final memorial (cnlu mci)

7/27/2019 Final Memorial (CNLU MCI)

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WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

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IINNTTRRAA MMOOOOTT CCOOUURRTT CCOOMMPPEETTIITTIIOONN

CRIMINAL APPEAL NO. ****/2013

[UNDER ARTICLE 136 OF INDIAN CONSTITUTION]

IN THE MATTER OF

MRS AJITHA...APPELLANT

VS.

STATE OF DELHI NCT.....RESPONDENT


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TTAABBLLEEOOFFCCOONNTTEENNTTSS

LIST OF ABBREVIATIONSIV

LIST OF AUTHORITIES...V

CONSTITUTIONS..V ACTS, CODES AND STATUTES.V INDIAN CASES .V FOREIGN CASES...VIII BOOKS REFERRED ....VII DICTIONARIES... ...VIII

STATEMENT OF JURISDICTION.IX

STATEMENT OF FACT..X

QUESTION PRESENTED.XIII

SUMMARY OF ARGUMENT XIV

ARGUMENT ADVANCED1TO 18

1) Whether the Honble High Court was justified in refusing the exercise its powers underSec. 401 of the Code of Criminal Procedure, 1973...............................................................1

a) There was miscarriage of justice by the Ld. Sessions Court overlooked by the HonbleHigh Court...................................................................................1

i) High Court can interfere in the exceptional case..2ii) Charges framed against Ajitha on the basis of confessional statement of

Guruprasad2

iii)Confession Made in police custody is inadmissible.3iv)Materials must be looked into, at the stage of framing of charges4

b) Error in framing of charge as no material produced by the police5c) Honble High Court can interfere in the finding of Ld. Sessions Court6

2) Whether Non Speaking order can be sustained in law..........................................................7


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a) Obligation on the High Court to give reasons for its judgment7i) Failure to give reason amounts to denial of justice9

b) To give speaking order is a requirement of Natural Justice9c) Serious matter overlooked by the Honble High Court without giving any reason....10

3) Whether confession of an approver can be retracted and in what manner at the stage of S227/228 of Cr.P.C................................................................................................................11

a) Approver can retract at the stage of framing of charge..11i) Confession made in the police custody was not voluntary..11

b) Fundamental Right of the accused to retract13c) Retraction can be made at the time of framing charge when accused is given

opportunity 14

4) Whether a retracted confession of an approver can be used as a evidence against the coaccused.................................................................................................................................15

a) Retracted confession cannot be the sole basis of the conviction of the co-accused...15i) Retracted Confession is a weak type of evidence.15ii) Retracted Confession must be corroborated with other material

evidence..16

b) Retracted confession of approver was not true..16c) Confession made in the police custody was not voluntary17d) Ajitha cannot be charged on the basis of confession of accused...18

PRAYER 20


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LLIISSTT OOFFAABBBBRREEVVIIAATTIIOONNSS

& And

Paragraph

AIR AllIndianReporter

Cr LJ Criminal LawJournal

ed. Edition

SCC SupremeCourtCases

Sec. Section

SCR SupplementaryConceptRecord

vs.. versus

Mad. Madras

Ori. Orissa

Ors Others

Lrs Legal Representatives

A.P. Andhra Pradesh

Cal Calcutta

Anrs. Others

U.P Uttar Pradesh

Ald. Allahabad

Ibid ibidem

Vol Volume


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LLIISSTT OOFF AAUUTTHHOORRIITTIIEESS

CONSTITUTIONS

1- TheConstitutionof India,1950.

ACTS, CODE AND STATUTES

1- Code Of Criminal Procedure, 19732- Indian Evidence Act, 18723- Indian Penal Code, 1860

INDIAN CASES

1. Amar Chand Aggrawalavs.Santi Bose [AIR 1973 SC 799]2. BaburaoHariPawarvs. State of Maharastra[1987 Cr LJ 584 (Bom.)]..3. Balbeer Singh vs. State of Punjab[AIR 1957 SC 126]..4. Balbir Singh vs. State of Punjab[AIR 1956 SC 256].5. Bhimavs..Parmanandai [1972 CrLJ 820 (Ori.)]6. BhuboniSahuvs.TheKing[AIR 1949 PC 257]7. BibhutiBhusan Das Gupta and Anr. vs.State of West Bengal[(1969) 2 SCR 171].8. BudharmalKalanivs. State of Maharastra[(1998) 7 SCC 337]..9. Chandra Kant ChimanLal Desai vs. State of Gujrat[(1992) 1 SCC 474]..10.ChinnaSwamyvs. State of A.P.[AIR 1962 SC 1788]..11.Devendra Prasad Tiwaryvs. State of UP[AIR 1978 SC 1544]12.DhuleshwarBeheravs. State[1982 CrLJ 2346 (Ori.)]13.HaricharanKurmivs. State of Bihar[AIR 1964 SC 1184]..14.

Ibrahim vs.Regem[1914 AC 599]

15.JagannathChoudhary and Ors. vs.Ramayan Singh and Anr[(2002) 5 SCC 659]..16.Jagtamba Devivs.Hem Ram and Ors[(2008) 3 SCC 509].17.JayawantDattatraySuryaraovs. State of Maharashtra[(2001) 10 SCC 109]18.Kalawativs. State of Himanchal Pradesh[1953 SCR 546]..19.Kalu Ram and Anrsvs. State of Delhi[(2006) 5 SCC 674]


