Memorial Jmi Rspnd.docx

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6TH JAMIA NATIONAL MOOT COURT COMPETITION 2016

IN THE HON’BLE SUPREME COURT OF INDIA AT NEW DELHI

S.L.P No. 5, 12, 14/ 2016 (Filed under Article 136 of the Constitution of India, 1950)

Mr. Rohini

…… Petitioner No. 1

Mr. Atul

…… Petitioner No. 2

Mr. Madan

…… Petitioner No. 3

Versus

State of NCT of Delhi

……Respondent

Written Submissions on behalf of the Petitioner, JM 36, Counsel for the Petitioner.

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………. INDEX OF AUTHORITIES……………………………………………………………… STATEMENT OF JURISDICTION…………………………………………………….. STATEMENT OF FACTS………………………………………………………………. STATEMENT OF ISSUES………………………………………………………………. SUMMARY OF ARGUMENTS…………………………………………………………. ARGUMENTS ADVANCED…………………………………………………………….. PRAYER…………………………………………………………………………………

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LIST OF ABBREVIATIONS

1. 2. 3. 4. 5. 6.

Hon’ble – Honorable u/s – under section IEA, 1872 – Indian Evidence Act, 1872 IPC, 1860 – Indian Penal Code, 1860 CrPC – Code of Criminal Procedure

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INDEX OF AUTHORITIES Statutes 1. The Evidence Act, 1872 2. Indian Evidence Act, 1872 3. The code of criminal procedure 1973

Case laws 1. 2. 3. 4. 5. 6. 7. 8.

Woolmington v. Director Of Public Prosecutions (1935 AC 462) Kailash Gour Vs. State Of Assam [2012 (1) MLJ (Crl) 807] Chinnapillai And Another v. Inspector, Taluk Police Station, Krishnagiri 2012 (2) L.W. (Crl) 499). Ashish Batham v. State Of M.P. AIR 2002 SC 3206 Rethinam v. State Of Tamilnadu 2011 (11) SCC 140 Mohd. Khalid v. State of West Bengal (2002) 7 SCC 334

Babu v. Dy. Director, A.I.R. 1982 S.C. 756; Prasad v. Govinda swaray, A.I.R. 1982 S.C. 84; Dhanjibhai v. State of Gujarat A.I.R. 1985 S.C. 603 9. A.I.R. 1986 S.C. 441. The Court noted that “where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship this court could not 628 decline to interfere merely on the ground that findings in question are findings on fact. 10. Uday Chand Dutt v. Saibal Sen, A.I.R. 1988 S.C. 367; See also Ram Singh v. Ajay Chawla, A.I.R. 1988 S.C. 514

11.

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon'ble Supreme Court of India under Art. 136 of the Constitution of India, 1950.

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STATEMENT OF FACTS

The Beginning … As any other person Mrs. Rohini Sariman is also a happy and very successful person. Born in 1984, Due to her highly ambitious nature since a very young age, Mrs. Rohini Sariman obtained so much fame and reputation that she is hailed from Patna in Bihar. Mrs. Rohini Sariman took her education and career very seriously and claims this hard work to be the secret of her success. Mrs. Sariman is known to be particularly good at networking and has been able to create amicable relationship with a lot of influential people. The Forbes Magazine named Mrs. Rohini among the “50 most influential women in media business.” Hike in Life, Career & Family Mrs. Rohini Sariman a 40 year old woman who has attained so much as compared to others in such a Short Span of her life. Mrs. Sariman with being an successful entrepreneur is also the CEO of JM Media, a popular national media house. Mrs. Sariman enjoys a good reputation as the head of her media network and is very well known within the elite social spheres. Her behavior and nature is unaffected no matter where she present. Irrespective of environments In 2004, Mrs. Rohini married Mr. Akash Sariman, Who is an influential man in the Indian music and film industry. In an interview to a popular media fanfare magazine, she spoke about her previous marriage to Mr. Madan (1998-2002). Mrs. Rohini and Mr. Madan together had a lovely daughter from the wedlock, her name is Ms. Nidhi. In 2005 Mr. & Mrs. Sariman Legally adopted Ms. Nidhi giving her their surname. Mr. Akash & Mrs. Rohini’s have two sons, Mr. Virat Sariman and Mr. Vikraant Sariman, which were from Mr. Sariman’s earlier marriage to Mrs. Ananya and Ms. Nidhi Sariman ___________________

