from the test subject. The
process involved is such that the person concerned has no
control over himself and narrates the information solicited from
him during the tests. The test subject cannot decide as to when
he would like to remain silent or when to speak. The concerned
person is supposedly made aware that the findings returned in
the test can be used against him and his consent is obtained.
Such consent is alleged to have been obtained from the
accused in the present case. It is also the prosecution case that
the consent of accused SK for undergoing the test was
obtained voluntarily.

The report of the aforesaid tests have been proved by

 217

PW-15. In the opinion of PW-15 the findings returned in the

scientific tests, referred to above, clearly implicates the
accused and thus constitutes evidence to be relied upon
against him. In the cross-examination PW-15 has stated as
under:-
 218

From the testimony of PW-15 it transpires that except

brain mapping test all other tests are conducted on the accused
relying upon his verbal statements/information made during
the tests.

322. The accused SK was in police custody when the aforesaid

tests were conducted on him. In order to consider the
admissibility of tests result we would have to be satisfied that
the results do not infringe the protection granted to an accused
under section 26 of the Act of 1872. The process involved for
holding the test, therefore, requires careful scrutiny.

In the narcoanalysis and psychological assessment

reports the scientific process employed involves extraction of
information from the accused by administering drugs and/or
other similar processes. The agencies secure information from
the accused based on his verbal statements made during the
tests. One of the concerns raised in admissibility of the tests
result is the plea of infraction of constitutionally guaranteed
right of an accused against his self-incrimination by virtue of
Article 20(3) of the Constitution of India.

The nature of narcoanalysis test came to be examined by

the Supreme Court in Selvi vs. State of Karnataka, (2010) 7
SCC 263. The process undergone for narcoanalysis test has
been noticed by the Court in para 42 of the judgment in Selvi
(supra) which is reproduced hereinafter:-
 219

After exhaustively scanning the law on the issue the

Court noted that ordinarily evidence is classified in three broad
categories, namely, oral evidence, documentary evidence and
material evidence. The statement made during the test by the
subject is treated equivalent to an oral statement, made during
investigation. The Court further observed that Article 20(3) of
the Constitution of India together with section 161(2) Cr.P.C.
prohibits compulsory extraction of oral testimony, which is self-
inculpatory in nature, at the stage of investigation. A distinction
was, however, drawn in respect of physical evidence which
stood excluded from the applicability of such rigours. Noticing
that the tests includes substantial reliance on verbal statement
made by the test subject any compulsory extraction of
information was held to violate the right of accused against
self-incrimination. Observations contained in para 146 of the
judgment in Selvi (supra), in this regard, is reproduced
hereinafter:-

The inculpatory statement made by the accused SK

 220

during narcoanalysis test thus can be equated to a confession

made by the accused during custody and would attract the
wrath of Section 26 of the Indian Evidence Act, 1872.

The mere fact that the accused was in the scientific

laboratory and the test was being conducted by the expert
would not lessen the impact of Section 26 of the Indian
Evidence Act, 1872, inasmuch as the accused was in the
custody of police and had been taken by the investigation
officer to Gandhi Nagar for the holding of scientific tests. The
import of custody is required to be understood in a pragmatic
sense and the mere fact that accused was in laboratory would
not cease his police custody. We find support for taking such a
view from the judgment of the Supreme Court in State of A.P.
v. Gangula (1997) 1 SCC 272, wherein the Court observed as
under in para 19 of the judgment:-

The fact that accused under arrest was left temporarily in

the charge of an official of laboratory would thus not
discontinue the police custody. Law is otherwise settled that an
accused in custody if is temporarily left in charge of an
individual (not the police), before whom a confession is made,
it would not mean that police custody stood determined.
 221

The process involved in polygraph tests and brain

mapping was also examined in view of its distinctiveness,
regarding the process undergone, with reference to the right of
accused against his self-incrimination. Having examined the
issue, the Court observed as under in para 180 and 184 of the
judgment in Selvi (supra), which are reproduced hereinafter:-
 222

PW-15 in her examination-in-chief has stated that a

communication was received from Chief Judicial Magistrate,
Gautam Budh Nagar by the Director, Forensic Science
Laboratory, Gandhi Nagar, Gujrat for conduct of narcoanalysis
test, lie detection and brain mapping test of accused SK and
Monindra Singh. This letter is dated 03.01.2007 and has been
exhibited as Ex.Ka.28. The consent letter of accused SK is the
next exhibit i.e. Ex.Ka.29, which is in a printed format with
only the name of accused SK filled by hand. The signatures of
accused SK are at the bottom of page. The other consent letter
is Ex.Ka.30 of accused SK, which is similar to Ex.Ka.29. The
consent letter (Ex.Ka.29) is extracted hereinafter:-
 223

331. It is not in dispute that the accused SK was in police

custody when the order was passed by the concerned Chief
Judicial Magistrate for the accused SK to be sent to Gandhi
Nagar, Gujarat for conducting scientific tests on him. Neither
the accused was produced before the Chief Judicial Magistrate
for recording his consent nor his consent was even obtained
before he was sent to Gandhi Nagar. The accused SK while in
police custody travelled all the way from Noida to Gandhi Nagar
alongwith the Investigating Officer PW-40. It was only when
the accused was brought to the scientific laboratory that his
consent has been obtained for undertaking the tests. His
consent has allegedly been proved by PW-15.

332. The question to be examined while considering the

scientific tests report would be as to whether the consent
obtained of accused SK was voluntary or not?

333. The accused SK was produced before the laboratory by

the Investigating Officer (PW-40). The police custody remained
uninterrupted of accused SK and his consent was also obtained
during his police custody.

334. Section 26 of the Evidence Act would get attracted in the

above context as any consent obtained from accused SK
without him being in the immediate presence of a Magistrate
cannot be read in evidence against him. No independent
witness has otherwise been produced to prove the consent.
The consent is also in printed format and the signatures of
accused have been obtained at the foot of consent letter.
 224

335. Merely getting the signatures obtained on the printed

consent letter would not establish the fact that the consent of
accused SK was voluntary and informed. Being in police
custody, obtaining of signatures of accused SK on consent
letter, in such circumstances, cannot be viewed as an act of
voluntary consent on part of the accused.

336. The circumstance of free consent has also been evaluated

in Selvi (supra) with reference to the process adopted for
holding the scientific tests in question in following words:-

“242. We can also contemplate a possibility that even when

an individual freely consents to undergo the tests in question,
the resulting testimony cannot be readily characterised as
voluntary in nature. This is attributable to the differences
between the manner in which the impugned tests are
conducted and an ordinary interrogation. In an ordinary
interrogation, the investigator asks questions one by one and
the subject has the choice of remaining silent or answering
each of these questions. This choice is repeatedly exercised
after each question is asked and the subject decides the
nature and content of each testimonial response. On account
of the continuous exercise of such a choice, the subject's
verbal responses can be described as voluntary in nature.
However, in the context of the impugned techniques the test
subject does not exercise such a choice in a continuous
manner. After the initial consent is given, the subject has no
conscious control over the subsequent responses given during
the test. In case of the narcoanalysis technique, the subject
speaks in a drug-induced state and is clearly not aware of his/
her own responses at the time. In the context of polygraph
examination and the BEAP tests, the subject cannot anticipate
the contents of the “relevant questions” that will be asked or
the “probes” that will be shown. Furthermore, the results are
derived from the measurement of physiological responses and
hence the subject cannot exercise an effective choice between
remaining silent and imparting personal knowledge. In light of
these facts, it was contended that a presumption cannot be
made about the voluntariness of the test results even if the
subject had given prior consent.

243. In this respect, we can re-emphasise Principles 6 and 21

of the U.N. Body of Principles for the Protection of All Persons
under any Form of Detention or Imprisonment, 1988. The
Explanation to Principle 6 provides that:

“The term ‘cruel, inhuman or degrading treatment or

punishment’ should be interpreted so as to extend the widest
possible protection against abuses, whether physical or
 225

mental, including the holding of a detained or imprisoned

person in conditions which deprive him, temporarily or
permanently, of the use of any of his natural senses, such as
sight or hearing, or of his awareness of place and the passing
of time.”
Furthermore, Principle 21(2) lays down that:
“21. (2) No detained person while being interrogated shall be
subjected to violence, threats or methods of interrogation
which impair his capacity of decision or his judgment.”
244. It is undeniable that during a narcoanalysis interview,
the test subject does lose “awareness of place and passing of
time”. It is also quite evident that all the three impugned
techniques can be described as methods of interrogation
which impair the test subject's “capacity of decision or
judgment”. Going by the language of these principles, we hold
that the compulsory administration of the impugned
techniques constitutes “cruel, inhuman or degrading
treatment” in the context of Article 21. It must be
remembered that the law disapproves of involuntary
testimony, irrespective of the nature and degree of coercion,
threats, fraud or inducement used to elicit the same. The
popular perceptions of terms such as “torture” and “cruel,
inhuman or degrading treatment” are associated with gory
images of blood-letting and broken bones. However, we must
recognise that a forcible intrusion into a person's mental
processes is also an affront to human dignity and liberty,
often with grave and long-lasting consequences. [A similar
conclusion has been made in the following paper: Marcy
Strauss, “Criminal Defence in the Age of Terrorism—Torture”
[48 New York Law School Law Review 201-274 (2003/2004)] ”

337. In Selvi (supra) the Supreme Court after analysing the

law on holding of narcoanalysis, polygraph test (lie detector
test) and brain electrical activation profile (brain mapping) etc,
in the context of right of an accused against his self-
incrimination, laid down the circumstances in which the results
of such scientific tests remain relevant. After elaborately
considering the issue in the context of statutory scheme of
investigation the Court concluded as under in para 262 to
265:-

“262. In our considered opinion, the compulsory

administration of the impugned techniques violates the “right
against self-incrimination”. This is because the underlying
rationale of the said right is to ensure the reliability as well
as voluntariness of statements that are admitted as
evidence. This Court has recognised that the protective
scope of Article 20(3) extends to the investigative stage in
 226

criminal cases and when read with Section 161(2) of the

Code of Criminal Procedure, 1973 it protects accused
persons, suspects as well as witnesses who are examined
during an investigation. The test results cannot be admitted
in evidence if they have been obtained through the use of
compulsion. Article 20(3) protects an individual's choice
between speaking and remaining silent, irrespective of
whether the subsequent testimony proves to be inculpatory
or exculpatory. Article 20(3) aims to prevent the forcible
“conveyance of personal knowledge that is relevant to the
facts in issue”. The results obtained from each of the
impugned tests bear a “testimonial” character and they
cannot be categorised as material evidence.

263. We are also of the view that forcing an individual to

undergo any of the impugned techniques violates the
standard of “substantive due process” which is required for
restraining personal liberty. Such a violation will occur
irrespective of whether these techniques are forcibly
administered during the course of an investigation or for any
other purpose since the test results could also expose a
person to adverse consequences of a non-penal nature. The
impugned techniques cannot be read into the statutory
provisions which enable medical examination during
investigation in criminal cases i.e. the Explanation to
Sections 53, 53-A and 54 of the Code of Criminal Procedure,
1973. Such an expansive interpretation is not feasible in light
of the rule of “ejusdem generis” and the considerations which
govern the interpretation of statutes in relation to scientific
advancements. We have also elaborated how the compulsory
administration of any of these techniques is an unjustified
intrusion into the mental privacy of an individual. It would
also amount to “cruel, inhuman or degrading treatment” with
regard to the language of evolving international human
rights norms. Furthermore, placing reliance on the results
gathered from these techniques comes into conflict with the
“right to fair trial”. Invocations of a compelling public interest
cannot justify the dilution of constitutional rights such as the
“right against self-incrimination”.

264. In light of these conclusions, we hold that no individual

should be forcibly subjected to any of the techniques in
question, whether in the context of investigation in criminal
cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty. However, we do
leave room for the voluntary administration of the impugned
techniques in the context of criminal justice provided that
certain safeguards are in place. Even when the subject has
given consent to undergo any of these tests, the test results
by themselves cannot be admitted as evidence because the
subject does not exercise conscious control over the
responses during the administration of the test. However,
any information or material that is subsequently discovered
with the help of voluntary administered test results can be
admitted in accordance with Section 27 of the Evidence Act,
1872.
 227

265. The National Human Rights Commission had published

in 2000. These Guidelines

should be strictly adhered to and similar safeguards should
be adopted for conducting the “narcoanalysis technique” and
the “Brain Electrical Activation Profile” test. The text of these
Guidelines has been reproduced below:

(i) No lie detector tests should be administered except on the

basis of consent of the accused. An option should be given to
the accused whether he wishes to avail such test.

(ii) If the accused volunteers for a lie detector test, he should

be given access to a lawyer and the physical, emotional and
legal implication of such a test should be explained to him by
the police and his lawyer.

(iii) The consent should be recorded before a Judicial

Magistrate.

(iv) During the hearing before the Magistrate, the person

alleged to have agreed should be duly represented by a
lawyer.

(v) At the hearing, the person in question should also be told

in clear terms that the statement that is made shall not be a
“confessional” statement to the Magistrate but will have the
status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the

detention including the length of detention and the nature of
the interrogation.

(vii) The actual recording of the lie detector test shall be

done by an independent agency (such as a hospital) and
conducted in the presence of a lawyer.

(viii) A full medical and factual narration of the manner of

the information received must be taken on record.”