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20.Kashmira Singh vs.The State of Madhya Pradesh[AIR 1952 SC 159]...21.Kedar Singh vs. State[(1988) 3 SCC 609].22.Krishnan and Anrvs.Krishnaveni and Anr[(1997) 4 SCC 241].23.KuldipKaurvs.Surinder Singh and Anr[(1989) 1 SCC 402].24.KusumaAnkamaRaovs.State of Andhra Pradesh[(2008) 13 SCC 257]25.Mahabir Singh vs. State of Haryana[(2001) 7 SCC 148].26.Managing Director, United Commercial Bank vs.. P.C. Kakkar[(2003) 4 SCC 364]27.Maneka Gandhi vs.Union of India [(1978) 1 SCC 248] ...28.Md. Hussainvs.DalipSinghji[AIR 1970 SC 45]..29.Md.Yasinvs. King Emperor[ILR(1901) 28 Cal. 689] ..30.Mohd. Khalid vs. State of West Bengal[(2002) 7 SCC 334]..31.Munna Devi vs. State of Rajasthan[AIR 2002 SC 107]32.NandaniSatpathyvs. P.L. Dani[AIR 1978 SC 1029]...33.Nazir Khan and Anrsvs. State of Delhi[(2003) 8 SCC 461].34.ParmanandaPeguvs. State Of Assam[(2004) 7 SCC 779]...35.PromothaNathvs. Emperor[AIR 1923 Cal. 470]..36.PyareLalvs. State of Rajasthan[AIR 1963 SC 1094]..37.R vs.Lakshman[1882 (6) Bom. 124].38.R.B. Mithanivs. State of Maharastra[AIR 1971 SC 1630]....39.R.S Bhagatvs. Union of India[(1980) ILR Del. 1422]..40.Rajeshwarivs.PuranIndoria[(2005) 7 SCC 60]..41.Ram Tossavs. State of Assam[2012 (3) GLD 69]...42.Re SheobhajanAhir and others vs. King Emperor[AIR 1921 Pat. 499].43.RovolaGopaiahvs. Government of A.P[MLJ: YD 1978 Suppl C 23]..................................44.S.N. Mukherjee vs. Union of India [(1990) 4 SCC 594]..45.SatishMehravs. Delhi Administration and Anr[(1996) 9 SCC 766].46.Sawarn Singh Rattan Singh vs. State of Punjab[AIR 1956 SC 537].47.Shankaranvs. State of Delhi [(1990) CrLJ 550 (Del.)]..48.Shankariasvs. State of Rajasthan[(1978) 4 SCC 453]49.Sheoraj Singh Ahlawat and Ors.vs.State of U.P. and Anr[(2012) 1 RCR (cri.) 153]50.Siddharthvs. State of Bihar[(2005 12 SCC 545] .


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51.Siemens Engg.& Mfg. Co. vs. Union of India [(1976) 2 SCC 981]..52.State Anti-Corruption Bureau, Hyderabad and Anr. vs. P. Suryaprakasam[(1999) SCC

criminal 373]..

53.State of Karnatkavs.Muniswami[(1997) 2 SCC 699]..54.State of Maharashtra vs.PriyaSharanMaharaj and Anrs[(1997) 4 SCC 393]55.State of Tamil Nadu vs.Kutty alias Lakshmi Narashinhan[(2001) 6 SCC 550]..56.State of U.P.vs.ShriKishan[(2005) 10 SCC 420]...57.SubramaniaGoundanvs.The State of Madras[AIR 1958 SC 66].58.Sugumaranvs. State[1987 (2) Crimes. 691 (Mad.)]..59.Superintendent and Remembrancer of legal Affairs, West Bengal vs.. Anil Kumar Bhunja

and Anrs[1979 CrLJ 1390 SC].

60.Thakur Das (Dead) by Lrs.vs.State of Madhya Pradesh and Anr[(1978) 1 SCC 27]........61.U.P. AvasEvamVikasParishadvs.SheoNarainKushwaha and Ors[(2011) 6 SCC 456]62.ZahiraHabibullah Sheikh &Anrvs. State Of Gujarat & Ors[(2006) 3 SCC 374].

FOREIGN CASES

1. Alexander Machinery (Dudley) Ltd. vs.. Crabtree[1974 LCR 120]2. Breen vs. Amalgamated Engineering Union[(1971) 1 All ER 1148].3. Brutonvs. US[391 US 123]...4. R vs. Thomson[1836 (1) Mood CC 465].. 5. State vs. Mullin[85 NW 2ND598]..

BOOKS REFERRED

1. C.K.Thakkar Takwani, Code of Criminal Procedure (3rd Ed., LexisNexisButterworthsWadhwa, Nagpur, 2012).

2. Chief Justice M. Monir, Law of Evidence (14th edition, Universal Law Publishing HouseNew Delhi, 2006).

5. D.D.Basu, Commentary on Constitution of India (8th ed., Wadhwa and Company, Nagpur,2010).

6. D.N.Sen, The Code of Criminal Procedure (Premier Publishing Company, Allahabad,2006).


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7. H.M.Seervai, Constitutional Law of India(4th ed. Universal Publishing House, New Delhi,2007).

8. I.P. Massey,Administrative Law(7th ed. Eastern Book Company, Lucknow, 2008).3. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, Code Of Criminal

Procedure(17th

Ed., Wadhwa and Company, Nagpur, 2007).

4. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, The Law Of Evidence (22ndEd., Wadhwa and Company, Nagpur, 2007).

DICTIONARIES

1. Brayan A. Garner,Blackslaw dictionary(9th

ed. Thomson West,2009).

2. The International Websters New Universal Dictionary (2nded. Trident Press International,USA, 1983).

3. P. RamnathaIyer, The Major Law Lexicon (4th ed. Vol. 6, Lexis Nexis ButterworthsWadhwa, Nagpur, 2010).


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SSTTAATTEEMMEENNTT

OOFF

JJUURRIISSDDIICCTTIIOONN

The appellant has approached to the Honble Supreme Court of India through Article 136 of the

Constitution of India, 1950. The matter is now posted for the final hearing before the Honble

Court.


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SSTTAATTEEMMEENNTTOOFFFFAACCTTSS

I

Ajay Kumar worked as an Investment Banker at the New Delhi office of MNC Inc. He was

married to one Ms. Ajitha, who was once his secretary at the MNC Inc. However, after about 2

years of their marriage, there were rumours about Ms. Ajitha having illicit affair with one Mr.

Guruprasad, who also worked at MNC Inc., This led to immense friction between Ajay and Ms.

Ajitha, which consequently resulted in Ajitha moving out of the matrimonial house and living

separately in a rented house at JorBagh, New Delhi. Thereafter she filed for divorce, before the

Family Court, Saket Court Complex, New Delhi, alleging cruelty and Ajay have an illicit

relationship with other women.

