New Delhi, Nov 11 (PTI) Surendra Koli, the only convict in the sensational 2006 Nithari mass killings, is now a free man as the Supreme Court on Tuesday acquitted him of charges in the last such case and ordered his forthwith release if not required in any other matter.

This was the 13th case in the Nithari killings in which Koli was acquitted. He was already acquitted in the 12 other related cases.

The Nithari killings had come to light with the discovery of the skeletal remains of eight children from a drain behind businessman Moninder Singh Pandher's house at Nithari in Noida on December 29, 2006. Koli was the domestic help at Pandher's house at that time.

Allowing Koli's curative petition challenging his conviction in the case related to the alleged rape and murder of a 15-year-old girl in Nithari, the apex court said criminal law does not permit conviction on conjecture or on a hunch.

A curative petition is the last legal recourse available to a party after exhausting other remedies, including a review petition.

A bench comprising Chief Justice B R Gavai and Justices Surya Kant and Vikram Nath said the offences in Nithari were heinous and the suffering of the families was beyond measure.

"It is a matter of deep regret that despite prolonged investigation, the identity of the actual perpetrator has not been established in a manner that meets the legal standards," the bench said.

It said that suspicion, however grave, cannot replace proof beyond a reasonable doubt, and the courts cannot prefer expediency over legality.

"The presumption of innocence endures until guilt is proved through admissible and reliable evidence; and when proof fails, the only lawful outcome is to set aside the conviction even in a case involving horrific crimes," the bench said.

The top court said it must remark on the abiding faith in the capacity of police and investigative agencies of the country.

"When investigations are timely, professional and constitutionally compliant, even the most difficult mysteries can be solved and many crimes can be prevented by early intervention," it said.

The bench said it was "genuinely unfortunate" that in the case, negligence and delay corroded the fact-finding process and foreclosed avenues that might have identified the true offender.

"The scene was not secured before excavation began, the alleged disclosure was not contemporaneously recorded, the remand papers carried contradictory versions, and the petitioner was kept in prolonged police custody without a timely, court-directed medical examination," it said.

The bench noted that crucial scientific opportunities were lost when post-mortem materials and other forensic outputs were not promptly and properly brought on record and when searches of the house yielded no incriminating traces that could be forensically anchored to the alleged events.

It said the probe did not adequately examine obvious witnesses from the household and neighbourhood and did not pursue material leads, including the organ-trade angle flagged by a governmental committee.

"Each lapse weakened the provenance and reliability of evidence and narrowed the path to truth," the bench said.

While allowing his curative plea, the bench set aside its February 15, 2011, verdict dismissing Koli's appeal against his conviction in the case. The top court also set aside its October 28, 2014, order dismissing his review petition in the matter.

It acquitted Koli of the charges and quashed the sentences and fines imposed upon him in the case.

"The petitioner (Koli) shall be released forthwith, if not required in any other case or proceeding. The registry shall communicate this judgment forthwith to the superintendent of the jail concerned and to the trial court for immediate compliance," the bench said.

In January 2015, the Allahabad High Court commuted his death sentence to life imprisonment in the case due to an inordinate delay in the decision on his mercy petition.

In October 2023, the High Court acquitted Koli and co-accused Pandher in other Nithari cases, overturning the death sentences awarded by the trial court in 2017. It acquitted Koli in 12 cases and Pandher in two.

The CBI and the victims' families later challenged these acquittals before the Supreme Court, which dismissed all 14 appeals on July 30 this year.

In its verdict, the top court said it was satisfied that the threshold for invoking the curative jurisdiction was met in the case.

It tested the conviction against the legal defects that led the high court and, thereafter, the apex court to discard the common evidentiary pillars in the companion matters.

The bench said the high court's critique of the investigation was not rhetorical excess, and it was anchored in record-based deficiencies that bear directly on fairness and reliability.

"We must emphasise that Article 21 of the Constitution insists on a fair, just and reasonable procedure. That insistence is at its acutest where capital punishment is imposed," it said.

The bench said that to allow a conviction to stand on evidentiary basis that the apex court had since rejected as involuntary or inadmissible in the very same fact-matrix offends Article 21 of the Constitution.

"It also violates Article 14 of the Constitution, since like cases must be treated alike," it said.

The CBI had taken over the case, and its search resulted in the recovery of more human remains in the Nithari killings. PTI ABA SJK ABA NSD NSD