338. In light of the binding principles laid down by the

Supreme Court regarding conduct of scientific tests, it is
manifestly clear that the scientific evidence relied upon by the
prosecution cannot be read in evidence against the accused
SK. There is no recovery effected from the accused SK
pursuant to the scientific tests conducted upon him. Moreover,
the oral testimony of PW-15 would go to show that the accused
was taken to Gandhi Nagar by the Investigating Officer Dinesh
 228

Yadav and he was presented before the laboratory at 10.30 in

the morning and he would return with the I.O. in the evening.
The witness has clearly admitted that she has no knowledge as
to where the accused was kept or where he was taken by the
Investigating Officer at the end of the day. The scientific
opinion is otherwise contained in the CD which has been
prepared in the absence of the accused SK. It is admitted on
record that there was no legal aid available to the accused nor
there is any medical report which may indicate the status of
physical and mental well being of the accused during the period
he was at Gandhi Nagar.

339. The accused has alleged physical torture and has

specifically asserted that he was made to memorise the facts to
be uttered before the authorities and the magistrate. We find
substance in the argument of Ms. Payoshi Roy, learned counsel
for the accused appellant that if the accused is made to
memorise facts as is specifically alleged by him in his
statement under Section 313 Cr.P.C., as also in several letters
sent to the court, it would be but natural that those tutored
facts would remain in the subconscious mind and may be
reflected in the statement of the accused recorded during the
course of scientific tests. There is nothing on record to show as
to how and where the accused was kept during his stay at
Gujrat and there is nothing to indicate that force etc. was not
applied upon him during this period. We are, therefore,
doubtful of the credential of the expert’s opinion based upon
the aforesaid tests which otherwise is an evidence of weak
nature. As we have seen that there are specific allegations of
torture and force memorising of facts on part of the accused,
therefore, it would not be safe to rely upon such scientific
evidence to hold the appellant guilty. It is apparently for this
 229

reason that the trial court also did not consider it appropriate
to rely upon the report as one of the circumstance to complete
the chain of circumstances indicating exclusively the hypothesis
of guilt attributed to accused appellant. The scientific evidence,
therefore, has rightly not been relied as a circumstance against
the accused by the trial court and we find no reasons to take a
different view in the matter.

340. This takes the Court to the seminal issue whether a

different view could be taken of confession of accused SK and
the alleged recoveries made under Section 27 of the Evidence
Act, from the view already taken by the Supreme Court in the
case of 'XYZ' [Surinder Koli vs. State of U.P. (2011) 4 SCC 80].
As a corollary, the question would be whether the judgment of
Supreme Court in 'XYZ'’s case would operate as res-judicata or
the findings of the Supreme Court, therein, would be binding
upon this Court under Article 141 of the Constitution of India?

341. Supreme Court in 'XYZ'’s case has upheld the judgment

delivered by Division Bench of this Court, on 11.09.2009, in the
Capital Criminal Appeal No. 1475 of 2009. Para 4 of the
judgment of Supreme Court in 'XYZ'’s case is reproduced
hereinafter:-

“4. The High Court in the impugned judgment dated 11-9-

2009 has discussed the evidence in great detail and we
have carefully perused the same. It is not necessary
therefore to again repeat all the facts which have been set
out in the judgment of the High Court except where
necessary. We entirely agree with the findings, conclusion
and sentence of the High Court so far as accused Surendra
Koli is concerned.”

342. The Division Bench of this Court while affirming death

sentence on accused SK, vide judgment dated 11.09.2009, was
 230

conscious that several other cases relating to Nithari killings

are pending before the court of Sessions and in order to ensure
that those cases are decided independently, on the basis of
evidence led in those cases, observed as under:-

“It is also clarified that the findings recorded by us are

only confined to the murder of 'XYZ' and the court below
shall not be import any observation/comments in the body
of this judgment for being applied to the decision while
hearing other cases relating to Nithari incident.”

343. It is thus urged on behalf of the appellants that the

upholding of this Court’s judgment dated 11.09.2009, by the
Supreme Court, would clearly indicate that the specific
observation of this Court restricting the findings in the case of
'XYZ' to that case alone has become final. Consequently, the
findings of this Court in the case of 'XYZ', as affirmed by
Supreme Court, cannot be extended, or made applicable, on
the subsequent trials relating to Nithari killings, including the
present case.

344. Law is settled that evidence led in a criminal trial alone

would be relied upon for holding the guilt or innocence of an
accused unless provided otherwise in law. Evidence led in a
different trial therefore would not be read in evidence in a
separate and distinct trial. The offences, herein, are otherwise
different. The evidence led in the trial of 'XYZ' cannot be made
the basis for adjudication of trial conducted in the murder of
victim A. The prosecution has also led evidence, separately in
the two trials. If the evidence led in the case of 'XYZ' was to
determine the outcome of trial held in the case of A, there was
hardly any need of holding separate trial in the case of A or
producing evidence, independently, in the case of A.

345. Since different trials were held in 'XYZ'’s case and A’s
case, therefore, witnesses though mostly common were
 231

examined all over again resulting in inevitable differences in

the evidentiary record of 'XYZ'’s case vis-a-vis the case of A.
Some of the differences in the trial of two cases are noticed
hereinafter:-

(i) Victim 'XYZ' is named in the confession of accused SK

under Section 164 Cr.P.C. whereas name of victim A is missing
in the said confession.

(ii) DNA profile generated from the blood sample of the father
of 'XYZ' matched one of the skulls recovered on 29.12.2006
allegedly at the instance of accused SK. However in the case of
victim A situation is somewhat distinct, inasmuch as DNA co-
relation report dated 17.03.2007 (Ka-12) shows that the age of
skull was 12-18 years which had matched with the DNA sample
generated from PW-31 (victim’s mother). Questions are raised
with regard to identity of the deceased on the ground that
'XYZ' was a child but A was an adult, and in the absence of
conclusive evidence of her death the mere fact that she did not
return to her parent’s home cannot be an incriminating
circumstance against the accused SK. The possibility of A
having intentionally left her parent’s house cannot be ruled out.

(iii) Suggestions put to witnesses regarding torture:

This Court in the case of 'XYZ' CCA 1475/2009 disbelieved the

defence case of confession of accused SK having been procured
on account of torture and coercion primarily on the ground that
no suggestion of torture or coercion was made to the
Investigating Officer in the case of 'XYZ'. The observations in
'XYZ', in this regard, are extracted hereinafter:-

"It is also worthy of notice here that no suggestion was made

to P.W. 37 namely M.S. Phartyal that the accused was
tortured or coerced to record any confession. In cross
 232

examination he admitted that after recording of statement

under section 164 Cr.P.C. he had not taken Surendra Koli in
custody. There is no material on record to suggest that any
kind of threat, coercion or inducement was employed to
obtain the confessional statement."

This Court in 'XYZ' refused to accept the defence plea of

retraction of confession, at the first opportunity, for the
following reasons:-

"P.W. 37 M.S. Phartival was not suggested that there was

torture by C.B.I. In his confessional statement he has made
allegation only against police which according to him had
tortured him and compelled him to identify the photographs
of the victims but before C.B.I he had not identified some
photographs which are not of his victims. The investigation
to C.B.I was transferred on 10th Jan 2007 and he (A-2) was
produced before the Magistrate for recording of his
confessional statement after a very long time i.e. 28.2.2007
and confessional statement inspires full confidence."

However, in the present case a different situation exists. A

suggestion was given to CBI IO M.S. Phartyal that the accused
SK was pressurised to confess. It was also suggested that he
was present in the room during the recording of the confession.
A suggestion was also put to the CBI IO Nirbhay Kumar, that
accused SK was threatened and coerced into making a
confession u/s 164 Cr.P.C. Suggestions have also been put to
PW-11 (learned Metropolitan Magistrate) also that accused SK
was compelled to confess and tortured. A suggestion was also
put that despite becoming aware of the fact that accused SK
was tortured he continued to record the confession.

346. Though confession of accused in the case of A and 'XYZ'

is same, yet, the evidence in respect of voluntariness of
confession is markedly different in the case of A vis-a-vis 'XYZ'.

347. Additional evidence exists on the point of confession in

the case of A which was not available in the case of 'XYZ'.
Some of such additional evidence is referred to hereinafter:-
 233

(i) The cross examination of the PW-11 (learned Metropolitan

Magistrate) in the case of A brings on record crucial admissions
and facts, that were not brought on record in 'XYZ''s case. PW-
11 states that he had signed each page of the confession.
However, the transcript of the confession exhibited by him
bearing exhibit no. Ka 19 does not bear any signatures. In-fact
even the memorandum as mandated by S. 164 CrPC is not
signed. Further, he admits that though two signed CDs of the
confession had been sealed and sent by him to the learned
ACMM, the two CDs exhibited in the present case do not bear
the signatures of either the accused or the learned
Metropolitan Magistrate. He further admits that the exhibited
CDs were not made by him while recording the confession. The
existence of unsigned copies of the transcript and CDs in the
Trial Court's record generates suspicion which has not been
explained by the prosecution before this Court.

(ii) The existence of unsigned copies also lends support to the

theory that the CBI had pre-prepared a script of the confession
and given the same to PW-11. In his statement u/s 313,
accused SK also states that from 22.02.07 to 28.02.07 he was
made to rehearse and learn the confession.

(iii) It is the case of the prosecution that the after recording

the confession four CDs of the same were prepared and all four
CDs were signed by both i.e. PW-11 and accused SK. PW-11
admits that two of these CDs were given to the IO, Inspector
MS Phartyal. In light of the fact that two original CDs that
constitute primary evidence of the confession were handed
over to the IO, it cannot be said with certainty that the CDs
produced in the Sessions Court at Ghaziabad was sent by
learned ACMM, Patiala House and not by IO M.S Phartyal. This
is more so as the prosecution has not led any evidence to show
 234

that these CDs were infact sent by the concerned Court at

Patiala House to the concerned jurisdictional court/Magistrate.
Further the possibility of tampering or editing the audio-
videography contained in the CD cannot be ruled out. This is
more so when no certificate under Section 65B of Evidence Act
was produced during trial.

(iv) In a letter to the Sessions Court as well as in his statement

u/s 313 Cr.P.C., accused detailed the brutal manner in which
the CBI tortured him in order to compel him to confess. He also
states that every time he was taken for a medical examination,
the CBI forced the doctors not to show any injuries in the
report. During his examination u/s 313 Cr.P.C. he also offers
himself to be medically examined as the scars of the torture
continue to exist. Surprisingly, this aspect is neither dealt with
by the trial court nor any medical examination is got conducted
of the accused SK.

(v) The PW-11 admits that when accused SK was produced

before him on 1.3.07, his medical examination had not been
conducted. He is also unable to state on which date accused SK
was medically examined. The order passed by the learned
ACMM on 28.2.07 directed that accused SK be medically
examined before being sent to Tihar jail on 28.2.07 and before
being presented before the learned ACMM on 1.3.07. Both
these medical examinations were crucial to establish that
accused SK had not been physically hurt either in CBI custody
prior to 28.2.07 or in Tihar Jail and therefore rule out the
possibility of a confession pursuant to coercion and duress. The
absence of any medical report assumes particular importance
in light of accused SK's statement that he had been tortured by
the CBI and forced to confess.
 235

(vi) The PW-11 admits that on 1.3.07, he had passed an order

directing the accused to be produced before the learned ACMM.
The order dt. 1.3.07 directs the IO to produce accused SK
before the learned ACMM. Importantly, this order was passed
during the recording of the transcription of the confession. It is
therefore evident that during the recording of the transcription
of the confession, accused SK was handed over to CBI custody.
Aware, that CBI officials were waiting outside the room and
were producing him before the ACMM at the end of every day,
accused SK would naturally have been mentally pressurised
and threatened by their presence. In these circumstances any
statement made by accused SK would be questionable and
cannot be said to be voluntary and free from coercion or
duress.

(vii) The PW-11 admits that prior to recording his confession

accused SK was not given any legal aid. Further, the advocates
appointed by the learned ACMM did not file any vakalatnama
and were not present during the recording of confession.
Accused SK had been in uninterrupted police custody for 60
days prior to the recording of his confession. In this duration,
he neither had an advocate nor did he have any visitors or
counsel. The absence of legal aid after 60 days of
uninterrupted police custody prior to the recording a
confession, wherein accused SK was confessing to 16 murders,
renders the confession questionable.

(viii) The PW-11 admits that he did not show to accused the
undated application, allegedly written by accused SK
requesting for an opportunity to confess his crime. The
Magistrate's failure to question accused SK and verify whether
he had voluntarily written the application requesting for his
confession to be recorded has exposed the exercise of
 236

jurisdiction by PW-11 open to challenge on the ground of non-

application of mind and acting in mechanical manner in arriving
at the subjective satisfaction regarding accused SK’s
voluntariness to confess and record the confession.

(ix) PW-11 admits that during his confession accused SK states

that he did not know before which court he had been produced.
This is an important circumstance which lends credence to the
defence version that the undated application addressed to the
learned ACMM was not voluntary act on part of the accused SK.
When accused SK did not know of the court before which he
had been produced he could not have addressed the letter to
the learned ACMM at New Delhi.

348. In addition to the above additional evidence on the issue

of confession, the records in the trial of victim A also
demonstrates additional aspects in the evidence regarding
arrest of accused SK as also the subsequent recovery allegedly
under Section 27 of the Evidence Act.

349. The arrest and S.27 disclosure and recovery are primarily
proved by two witnesses PW40 (IO Dinesh Yadav) and PW28
(SI Chote Singh). Crucial statements and admissions made by
both witnesses during their cross examination were not elicited
in the case of 'XYZ'. Contradictory and contrasting versions
regarding the manner of arrest, the content of the disclosure
statement, the sequence of recoveries etc go to the root of the
matter and provides additional grounds to challenge the
prosecution case.