II

It was during the pendency of the said divorce petition that on the morning i.e. on January 09,

2011, Ajay was found dead with bullet wounds on his chest and his body was dumped near

Chattarpur Farms. The police recorded an FIR under various section of IPC 1860 against

unknown persons and began investigation. Upon questioning the relatives and neighbours of

Ajay, including Ajitha, the Investigating Officer came to know about the pending divorce case

and also about the alleged illicit relationship between Ms. Ajitha and Mr. Guruprasad. The Police

arrested Ms. Ajitha and Mr. Guruprasad as suspects and were granted a 14 days police custody

by the Court.

III

During interrogation, Ms. Ajitha claimed that she was visiting her parents in Rajkot from January

5 to 9, 2011, and had returned only on the evening of January 09, 2011. She showed her flight

tickets as well as the boarding pass issued by the airline as a proof of her defence of alibi. Mr.

Guruprasad however, on the other hand, offered to turn approver for the prosecution and gave a

statement before the Investigating Officer stating therein that it was he who had shot Ajay with a

gun given to him by Ms. Ajitha and that she had helped him dispose off the body in Ajays car.


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He made the statement that I was visiting Ajithas residence where unfortunately Ajay arrived

and saw us (Ajitha and me) in a compromising position after which a heated argument ensued

between Ajay and Ajitha. Ajitha, apprehending to save herself pulled out a revolver from her

drawer, and gave it to me and told me to shoot Ajay. Seeing this, Ajay grabbed a table lamp that

was near his right hand and headed towards me in an intimidating manner. I, fearing the safety of

my own and Ajithas life, shot 3(three) bullets at Ajay, immediately after which he collapsed on

the ground. After assuring ourselves that Ajay was dead, we dragged his body into his own car,

which I drove to Chhatarpur Farms, followed by Ajitha who drove my car. We dumped the dead

body of Ajay along with the weapon and the car at a secluded location at Chattarpur Farms, and

returned to Ajithas house in my car.

IV

The above statement though made in police custody, was made in the presence of a Magistrate.

The Police searched the area where the body of Ajay was found but could not recover any

weapon from there or from the residence of Mr. Guruprasad& Ms. Ajitha. Further, only a single

tyre mark was found at the place where Ajays body was found. The Police also could not

recover the table-lamp, which according to Mr. Guruprasad was grabbed by Ajay as a weapon to

assault him. Also no other finger prints were found inside Ajays car except his own. Basing its

entire case on the confessional statement made by Mr. Guruprasad, the Police filed a charge-

sheet against Ms. Ajitha before the Magistrate.

V

Upon committal and placing the case for framing of charges against Ms. Ajitha, Mr. Guruprasad

retracted from his statement and claimed to be innocent of all the charges levelled against him in

the charge-sheet, and demanded that he be put to trial. Similarly, even Ms. Ajitha denied all the

charges and claimed innocence. After hearing the prosecution and the defence counsel, the Ld.

Sessions Court recalled the conditional pardon and directed the framing of the following charges

against the both accused persons.

VI


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Ms. Ajitha preferred a petition for quashing of the charges framed by the Ld. Sessions Court

before the Honble High Court of Delhi under Section 401 of the Code of Criminal Procedure,

1973. The Honble High Court dismissed the same after hearing arguments submitted by both,

the petitioner Ms. Ajitha as well as the Government Counsel representing the respondent, State

of Delhi NCT. The said petition was dismissed by a non-speaking order and no reasons were

given for the dismissal of the same.

VII

Ms. Ajitha has now filed a special leave petition before the Honble Supreme Court of India

challenging the order of the Honble Delhi High Court, whereby the petition of Ms. Ajitha came

to be dismissed. The Honble Apex Court was pleased to grant special leave to appeal and the

parties filed their respective pleadings. The matter is now posted for final arguments before the

Honble Supreme Court.


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SUMMARY OF ARGUMENTS

1- The Honble High Court was not justified in refusing to exercise its powers underSection 401 of the Code of Criminal Procedure, 1973.

It is humbly submitted by the appellant the Honble High Court was not justified in refusing its

power under Section 401 of Code of Criminal Procedure. It is submitted that High Court can

interfere with the finding of the lower court in exceptional case, when there is the miscarriage of

justice is done by the lower court. In the instant case there is miscarriage of justice done by the

lower court by overlooking the materials produced by the appellant and charging solely on the

basis of confessional statement of the another accused without any other independent evidences

and materials against the appellant.

2- A non-speaking order cannot be sustained in law.It is humbly submitted by the appellant that a non-speaking order cannot be sustained in law. It is

humbly submitted by the appellant that the High Court has an obligation to give reasons for its

finding, which in the instant case was not done by the Honble High Court of Delhi. Not giving

reasons for its finding amounts to the denial of justice, this in the instant case was done to the

appellant. It is also pleaded by the appellant that there are very serious issues in the instant case

which was overlooked by the Honble High Court without giving any reasons, thus justice was

denied to the appellant in the instant case. Giving Non- speaking order amounts to infringement

of the natural justice enshrined in the Constitution of India, 1950.

3- Confession of an approver can be retracted at the stage of S 227/228 of CrPC.It is humbly submitted by the appellant that the confession made by approver can be retracted at

the stage of S 227/228 of CrPC. It is prayed by the appellant that approver can retract at the stage

of S 227/228 of CrPC, it is the fundamental right of a person to not to give self incriminating

statement. In the instant case as the statement given by the approver was not voluntary and was

incriminating him, he has all right to retract at the stage of framing of charge when the

opportunity is provided to him. it is also submitted that approver can retract, but by retracting his

statement he loses his right of approver when a decision is delivered against him.


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4- A retracted confession by an approver may not be used as evidence against the otheraccused.

It is humbly submitted by the appellant that a retracted confession of an approver maynot be used

as evidence against the other accused. It is prayed by the appellant that the retracted confession is

a weak type of the evidence and cannot be used against the other accused without full

corroboration with the other independent evidence. In the instant case the retracted confession

was used against the other accused without the corroboration with other independent evidence,

also in the instant case the approver Guruprasads confession was neither true nor made

voluntary, hence it cannot be used against the appellant Ajitha.