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However as Mr. Madan is a Businessman in Delhi. He used to be profit holder in Mrs. Rohini’s JM Media House. A sizable amount of profit was named to Mr. Madan. While praising Mrs, Rohini’s hard work Mr. Madan says “I have known Rohini for a while now and she had worked very hard to achieve all that she has till now and does not take people lightly who interfere with her work.” _________________________ Mr. Atul is driver for Mrs. Rohini. Mr. Atul is a simple personality who thinks keeping one’s feet at ground and being loyal are best traits of an employee. Mrs. Rohini can trust Mr. Atul with her most prized possessions. Mr. Atul has been in Mrs. Sariman’s service since 2004 after her wedlock to Mr. Akash Sariman. ____________________

STATEMENT OF ISSUE A. Whether the trial court was correct to convict the petitioner solely on the basis of the confession made to the police and whether the court was correct to use such confession against petitioner no. 1 in the absence of any corroborative evidence? B. Whether the opinion of the DNA expert is admissible as evidence? C. Whether the petitioner are guilty under section 300 read with section 302, section 364 and section 201 of the Indian Penal Code? D. Whether the High Court was correct to convert the sentence from life imprisonment to death sentence?

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SUMMARY OF ARGUMENTS A. Whether the trial court was correct to convict the petitioner solely on the basis of the confession made to the police and whether the court was correct to use such confession against petitioner no. 1 in the absence of any corroborative evidence? This is humbly submitted that subject to certain provisions of Law of Evidence, confession is always a substantial piece of evidence, and the conviction based on such confession is legal, and justified. It is also submitted that corroboration of evidence is not a rule of law but a rule of caution, and thus when the court is otherwise satisfied about veracity of confession, corroboration would not affect the legality of trial court’s decision. B. Whether the opinion of the DNA expert is admissible as evidence? It is humbly submitted that opinion of Dr. Har Gobind Khorana is in the definition of expert evidence and is legally admissible in the trial. It may also be pointed out that expert out that expert evidence fit on DNA testing and blood group types which is significantly proven and the same was never contradicted during the trial. C. Whether the petitioner are guilty under section 300 read with section 302, section 364 and section 201 of the Indian Penal Code?

Without prejudice to other submission, this is humbly submitted that once the guilt is established in the trial court and the same is confirmed by High Court, this honourable court never interferes with the concurrent finding of the Court below.

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It is submitted that the guilt of petitioner for the offence of murder u/s 302 IPC, abduction in order to commit murder u/s 364 IPC, and disappearance of evidence u/s 201 IPC has been established through beyond reasonable doubt in both of the subordinate courts.

D. Whether the High Court was correct to convert the sentence from life imprisonment to death sentence? It is humbly submitted that the conversion of life imprisonment to death punishment is very much correct and sense full here. The Penal code enumerates punishments to which offenders are liable under the provisions of this code. Clause firstly of the section mentions “death act one of such punishments. Regarding death as a punishment the author of court says ‘we are convinced that it ought to be sparingly inflicted, and we propose to employ it only in case where either murder or the highest offence against the state has been committed.” Accordingly, under the court, death is a punishment that must be awarded for murder by a person under sentence of imprisonment for life. This apart, the penal code prescribe death as an alternative punishment to which the offenders may be sentenced, for the following seven offence viz., waging was the against the government of India, abetting mutiny actually committed, giving or fabricating false evidence upon which a innocent person suffers death, murder which may be punished with death or life imprisonment, abetment of suicide of a minor or insane, or intoxicated person, dacoity accompanied with murder, attempting to murder by a person under sentence of imprisonment of life is hurt is caused.

ARGUMENTS ADVANCED A. Whether the trial court was correct to convict the petitioner solely on the basis of the confession made to the police and whether the court was correct to use such confession against petitioner no. 1 in the absence of any corroborative evidence? This is humbly submitted that subject to certain provisions of Law of Evidence, confession is always a substantial piece of evidence, and the conviction based on such confession is legal, and justified. Confession Defined—