350. Contradictory and contrasting versions in the evidence led

in the case of A:-
 237

(i) Manner of Arrest

(a) The IO Dinesh Yadav states that he had seen accused SK

for the first time at the time of arrest when a secret informant
pointed him out. However, he later admits that he had called
accused SK to the police station and interrogated him on
3.12.06. This admission completely falsifies the version of
arrest pursuant to a tip off from a secret informant and
shrouds the arrest in suspicion.

(b) While it is the case of the prosecution that accused SK was

arrested on 29.12.06, the defence has lead evidence to prove
that he had been taken to the police station and arrested on
27.12.06. In light of the defence's claim the peculiar
circumstances of the arrest assumes significance. It is an
admitted fact that there were no public or independent
witnesses to the arrest, despite it being a busy road with heavy
footfall. Further the IO was unable to state what items were
seized from the accused on arrest. On specifically being asked,
he is unable to state whether a wallet or any money was seized
from accused SK. He admits that there is no panchnama for
the recovery of phone. It appears to be somewhat unusual that
a person travelling somewhere by a rickshaw would be
travelling completely empty handed, without his wallet and
without any money even. The stark absence of any
corroborative evidence to support the prosecution's claim that
accused SK was arrested on 29.12.06 renders the prosecution
version questionable.

351. PW40 claims that accused SK was in a rickshaw at the

time of arrest and tried to run but was captured by the police.
PW28, on the contrary, does not state anything about SK ever
trying to run. According to him SK was calmly apprised of the
 238

crime against him and arrested from the rickshaw. The

contradictory version of the only two witnesses of arrest is not
satisfactorily explained by the prosecution.

(ii) Regarding place where disclosure statement made.

352. PW28, states that the disclosure was made at the spot of
arrest i.e. near the Nithari Government Hospital and the
accused SK was never taken to the Police Station. He states
that after PW40 questioned the accused for 2-3 hours, the
disclosure statement was made and thereafter they proceeded
directly to the spot of recovery. PW40, on the contrary, states
that accused SK was interrogated in the police station and he
gave his confessional statement in the police station itself.
Another completely contradictory version is given by PW 31,
Vandana Sarkar who states that accused SK made a
confessional statement in the premises of D-5, which was
recorded by PW 40 in the case diary. These contradictory
versions of prosecution about the place where disclosure was
made by accused SK is irreconcilable and poses a serious doubt
to the prosecution case of disclosure and alleged consequential
recovery under Section 27 of the Evidence Act.

(iii) Regarding whether it was joint disclosure

353. Both PW40 and PW28 state that on being arrested, the
accused SK alone made a confessional statement that led to
the consequent recoveries on 29.12.06. However, as per the
remand application dt. 30.12.06 submitted by the IO i.e. PW
40 as well as the consequential remand order dt 30.12.06 the
disclosure leading to the recovery of skulls on 29.12.06 was
consequent to a joint disclosure made by both accused SK and
Pandher. Contradiction in the testimony of PW-40 about
 239

recovery being exclusively at the pointing out of accused SK

vis-a-vis the remand application of PW-40 alleging the recovery
to be joint at the instance of accused SK and Pandher remains
unexplained.

(iv) Regarding contents of the disclosure statement

Names of Victims mentioned

354. PW28 and the recovery panchnama state that accused SK

named only L @ Dipika named in his disclosure. However,
PW40 states that the accused SK mentioned the name of
several victims including A. The disclosure statement is
allegedly prepared on the direction of PW-40 and, therefore,
the dichotomy between oral testimony of PW-40 regarding the
contents of disclosure statement vis-a-vis the contents of
disclosure statement itself is a serious lacuna in the
prosecution case which is not explained.

(v) Disclosure within disclosure

355. PW28 and the Panchnama state that initially accused SK

named only L and then at the place of recovery stated that he
would help to recover skulls of other victims. PW40 however
states that right at the outset accused SK mentioned regarding
the remains of L and the other victims including the victim A in
the police station itself. This difference in the version of PW-40
and PW-28 exposes the disclosure to a serious challenge.

356. The evidence on record clearly shows that the witness of

recovery PW-10 Pappu Lal when arrived at House No. D-5, the
digging of enclosed gallery had already commenced. It clearly
signifies that it was already known that some biological
material was available in the enclosed gallery behind House No.
 240

D-5 and, therefore, the fact already known could not be

claimed to be discovered.

(vi) Regarding the murder weapon

357. IO Dinesh Yadav states that accused SK disclosed that he

had also hidden the knife used to murder L. However, neither
PW-28 nor the recovery panchnama mention a knife as the
murder weapon. Importantly, as per confessional statement of
accused SK u/s 164 Cr.P.C. he strangulated each of his victims
and killed them and no knife was ever used to kill.

(vii) Sequence of recoveries

358. PW-28 and the panchnama state that first skulls from the
gallery were recovered followed by recovery of knife on the
roof. PW-40 states that first the knife was recovered and then
the skulls were recovered from the gallery. As per the case
diary, first the knife and then the skulls were recovered.

(viii) Regarding place of sealing the recovered items and

making of the panchnama

359. PW-28 states that the skeletal remains and items were
sealed in the gallery itself and the panchnama was also
recorded therein. He denies any part of the proceedings being
conducted in the Jal Nigam compound. PW-40 states that all
the recovered items as well as the documentation happened in
the Jal Nigam compound. Further, PW-40 claims that each
recovered skull was seized under a different seizure memo
wherein detailed description of the skull was provided.
However, no such seizure memos are on the record. Further,
the only panchnama on record does not have any description of
the skulls.
 241

(ix) Drain cleaned between 20.12.06-23.12.06

360. In the present case accused SK had lead defence

evidence that proves that the drain in front of House No. D-5
was cleaned between 20.12.06 to 23.12.06. It is, therefore,
highly impossible that bones and biological material deposited
in the drain by accused accused SK prior to 20.12.06 had not
been cleaned and remained in the drain only to be recovered
on 30.12.06.

(x) Break in the chain of circumstances-Guilt of another not

foreclosed

361. In the case of 'XYZ', IO Dinesh Yadav states that he did

not know that Naveen Chaudhry was involved in kidney scam.
In the present case the IO Dinesh admits that he had learnt
that Dr. Naveen Chaudhry's name was involved in the kidney
scam. However, he was never question or investigated.

362. The IO Dinesh Yadav states that the gallery is not part of
House No. D-5 and was easily accessible from the Jal Nigam
Compound and House No. D-6. He further states that things
can be thrown into the gallery from both the Jal compound as
well as from House No. D-6. The IO also admits that in fact
skulls had been recovered from the portion of the gallery
behind House No. D-6 as well. He further states that the wall of
House No. D-5 facing the gallery is much higher than the wall
between Jal nigam compound and the gallery. PW 28, Chote
Singh states that the servants quarter window, from where
accused SK allegedly threw the body parts was at least 25ft
high. These admissions clearly evidence that the open space
from were skulls and bones were recovered was not exclusively
accessible to accused SK. It was equally accessible to the
 242

residents of House No. D-6 and more easily accessible to the

residents of the Jal compound. If knowledge of and proximity
to the location of recovery were to be considered incriminating
factors several other persons including Dr. Naveen Chaudhry
would be equally implicated.

363. The long gap between the death of the victim and the
recovery of the bones contradicts the presumption of
knowledge of the location of the body parts on part of the
accused, or that he had possessed knowledge of the existence
of bones. It is not a case where the victims had recently gone
missing such that the location of their bodies was exclusively
within the knowledge of accused SK.

364. Importantly, while accused SK has no criminal

antecedents of any kind, the neighbour residing in the
adjoining house no. D-6, behind which most of skulls were
found, was neither ever interrogated nor arrested despite the
admitted fact that the occupant of such house was arrested in
the case of kidney scam. It is well established in law that in a
case of circumstantial evidence the chain of circumstances
should be complete and must be completely incompatible with
the guilt of any other person. In the present case, the question
of the guilt of the doctor residing in the adjoining house has
not even been investigated. The prosecution case that House
No. D-6 was also searched is not material when no
interrogation was made from the doctor owning the house.

365. Sri Chaudhary further contends that the Supreme Court

judgment in the case of 'XYZ' (Criminal Appeal No. 2227 of
2010 arising out of Reference No. 3 of 2009 decided by this
Court on 11.9.2009) can influence the judgment in the present
case only if:-
 243

(i) The previous judgment constitutes a bar to the present

proceedings by virtue of Article 20(2) of the Constitution of
India or Section 300 Cr.P.C. This exigency does not apply here
as the crime and trial in the two cases are separate and
distinct.

(ii) If the previous judgment in the case of 'XYZ' constitutes an

evidence under the Evidence Act.

(iii) If the judgment in 'XYZ' constitutes a precedent; or

(iv) Earlier case of 'XYZ' constitutes issue estoppel.

366. Evidence/judgment in a previous/different trial becomes

relevant or could be imported in the subsequent trial only in
the manner specified in the Evidence Act. There are three sets
of provisions which could be invoked for the purposes, i.e. (I)
Section 33 of the Evidence Act, (ii) Section 40-43 of the
Evidence Act, (iii) Section 54 of the Evidence Act.

367. We now proceed to examine the facts of this case in the

three exigencies in law, referred to above, to ascertain whether
the judgment in 'XYZ'’s case or the evidence led therein would
be binding upon this Court or even relevant in this case?

368. Ordinarily, evidence given by a witness in a previous trial

can become relevant in a subsequent trial only where
conditions stipulated under Section 33 of the Evidence Act are
shown to exist. Section 33 of the Evidence Act is reproduced
hereinafter:-

“Evidence given by a witness in a judicial proceeding, or

before any person authorized by law to take it, is relevant
 244

for the purpose of proving, in a subsequent judicial

proceeding, or in a later stage of the same judicial
proceeding, the truth of the facts which it states, when the
witness is dead or cannot be found, or is incapable of giving
evidence, or is kept out of the way by the adverse party, or
if his presence cannot be obtained without an amount of
delay or expense which, under the circumstances of the
case, the Court considers unreasonable: Provided— that the
proceeding was between the same parties or their
representatives in interest; that the adverse party in the
first proceeding had the right and opportunity to cross-
examine; that the questions in issue were substantially the
same in the first as in the second proceeding. Explanation.—
A criminal trial or inquiry shall be deemed to be a
proceeding between the prosecutor and the accused within
the meaning of this section.”

369. Exigencies warranting applicability of Section 33 of the

Evidence Act is not shown to exist in the facts of the present
case. The prosecution also did not take recourse to the
evidence led in the case of 'XYZ' during subsequent trial, held
in the case of A, and rightly opted to produced evidence,
independently, in the case of A.

370. Sri Chaudhary, learned counsel for the appellant has

placed reliance upon the celebrated judgment of privy counsel
in Balgangadhar Tilak vs Shri Shriniwas Pandit and another
(1915) 11 The Law Weekly 611 where the scope of Section 33
of the Evidence Act was examined in the context of a previous
adjudication made and its relevance in the subsequent trial.
The Court observed as under:-

“It appears that the widow and Bala Maharaj left no stone
unturned in the way of litigation. In July proceedings were
begun to revoke the probate granted to the trustees, and
subsequently criminal proceedings were instituted in respect
of perjury.Their Lordships regret to observe that not only are
the circumstances with regard to the criminal proceedings
referred to in the present litigation by the parties, but that
the depositions therein become matter apparently of
materiality in the judgment of the learned judges of the High
Court.

In the opinion of the Board this was an irregularity of a

somewhat serious character. They refer particularly to the
depositions in the criminal case, which seem to have been
imported in bulk into the present. There is a risk by such
 245

procedure of justice being perverted. A civil cause must be

conducted in the ordinary and regular way, and judged of by
the evidence led therein. Under s. 33 of the Indian Evidence
Act, 1872, evidence given by a witness in a judicial
proceeding in a criminal trial is relevant for the purpose of
proving in a subsequent proceeding the truth of the fact
which it states, but this only, as the section proceeds, “when
the witness is dead, or cannot be found, or is incapable of
giving evidence, or is kept out of the way,” or under the
other circumstances there stated. Not one of these
circumstances was proved in the present case, and the
depositions could not have been used with propriety even to
support the evidence of the plaintiffs, which they appear to
have done. But there appears to have been no warrant
whatsoever for using them for the purpose of either
contradicting or discounting the evidence of the witnesses
given in this suit, unless the particular matter or point had
been placed before the witness as one for explanation in
view of its discrepancy with the evidence then being
tendered. It was stated to their Lordships that the
prosecution for perjury had in the end completely failed. With
that their Lordships have nothing to do. The judgment now
given is pronounced irrespective of the result of the criminal
suit. Successful or unsuccessful, the introduction and use in
this civil action of these criminal proceedings, as above
described, were illegitimate.”

371. Supreme Court in a recent judgment rendered in A.T.

Mydeen and another vs Assistant Commissioner (2021) SCC
Online 1017 had the occasion to deal with two separate
appeals decided by a composite judgment of High Court
wherein evidence of one appeal was read in another. The Court
examined relevant provisions of the Code of Criminal Procedure
and also Section 33 of the Evidence Act to observe as under in
para 25:-

“25. So far as the law for trial of the cross cases is

concerned, it is fairly well settled that each case has to be
decided on its own merit and the evidence recorded in one
case cannot be used in its cross case. Whatever evidence is
available on the record of the case only that has to be
considered. The only caution is that both the trials should be
conducted simultaneously or in case of the appeal, they
should be heard simultaneously. However, we are not
concerned with cross-cases but are concerned with an
eventuality of two separate trials for the commission of the
same offence (two complaints for the same offence) for two
sets of accused, on account of one of them absconding.”