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AARRGGUUMMEENNTTAADDVVAANNCCEEDD

1- Whether the Honble High Court was justified in refusing the exercise its powersunder Sec. 401 of the Code of Criminal Procedure, 1973?

It is humbly submitted by the Appellant that the Honble High Court was not justified by not

exercising its power under section 401 of the Code of Criminal Procedure, 1973.

a- There was a miscarriage of justice made by the ld. Session Court.It is submitted by the appellant that there was a miscarriage of justice made by the ld. session

court and subsequently over looked by the High Court. The Honble Supreme Court in plethora

of the cases ruled that High Court must exercise its revisional power under section 401 of the

Code of Criminal Procedure, 1973. In the case ofJagannathChoudhary and Ors.Vs..Ramayan

Singh and Anr1

it was pointed out by the apex court that the object of the revisional jurisdiction

Under Section 401 is to confer power upon superior Criminal Courts-a kind of paternal or

supervisory jurisdiction-in order to correct a miscarriage of justice arising from a misconception

of law, irregularity of procedure, neglect of proper precaution or ostensible harshness of

treatment which has resulted, on the one hand or on the other in some undeserved hardship to

individuals. In the case ofKrishnan and AnrVs..Krishnaveni and Anr2

Supreme Court observed

that theSection 401 is to call for the records of any inferior Criminal Court and to examine the

correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to

the regularity of any proceedings of such inferior court and to pass appropriate orders. In this

case the court further reiterated that the revisional power of the High Court merely conserves the

power of the High Court to see that justice is done in accordance with the recognized rules of

criminal jurisprudence and that its subordinates courts do not exceed the jurisdiction or abuse

the power vested in them under the Code or to prevent abuse of the process of the inferior

Criminal Courts or to prevent miscarriage of justice. Section 401, upon the High Court is to

invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct the

irregularity of the procedure or to meet out justice. The controlling power of the High Court is

1(2002)5 SCC 659.2(1997) 4 SCC 241.


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discretionary and it must be exercised in the interest of justice with regard to all facts and

circumstances of each particular case. In this instant case miscarriage of justice is being done by

overlooking the materialistic evidences which were not produced. Clearly, the prosecution failed

to muster the evidences which could have been corroborative in nature, resulted in taking this

case into the pool of exceptional cases.

i- High Court can interfere in the exceptional case.It is submitted by the appellant that the Honble High court was not justified in not interfering

with the order of the lower court. In the case of Thakur Das (Dead) By Lrs.Vs.State of Madhya

Pradesh and Anr.3,The revisional jurisdiction conferred upon the High Court can be exercised in

exceptional cases where the interest of public justice requires interference for the correction of a

manifest illegality or the prevention of a gross miscarriage of justice. The apex court in the case

ofAmar Chand Aggrawalavs..Santi Bose4ruled out that where there is glaring defect in the

procedure or there is a manifest error of law and consequently there has been a flagrant

miscarriage of justice, the High Court can exercise its revisional power.

ii- Charges framed against Ajitha on the basis of the confessional statement ofthe Guruprasad.

It is humbly prayed that the Ajitha was charged only on the basis of the confessional statement of

the Guruprasad, who confessed his guilt, but the Honble Supreme Court in the cases ruled that

the confessional statement of an accused cannot be the sole basis of porthole garment of any

proceeding against the another accused. In the case ofChandra Kant ChimanLal Desai vs. State

of Gujrat5

it was held by the apex court that the confession of an accused cannot be made the

foundation of the conviction of another accused. The apex court again in the case ofKedar Singh

vs. State6

held that in the absence of any strong, reliable and trustworthy evidence such

confession of an accused cannot be used against the another accused in a conspiracy case.in the

case ofSiddharthvs. State of Bihar7

where the accused in his confessional statement mentioned

the name of the co-accused as his co-conspirator, but being there no independent evidence, the

3(1978)1 SCC 27.4AIR 1973 SC 799.

5(1992) 1 SCC 477.

6(1988) 3 SCC 609.

7(2005) 12 SCC 545.


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co-accused was held not guilty. In Kashmira Singh vs.. The State of Madhya Pradesh8wherein

the Supreme Court observed and laid down that the confession of an accused person is not

evidence in the ordinary sense of the term as defined in S3. It cannot be made the foundation of a

conviction and can only be used in support of other evidence. The proper way 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. In the case ofBalbeer Singh vs.

State of Punjab9

it was said that where the accused made the confession and it appeared by

reading that confession that he is really trying to throw blame upon the other, then such

confession cannot be relied upon and cannot be used against the other accused. In the case of

Sawarn Singh Rattan Singh vs. State of Punjab10

it was held that the reliability of the approver's

evidence against a particular accused may be shaken if the approvers account against the

another accused is discrepant. In the case ofDhuleshwarBeheravs. State11 it was held that a court

should not act upon the confession of the accused, which is later retracted, against the co accused

without the strongest and fullest corroboration. In another case of Sugumaranvs. State12

it was

held by the Madras High Court that a confession of an accused cannot be used against the

another accused. In the case13

it was held that the satisfaction of the court as regard to the

existence of the conspiracy must be based upon the some other independent evidences and not by

the virtue of the confessional statement of another accused. In the case ofRam Tossa vs. State of

Assam14

it was held that the confession of an accused is not a substantive piece of evidence on

which can rest the entire foundation for the conviction of the accused, who is not the maker of

the confession. In thence, the confessional statement made by the Guruprasad became the sole

foundation garment of the conviction of Ajitha. Hence, this allowed the conferring of blame

upon Ajitha. It was overlooked by the Ld. Sessions Court and subsequently traced by the

Honble High Court. But in principal, this confessional statement cannot become the sole

garment of encapsulatingAjitha.

iii-

Confession Made in a police custody is inadmissible

8AIR 1952 SC 159.

9AIR 1957 SC 126.

10AIR 1956 SC 537.

111982 Cr LJ 2346 (Ori.).

121987 (2) Crimes 691, 693 (Mad.).

131984 Cr LJ 317 (Bom).14

2012(3)GLD697.