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Indian Criminal Law is modelled on the British Anglo-Saxonic Criminal Jurisprudence. The basic foundation of criminal law/ responsibility is that ‘a person accused of an offence is presumed to be innocent till the guilt alleged as against him is proved beyond all reasonable doubts’.1 ‘As a necessary corollary, suspicion, however, strong or probable, may not take the place of legal proof and when graver the charge, greater should be the standard of proof. The distance between ‘may be true’ and ‘must be true’ is too long.2 However, law recognizes reception of admission of certain aspects of the case, made by the accused, to some extent, under certain circumstances. As per Section 17 of the Evidence Act, ‘Admission’ of a fact or statement is relevant. Admission is a good form of evidence because it emanates from the very maker. ‘Admission’ is generic and ‘confession’ is its species. When the admission contains something towards the blameworthiness of its maker it becomes confession. But, in tune with the basic principle of criminal law, to ensure genuineness and voluntariness in such form of admissions, namely, confession, many safeguards are provided in the Evidence Act itself.3 The principle that “no confession made to a police officer is admissible” is firmly ingrained in Section 25 of the Evidence Act. But, there are certain exceptions to it. If it is made in the presence of a Magistrate, it can be relied on.4 Further, a limited exception to this aspect is also made in Section 27 of the Evidence Act. By way of a proviso to the preceding sections prohibiting the admissibility of confession made to police, Section 27 provides limited exception to the embargo in Section 25 of the Evidence Act. What is permitted in Section 27 is ‘so much of information’ in the confessional statement of the accused ‘leading to the discovery or recovery of a fact’ and nothing more than that.5 Such recovery consequent upon such information is commonly known as 'Section 27 Evidence Act Recovery' or 'Recovery Evidence'. So much of information that led to the discovery of a fact although it was made to police while the accused was in their custody is admissible. It can be relied on to convict the maker. Whenever, an accused is arrested by a Police Officer, during investigation, as often stated, the accused is put to certain tough interrogation. The statement by accused so given is commonly known as ‘confessional statement’ or ‘disclosure statement’. It is recorded for the limited purpose provided in Section 27 of the Evidence Act. Usually, it will be complete narration of the entire family history of the accused running to pages also containing many vital clues, details, information with regard to the commission of the offence and also concealment of crime objects, such as weapon, booty, etc., This statement will be of two types. One is, the part containing 'incriminating information' about him, such as how he arranged the killing, 1

See Woolmington v. Director Of Public Prosecutions (1935 AC 462); See also See Kailash Gour Vs. State Of Assam [2012 (1) MLJ (Crl) 807] and Chinnapillai And Another v. Inspector, Taluk Police Station, Krishnagiri [2012 (2) L.W. (Crl) 499). 2 (See Ashish Batham v. State Of M.P. [AIR 2002 SC 3206] and Rethinam v. State Of Tamilnadu [2011 (11) SCC 140] 3 See Section 24 to 27 4 See Section 26 of the Evidence Act) 5 See Pullukuri Kottaiya v. King-Emperor (AIR 1947 PC 67)

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how he carried it out or about robbery etc, why he killed the victim and under what circumstances he had killed the victim, whether it was under grave and sudden or sustained provocation, such as killing of his wife by the husband due to her complete waywardness. The other one is the part containing 'non-incriminating information'. It will contain a statement of fact leading to the recovery or discovery of such fact, such as hide-out of the weapon or booty or spoils of the crime,6 usually recorded at the tail end of the confessional statement of the accused. On an analysis of section 24 to 27 of the Indian Evidence Act, 1872 and Section 162 of the Code of Criminal Procedure, 1973 the following material propositions emerge: (a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. (b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. (c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence. (d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a .police officer may be proved if it is otherwise relevant. (e) A statement made by a person to a police officer in the course of an investigation of an offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent permitted by s. 27 of the 24 Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence. Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. It may be noted that, though Section 24 excludes confession caused by inducement, threat or promise, and Section 25 is imperative and provides that confession made before or even in presence of a police officer under any circumstance is not admissible in evidence against the 6

(see Chinnasamy Reddy v. State Of A.P. [AIR 1962 SC 1788] and Limbaji And Others v. State Of Maharashtra [2001 (10) SCC 340]