372. The proposition of law in A.T. Mydeen (supra) has been

 246

summed up by the Supreme Court in para 39 to 41 of the

report, which are reproduced hereinafter:-

“39. The provisions of law and the essence of case-laws, as

discussed above, give a clear impression that in the matter
of a criminal trial against any accused, the distinctiveness of
evidence is paramount in light of accused's right to fair trial,
which encompasses two important facets along with others
i.e., firstly, the recording of evidence in the presence of
accused or his pleader and secondly, the right of accused to
cross-examine the witnesses. These facts are, of course,
subject to exceptions provided under law. In other words,
the culpability of any accused cannot be decided on the basis
of any evidence, which was not recorded in his presence or
his pleader's presence and for which he did not get an
opportunity of cross-examination, unless the case falls under
exceptions of law, as noted above.

40. The essence of the above synthesis is that evidence

recorded in a criminal trial against any accused is confined to
the culpability of that accused only and it does not have any
bearing upon a co-accused, who has been tried on the basis
of evidence recorded in a separate trial, though for the
commission of the same offence.

41. It is also an undisputed proposition of law that in a

criminal appeal against conviction, the appellate court
examines the evidence recorded by the trial court and takes
a call upon the issue of guilt and innocence of the accused.
Hence, the scope of the appellate court's power does not go
beyond the evidence available before it in the form of a trial
court record of a particular case, unless section 367 or
section 391 of Cr.P.C. comes into play in a given case, which
are meant for further inquiry or additional evidence while
dealing with any criminal appeal.”

373. Not only the above judgment expresses the mandate of

Section 33 but also the consistent law on the point that
evidence given by a witness in a judicial proceedings is
relevant for the purpose of proving, in a subsequent judicial
proceeding, or in a later stage of same judicial proceedings,
the truth or facts it states only where the witness is dead or
cannot be found, or is incapable of giving evidence, or is kept
out of the way by adverse party, or if his presence cannot be
obtained without an amount of delay or expense which, under
the circumstances of the case, the Court considers
unreasonable. Thus on the analysis of the law relating to
 247

Section 33 of the Act, we have no doubt that the evidence led

in 'XYZ'’s case or the judgment delivered therein would not be
relevant for the purpose of adjudication of the trial relating to
A.

374. Under the Indian Evidence Act, a judgment can only be

introduced as evidence vide Section 40-43 of the Evidence Act.
Section 40-43 of the Evidence Act are re-produced
hereinafter:-
 248

375. The judgment of the Supreme Court is evidence only of

the fact of the conviction of the accused person. The findings
and reasons recorded in a judgment upon appreciation of the
evidence led in the matter have apparently no evidentiary
value in a different trial. In Ali Hasan and others v. State, 1975
Cri LJ 345, this Court held as under in para 21-22:-

"the reasoning in the earlier judgment could not be

relied upon as it proceeded on evidence which was recorded
separately and which was considered separately. The earlier
judgment could be admissible only if it fulfilled the
conditions laid down in Sections 40, 43 of the Evidence Act.
The earlier judgment was admissible to show the parties
and the decision but it was not admissible for the purpose of
relying upon the appreciation of evidence."

376. The above observation made by their Lordships of the

Supreme Court in the case of Kharkan v. State of UP, reported
in AIR 1965 SC 83: (1965(1) Cri LJ 116) were in peculiar facts
of the case which are reproduced hereinafter:-

“10. Neither of these provisions is applicable to the present

facts because the two offences were distinct and spaced
slightly by time and place. The trials were separate as the
two incidents were viewed as distinct transactions. Even if
the two incidents could be viewed as connected so as to
form parts of one transaction it is obvious that the offences
were distinct and required different charges. The assault on
Tikam in fulfilment of the common object of the unlawful
assembly was over when the unlawful assembly proceeded
to the house of Tikam to loot it. The new common object to
 249

beat Puran was formed at a time when the common object

in respect of Tikam had been fully worked out and even if
the two incidents could be taken to be connected by unity
of time and place (which they were not), the offences were
distinct and required separate charges. The learned
Sessions judge was right in breaking up the single charge
framed by the magistrate and ordering separate trials. In
this view the prior acquittal cannot create a bar in respect
of the conviction herein reached.”

378. Provisions contained in Section 40 to 43 of the Evidence

Act deals with the relevance of judgments of courts of justice.
The provision fell for consideration before the Supreme Court in
Rajan Rai vs. State of Bihar (2006) 1 SCC Page 191. The
observations of the Court made in para 8 to 10 of the judgment
are relevant for the present purposes and are reproduced
hereinafter:-
250
 251

In that case, after laying down the law, the Court further
considered as to whether the High Court was justified in
converting the conviction of the accused Karan Singh from
Sections 302/149 to one under Section 302 read with
Section 34 IPC after recording a finding that the murder was
committed by Ram Hans in furtherance of the common
intention of both himself and the accused Karan Singh. This
Court was of the view that in spite of the fact that the
accused Ram Hans was acquitted by the trial court and his
acquittal attained finality, it was open to the High Court, as
an appellate court, while considering the appeal of the
 252

accused Karan Singh, to consider the evidence recorded in

the trial of Karan Singh only for a limited purpose to find out
as to whether Karan Singh could have shared the common
intention with the accused Ram Hans to commit the murder
of the deceased, though the same could not have otherwise
affected the acquittal of Ram Hans. In view of the foregoing
discussion, we are clearly of the view that the judgment of
acquittal rendered in the trial of the other four accused
persons is wholly irrelevant in the appeal arising out of the
trial of the appellant Rajan Rai as the said judgment was not
admissible under the provisions of Sections 40 to 44 of the
Evidence Act. Every case has to be decided on the evidence
adduced therein. Case of the four acquitted accused persons
was decided on the basis of evidence led there while the case
of the present appellant has to be decided only on the basis
of evidence adduced during the course of his trial.”

379. Previous judgment in the case of 'XYZ' does not prevent

holding of trial in the case of A and consequently Section 40 of
the Evidence Act would not apply. Section 41 relates to cases
of probate, matrimony, admiralty or insolvency jurisdiction and
has no applicability either. Section 42 holds judgements, orders
or decrees relevant if they relate to matters of public nature
relevant to the inquiry but are not conclusive proof of what
they state. Section 42, also, has thus no applicability in this
case. Section 43 provides that judgements, orders or decrees
are irrelevant unless it is relevant under some other provision
of the Evidence Act. Section 43 also does not make the
judgment in 'XYZ' case relevant for the trial in A.

380. The only other way that the Supreme Court judgment in
'XYZ' case could have been used was as evidence of bad
character. Section 54 of the Evidence Act bars evidence with
regard to bad character of the accused person. It is settled that
an accused shall be tried on the basis of evidence with regard
to the alleged criminal transaction of which he is accused. Prior
criminal record of the accused qualifies as bad character
evidence and, therefore, it cannot be introduced by virtue of
Section 54 of the Evidence Act. The prosecution has chosen not
to adduce the decision in the case of 'XYZ' or the evidence
 253

recorded in that case in the subsequent trial in the case of A.

No questions were put to the accused for recording his
statement under Section 313 Cr.P.C. in light of the findings
returned in 'XYZ' case. The judgment in 'XYZ' case thus cannot
be considered as evidence in the case of A by virtue of Section
54 of the Evidence Act.

381. Judgment of Supreme Court in the case of 'XYZ' merely

upholds the findings returned by this Court in the confirmation
proceedings under Section 366 Cr.P.C. The adjudication of
Supreme Court is on facts. It depends upon the evidence
brought before the Court in the case of 'XYZ'. As is already
noticed, the evidence on record in the case of A is distinct on
various aspects. The judgment of Supreme Court does not lay
down any ratio of law which alone would be binding. It is
settled that precedent in law is an authority for the principles
of law laid down therein. Precedent do not apply to facts,
particularly when the evidence in the subsequent case is
different. Precedent otherwise has a limited role to play in
appreciation of evidence for adjudication of criminal case.

382. Supreme Court in B Shama Rao v. UT Pondicherry AIR

1967 SC 1480 in para 5 held as under:-

383. In Common Cause v. Union of India (2004) 5 SCC 222 at

page 223, the Supreme Court observed as under:-

"6. Reliance is also placed on the observations contained in

paragraph 5 of Supreme Court Legal Aid Committee v.
Union of India [(1998) 5 SCC 762]. Such observations, or
 254

simply what was done in a given case, without laying down

the law cannot be read as a ratio of the judgment and
certainly not as a precedent. Whether a writ of mandamus
of the nature which was prayed for before the Court can be
issued or not was not a point argued and decided by the
Court."

(emphasis supplied)

384. In Union of India v. Dhanwanti Devi (1996) 6 SCC 44 at

page 51, the Supreme Court has held as under:-
 255

385. A three Judges Bench of the Hon'ble Supreme Court in

the case of State Financial Corporation v. Jagadamba Oil Mills
[2002 AIR SCW 500] has observed thus:-

386. Similarly in the case of Divisional Controller, KSRTC v.

Mahadeva Shetty [(2003) 7 SCC 197: AIR 2003 SC 4172], the
Apex Court has observed thus:
 256

387. Keeping in view these well settled principles along with

basic fact that in criminal cases normally the law of precedent
is not applicable, as facts of each case always differ with
another except in respect of technical pleas like jurisdiction,
limitation, etc., any pronouncement whether of Apex Court or
High Court in a criminal case is mainly based on appreciation of
evidence., which in our view, may not have the effect of
binding precedent but have to be considered as guidelines or
guiding principles of the Hon'ble Supreme Court. We hasten to
add here itself that it is not as if none of the pronouncements
of the Hon'ble Supreme Court in respect of criminal cases do
not having binding precedent. Even in criminal cases where the
Hon'ble Supreme Court declares law regarding question of
jurisdiction of Court, law of limitation, procedural aspect, etc.,
it may have binding precedent in other cases wherein similar
situation is placed. But the fact remains that even in these
latter cases, the Court is required to see the facts and
circumstances of each case and only if they are similar or on
parity, it has to implement or follow the binding precedent of
the Hon'ble Supreme Court.

388. In the case of Naib Singh v. State of Punjab [(1986) 4

SCC 401: 302 1 AIR 1986 SC 2192] the Apex Court has made
it clear that there is nothing like precedent in criminal cases
but there are certain guiding principles. In the case of
Shankarlal v. State of Maharashtra [(1981) 2 SCC 35: AIR
1981 SC 765.] the Hon'ble Supreme Court has observed that
legal principles incantations and their importance lies more in
their application to a given set of facts than in their recital in
 257

the judgment.

389. Considering all these decisions of the Hon'ble Supreme

Court on the question of precedents or binding nature of its
pronouncement, we have to reiterate that though normally
under Article 141 of the Constitution of India, the
pronouncement of the Hon'ble Supreme Court, which is law of
the land, has binding force on all other Courts in the Country, it
is only the law declared which would be binding on other
Courts. Hence, in our view, so far as the pronouncements of
the Apex Court in the criminal cases especially like in respect of
sentence, amount of compensation, etc. are concerned,
normally they do not have any binding force on other Courts
except being considered as guidelines or guiding principles.

390. Supreme Court in Pandurang v. State of Hyderabad AIR

1955 SC 216 para 35 held as under:-

391. Municipal Committee v. Hazara Singh (1975) 1 SCC 794

the Court held as under in para 4:-
 258

392. In Charan Singh v. State of Punjab (1975) 3 SCC 39 at

page 52, the Court held as under:-

“32. In the context of what value should be attached to

the statements of the witnesses examined in this case, our
attention has been invited by the learned Counsel for the
appellants to a number of authorities. We have refrained
from referring to those authorities because, in our opinion,
reference to those authorities is rather misplaced. The fate
of the present case like that of every other criminal case
depends upon its own facts and the intrinsic worth of the
evidence adduced in the case rather than what was said
about the evidence of witnesses in other decided cases in
the context of facts of those cases. The question of
credibility of a witness has primarily to be decided by
referring to his evidence and finding out as to how the
witness has fared in cross- examination and what
impression is created by his evidence taken in the context
of the other facts of the case. Criminal cases cannot be put
in a strait jacket. Though there may be similarity between
the facts of some cases there would always be shades of
difference and quite often that difference may prove to be
crucial. The same can also be said about the evidence
adduced in one case and that produced in another.
Decided cases can be of help if there be a question of law
like the admissibility of evidence. Likewise, decided cases
can be of help if the question be about the applicability of
some general rule of evidence e.g. the weight to be
attached to the evidence of an accomplice. This apart,
reference to decided cases hardly seems apposite when
the question before the court is whether the evidence of a
particular witness should or should not be accepted."

393. We would like to refer to some of the judgments of the

Supreme Court commenting upon the precedential value of a
previous decision where additional facts emerge in the
subsequent case which makes substantial difference in the
outcome.
 259

394. In Gian Chand v. State of Haryana (2013) 14 SCC 420,

the Court held as under in para 24:-

395. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.