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It is humbly submitted by the appellant that the confession made in police custody is

inadmissible under the Indian Evidence Act, 1872. Section 26 deals with a confession made by a

person in the custody of police, in the presence of magistrate, it is to be noted that the

expression used is in the presence of magistrate and not to a magistrate. For instance a

confession may be made to a police officer or any other person in the presence of the magistrate

and not to the magistrate, if it is so it comes under the ambit of Section 25 of the Indian Evidence

Act, 1872, even though it is made in the presence of the magistrate and the Section 26 would not

apply.15

iv- Materials must be looked at the stage of framing of charge.It is humbly submitted by the appellant that the trial court must consider the material placed

before it at the stage of framing the charge, which may also include the plea of alibi, but in the

instant case was overlooked by the Ld. Session court subsequently by the Honble High Court. In

SatishMehra vs. Delhi Administration and Anr,16

a two judge bench judgment, it was observed

that if the accused succeeds in producing any reliable material at the stage of taking cognizance

or framing of charge which might fatally affect even the very sustainability of the case, it is

unjust to suggest that no such material should be looked into by the court at that stage. It was

held that the object of providing an opportunity to the accused of making submissions as

envisaged in Section 227 of the Code of Criminal Procedure, 1973 (for short, 'the Code') is to

enable the court to decide whether it is necessary to proceed to conduct the trial. If the materials

produced by the accused at the earlier stage would clinch the issue. Why the court should shut it

out, saying that such documents need be produced only after wasting a lot more time in the name

of trial proceedings. It was further observed that there is nothing in the Code which shrinks the

scope of such audience to oral arguments and, therefore, the trial court would be within its power

to consider even material which the accused may produce at the stage contemplated in Section

227 of the Code. In Superintendent and Remembrancer of legal Affairs, West Bengal vs. Anil

Kumar Bhunja and Anrs.

17

, a three-judge bench held that the Magistrate at the stage of framingcharges had to see whether the facts alleged and sought to be proved by the prosecution prima

facie disclose the commission of offence on general consideration of the materials placed before

15Y.V. Chandrachud, V.R. Manohar,Ratanlal and DhirajlalThe Law of Evidence, 23rd ed., 2006.p. 435.

16(1996) 9 SCC 766.171979 Cr LJ1390.


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him (emphasis supplied). Though in this case the specific question whether an accused at the

stage of framing of charge has a right to produce any material was not considered as such, but

that seems implicit when it was held that the Magistrate had to consider material placed before it

by the investigating police officer.

b- Error in framing of charge as no material produced by the policeIt is prayed before the Honble Court that there was error in framing the charge by the Ld.

Session Court, which was subsequently overlooked by the Honble High Court. It is submitted

by the appellant that at the stage of framing the charges the material placed by the accused and

by the police or investigating agency must be looked after, and after considering those

materials there is no strong ground to frame the charge, the accused must be discharged.

Suresh BudharmalKalanivs.. State of Maharastra18

the confession of an accused cannot be

used to frame a charge against the other accused unless there are some other evidences for the

purpose. Section 239 of the Code of Criminal Procedure provides that If, upon considering the

police report and the documents sent with it under Section 173 and making such examination,

if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and

the accused an opportunity of being heard, the Magistrate considers the charge against the

accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

InSheoraj Singh Ahlawat and Ors.vs.State of U.P. And Anr.19

It is trite that at the stage of

framing of charge the court is required to evaluate the material and documents on record with a

view to finding out if the facts emerging therefrom, taken at their face value, disclosed the

existence of all the ingredients constituting the alleged offense. In State of Maharashtra

vs..PriyaSharanMaharaj and Ors20

it was held that in Sections 227 and 228 stage the court is

required to evaluate the material and documents on record with a view to finding out if the

facts emerging therefrom taken at their face value disclose the existence of all the ingredients

constituting the alleged offense In State Anti-Corruption Bureau, Hyderabad and Anr. v. P.

Suryaprakasam

21

where considering the scope of Sections 239 and 240 of the Code it was heldthat at the time of framing of charge, what the trial court is required to, and can consider is the

police report referred to under Section 173 of the Code and the documents sent with it.

18(1998) 7 SCC 337.192013(1)RCR(Criminal)153.20( 1997 ) 4 SCC 393.211999 SCC (Crl.) 373.
http://fnopenglobalpopup%28%27/ba/disp.asp','16599','1');http://fnopenglobalpopup%28%27/ba/disp.asp','16599','1');


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c- Honble High Court can interfere in the finding of Ld. Session CourtIt is humbly prayed that the Honble High Court can interfere with the finding of the trial

court, in the order of framing of charges but the Honble High Court didnt exercise its power.

In the case ofShankaranvs.. State of Delhi22

itwas held that the High Court may revise the

trial Courts finding if there has been an error in framing the charge. In another case of State of

Karnataka vs.. L. Muniswami23

it was held that where the accused is no- where concerned to

the incident, the Honble High Court in the revision would quash the proceeding against the

accused. In the instant case same is with the appellant as she pleads the plea of alibi as she was

out of town at the time of the incident, hence Honble High Court should have quashed the

charge against her which was not made by the Honble High Court. In the case of

ChinnaSwamyvs. State of A.P.24

it was held that the Honble High Court would be justified in

interfering in cases such as (1) where the trial court had wrongly shut out evidence sought to

be adduced by the prosecution, (2) where the appeallate court had wrongly held evidence

admitted by the trial court to be inadmissible, (3) where material evidence has been overlooked

either by the trial court or the court of appeal. In another case ofR.B. Mithanivs. State of

Maharastra25

it was held that a court of revision can take into consideration the further

evidence or order in the interest of the justice. In the another case ofBhimavs.Parmananda26

it

was held that when the lower court commits serious illegality, omits to consider evidence and

bases its order upon inadmissible evidence, then revision court may disturb the finding of the

lower court. Thereof, the evidences and the materials which were produced like plea of alibi

and other was overlooked by the sessions court and subsequently by the Honble high court as

well. There being no findings of other evidences which could cement the base of evidence like

confession of Guruprasad which was made the garment in charging Ajitha. Hence, by not

interfering in the finding of Ld. Session court the Honble high court traced the miscarriage of

justice likewise the session court, charges should have been discharged as no materials were

produced to cement other evidences. Ergo, the miscarriage of justice being done by notcomplying by the procedure this would have resulted in natural justice.