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accused, the ban so created, is relaxed by Section 26, which provides that no confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. The part of confessional statement/information leading to discovery is admissible in evidence under Section 27 of the Evidence Act as Section 27 of the Evidence Act is an exception to Section 26 of the Evidence Act. Once such statement, to the extent of ‘discovery’ is admissible, by virtue of Section 30 of the Evidence Act such “confession made by accused persons affecting himself and some other of such persons is proved”, the Court may take into consideration ‘such confession’ as against such other person as well as against the person who makes such confession. It is by this process, self inculpatory statement is admissible against co-accused. Section 30 of the Evidence Act provide that any confession made by accused persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Hence, self inculpatory statement is admissible against co-accused. Corroboration— It is submitted that corroboration of evidence is not a rule of law but a rule of caution, and thus when the court is otherwise satisfied about veracity of confession, corroboration would not affect the legality of trial court’s decision. In Mohd. Khalid v. State of West Bengal,7 Supreme Court outlined that “it is only when the other evidence tendered against the coaccused points to his guilt then the confession duly proved could be used against such coaccused if it appears to affect him as lending support or assurance to such other evidence.” B. Whether the opinion of the DNA expert is admissible as evidence? It is humbly submitted that opinion of Dr. Har Gobind Khorana is in the definition of expert evidence and is legally admissible in the trial. It may also be pointed out that expert out that expert evidence fit on DNA testing and blood group types which is significantly proven and the same was never contradicted during the trial. In Indian Evidence Act, 1872 Section 45 Says “Opinions of experts.—When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting 35 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 36 [or in questions as to identity of handwriting] 35 [or finger impressions] are relevant facts. Such persons are called experts. Illustrations (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant. 7

2002 7 SCC 334

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The expert opine in this case is based on DNA testing which is most modern and reliable plus accepted technology all over the world. This branch of science is mostly used to verify certain facts. DNA technology is based on DNA fingerprinting. The PRINCIPLE OF DNA EVIDENCES simply involves and means: “ DNA is Sometimes referred to a generic blueprint because it contains the instructions that govern the development of an organism. Characteristics such as hair color, eye color, height and other physical features all are determined by genes that reside in just 2% of human DNA. This portion is called the coding region because it provides the instructions for proteins to create these features. The other 98% of Human DNA is considered non-coding and the scientific community has only recently begun to identify its functions. Forensic scientific, however use this non-coding DNA in criminal investigations. Inside theis region of DNA are unique repeating patterns that can be used to differentiate one person from another. These patterns, known as short-tandem repeats (STRs), can be measured to define the DNA profile of an individual. All cells, except mature Red Blood Cells (RBCs), contain DNA. Any sweat, semen, body fluids or skin cells left behind at a crime can be examined for their unique STR signature to possibly link a person to the sample. While thousands of people may share several markers of their STR signature, there has been no case to date where two people have been found to have matching STR markers in all 13 areas used for comparison (except identical twins). It is humbly submitted that according to the facts of the blood found on door handle of the car and backseat is recognized as of deceased Ms. Soumya by DNA testing method. It is also opined that such kind of blood spots is resultant of strangling and thus is corroborates the confession made by Mr. Madan (accused no.3) It may be pointed out that the blood stained cloths found had blood spots of the same type of blood group as of deceased Ms. Soumya on the instance of Mr. Atul (accused no.2) is not a mere coincidence. Thus is tantamount to discovery u/s 27 and a very useful evidence. C. Whether the petitioner are guilty under section 300 read with section 302, section 364 and section 201 of the Indian Penal Code? (a) Without prejudice to other submission, this is humbly submitted that once the facts relating to guilt are established in the trial court and the same is confirmed by High Court, this honourable court have rarely interfere with the concurrent findings of the Courts below. It is humbly submitted that it has been said in a series of decisions that ordinarily this court in a Special appeal will not interfere with a finding of fact which is not shown to be perverse or

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based on no evidence.8 It was noted in Ganga Bishan v. Jay Narayan,9 that ordinarily this Court, under Article 136 of the Constitution, would be averse to interfere with concurrent findings of fact recorded by the High Court and the Trial Court. So also in Uday Chand Dutt v. Saibal Sen,10 it was said that in an appeal by special leave under Article 136 of the Constitution of India where there are concurrent findings of the courts below this court is not called upon to reconsider the entire evidence in detail to ascertain whether the findings are justified. (b) It is submitted that the guilt of petitioner for the offence of murder u/s 302 IPC, abduction in order to commit murder u/s 364 IPC, and disappearance of evidence u/s 201 IPC has been established through beyond reasonable doubt in both of the subordinate courts. Conspiracy— This submitted that the facts categorically disclose conspiracy between Accused Rohini, Accused Mandan and accused Atul. Before narrating the facts about conspiracy, following law dealing with the same may be considered— Section 10: Things said or done by conspirator in reference to common design.— Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Illustration: Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. 8