(2003) 2 SCC 111, the Supreme Court held as under:-

396. In Abdul Kayoom v. CIT AIR 1962 SC 680, the Supreme

Court observed as under:-
 260

397. In Parasa Raja Manikyala Rao v. State of AP. (2003) 12

SCC 306, the Court held as under:-

398. The concept of Stare Decisis, by its very nature does not
apply to the factual aspect of a case. In State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534, the law
has been considered by the Supreme Court in following words:-
261
262
 263

399. In Ashish Ranjan v. Anupma Tandon (2010) 14 SCC 274,

the Supreme Court held as under:-
 264

400. In Arasmeta Captive Power Co. (P) Ltd. v. Lafarge India

(P) Ltd, (2013) 15 SCC 414, the Court has held as under:-

401. Last but not the least is the question as to whether

Supreme Court Judgement in 'XYZ' case would constitute issue
estoppel for reception of evidence in respect of confession
under Section 164 Cr.P.C. and recovery under Section 27 of the
Evidence Act. Issue estoppel prevents reopening of an issue on
which there is a final and unchallenged finding by a court of
competent jurisdiction and such issue is sought to be re-
agitated in a subsequent litigation. In substance the principle is
that re-litigation of an issue already settled in a previous
adjudication would be impermissible in law. It was in the case
of Pritam Singh and another Vs. State of Punjab, AIR 1956 SC
415 that the issue estoppel was first recognized in Indian Law
and made applicable in criminal proceedings. The Supreme
Court relied upon the observations of Privy Council in
Sambasivam v. Public Prosecutor, Federal of Malaya, 1950 A.C.
458, which is reproduced hereinafter:-

“The effect of a verdict of acquittal pronounced by a

 265

competent Court on a lawful charge and after a lawful

trial is not completely stated by saying that the person
acquitted cannot be tried again for the same offence. To
that it must be added that the verdict is binding and
conclusive in all subsequent proceedings between the
parties to the adjudication. The maxim res judicata pro
veritate accipitur is no less applicable to criminal than to
civil proceedings. Here, the appellant having been
acquitted at the first trial on the charge of having
ammunition in his possession, the prosecution was
bound to accept the correctness of that verdict and was
precluded from taking any steps to challenge it at the
second trial.”

402. While applying the principal of issue estoppel, the

Supreme Court held as under in paragraph 23:-
“23……...The acquittal of Pritam Singh Lohara of that
charge was tantamount to a finding that the prosecution
had failed to establish the possession of the revolver
Exhibit P-56 by him. The possession of that revolver was
a fact in issue which had to be established by the
prosecution before he could be convicted of the offence
with which he had been charged. That fact was found
against the prosecution and having regard to the
observations of Lord MacDermott quoted above, could
not be proved against Pritam Singh Lohara in any further
proceedings between the Crown and him. We are of the
opinion that the High Court was right in rejecting the
evidence regarding the recovery of Exhibit P-56 against
Pritam Singh Lohara and the evidence against him would
have to be considered regardless of the alleged recovery
of Exhibit P-56 at his instance.”

403. A constitution bench of the Supreme Court in Manipur

Administration, Manipur Vs. Thokchom Bira Singh, AIR 1965 SC
87, reiterated the applicability of rule of issue estoppel in the
criminal jurisprudence with reference to Section 403 of the
Cr.P.C. (corresponding to Section 300 Cr.P.C., now). The
observation of the bench contained in para 12 and 13 are
relevant and are reproduced hereinafter:-

“12…..It is, therefore, clear that Section 403 of the

Criminal Procedure Code does not preclude the
applicability of this rule of issue estoppel. The rule being
one which is in accord with sound principle and
supported by high authority and there being a decision of
this Court which has accepted it as a proper one to be
adopted, we do not see any reason for discarding it. We
might also point out that even before the decision of this
Court this rule was applied by some of the High Courts
and by way of illustration we might refer to the decision
 266

of Harries, C.J. in Manickchand Agarwala v. State [AIR

1952 Cal 730] . Before parting, we think it proper to
make one observation. The question has sometimes
been mooted as to whether the same principle of issue
estoppel could be raised against an accused, the
argument against its application being that the
prosecution cannot succeed unless it proves to the
satisfaction of the court trying the accused by evidence
led before it that he is guilty of the offence charged. We
prefer to express no opinion on this question since it
does not arise for examination.
13. As stated earlier, if Pritam Singh case [AIR 1956 SC
415] was rightly decided, it was conceded that the
decision of the Judicial Commissioner was right.”

404. The judgments in Pritam Singh (supra) and Manipur

Administration (supra) again fell for examination before the
Supreme Court in Mohar Rai Vs. State of Bihar, AIR 1968 SC
1281. In para 8 of the judgment the Court again referred to its
previous judgment in Manipur Administration’s case (supra)
and expressed a doubt on the proposition whether the rule
could be pressed into action against an accused in following
words:-

“………..That apart, it is doubtful — though for the

purpose of this case it is unnecessary to express any
final opinion on this point — whether the rule in question
could be pressed against an accused, the reason being
that while a prosecution cannot succeed unless it proved
its case beyond reasonable doubt, the nature of the
proof required of an accused in substantiating the plea
taken by him is different — it is sufficient if he proves
that plea taken by him is reasonable and probable. In
that event he is entitled to the benefit of doubt. This
aspect was noticed by this Court in Manipur
Administration case [(1964) 7 SCR 123] where it was
observed:
“Before parting, we think it proper to make one
observation. The question has sometimes been
mooted as to whether the same principle of issue-
estoppel could be raised against an accused, the
argument against its application being that the
prosecution cannot succeed unless it proved to the
satisfaction of the court trying the accused by
evidence led before it that he is guilty of the
offence charged. We prefer to express no opinion
on this question since it does not arise for
examination.””
 267

405. Sri Chaudhary, has placed reliance upon a division bench

judgment of Delhi High Court in Gulab Chand Sharma Vs. H.P.
Sharma, Commissioner of Income-Tax, Delhi, 1973 SCC OnLine
Del 272, in order to contend that the doubt expressed by the
Supreme Court with regard to applicability of the principle of
issue estoppel against an accused has been taken further and
the principle itself has been made inapplicable against the
accused for the reasons contained in para 13 of the judgment
which is extracted hereinafter:-

“13. It was then contended that the principle of issue

estoppel is applicable only in favour of the accused but
not against him. The general rule is that res judicata
must apply in favour as well as against each of the
parties. (15 Halbury's Laws of England, 201, paragraph
379). Issue estoppel is a branch of the law of res
judicata applied to criminal proceedings. This was the
conclusion of the majority of the House of Lords in
Connelly v. Director of Public Prosecutions [[1964] A.C.
1254, 1321, 1334 (H.L.).] . Logically it may be argued
that issue estoppel applies not only in favour of the
accused but also against him. (Spencer-Bower and
Turner on Res Judicata, paragraph 335). But in all
criminal proceedings, the principle of res judicata or
issue estoppel may come into conflict with another
principle, namely, that the prosecution must prove that
the accused is guilty and unless this is done the accused
is presumed to be innocent. But principle of issue
estoppel cannot override the principle of presumption of
innocence of the accused.”

406. We have given our thoughtful consideration to the

submissions advanced by Sri Chaudhary and we do find
substance in his contention. In a criminal trial the onus to
prove the guilt of accused is upon the prosecution. There is
also a presumption of innocence attached to the accused till his
guilt is established beyond reasonable doubt. The guilt of
accused beyond reasonable doubt is otherwise required to be
established in a fair trial consistent with the procedure laid
down in law.

407. We entirely subscribe to the view expressed by the Delhi

 268

High Court in Gulab Chand Sharma (supra) that the principle of

issue estoppel may come in conflict with the principle of
presumption of innocence of the accused, and in such exigency
the well accepted principles of presumption of innocence of
accused and the onus on the prosecution to establish guilt of
accused beyond reasonable doubt must override the principle
of issue estoppel.

408. In the facts of the present case, we have otherwise

noticed that the quality of evidence in the case of 'XYZ' is
substantially distinct from the evidence led in the present trial
and the incorporation of principle of issue estoppel, so as to
oust the admissibility of evidence led in the present trial, on
the aspect of confession and recovery, would do great harm to
the appellant. We are cognizant of yet another important
principle accepted in criminal trial that the evidence led in a
particular trial alone determines the outcome of trial to the
exclusion of evidence led in other trial. We are, therefore, in
respectful agreement with the view expressed by Delhi High
Court in the case of Gulab Chand Sharma (supra) and hold that
the principle of issue estoppel cannot be pressed into service
so as to prohibit the reception of evidence in the present trial
on the aspect of confession and recovery. Holding of separate
trial to establish the guilt of accused, viz-a-viz trial in the
previous case of 'XYZ', would lose its significance if the findings
returned on the issue of confession and recovery are to be
imported with the help of the principle of issue estoppel to the
exclusion of evidence on the two aspects in the present trial.
 269

409. Accused SK after completion of his statement under

section 313 Cr.P.C. moved an application on 14.05.2015
annexing a report of expert committee constituted by the
Ministry of Women and Child Development titled as
‘Investigation Into Allegation of Large Scale Sexual Abuse,
Rape and Murder of Children in Nithari Village of Noida (UP)’
dated 17.01.2007, published by the Ministry of Women and
Child Development, Government of India (Paper No.366Kha).

410. The Ministry had constituted high level committee

consisting of four experts. This high powered committee gave
its report. In para 3.2 of this report (Additional Paper Book
Volume IV at page 1239) the Committee referred to the
scientific information supplied by Dr. Vinod Kumar, Chief
Medical Superintendent, Noida, who had supervised the
postmortem conducted on the bodies identified after
assembling the bones and skulls on 10.01.2007 informed the
Committee that “it was intriguing to observe that the middle
part of all bodies (torsos) was missing. According to him, such
missing torsos give rise to a suspicion that wrongful use of
bodies for organ sale, etc. could be possible. According to him,
the surgical precision with which the bodies were cut also
pointed to this fact. He stated that body organs of small
children were also in demand as these were required for
transplant for babies/children. A body generally takes more
than 3 months to start decomposing and the entire process
continues for nearly 3 years. Since many of the reported cases
related to children having been killed less than a year back, it
is a matter for investigation as to why only bare bones were
discovered. He did not favour the theory of cannibalism as it
could be a ruse to divert attention from the missing parts of
the bodies.”
 270

411. The accused moved two specific applications seeking

production of postmortem report and examination of autopsy
surgeon at Noida as well as prayed for summoning of the
above report dated 17.01.2007. Both the applications have
been rejected by the court below. We cannot approve of the
manner in which these applications were rejected. The court of
Sessions relied upon the previous judgment in the case of 'XYZ'
and the ostensible delay in conduct of this trial as being the
reasons for such rejection. None of these two grounds were
either valid or even available. Firstly, judgment in 'XYZ' was
already held by this Court in Criminal (Capital) Appeal No.
1475 of 2009 not to influence pending trials in other Nithari
cases and secondly, the right of accused to get his defence
examined on merits is too well settled to be rejected only on
the ground of delay particularly when the accused is to be sent
to gallows.

412. Right of the accused to have his explanation given under

section 313 Cr.P.C. considered is an important right and
rejection of such right on the ground of it being irrelevant or an
abuse of process on part of accused cannot be approved of,
particularly when the report itself was of the Ministry of Women
and Child Development, Govt. of India.

413. The report’s conclusion does create a doubt on the

prosecution story about the motive for the offence and the
failure on part of the investigating agencies to explore the
possibility of organ trade as being the motive for the offence is
a serious lapse on part of the prosecuting agency, particularly
when such large number of women and children had gone
missing.

414. The doubt expressed by the Chief Medical

 271

Superintendent, Noida, referred to in the report of the

concerned Ministry receives support from the fact that the very
adjacent house i.e. House No.D-6, Sector-31, Noida was
occupied by a doctor who had been charged for organ trade
and was also sent to jail. This fact is clearly admitted by the
Investigating Officer PW-40. The prosecution has also admitted
that much of the bones were actually seized from behind the
house no. D-6, Sector-31, Noida. Most of the recoveries
otherwise are from the enclosed gallery behind house no. D-6
and D-5 towards area abutting House No. D-6.

415. The Committee in its report dated 17.01.2007 has noticed

that the cases of missing children in the area during the last
two years was 29. It noticed that motive of killings was not
clear. The victims were both male and female and their ages
ranged from 3 year old boy to young women. The premise of it
being the handiwork of a serial killer was doubted at that
stage.

416. The suggestions of the committee given in para 4.3.2

specifically was that CBI should look into all angles including
organ trade in addition to sexual exploitation and other forms
of crime against women and children. Need to study organ
transplant records of all hospitals in Noida was emphasized.
The Committee also emphasized the need to explore the
possibility of involvement of a larger gang in Nithari killings.

417. Despite such strong recommendations made by a High

Powered Committee constituted by the Ministry of Women and
Child Development, Govt. of India, there is nothing on record
to show that investigation was carried out on the lines
suggested by the Committee. Shockingly, even the statement
of doctor residing in house no. D-6, Sector-31, Noida was not
 272

recorded. He was not even interrogated. The CBI Counsel was

specifically questioned on this aspect and he merely stated that
CBI searched House No. D-6, Sector – 31, on 12.01.2007 and
nothing incriminating was found. This explanation is not
sufficient as possibility of leaving any trace of crime would be
negligible after 13-14 days of the reporting of the incident. It
is, however, not disputed by the CBI counsel that no
interrogation was made of the owner of House No. D-6, Sector
31, Noida. 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.