22(1990) Cr LJ 550 (Del).23(1997) 2 SCC 699.24AIR 1962 SC 1788.25

AIR 1971 SC 1630.26

1972 Cr LJ 820 (Ori).


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2- Whether Non Speaking order can be sustained in law?It is submitted on behalf of the appellant that an order must be a speaking order. A speaking

order is the order with reasons. It is an order which contains matter which is explanatory or

illustrative of the mere direction which is given by it is sometimes this called. It is an intelligible

order.27

Thus Honble High Court must give the reasons for its order in the instant case.

a- Obligation on the High Court to give reasons for its judgement.The Appellant humbly submits before the Honble Court that there was an obligation upon the

Honble Court to give a reasoned order which was not given by the Honble High Court of Delhi.

A non-speaking order is an order that is not a speaking order, that order which does not contain

all the details of the issue, clear findings and a reasoned order for the findings. A case is

summarily dismissed or the judgement is passed without a discussion on the background thereof.

Supreme in many of the cases has laid down the principle that there is an obligation upon the

High Courts to give a reasoned order or a Speaking Order. In the case ofJagtamba Devivs..Hem

Ram and Ors28

it was held that the Right to Reason is an indispensable part of a sound judicial

system, reasons at least sufficient to indicate an application of mind to the matter before Court.

Another rationale is that the affected party can know why the decision has gone against him. One

of the salutary requirements of natural justice is spelling out reasons for the order made,

in words, Speaking Out. The "inscrutable face of a sphinx" is ordinarily incongruous with a

judicial or quasi-judicial performance. Hence it is an obligation upon the higher authorities to

pass a reasoned order. In another case ofKalu Ram and Anrsvs. State of Delhi29

it was held by the

Supreme Court that High Court have made an error in passing the order without any reason,

hence it cannot be sustained and Apex Court in this case ordered High Court to reconsider the

matter. In the case ofRajeshwarivs.PuranIndoria30

Supreme Court held that where a matter

involves the any substantial question of law or expressed any view on any of the aspects on the

merits of the case, High Court is not justified in passing a non speaking order. In another case of

27 P. RamnathaAiyar, The Major Law Lexicon, 4thed, Vol. 6, P.6371.28(2008) 3 SCC 509.29(2006) 5 SCC 674.30(2005) 7 SCC 60.


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U.P. AvasEvamVikasParishadVs..SheoNarainKushwaha and Ors31

it was held by the Apex Court

that unless the order is reasoned, there will be no way of knowing whether the Appellate Court

has examined the appeal before deciding that it did not deserve admission. As a limited right to

appeal to Supreme Court is available against the appellate judgments of the High Court, unless

there are reasons in the order of dismissal, it will not be possible for the Supreme Court to

examine whether the High Court has rightly rejected the appeal. Thus it is an obligation upon the

High Court to give a concrete reason for its order. Apex Court in the case of State of

U.P.vs..ShriKishan32

held thatsince all these aspects have not been noted by the High Court and

by practically unreasoned order the matter was disposed off in the most unsatisfactory manner

High Court must reconsider the case.

In the instant case, Honble High Court of Delhi, dismissed the petition of the appellant through

a non- speaking order and without any reason. It was an obligation over the High Court to give

the reasons for dismissing petition as it involves substantive question of law as proper framing of

charge against Ajitha and involvement of Ajitha in the Murder of Ajay and there was many facts

like no material and independent evidences against Ajitha which need to be decided on merit, but

the trial court as well as Hon,ble High Court overlooked that very aspect. Hence it is humbly

prayed by the appellant to the Honble court to consider the matter as the Honble High Court

did not fulfilled its obligation to give the reason for dismissing the petition.

i- Failure to give reason amounts to denial of justice.It is submitted before the Honble Court that justice was decide to the appellant by deciding the

matter without giving any reason. Deciding any matter, without giving any reason amounts to

the denial of justice. Delhi High Court inR.S Bhagat vs. Union of India33

ruled out that passing

a Non speaking order without recording the special finding amounts to the miscarriage of

justice. Lord Denning inBreen v. Amalgamated Engineering Union34

observed that "The giving

of reasons is one of the fundamentals of good administration, failing which amounts to denial

of justice. InAlexander Machinery (Dudley) Ltd. v. Crabtree35

it was observed: "Failure to

31(2011)6SCC456.32(2005)10SCC420.33(1980) ILR Delhi1422.341971 (1) All E.R. 1148.351974 LCR 120.


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give reasons amounts to denial of justice". Reasons are live links between the mind of the

decision taker to the controversy in question and the decision or conclusion arrived at".

Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the

decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually

impossible for the Courts to perform their appellate function or exercise the power of judicial

review in adjudging the validity of the decision.

It is highly submitted by the appellant that by passing a non speaking order, Hon ble High

Court has denied the justice to Ajitha in the instant case. There was gross miscarriage of justice

which was done by the Honble High Court. It has breached the fundamentals of good

administration. Justice has been denied to the appellant by the Honble High Court by deciding

the issue through non speaking order.

b- To give speaking order is the requirement for natural justice.It is humbly submitted on behalf of the appellant that to give reason is the basic requirement of

Natural Justice enshrined in the Constitution of India, 1950. In Maneka Gandhi vs. Union of

India,36

Reasons are the link betweenthe order and the mind of the maker. Reasoned Decision

also involves the question of procedural fairness. A law which allows any administrative

authority to take decision affecting the right of the people without assigning any reason cannot

be accepted as lying down the procedure which is fair just and reasonable and hence would be

violative of article 14 and article 21 of the Indian Constitution. Supreme Court in Siemens

Engg.& Mfg. Co. vs. Union of India37

reiterated that requirement of reasons may also be implied

in the principle of Natural Justice. In S.N. Mukherjee vs. Union of India38

, the Apex Court

observed that unless the requirement has been dispensed with, any authority exercising judicial

or quasi- judicial functions must record its reasons in support of its decision because it facilitates

the exercise of appellate or revisional jurisdiction, act as a deterrent against the arbitrary exercise

of power and satisfies the party against whom the order is made. In Managing Director, United

Commercial Bank vs. P.C. Kakkar39, the HonbleSupreme Court said that courts must give

reasons for its order because reasons substitute subjectivity with objectivity and Right to Reason

36(1978) 1 SCC 248.37

(1976) 2 SCC 981.38

(1990) 4 SCC 594.39

(2003) 4 SCC 364.