Babu v. Dy. Director, A.I.R. 1982 S.C. 756; Prasad v. Govinda swaray, A.I.R. 1982 S.C. 84; Dhanjibhai v. State of Gujarat A.I.R. 1985 S.C. 603 9 A.I.R. 1986 S.C. 441. The Court noted that “where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship this court could not 628 decline to interfere merely on the ground that findings in question are findings on fact. 10 Uday Chand Dutt v. Saibal Sen, A.I.R. 1988 S.C. 367; See also Ram Singh v. Ajay Chawla, A.I.R. 1988 S.C. 514

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It is humbly submitted that in Jayendra Saraswati Swamigal v. State of Tamil Nadu,11 Supreme Court ruled that “if prima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all.” The very object of Section 10 of Evidence Act is to make acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of crime.12 Conspiracy is conceived as having three elements: (1) an agreement; (2) between two or more persons by whom the agreement is effected: and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of ‘criminal conspiracy’ was stated first by Lord Denman in Jones’ case that an indictment for conspiracy must “charge a conspiracy to do an unlawful act by unlawful means” and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg, and House of Lords in unanimous decision reiterated in Quinn v. Leathem: “a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable of for a criminal object, or for the use of criminal means.” The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the India Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. It may be humbly pointed out that in Ajay Agarwal v. Union of India,13 It was held that “it is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of conspiracy.” In Yash Pal Mittal v. State of Punjab,14 the rule was laid that: “The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to 11

AIR 2005 SC 716 Badri Rai v. State of Bihar, AIR 1958 SC 953 13 (1993) 3 SC 203 14 [1977] SCC 540 12

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achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators.” Following ‘facts’ discloses about ‘conspiracy’ to kill soumyai. In his confession, Mr. Madan (accused no.3) and Mr. Atul (accused no.2) have mention about the conspiracy. ii. Confession made by Mr. Atul (accused no.2) confirms about conspiracy, when he disclosed that while Soumya was stangled by Mr. Madan (accused no.3), Mrs. ROhini (accused no.1) was absolutely unfazed. iii. Testimony of Virat, and Arsh disclosed conspiracy, the reasons and motives of crime. iv. The phone call of Deceased Soumya to her brother Arsh, and his testimony during trial is admissible as evidence. v. The fact that Soumya was staying at Rohini’s (accused no.1) residence since 2010, and her statement to Virat, as well as Police about ‘US study’ is an statement admissible under Section 10 of Evidence Act, since was in furthereance of the said Conspiracy. vi. Confessional Statements are confirmed and corroborated by DNA test of blood samples collected from the vehicle (Maruti Sedan). vii. The fact that alleged vehicle is sold, without knowledge of Mrs. Rohini (accused no.1), the owner, is beyond any human reason. It is also noted that the same is not clarified during her testimony. viii. Recovery of blood-stained cloths of deceased, matched with blood spots found on back seat as well as the door handle of car, allegedly involved in the crime. In Sardar Sardul Singh Caveeshar v. State of Maharashtra,15 Supreme Court narrated about the Section. According to the Court “the opening lock” of that provision is the existence of “reasonable ground to believe” that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement “in reference to their common intention”..

15

Sardar Sardul Singh Caveeshar v. The State of Maharashtra, AIR (1965) SC 682

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In State v. Nalini,16, it is submitted that “in a given case, however, if the object of conspiracy has not been achieved and there is still agreement to do the illegal act, the offence of a criminal conspiracy continues and Section 10 of the Evidence Act applies.” In State of Maharashtra v. Bharat Chaganlal Raghani,17 it was held that a requirement of corroboration even in a retracted confession is not a rule of law but a rule of prudence, and the general corroboration of confessional statement is sufficient to sustain conviction on the basis of such confession. As for as evidence against Accused Atul is concerned, it may be humbly pointed out that in Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra,18 , it was held that for an offence under Section 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. Thus, where trustworthy evidence establishing all links of circumstantial evidence is available the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration. 19 It can in some cases be inferred from the acts and conduct of parties.20 Confession by Co-accused— It is humbly submitted that Section 30 of the Evidence Act requires that before a confession of co-accused be admitted, and permitted to operate against the other accused, the confession should be strictly established. In other words, what must be before the Court should be a confession proper and not a mere circumstance or information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of Section 3 of the Evidence Act against the non-maker coaccused and lastly, its use depends on finding other evidence so as to connect the co-accused with crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused points to his guilt then the confession duly proved could be used against such co-accused if it appears to effect him as lending support or assurance to such other evidence. To attract the provisions of Section 30, it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such guilt. The evidence of co-accused cannot be considered under Section 30 of the Evidence Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused. As noted above, the confession of co-accused does not come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of 16