418. We find substance in the contention of Mr. Chaudhary that

the investigation in the present case is absolutely slipshod and
requisite care and caution required to deal such sensitive case
is completely lacking. The prosecuting agency has followed the
easy course suggested by the Investigating Officer of UP Police
and merely on the strength of recovery, which is not proved,
and confession extracted by coercion and made under duress,
which is otherwise inadmissible, 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 for the infamous Nithari killings.

419. Detailed analysis of the evidence placed on record of the

present case would clearly indicate that prosecution case is
based upon circumstantial evidence and that there is no direct
evidence of the alleged commission of offence by the accused
of kidnapping the victim; attempt to sexually assault her;
causing disappearance of evidence of offence and ultimately
murdering the deceased. The court below, upon appreciation of
evidence on record nevertheless has returned a finding that the
prosecution has succeeded in establishing the guilt of accused
 273

beyond reasonable doubt.

420. The circumstances that have been relied upon by the trial
court to convict the accused SK have already been noticed by
us.

421. Of the above referred circumstances relied upon by the

prosecution to implicate the accused, the first circumstance
that victim A was residing at Sector 31, Noida, and she never
returned from work at D-91 and D-100, on 5.10.2006, is not in
issue. Similarly the fact that accused SK was residing in House
No. D-5, Sector 31, Noida during the time period of incident is
also undisputed. Lodgement of FIR by the father of victim
against accused, subsequent to recovery of skeleton remains
and the seizure of victim’s clothes, as well as arrest of accused
pursuant to such FIR is also not disputed. The fact that DNA
extracted from a recovered skull and some of the bones seized
matched the DNA of victim’s parents is also not in dispute.
These circumstances, however, are not incriminating in
character and do not implicate the accused appellant SK.

422. The circumstances which are mainly relied upon by the

prosecution and accepted by the court below to incriminate the
accused appellant are as under:-

“(i) Admissibility of evidence regarding information

furnished by accused SK on 29.12.2006, pursuant to
which alleged recoveries are made of skull, bones and
skeleton etc.

(ii) While in custody, on 29.12.2006, accused confessed

to luring and killing women and children before PW-31
and her husband (not produced).
(iii) Accused SK habitually lured women and girls walking
pass D-5 either by promising offers of domestic work or
offering eatables/treats etc.

(iv) Recovery of a kitchen knife on 11.1.2007 and an axe

on 18.1.2007 pursuant to disclosure statement made by
accused under Section 27.
 274

(v) Confession of accused under Section 164 Cr.P.C.”

423. It being a case of circumstantial evidence, the

prosecution was required to prove the circumstance on the
basis of which conclusion of guilt is proposed to be established
beyond reasonable doubt. The evaluation of evidence on the
above circumstances must meet the five conditions laid down
in para 153 of the judgment delivered by Supreme Court in the
case of Sharad Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116. Principles laid down in Para 152 and 153 of
the judgment in Sharad Birdhichand Sarda (supra) has
consistently been followed and are reproduced hereinafter:-

“152. Before discussing the cases relied upon by the

High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant v. State of Madhya Pradesh [(1952) 2
SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri
LJ 129] . This case has been uniformly followed and
applied by this Court in a large number of later decisions
up-to-date, for instance, the cases of Tufail (Alias) Simmi
v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC
(Cri) 55] and Ramgopal v. State of Maharashtra [(1972)
4 SCC 625 : AIR 1972 SC 656] . It may be useful to
extract what Mahajan, J. has laid down in Hanumant
case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR
1091 : 1953 Cri LJ 129] :
“It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in the
first instance be fully established, and all the facts so
established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the
one proposed to be proved. In other words, there must
be a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to
show that within all human probability the act must have
been done by the accused.”
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case
against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt

 275

is to be drawn should be fully established.

It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be
or should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where
the observations were made: [SCC para 19, p. 807: SCC
(Cri) p. 1047]

“Certainly, it is a primary principle that the accused must

be and not merely may be guilty before a court can
convict and the mental distance between ‘may be’ and
‘must be’ is long and divides vague conjectures from
sure conclusions.”
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.”

424. Learned counsel for the CBI has heavily relied upon the
impugned judgment of trial court and the reasoning contained
therein to submit that the finding of guilt recorded against the
accused SK merits no interference.

425. We have carefully perused the judgment of trial court on

the circumstances relied upon to prove the guilt of the accused.
After referring to the oral and documentary evidence on record,
the trial court has framed issues for determination during trial.
Noticing this case to be based upon circumstantial evidence,
the court has observed that most important circumstance
against the accused is his confession made before the
 276

magistrate under Section 164 Cr.P.C. The court has then

proceeded to refer to the letter of accused seeking to confess
his crime and the consequential recording of his alleged
confession. The entire transcription of video-graphed
confession has been extracted. The court of sessions has held
the confession to be voluntary.

426. We have examined the evidence relating to videography

of confession with reference to the settled legal parameters to
adjudge its legality. The discussion and finding of the court
below on the aspect of confession clearly omits to take note of
relevant considerations relating to its voluntariness and
truthfulness.

427. The sessions court has not referred to the circumstance of

prolonged police custody of accused for 60 days; delayed
confession to facilitate tutoring; writing letter of confession to
the court about which the accused had no knowledge; lack of
adequate medical evidence to show that accused had not been
tortured; non-consideration of the statement of accused about
him being tortured and made to memorize contents of
confession; circumstance of moving application before the
court at Delhi for recording confession when the accused was
actually at Gautam Budh Nagar; non-consideration of the
prayer of accused for his medical examination to prove torture;
non-observance of safeguards contemplated under section 164
Cr.P.C.; denial of legal aid to the accused; absence of finding of
voluntariness of confession by the recording Magistrate;
confession not being proved in the manner specified in law;
confession not shown to be true, rather, contradicted by other
evidence; no independent corroboration of murder, rape or
cannibalism; improbability of events mentioned in the
confession etc. Since we have recorded our independent
 277

opinion on the above aspects to doubt the voluntariness and

truthfulness of confession, therefore, we do not approve the
findings recorded in the impugned judgment regarding
admissibility of confession for being relied upon as a
circumstance against the accused. Since we have already
expressed our views, in detail, we do not deem it proper to
reproduce it all over again while declining to approve the
reasonings contained in the impugned judgment on this aspect.

428. Similarly, the circumstance with regard to recovery made

on the alleged pointing out of the accused on 29.12.2006 and
on subsequent dates is held to be proved by the court below
overlooking the fact that neither the declaration furnishing such
information was recorded in the manner warranted in law nor
was it proved. Existence of necessary ingredients to invoke
section 27 of the Evidence Act has not been ascertained by the
court below. We have given our elaborate reasons in that
regard which are completely missing in the impugned
judgment. Circumstances existing on record to doubt the
recovery are also overlooked. We, therefore, cannot approve of
the conclusions and findings recorded by the court below on
the aspect of recovery being a circumstance to implicate the
accused SK.

429. Similarly, the statement of Pratima (PW-24), Poornima

(PW-25) and Anita Haldar (PW-1) has also been misconstrued
by the trial court inasmuch as their statements do not
constitute any incriminating circumstance against the accused.
We have given our elaborate reasons in earlier paragraphs,
which can be perused for our conclusions, in this regard.
 278

430. So far as the accused Pandher is concerned, no charge-

sheet was filed against him by the prosecution upon conclusion
of investigation in the present case.

431. Informant Jatin Sarkar filed a protest petition in the

matter before the concerned Magistrate on the ground that the
allegation in the FIR were against Pandher and SK both but the
investigating agency on the acceptance of plea of alibi by
Pandher has illegally exonerated accused appellant Pandher in
the matter. This protest petition was marked to the court of
Sessions as the order of committal had already passed by then.
The Court of Sessions passed orders on 11.5.2007 for further
investigation to be conducted in the matter and to submit its
report before the concerned Magistrate. Such report was
directed also to be placed before the court of Sessions. The
protest petition was, accordingly, disposed of on 11.5.2007.

432. Progress report was submitted by the CBI clearly

disclosing the location of accused appellant Pandher on
different dates between 5.10.2006 to 14.10.2006. This report
was submitted relying upon the location of accused appellant
Pandher as per his mobile phone. It was found that during this
period the accused Pandher was at Bheemtal at Nainital and
stayed in a hotel Great Value; got fuel filled in his vehicle No.
DL 4C 1222 at Chamba and other locations. Statements were
also obtained of the employees of the hotel and other persons
with whom accused Pandher interacted during this period.

433. During the pendency of trial before the Court of Sessions

against accused SK being Sessions Trial No. 440 of 2007 an
application came to be filed by Smt. Vandana Sarkar (mother
 279

of victim A) stating that on the day her husband Jatin Sarkar

came to House No. D-5, Sector-31, various other persons had
also arrived at the house. Co-accused SK, Dinesh Yadav I.O.
and Moninder Singh Pandher were also present there. When
the applicant (Vandana Sarkar) showed the photograph of her
daughter to co-accused SK, he confessed his guilt and also
implicated his owner Moninder Singh Pandher in the act of rape
and murder of the victim. Accused Pandher also offered to
show the iron blade with which the victim’s body was
dismembered. Pandher later brought the iron blade.

434. The application under Section 319 Cr.P.C. of victim’s

mother further stated that the utterances made by co-accused
Surendra Koli and Pandher were recorded by the IO Dinesh
Yadav, but these papers have been misplaced. Prayer
accordingly was made to summon Pandher under Sections 302
r/w 120B, 364 r/w 120B, 201 and 376 IPC whereas Dinesh
Yadav PW-40 be summoned under Section 201 r/w 120B IPC.

435. Objections were filed to the application moved under

Section 319 stating that no evidence was collected with regard
to complicity of accused Pandher in the matter. It was also
stated that the recovery of skull, bones, clothes, knife and iron
blade were not backed by testimony of any independent
witnesses and in the investigation, including scientific
investigation, complicity of co-accused SK alone has been
found. The experts have also opined that none of the bodies
have been dismembered by the iron blade. It was also stated
that accused Pandher was not even present at House No. D-5
and in the confessional statement of co-accused SK there is no
role assigned to accused Pandher. The objection further stated
that the case diary alleged to have been misplaced is actually
part of the record before the Court and since case diary is not
 280

being relied upon, therefore, it has no relevance. Prayer was

made to reject the application under Section 319 Cr.P.C.

436. The Court of Sessions vide order dated 28.11.2007

summoned the accused Moninder Singh Pandher under
Sections 302 r/w 120B; 201 r/w 120B and 376 IPC. So far as
the prayer to summon PW-40 Dinesh Yadav is concerned, the
Court found that the case diary had already been handed over
to CBI by PW-40 and, therefore, his summoning under Section
319 Cr.P.C. was not required.

437. It was thereafter that the accused Pandher was charged

under Section 376; 302 r/w 120B and 201 r/w 120B IPC vide
order dated 16.7.2008. It is worth noticing that the Court of
Sessions had essentially relied upon the testimony of PW-31
Vandana Sarkar for the purposes of summoning accused
Pandher. The testimony made by PW-31 on 7.11.2007 before
the Court of Sessions is reproduced hereinafter:-

“ -
31 17-18
, A,
A A 5
2006
20 A
30
31 -5

05 2006 7.00
1.30

10 10 /1

-33

-5
29 06 -5
 281

-50
-5

, -5

-10 -11
-34

-5
, ,
-5 ,

01.30 A

-5

31
2006

-5
 282

XX X X X X X X X X

-5

4-5

A -5
A

-5
-5 -5
-5

-5
-5

( )
( )

438. Strangely, PW-31 was not immediately recalled as a

witness after the accused Pandher was summoned in the
matter. It was otherwise imperative for the court of Sessions to
have recalled PW-31 as PW-31 had to be necessarily produced
 283

in evidence in the presence of the accused Pandher by virtue of

Section 319(4) Cr.P.C.

439. Records reveal that PW-31 was produced before the Court
only for the purposes of cross-examination by accused
Pandher. The contents of the cross-examination of PW-31 on
25.9.2008 is also reproduced hereinafter:-

“
,

8 /2

05.10.2006 7.00
-91 100
29.12.06 -5
A

-50

-5
29
 284

9.00, 9.30
38

-5

-5

12 /5

29
30
29

-5 30
,

-
30
"

" 31
-5
 285

"

- "
440. Inspector Layak Ram of CBI has been produced as PW-
36, who had recorded the statement of Jatin Sarkar and Smt.
Vandana Sarkar on 23.1.2007 as well as statement of Dinesh
Yadav PW-40 on 1.3.2007. In the cross-examination PW-36 has
stated as under:-

“ .

"
"

( )

441. Dinesh Yadav I.O. has also been produced during trial as
PW-40. He has stated that after the investigation was
transferred to CBI, all records and evidence in respect of the
case, had been handed over to CBI. In the cross-examination
PW-40 stated that he has not investigated the case of victim A
and was only investigating the Case Crime No. 838 of 2006 in
respect of missing victim L. In the cross-examination PW-40
has specifically stated as under:-

-5
29.12.06
30.12.06,
31.12.06
 286

442. On the application moved by accused Pandher, PW-40 was

recalled by the court concerned and he has stated as under on
18.12.2009:-

“ o
29.12.06

443. PW-40 was subsequently produced and in his cross-

examination by the counsel for Pandher, PW-40 has stated as
under on 26.06.2012:-

“……... -

29.12.2006, 30.12.2006 31.12.2006

29.12.2006, 30.12.2006 31.12.2006

11.1.2007
29.12.2006
-5, 31,
-5, 31,

444. Nirbhay Kumar was posted as Additional Superintendent

of Police in the concerned CBI Unit and had conducted
investigation of the present case. He has been produced in
evidence on 04.03.2010. PW-43 has proved various documents
relating to the investigation of the present case. He has stated
that in the investigation conducted by him it was found that
accused Pandher was not present at the time of incident nor
any material to implicate him had been collected during the
course of investigation. Statement of PW-43 in that regard
reads as under:-

“…...
 287

445. This witness has also proved the receipt of records

relating to investigation of the present case including the case
diary etc. During his cross-examination PW-43 has stated as
under:-

“ A
A

5.10.06
1.30 2

. . .
?