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is the indispensible part of the sound Judicial System and one of the statutory requirement of

Natural justice.

In the instant case, Honble High Court has passed the non speaking order and thus the principles

of natural justice were denied to her. The Fundamental Right of the appellant was also abrogated

by the Honble High Court. By giving anon speaking order, the Honble High Court has

exercised its power arbitrarily and thus justice was denied to the appellant. The High Court by

not giving the reasons has breached the statuary requirement of the natural justice and thus

affected the fundamental right of the appellant.

c- Serious matter overlooked by the Hon,ble High Court without giving any reason.In the case ofKuldipKaurVs..Surinder Singh and Anr

40where a Non Speaking order was passed

by the Honble High Court without giving any reason in a serious matter filed by a helpless

women, it was held by the Hon.ble Supreme court that We fail to comprehend how such an

important question arising in the context of the petition preferred by a helpless woman could

have been summarily rejected by the High Court by a non-speaking order. To say the least of it,

it betrays total lack of sensitivity on the part of the High Court. Were it not so, the High Court

would have at least passed a speaking order unfolding the rational process.

In the instant case there involve a serious matter to look after and to consider. The appellant

Ajitha has been falsely trapped into the cobweb of charge which werelevelled against her and

Honble High Court by dismissing her petition to review the lower court order for framing the

charge acted as a idle spectator. High court dismissed the petition without giving any reason, in a

serious matter. Thus there was a gross irregularity on the part of the High Court to decide the

matter without giving any reason.

3- Whether confession of an approver can be retracted and in what manner at thestage of S 227/228 of Cr PC?

a- Approver can retract at the stage of framing of charge.It is humbly submitted by the appellant that the approver can retract the stage of framing of

charge, under certain conditions which must be fulfilled.

40(1989)1SCC405.


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i- Confession made in the police custody was not voluntary.It is submitted by the appellant that the confession made by the approver in the police custody

was not voluntary, hence approver can retract at the stage of section 227 and section 228 of the

Cr PC, which is the charge framing stage. In the English case ofState v. Mullin41

'Voluntary', was

defined as a statement made of the free will and accord of accused, without coercion, whether

from fear of any threat of harm, promise, or inducement or any hope of reward. Lord Sumner in

Ibrahim v. Regem42

said, "it has long been established as a positive rule of English criminal law

that no statement by an accused is admissible in evidence against him unless it is shown by the

prosecution to be a voluntary statement, in the sense that it has not been obtained from him either

by fear of prejudice or hope of advantage exercise or held out by a person in authority. About the

voluntary nature of confession in the leading case ofNandaniSatpathyvs. P.L. Dani43

it was

pointed out by the Apex Court that it is evidence procured not merely by physical threat or

promise or violence, but also psychic torture, atmospheric pressure, environmental coercion,

tiring interrogative prolixity, overbearing and intimidatory methods. It was held that any mode of

pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial

applied by the police officer to obtain information from an accused strongly suggestive of guilt

become compulsion. In the case ofShankariavs. State of Rajasthan44

court opined that in order

to ascertain that whether the confession is voluntary or not, 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

4185 NW 2nd 598, 600, 249 lown 10.42(1914) AC 599.43AIR 1978 SC 1025.44(1978) 4 SCC 453.


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the evidence and the surrounding circumstances, it may be taken to have satisfied the second test

and it failed to do so it cannot be relied upon as it is of involuntary in nature. In the another case

ofNazir Khan and Anrsvs. State of Delhi45

it was held that the crux of making a statement

voluntarily is, what is intentional, intended, unimpelled by other influences, acting on one's own

will, through his own conscience. Such confessional statements are made mostly out of a thirst to

speak the truth which at a given time predominates in the heart of the confessor which impels

him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally

emerges when one is in despondency or in a perilous situation when he wants to shed his cloak

of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so

powerful that he is ready to face all consequences for clearing his heart. In the case

ofKusumaAnkamaRaoVs..State of Andhra Pradesh46

An involuntary confession is one which is

not the result of the free will of the maker of it. So where the statement is made as a result of

harassment and continuous interrogation for several hours after the person is treated as an

offender and accused, such statement must be regarded as involuntary. The inducement may take

the form of a promise or of a threat, and often the inducement involves both promise and threat, a

promise of forgiveness if disclosure is made and threat of prosecution if it is not. In the case of

Devendra Prasad Tiwaryvs. State of UP47

it was pointed out that where confessional statement

suffer from the the serious infirmities in that, the magistrate did not question the accused as why

he was making the confession, and there is nothing on record to show that all the requirements of

section 164 Cr PC were fulfilled , that confessional statement cannot be relied upon as it lacks

the voluntariness of the accused to make such confession. In the case ofMahabir Singh vs. State

of Haryana48

it was pointed out that where confessional statement neither points out any

warning against the making of the confession, nor does it shows that confession was made

voluntarily, the confessional statement cannot be used against the accused and the court will

presume that the confession was involuntary one. In the case of JayawantDattatraySuryaraovs..

State of Maharashtra49

and also in the case ofNazir Khan50

it was held that that the initial

burden of proving that confession recorded was voluntary is upon the prosecution. In the case of

45(2003) 8 SCC 461.46(2008) 13 SCC 257.47AIR 1978 SC 1544.48(2001) 7 SCC 148.49 ( 2001 ) 10 SCC 10950Supra at 44.


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R vs. Thomson51

it was held that it is on prosecution to show that the confession recorded was

voluntary in nature before it can be used against.

