Procedural Lapses in Surendra Koli Case: A Criminal Justice Analysis, Transcriptions of Law

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BNSS ASSIGNMENT II

SUBMITTED BY

PRIYANSHU BHARADWAJ

B.B.A.LL.B. (2022-27)

SUBMITTED TO

Prof. (Dr.) Upma Gautam UNIVERISTY SCHOOL OF LAW AND LEGAL STUDIES

SURENDRA KOLI V. STATE OF UTTAR PRADESH

CITATION : (2023) 2 HCC (All) 530 BENCH : J. Ashwani Kumar Mishra and J. Syed Aftab Husain Rizvi DATE OF JUDGMENT : 16th October 2023 Brief Facts The case of Surendra Koli v. State of Uttar Pradesh pertains to the infamous Nithari serial killings , which involved multiple cases of kidnapping, rape, murder, and cannibalism in Noida, Uttar Pradesh. In December 2006, human skeletons and body parts were discovered near the residence of businessman Moninder Singh Pandher in Nithari, Noida. During the investigation, the police arrested Surendra Koli , who worked as Pandher’s domestic help, and he later confessed to multiple murders of young girls and women. Koli's modus operandi involved luring victims, primarily poor children and women, into the house, where he killed them, sexually assaulted their corpses, and then dismembered and disposed of their bodies. He was tried separately for multiple cases, and the trial court found him guilty of rape, murder, and destruction of evidence , sentencing him to death. PROCEDURAL LAPSES Hon'ble Allahabad High Court acquitted both the convicts in the appeal presented before it. Hon’ble Court held that investing agencies failed to prove the guilt beyond a reasonable doubt. They solely relied on the confession made by the accused and the findings that were discovered in his confession. The trial of accused was flawed and there are many procedural lapses are there. Hon’ble Allahabad High Court has mentioned these two procedural lapses in the conviction of Surender Kohli

1. Failure to Follow Procedural Safeguards in Recording Confession under Section 164 Cr.P.C. a. The magistrate failed to comply with the mandatory procedural requirements under Section 164 Cr.P.C 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

Case in which held otherwise Davendra Prasad Tiwari v. State of U.P., (1978) 4 SCC 474 This was an appeal by special leave against the Judgment and Order dated April 15, 1976 of the Allahabad High Court (in Criminal Appeal No. 2489 of 1975 and Reference No. 64 of 1975) confirming the conviction of the appellant under Section 302, I.P.C. and the sentence of death imposed on him thereunder for intentionally causing the death of his own son named Gorakh Prasad aged about 30 years, on the night between September 1 and September 2, 1974, in the field of Phool Chand Lonia on the outskirts of village Patra Tola Fakirahna within the jurisdiction of Police Station Pipraich, District Gorakhpur. Relevant para-

_10. It is true that there is no direct evidence regarding commission of the aforesaid offence by the appellant and the prosecution case rests entirely on circumstantial evidence. It is also true that before a confessional statement made under Section 164 of the CrPC can be acted upon, it must be shown to be voluntary and free from police influence and that the confessional statement made by the appellant in the instant case cannot be taken into "account, as it suffers from serious infirmities in that (1) there is no contemporaneous record to show that the appellant was actually kept in jail as ordered on Sept. 6, 1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who recorded the so called confessional statement of the appellant did not question him as to why he was making the confession and (3) there is also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock up even if he did not confess his guilt. It cannot also be gainsaid that the circumstantial evidence relied upon by the prosecution must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.

22. The above-mentioned pieces of circumstantial evidence leave no room for doubt in our mind that the appellant intentionally caused the death of the deceased in a brutal manner so that he should be free to make Kapoora yield to his sinister designs. Accordingly we see no ground to interfere with the conclusions arrived at, by the courts below regarding the guilt of the appellant. Keeping in view the manner in which and the motive with which the ghastly crime was committed, we are of opinion that the death penalty awarded to the appellant is well deserved._
    2. No legal AID was provided as mandated under section 3 04 of Cr.PC Surendra Koli, being from a poor background and lacking resources, was not provided with competent legal assistance during the initial stages of the investigation and trial. Given the serious nature of the allegations , his defence required a well-prepared and experienced legal team, which he did not have.

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. 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. He should be made aware of the facts that this confession can be used against him and he is not bound to give confession. Relevant para Para 187- 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 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. Para 191 - 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 these 60 days and the accused otherwise was not allowed to meet any family member, etc., are serious issues, which cannot be overlooked. Para 251 - Every person accused of an offence has a constitutional right under Article 20 of the Constitution of India, 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.