446. The accused Pandher in his statement made under

Section 313 Cr.P.C. has denied the accusation that he had
instructed co-accused SK to dispose of the victims after he
exploited them sexually. He has also denied the accusation that
any iron blade was got recovered by him. He has stated that on
05.10.2006 he had left along with the driver Pan Singh DW-1
at 10 am and thereafter left for Dehradun along with Vishal
Verma and Umesh Saini and had returned only on 14.10.2006.

447. It transpires that while trial was still pending before the
Court of Sessions it was pointed out that Section 319(4) Cr.P.C.
required the statement of the witnesses to be recorded in
presence of the accused, who was later summoned under
Section 319 Cr.P.C. The Court also noticed that the statement
of PW-31 was since recorded in the absence of accused
Pandher, therefore, such statement cannot be read against
him. Court below also noticed the argument of CBI Counsel
that PW-1 to 30 have not given any evidence against accused
 288

Pandher and, therefore, there is no requirement of recalling

these witnesses for recording their statement afresh.

448. The Court of Sessions however held that observance of

procedure under Section 319(4) Cr.P.C. is mandatory and the
prosecuting agency was required to produce the prosecution
witnesses all over again, in presence of accused Pandher, who
had been summoned under Section 319 Cr.P.C. In the event
CBI fails to produce these witnesses their testimony cannot be
read against accused Pandher. Regarding testimony of PW-31
the Court of Sessions held as under:-

“ . .-31

. .-31

06.05.2011

449. It transpires on record that on 05.08.2011 an application

was moved by PW-31 (Paper No.248Kha) with the prayer to
exonerate her from appearance before the Court. This
application was not opposed by CBI. The Court of Sessions
noticed that CBI itself did not intend to produce this witness.
Consequently application no.248Kha has been disposed of vide
the following orders passed on 05.08.2011:-

- 248
-

29.04.2011
. -1
. .-30

. .-1 30

- 248
 289

- 249
, , 20
- . .
-
-

, 20
- . .
(1999) 6
. . . 110 - 249
- 311

23.08.2011

, ,
( ),

450. Interestingly, on 25.11.2011 PW-31 appeared for

recording her statement but her counsel orally stated that
since her statement has already been recorded earlier, her
statement made earlier in the examination-in-chief be treated
to be her statement in the examination-in-chief. The court of
Sessions rejected such plea vide its order dated 25.11.2011
which is reproduced hereinafter:-

. .-31

-
263
-

- 163
 290

07.11.2007

- 373

319

( )
,

( ),

- 264
. .-31
-

- 263

. .-31
- . .-31

( )
,

( ),
 291

451. Statement of PW-31 was then recorded on 25.11.2011

which is reproduced hereinafter:-

“ 29.4.2011 17.10.2011
25.11.2011
, 40 , ,
505, 29, , 20
-
18-20
5-6

07.11.2007 " -------------

-- "

******* -
25.9.2008 “
, --------------
"

23.4.2007

452. Statement of accused Pandher under Section 313 Cr.P.C.

has thereafter been recorded by the Court of Sessions wherein
he has reiterated his innocence. He has stated that no knife
was ever got recovered on his pointing out.

453. We have carefully examined the facts of the present case

and have heard Smt. Manisha Bhandari assisted by Sri Omkar
Srivastava, Sri Syed Mohammad Nawaz for the appellant and
Sri Jitendra Mishra assisted by Sri Sanjay Kumar Yadav for the
respondent.

454. This case is based on circumstantial evidence and the law

 292

in that regard has been settled in Para 152 and 153 of the
judgment of the Supreme Court in Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116 which has consistently
been followed and is already reproduced above.

455. In the facts of the present case the implication of accused

appellant has surfaced on the basis of an application moved
under Section 319 Cr.P.C., based upon the testimony of PW-31.
Court below has relied upon following circumstances to
implicate the accused-appellant:-

(i) Accused Pandher was living in the House No.D-5, Sector-31,

Noida since 2004 where co-accused SK worked as a private
servant and resided there.

(ii) Dozens of Nithari killings occurred in House No.D-5.

(iii) Dismembered body parts of victims killed in Nithari killings

are thrown in the enclosed gallery behind House No.D-5 as well
as the drain flowing in front of House No.D-5.

(iv) Confessional statement of co-accused SK.

456. So far as the circumstance relating to accused Pandher

being the owner of House No.D-5, Sector-31, Noida is
concerned there is no factual dispute about it nor there is any
issue about co-accused SK living in the said house as private
servant. This circumstance however cannot be treated as
incriminating against the accused Pandher. So far as the
Circumstances No.2, 3 and 4 are concerned the trial Court has
relied upon the confession of co-accused SK in order to hold
that accused SK used to call girls inside House No.D-5 and
either attempted or actually raped them and thereafter
strangulated them to death. Co-accused SK further confessed
 293

that he used to dismember the bodies and throw the body

parts either in the enclosed gallery behind House No.D-5 or in
the drain flowing in front of the house. Court below has relied
upon Section 30 of the Evidence Act to state that this
confession can be read also against the accused-appellant.

457. So far as the confession of co-accused SK is concerned

we have elaborately examined the evidence on record and have
found the confession not to be voluntary or true. The reasons
recorded for such conclusion is contained in the previous part
of this judgment, while dealing with the case of accused SK
and the same be treated to be a part of this para as well, in
order to avoid repetition. Once the confession of accused SK is
discarded for the reasons indicated above, the confession of
accused SK cannot be read or relied upon against the accused-
appellant.

458. So far as the testimony of PW-31 is concerned it is clearly

found that her statement made in the absence of accused on
07.11.2007 cannot be read against accused Pandher. The
statement of PW-31 Vandana Sarkar on 25.11.2011 is neither
specific nor can be relied upon as being a circumstance to
implicate the accused Pandher for the reasons to be indicated
hereafter.

459. Pandher admittedly was taken in custody by the police on

29.12.2006. He was therefore in police custody at the time
when the self inculpatory statement is said to have been made
by him on 29/30.12.2006 before PW-31.

460. The statement attributed to accused Pandher, by PW-31,

of asking co-accused SK to invite call girls and after cavorting
give them to accused SK, to do whatever he wishes, neither
 294

forms part of the case diary nor has been recorded anywhere
else. The prosecution witnesses namely PW-40 as well as the
Investigating Officer of CBI have categorically stated that no
such statement was ever made by accused Pandher nor such
fact was ever disclosed to them by PW-31. The confessional
statement of Pandher, even if is taken on its face value, would
otherwise be inadmissible by virtue of Section 24-26 of the Act
of 1872 as he was then in police custody.

461. No recovery of any knife or iron blade has otherwise been

made on the pointing out of accused Pandher as per the
prosecution nor any such recovery has been proved in
evidence. This is not even the prosecution case nor any
witness, including PW-31, has stated so.

462. We may clearly observe that even if we rely upon the

previous statement of PW-31 made on 07.11.2007, even then
the making of such statement would not complete the chain of
events required to be proved to establish the charge levelled
against the accused Pandher on the touchstone of a case of
circumstantial evidence.

463. The conviction and sentence of accused Pandher is based

primarily upon the confession made by co-accused SK, under
Section 164 Cr.P.C. Once we come to the conclusion that such
confession is neither voluntary nor is true, and also disbelieve
the alleged recovery on the pointing out of co-accused SK,
there survives absolutely no evidence on record against the
accused Pandher to implicate him.

464. The evidence on record at best indicates that accused

Pandher lived a promiscuous life and indulged in physical
relations with young girls, or would get drunk and enjoy
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company of young ladies would not make him guilty of offences

under Section 302, 376 or 201 I.P.C. Apart from it, we find no
other evidence on record to implicate him.

465. So far as initial prosecution case set up during

investigation of recovery of skull, bones and skeletons etc is
concerned, it is seen that the prosecution itself gave it up. This
line of reasoning was not adopted when the investigation finally
concluded with submission of charge-sheet in the matter.

466. Accused Pandher has otherwise been convicted for

offences under Immoral Trafficking (Prevention) Act, 1956,
under Sections 5 and 7, in another case arising out of the
Nithari killings against which no appeal has been
instituted/filed. Accused Pandher otherwise is in jail since
24.07.2017 and has by now undergone incarceration of more
than six years which is more than the punishment stipulated
for offences under the Immoral Trafficking (Prevention) Act,
1956. In such circumstances the further incarceration of the
accused Pandher would not be warranted in view of the
findings returned by us in the present appeal.

467. We, therefore, find ourselves completely unable to

endorse the reasonings and findings returned by the court
below with regard to existence of circumstances against the
accused to prove his guilt on the parameters of circumstantial
evidence. Our conclusions on the existence of circumstances to
complete the chain of events, for establishing hypothesis of
guilt of accused SK, are as under:-

468. The first circumstance relied upon against the accused

relates to the information furnished by him on 29.12.2006 to
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the police personnels (PW-28 and PW-40) which led to the

recovery of skull, bones and skeletons from an open piece of
land situated behind House No. D-5, Sector-31, Noida. There is
however an issue on the date and time of arrest of accused SK,
inasmuch as the prosecution alleges that arrest was made of
accused on 29.12.2006 whereas the defence claims that the
arrest was made on 27.12.2006. The open space from which
discovery of biological material is claimed by the prosecution is
an open piece of land/gallery situated behind the row of houses
no. D-4, D-5 & D-6 in Sector - 31, Noida and on the other side
of the boundary is the colony of Jal Nigam.

469. Analysis of evidence on the arrest of accused SK makes it

amply clear that the prosecution has not been 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 regarding
the prosecution case of arrest of accused SK on 29.12.2006.
No independent witness of arrest has otherwise been produced.
The defence version of arrest of accused on 27.12.2006 is also
not seriously challenged by the prosecution. Consequently, we
conclude that the prosecution has failed to prove the
circumstance of arrest of accused SK on 29.12.2006.

470. As per the prosecution (CBI) the accused confessed his

crime and gave information to the Investigating Officer on
29.12.2006 which led to the recovery of biological remains,
knife etc. The circumstance of discovery of biological material
on 29.12.2006, on the alleged disclosure of accused SK can be
treated as recovery under Section 27 of the Evidence Act only
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when the exact information/disclosure from the accused is

proved in evidence.

471. There is no disclosure statement (Panchnama) of the

accused, on record of this case, containing the information
furnished by him leading to the alleged recovery on
29.12.2006. No panchnama has been prepared or produced in
evidence nor any independent witnesses are produced to prove
the information allegedly furnished by the accused.

472. Not only that information allegedly given by the accused

on 29.12.2006 is not recorded, but such information given by
the accused, while in custody, is not proved in evidence. The
contents of information procured from accused SK are also not
proved.

473. The prosecution evidence regarding the place and time of

making the alleged disclosure statement is full of
contradictions. The only two police personnels produced in
evidence on this aspect i.e. PW-28 and PW-40 contradict each
other. The sole private witness on this aspect i.e. PW-31 makes
an entirely different statement on this aspect. Thus, the time
and place of furnishing information/declaration is not proved by
the prosecution.

474. 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.

475. Thus, in the absence of any disclosure statement; non-

specification of the time, place and contents of disclosure;
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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 and consequently the discovery of bones, skulls or
skeletons on 29.12.2006, 31.12.2006 etc. cannot be read in
evidence against the accused appellant under Section 27 of the
Evidence Act. The prosecution has failed to prove this
circumstance against the accused.

476. The recovery of biological remains on 29.12.2006,

pursuant to alleged information furnished by accused appellant,
is not proved by the sole independent prosecution witness i.e.
PW-10 Pappu Lal. 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. PW-10 also admits that digging at the place of recovery
had already commenced by the time he arrived. The
prosecution has thus miserably failed to prove that discovery of
biological materials on 29.12.2006, 31.12.2006 was pursuant
to any information furnished by the accused appellant.

477. Prosecution evidence on the aspect of recovery is

otherwise contradictory, inasmuch as, PW-40 while seeking
remand of accused(s) specifically claimed the recovery to have
been effected pursuant to information furnished jointly by
accused SK and accused Pandher. The testimony of PW-28 and
PW-40 on the aspect of recovery is otherwise not reliable. PW-
40 has actually not visited the enclosed gallery from which
biological materials are alleged to be discovered. PW-28 also is
not specific in that regard. We, therefore, hold that prosecution
has failed to prove the circumstance of recovery of biological
materials or the belongings of victim on the information
 299

furnished by the accused SK.

478. There are multiple confessions made by the accused SK in

this case as per the prosecution. The first confession made is
before the Investigating Officer (PW-40) on 29.12.2006.
Subsequent confession is before CBI on 11.01.2007 and
17.01.2007 after the investigation was transferred to it. 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 confession made by the accused SK before
the Magistrate on 01.03.2007 is the sheet anchor of the
prosecution case wherein the accused admitted his guilt.

479. We have carefully examined the circumstances relating to

making of confession by the accused SK and have observed as
under:-

(i) Accused appellant SK remained in police custody from

29.12.2006 to 14.01.2007 and thereafter was in the custody of
CBI till 28.02.2007.