State v. Nalini, [1999] 5 SCC 253 (2001) 9 SCC 1 18 (1981) 2 SCC 443 19 Baburao Bajirao Patil v. State of Maharashtra, [1971] 3 SCC 432 20 Shivanarayan Laxminarayan Joshi and Ors. v. State of Maharashtra and Ors,, AIR (1980) SC 439 17

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the accused, and it cannot be tested by cross-examination. It is only when a persons admits guilty to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth. Legislature provides that his statement may be considered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence. This position has been clearly explained by this Court Kashmira Singh v. The State of Madhya Pradesh.21 The exact Scope of Section 30 was discussed by the Privy Council in the case of Bhubani v. The King.22 The relevant extract from the said decision which has become locus classicus reads as follows: Section 30 applies to confessions, and not to statements which do not admit the guilt of the confessing party........But a confession of a co-accused is obviously evidence of a very weak type.....It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Sec. 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act but the section does not say that the confession is to amount to proof. Heady there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of the co-accused and be used only in support of other evidence and cannot be made the foundation of a conviction”. Kashmira Singh’s principles were noted with approval by a Constitution Bench of these Court Hart Charan Kurmi and Jodia Hajam v. State of Bihar.23 It was noted that the basis on which Section 30 operates is that if a person makes a confession implicating himself that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is to likely that the maker would implicate himself untruly. So Section 30 provides that such a confession may be taken into consideration even against the co-accused who is being tried along with the maker of the confession. It is significant 21

AIR (1952) SC 159 AIR (1949) PC 257 23 [1964] 6 SCR 623 22

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however that like other evidence which is produced before the Court it is not obligatory on the Court to take the confession into account. When evidence as defined by the Evidence Act is produced before the Court it is the duty of the Court to consider that evidence. What weight should be attached to such evidence is a matter in the discretion of the Court. But the Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can however be adopted by the Court in dealing with a confession because Section 30 merely enables the Court to take the confession into account. Where, however, the Court takes it into confidence, it cannot be faulted. The principle is that the Court cannot start with confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidences, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about the reach on some other evidence. That is the true effect of the provision contained in Section 30. In Shankaria v. State of Rajasthan,24 the Court suggested to apply double test for deciding the acceptability of a confession i.e. (i) whether the confession was perfectly voluntary; and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected. 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. It is humbly submitted that, the facts shown as well as in the decision of Trial Court, there is no mention of any coercion or threat about making of ‘confession’ by both of the co-accused. Circumstantial Evidence— More than six decades back this honourable Court in Hanumant Govind Nargundkar v. State of M.P.,25 had laid down the principles as under: “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 be 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

24 25

(1978) Crl. LJ. 1251

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accused and it must be such as to show that within all human probability the act must have been done by the accused.” In Sharad Birdhichand Sarda v. State of Maharashtra,26 the five golden principles which have been stated to constitute the panchsheel of the proof of the case based on circumstantial evidence are (i) (ii)

(iii) (iv) (v)

the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established, 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, the circumstances should be of a conclusive nature and tendency, they should exclude every possible hypothesis except the one to be proved, and 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.

In C. Chenga Reddy v. State of A.P.,27 it has been held that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

This Court in the case of Yusuf v. State of West Bengal,28 has held as under: “Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent 26

Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Krishnan v. State, (2008) 15 SCC 430; Wakkar v. State of Uttar Pradesh, (2011) 3 SCC 306; Haresh Mohandas Rajput v. State of Maharashtra, 2011 (12) SCC 56; Joseph v State of Kerala reported in 2000 SCC (Crl) 926; Padala Veera Reddy v State of A.P. 1991 SCC (Crl) 407; State of U.P v Ashok Kumar Srivastava, 1992 SCC (Crl) 241; State of Rajasthan vs. Raja Ram (2003 (8) SCC 180), State of Haryana vs. Jagbir Singh and Anr. (2003 (11) SCC 261) 27 28

