Surendra Koli, the accused in Nithari Killings, had allegedly confessed before the Magistrate that he used to kill the girls after luring them inside his house, strangulating them, and he would then chop up and eat up their body parts after cooking them.

This was one of the main pieces of evidence against him which was considered by the Supreme Court in its judgment in 2011. The Supreme Court dismissed his appeals, upheld his death sentence and held that the provisions of Section 164 CrPC have been fully complied with while recording the said statement. 

“We are satisfied that it was a voluntary confession. The Magistrate repeatedly told the accused Surendra Koli that he was not bound to make the statement and it can be read against him..”, the Court had said in its 2011 judgment.

What unfolded later is interesting. 

Based on the same confession and other evidences, he was convicted in 12 other cases by the Trial Court. In 2023, the Allahabad High Court allowed his appeals against conviction in 12 other cases. The interesting fact is that the High Court disagreed with the Supreme Court view that the confession was voluntary.

On the issue whether the Supreme Court Judgement of 2011 would constitute issue estoppel for reception of evidence in respect of confession, the High Court noted that  the 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.  

The High Court answered this issue as follows: “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.”

What is more strange than everything else is that the Supreme Court dismissed appeals against this acquittal judgment by a one page order. Before the Supreme Court was the High Court judgment which disagreed with the view it had taken on the voluntariness of the confession in its 2011 judgment. These appeals deserved a reasoned judgment, even if it thought it should be dismissed.

Now, while allowing his curative petition, the Supreme Court relied on this Allahabad High Court acquittal judgment to adopt the same reasoning to acquit him for the first case also.

Be it acquittal or otherwise, this case deserved a more serious reasoning and consideration by the Supreme Court in its appellate and curative jurisdiction. For that, we can only hope that the State or victims file review petition against the one page Supreme Court order that dismissed appeals against acquittal of Surendra Koli in 12 other cases.