(ii) There is no explanation furnished by the prosecution for

continued police custody for 60 days, continuously, of the
accused. The only explanation of CBI that there were different
Investigating Officers in separate 16 FIRs lodged is not
convincing when the prosecution was relying upon the alleged
arrest of accused SK on 29.12.2006 and consequential
recovery of skull, bones and skeletons etc. on the basis of
information furnished by him. The prolonged police/CBI
custody of accused SK is not satisfactorily explained by the
prosecution.
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(iii) Applications filed by the prosecution seeking remand of

accused are on grounds contrary to prosecution case,
particularly on the aspect of recovery etc., inasmuch as the
remand application states that biological remains were
recovered on the joint pointing out of accused SK and co-
accused Pandher. Even the justification for remand to secure
recovery of clothes of victim 'XYZ' and D is contrary to the
evidence on record as per which the recoveries in that regard
were already made earlier.

(v) 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.

(vi) Prosecution has failed to explain as to how the accused

SK came to know that he would be produced before the Court
of ACMM Delhi so as to write an application using formal
language, offering to record his confession, addressed to the
court of ACMM, Delhi when the accused is having limited
education i.e. he is only 7th pass.

(vii) Though the accused was in police custody for 60 days but
he has not been medically examined in order to rule out the
possibility of physical torture etc. The only medical certificate
on record is of 01.03.2007 stating that there are no fresh
external injuries on the accused. Even this medical evidence is
not proved as the doctor issuing the certificate is not produced
in evidence. Fresh injuries since extends upto 24 hours and the
accused was being produced after police custody of 60 days,
therefore, even otherwise this certificate cannot be treated to
be a medical certificate proving that accused was not tortured.
 301

(viii) Accused at the first opportunity has retracted from

confession and alleged that he was brutally tortured while in
police custody. He offered to be medically examined as his
genitals were burnt and his nails had been extracted but the
accused was not examined medically.

(ix) 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.

(x) There was no legal aid given to the accused and the legal
aid given of 5 minutes by the ACMM, Delhi on 01.03.2007
amounts to its denial and has occasioned failure of justice for
the accused who was produced after 60 days of police custody.
Moreover, no legal aid was given to accused SK at the time
when his confession was being video-graphed.

(xi) 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.

(xii) The doctor who had medically examined accused SK on

01.03.2007 has not been produced. The only medical
certificate, despite its deficiency in not recording the physical
condition of accused is not even proved. Adverse inference
would have to be drawn against the prosecution for not
producing the doctor.

(xiii) Accused SK even at the time of making of confession and

even thereafter during its transcription was handed over by
Magistrate recording the confession to the Investigating Officer
of CBI on 01.03.2007 and 02.03.2007 which does not remove
the police custody and thereby rule out the threat of torture
 302

and, therefore, cannot be relied upon in view of section 28 of

the Evidence Act.

(xiv) The recording Magistrate has not recorded his satisfaction

about confession being voluntary and has merely used the
expression ‘seems’ which cannot be treated as belief of
voluntariness of confession in terms of section 164 Cr.P.C.

(xv) Confession otherwise is not properly recorded by the

Magistrate as there is no confession recorded by the Magistrate
and signed by the accused and transcription of video-graph
without any signatures of the recording Magistrate on it is not
in conformity with the requirement under section 164 Cr.P.C.

(xvi) There is no certificate under section 65B of the Evidence

Act in respect of CD which is the basis of recording
transcription of confession. The memory chip which is the
primary document has not been sent to court concerned in
terms of section 164(6) Cr.P.C. Even the CDs prepared and
exhibited as article no.53 do not bear the signature of
recording Magistrate or even the accused. Transcript of
confession was also not sent to concerned court by the
Magistrate. There is nothing to show as to how the transcript
and CDs sent by recording Magistrate to the ACMM, Delhi was
sent to the court concerned.

(xvi) Confession of accused is otherwise contradicted by

evidence on record and, therefore, cannot be treated to be
truthful. Facts in that regard are elaborately mentioned in
previous paras of this judgment which are reiterated.

(xvii) There is no independent corroboration of murder, rape or

cannibalism in the confession with other evidence on record.
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(xviii) Events mentioned in the confession are highly

improbable.

(xix) Upon cumulative assessment of the evidence adduced in

respect of the confession 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 SK.

480. As already noticed above, this is a case of circumstantial

evidence and the prosecution is under an obligation to prove
the existence of circumstances, beyond reasonable doubt,
which supports the hypothesis of guilt exclusively attributed to
the accused and rules out any hypothesis consistent with the
innocence of the accused. The accused appellants SK and
Pandher are clearly entitled to benefit of doubt.

481. In the facts of the case, there is no evidence of last seen

against the accused and the motive on part of the accused is
not established. The accused has no criminal history and was
working as a domestic help for the last nearly six years at
Noida without any complaint. The two main circumstances
relied upon against him of confession and disclosure leading to
recovery of biological material including the body parts of
victim A is clearly not proved. The possibility of organ trade
being the cause of killings in Nithari, particularly when the
resident of adjoining house i.e. House No. D-6, Sector-31,
Noida, had been arrested earlier in case of kidney scam has not
been properly probed/inquired. The plausibility of innocence of
accused SK cannot thus be eliminated and it cannot be said
with any definiteness that the offence of rape, cannibalism,
murder and concealment of evidence is established beyond
reasonable doubt against accused SK on the basis of five
principles laid down in the case of Sharad Birdichand Sharda
 304

(supra).

482. Before concluding, we express our disappointment at the

manner in which Nithari killings, particularly the disappearance
of victim A, has been investigated. The prosecution case is
based upon the confession of accused SK, made to U.P. Police
on 29.12.2006. Procedure required to be followed for recording
the accused’s disclosure leading to recovery of biological
remains i.e. skulls, bones and skeleton etc. has been given a
complete go by. 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.

483. The stand of the prosecution regarding crime in question

kept changing from time to time. Initial prosecution case was
against accused SK and the owner of House No. D-5 Moninder
Singh Pandher and even recoveries made were attributed
jointly to them. Successive remand applications filed by the
prosecution clearly reflects it. However, with passage of time,
the guilt was fastened exclusively upon accused SK.
Prosecution evidence has kept changing with the stage of
investigation and ultimately all explanations are furnished in
form of confession of accused SK, by throwing all possible
safeguards to the winds. 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 Cr.P.C. is shocking
to say the least.

484. The failure of investigation to probe the possible

involvement of organ trade, despite specific recommendations
made by the High Level Committee constituted by the Ministry
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of Women and Child Development, Govt. of India, in Nithari

killings is nothing short of a betrayal of public trust by
responsible agencies. Loss of life of young children and ladies is
a matter of serious concern particularly when their lives were
brought to an end in a most inhuman manner but that, in itself,
would not justify denial of fair trial to the accused nor would it
justify their punishment even in the absence of evidence to
implicate them.

485. The investigation otherwise is botched up and basic

norms of collecting evidence have been brazenly violated. It
appears to us that the investigation opted for the easy course
of implicating a poor servant of the house by demonizing him,
without taking due care of probing more serious aspects of
possible involvement of organized activity of organ trading.
Inferences of many kind, including collusion etc. are probable
on account of such serious lapses occasioned during
investigation. However, we do not intend to express any
definite opinion on these aspects and leave such issues to be
examined at the appropriate level.

486. Though the evidence in this case was voluminous but our
task has been made easy by learned counsels appearing for
the parties who have rendered all possible assistance to us. We
shall be failing in our duty if we do not record our utmost
appreciation for the assistance rendered to us by Sri Yug Mohit
Chaudhary, learned Senior Counsel assisted by Ms. Payoshi Roy
and Siddhartha Sharma, Advocates for the accused SK and Ms.
Manisha Bhandari for accused Pandher. Their written
arguments and notes, on facts, have greatly facilitated us in
formulating and writing our opinion.

487. We conclude, holding that a fair trial has clearly eluded

the accused appellants in this case. The need to have a fair
 306

trial has recently been emphasized by the Supreme Court in

Munna Pandey vs. State of Bihar 2023 SCC OnLine SC 1103.
While referring to the statement of Harry Browne, the Court
endorsed the view that “a fair trial is one in which the rules of
evidence are honoured, accused has competent counsel, and
the Judge enforces the proper court room procedures- a trial in
which every assumption can be challenged.”

488. The concept of fair trial has been outlined in para 64 to

67 of the judgment in Munna Pandey (supra) which are
reproduced hereinafter:-

“64. All fair trials are necessarily legally valid, but is the
reverse necessarily true? What then is the genesis of the
concept of a fair trial? The concept of a fair trial has a very
impressive ancestry, is rooted in history, enshrined in the
Constitution, sanctified by religious philosophy and juristic
doctrines and embodied in the statute intended to regulate
the course of a criminal trial. Its broad features and
ingredients have, in course of time, been concretised into
well recognised principles, even though there are grey areas,
which call for further legal thought and research.
65. Truth is the cherished principle and is the guiding star of
the Indian criminal justice system. For justice to be done
truth must prevail. Truth is the soul of justice. The sole idea
of criminal justice system is to see that justice is done.
Justice will be said to be done when no innocent person is
punished and the guilty person is not allowed to go scot free.
66. For the dispensation of criminal justice, India follows the
accusatorial or adversarial system of common law. In the
accusatorial or adversarial system the accused is presumed
to be innocent; prosecution and defence each put their case;
judge acts as an impartial umpire and while acting as a
neutral umpire sees whether the prosecution has been able
to prove its case beyond reasonable doubt or not.
67. Free and fair trial is sine-qua-non of Article 21 of the
Constitution of India. If the criminal trial is not free and fair,
then the confidence of the public in the judicial fairness of a
judge and the justice delivery system would be shaken.
Denial to fair trial is as much injustice to the accused as to
the victim and the society. No trial can be treated as a fair
trial unless there is an impartial judge conducting the trial,
an honest, able and fair defence counsel and equally honest,
able and fair public prosecutor. A fair trial necessarily
includes fair and proper opportunity to the prosecutor to
prove the guilt of the accused and opportunity to the accused
to prove his innocence.”
489. Words of caution are also expressed by the Court, for the
 307

Judges holding trial in criminal cases, in Munna Pandey (supra).

Para 70 to 72 of the judgment are apposite and are thus
reproduced:-

“70. This Court has condemned the passive role played by the
Judges and emphasized the importance and legal duty of a
Judge to take an active role in the proceedings in order to find
the truth to administer justice and to prevent the truth from
becoming a casualty. A Judge is also duty bound to act with
impartiality and before he gives an opinion or sits to decide
the issues between the parties, he should be sure that there
is no bias against or for either of the parties to the lis. For a
judge to properly discharge this duty the concept of
independence of judiciary is in existence and it includes ability
and duty of a Judge to decide each case according to an
objective evaluation and application of the law, without the
influence of outside factors.
71. If the Courts are to impart justice in a free, fair and
effective manner, then the presiding judge cannot afford to
remain a mute spectator totally oblivious to the various
happenings taking place around him, more particularly,
concerning a particular case being tried by him. The fair trial
is possible only when the court takes active interest and elicit
all relevant information and material necessary so as to find
out the truth for achieving the ultimate goal of dispensing
justice with all fairness and impartiality to both the parties.
72. In Ram Chander (supra), while speaking about the
presiding judge in a criminal trial, Chinnappa Reddy, J.
observed that if a criminal court is to be an effective
instrument in dispensing justice, the presiding judge must
cease to be a spectator and a mere recording machine. He
must become a participant in the trial by evincing intelligent
active interest by putting questions to witnesses in order to
ascertain the truth. The learned Judge reproduced a passage
from Sessions Judge, Nellore v. Intha Ramana Reddy, 1972
Cri LJ 1485, which reads as follows:—
“Every criminal trial is a voyage of discovery in which
truth is the quest. It is the duty of a presiding Judge to
explore every avenue open to him in order to discover
the truth and to advance the cause of justice. For that
purpose he is expressly invested by Section 165 of the
Evidence Act with the right to put questions to
witnesses. Indeed the right given to a Judge is so wide
that he may, ask any question he pleases, in any form,
at any time, of any witness, or of the parties about any
fact, relevant or irrelevant. Section 172(2) of the Code
of Criminal Procedure enables the court to send for the
police-diaries in a case and use them to aid it in the
trial. The record of the proceedings of the Committing
Magistrate may also be perused by the Sessions Judge
to further aid him in the trial.”
490. Upon evaluation of the evidence led in this case, on the
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touchstone of fair trial guaranteed to an accused under Article

21 of the Constitution of India, we hold that prosecution has
failed to prove the guilt of accused SK and Pandher beyond
reasonable doubt, on the settled parameters of a case based
on circumstantial evidence.

491. The conviction and sentence of accused SK and Pandher

vide judgment and order passed by the court below in Sessions
Trial No. 440 of 2007 dated 24.7.2017 is reversed. Capital
Criminal Appeal Nos. 5183 of 2017 and 4404 of 2017 are
allowed and the reference No. 10 of 2017 is answered
accordingly. The accused appellants SK and Pandher shall be
released on compliance of Section 437A Cr.P.C. provided they
are not required in any other case.

16.10.2023
Ranjeet Sahu/Raziq Ali

(Syed Aftab Husain Rizvi,J.) (Ashwani Kumar Mishra,J.)

Digitally signed by :-
RANJEET SAHU
High Court of Judicature at Allahabad