Yusuf v. State of West Bengal, AIR 2011 SC 2283 in para 26

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with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” There is no direct evidence in this case. The cases hinges on circumstantial evidence. However, before taking into consideration the circumstances brought on record they are required to be tested; first as to whether the circumstances have been established by cogent, reliable and unimpeachable evidence and secondly, whether those circumstances point to guilt of accused. Thirdly, taking into consideration that whether the circumstance proved, form the chain of circumstance on the basis of which irresistible conclusion for the guilt of the accused can be inferred then it is only the accused who has committed the offence leaving no room for their innocence or the circumstance in totality are inconsistent with the innocence of the accused. It is humbly submitted that prosecution has proved the chain of circumstance and each circumstance has been established that— (i)

That Mrs. Rohini(accused no.1), and Mr. Madan (accused no.3), has conspired to eliminate Soumya, since she was threat to their financial embezzlements in J M Media. (ii) That Mrs. Rohini (accused no.1) has enough reasons and motive to kill Soumya. (iii) That Mrs. Rohini (accused no.1) and Mr. Madan (accused no.3) have hatched conspiracy to kill Soumya and they well helped by Mr. Atul (accused no.2). (iv) That Soumya was staying at residence of Mrs. Rohini (accused no.1), and here whereabouts, after 7th Jan.2014 is not explained by her. (v) That Soumya was strangled while making journey from Delhi to Chandigarh is confirmed by Confessional statements, but the same was never specially denied by Mrs. Rohini (accused no.1) in her testimony. (vi) Confessional Statements are confirmed and corroborated by DNA test of blood samples collected from the vehicle (Maruti Sedan). (vii) That dead body was body disposed of in a most horrendous manner by Mr. Atul (accused no.2), with help of Mrs. Rohini (accused no.1) and Mr. Madan (accused no.3), and the same was never specially denied by Mrs. Rohini (accused no.1) in her testimony. (viii) That Mrs. Rohini (accused no.1) failed to answer anything about the vehicle (Maruti Sedan) owned by her directly. (ix) The fact that alleged vehicle is sold, without knowledge of Mrs. Rohini (accused no.1), the owner, is beyond any human reason. It is also noted that the same is not clarified during her testimony. (x) Recovery of blood-stained cloths of deceased, matched with blood spots found on back seat as well as the door handle of car, allegedly involved in the crime.

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The facts of Conspiracy, circumstances resulting into Soumya’s death and manner of disposing dead body is established through Confession made by Mr. Madan (accused no.3) and Mr. Atul (accused no.2), and the same is corroborated by Statement of Mr. Arsh, and Mr. Virat. In State Of U. P v. Deoman Upadhyaya,29 of the verbiage, let us look at the result brought about by the combined application of s. 27 of the Evidence Act and s. 162 of the Code of Criminal Procedure. A and B stabbed C with knives and hid them in a specified place. The evidence against both of them is circumstantial. One of the pieces of circumstantial evidence is that both of them gave information to the police that each of them stabbed C with a knife and hid it in the said place. They showed to the police the place where they had hidden the knives and brought them out and handed them over to the police; and both the knives were stained with human blood.

D. Whether the High Court was correct to convert the sentence from life imprisonment to death sentence? It is humbly submitted that the conversion of life imprisonment to death punishment is very much correct and sense full here. The Penal code enumerates punishments to which offenders are liable under the provisions of this code. Clause firstly of the section mentions “death act one of such punishments. Regarding death as a punishment the author of court says ‘we are convinced that it ought to be sparingly inflicted, and we propose to employ it only in case where either murder or the highest offence against the state has been committed.” Accordingly, under the court, death is a punishment that must be awarded for murder by a person under sentence of imprisonment for life. This apart, the penal code prescribe death as an alternative punishment to which the offenders may be sentenced, for the following seven offence viz., waging was the against the government of India, abetting mutiny actually committed, giving or fabricating false evidence upon which a innocent person suffers death, murder which may be punished with death or life imprisonment, abetment of suicide of a minor or insane, or intoxicated person, dacoity accompanied with murder, attempting to murder by a person under sentence of imprisonment of life is hurt is caused. In this case, Rohini (accused no.1), Madan (accused no.3) and Atul (accused no.2) involved in the murder of deceased Soumya and then deleting the evidence relating to it. Deceased Soumya

29

1960 AIR 1125

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PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that; 1. 2. 3. 4. and pass any other order it may deem fit in the interest of justice, equity and good conscience. All of which is humbly prayed, JM 36, Counsel for the Respondent.