In the instant case, the confessional statement made by the Guruprasad was made as an approver,

hence there was a promise of pardon and thus it can be said that it was not voluntary and he can

retract from his confessional statement. Moreover, Guruprasads confessional statement was

made in the police custody, though it was made in the presence of the magistrate but there was

still some sort of atmospheric pressure or environmental coercion of police officials hence the

confessional statement made by the approver was not voluntary and Guruprasad can retract. In

the instant case, there are no materials on record to show that the Guruprasad made his

confession voluntarily and it is burden upon the prosecution to prove that it was voluntary and

court will presume that it was not voluntary. Thus, confessional statement not being voluntary,

Guruprasad can retract.

b- Fundamental Right of the accused to retractIt is submitted by the appellant that it is the Fundamental Rights of a person under Article 20 (3)

of Indian Constitution, 1950 that no person can be compelled to give witness against himself. If

he is compelled to do so the fundamental right of that person would be abrogated. In the case of

Kalawativs. State of Himanchal Pradesh52

it was pointed out that Article 20(3) of the Indian

constitution provides the right to retract the confession by an accused it it is taken involuntarily

by the accused. The Honble Supreme Court, in State of Tamil Nadu Vs..Kutty alias Lakshmi

Narashinhan53

observed that to retract from confession is the right of the confessor and all the

accused against confessions were produced by the prosecution have invariably adopted that right.

It would be injudicious to jettison a judicial confession on the mere premise that its maker has

retracted from it. The Court has a duty to evaluate the evidence concerning the confession by

looking at all aspects.

In the instant case, Guruprasad did not made his statement voluntarily, hence he has all right toretract from his statement which was involuntary. Article 20(3) will come into the picture to

51(1836) 1 Mood CC 465.521953 SCR 546.53( 2001 ) 6 SCC 550.


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safeguard his interest for not giving self-incriminatingstatement, hence Guruprasad can retract

from his confessional statement.

c- Retraction can be made at the time of framing charge when accused is givenopportunity.

It is humbly submitted on behalf of the appellant that the approver can retract at the stageof

framing of charge. Section 228(2) of Code of Criminal Procedure laid down the provision that

judge,at this stage shall ask the accused whether he pleads guilty of the offence charged or

claimed to be tried. In the instant case was same happened Guruprasad pleads the Guilty of the

offence at the stage of framing of charge. In the case of BibhutiBhusan Das Gupta and

Anr.Vs..State of West Bengal54

it was said that the accused must be given opportunity to explain

the circumstances that appears against him in the evidences. It was well observed by Rankin J. in

PromothaNath v. Emperor55

, that what is necessary is that the accused shall be brought face to

face solemnly with an opportunity given to him to make a statement from his place in the dock in

order that the Court may have the advantage of hearing his defence if he is willing to make one

with his own lips." In the case ofBaburaoHariPawarvs. State of Maharastra56

Bombay High

Court held that it must be borne in mind that the accused is not guilty, unless he is proved to be

so and if he is able to point out before the commencement of trial that he has been falsely

implicated and there is no prima facie charge against him, he is at liberty to do so and ask for

discharge.

In the instant case the approver Guruprasad was provided with an opportunity to explain the

circumstance and in explaining so he has all the right to retract. Guruprasad has all liberty to

plead innocence when the opportunity is provided to him and retract from his statement which

was made in the instant fear and inducement.

4- Whether a retracted confession of an approver can be used as evidence against theco accused?

a- Retracted confession solely cannot be used against the co- accused.

54[1969] 2 SCR 104.55A.I.R. 1923 Cal. 470.56(1987) Cr LJ 584 (Bom.).


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It is humbly submitted by the appellant that the retracted confession of the Guruprasad

cannot be used against Ajitha. In the case ofParmanandaPeguvs. State Of Assam57

it was

held by the Supreme Court that It is now a well-settled principle of law that a retracted

confession is a weak evidence. The court while relying on such retracted confession must

satisfy itself that the same is truthful and trustworthy. Evidences brought on records by way

of judicial confession which stood retracted should be substantially corroborated by other

independent and cogent evidences, which would lend adequate assurance to the court that it

may seek to rely thereupon. In the another case ofBalbir Singh vs. State of Punjab58

it was

held by the Honble Supreme Court that view taken by this Court on more occasions than one

is that as a matter of prudence and caution which has sanctified itself into a rule of law, a

retracted confession cannot be made solely the basis of conviction unless the same is

corroborated by independent evidences. In PyareLalvs.. State of Rajasthan59 the same

principle in regard to the evidentiary value of retracted confession has been reiterated.

SubbaRao, J. speaking for a four Judge Bench, stated that a retracted confession may form

the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily

made. But it has been held that a Court shall not base a conviction on such a confession

without corroboration. Thereof, in the instant case the confession made by the Guruprasad

was later retracted and was not plumped for giving weightage to his retracted confession.

Therefore such confession does not carry any evidentiary value and hence cannot become a

base of conviction.

i- Retracted Confession is a weak type of evidenceIt is submitted by the appellant that the retracted confession is a very weak type of evidence to be

relied upon. In the case ofMd. Hussainvs.DalipSinghji60

it was held that the retracted confession

is a very weak type of evidence and cannot be the sole basis of conviction when there is no

material evidences. In another case ofmad.Yasinvs. King emperor61

it was held that the value of

the retracted confession will depend upon the fact of the each case, more particularly on the factthat whether the accused has an opportunity to retract the same.

57(2004)7 SCC 779.58AIR 1957 SC 216.59AIR 1963 SC 1094.60AIR 1970 SC 45.61ILR (1901) 28 Cal. 689.


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ii- Retracted Confession must be corroborated with other material evidence.In the case of SubramaniaGoundanVs..The State of Madras

62Reliance was placed upon the

illustration (b) to sc. 114 of Indian Evidence Act, which lays down the provision that a court may

presume that an accomplice is unworthy of credit unless he is corroborated in material

particulars, so his statement which is retracted later must be corroborated by independent

evidences and witnesses, which depend upon the facts and circumstances of very case, hence it is

very unsafe to rely upon the retracted confession. In another case ofHaricharanKurmivs. State of

Bihar63

it was held that the retracted confession of the accused cannot be the substantive evidence

and where other evidence is wholly unsatisfactory, the prosecution cannot rely upon such

confessional statement. In the case ofChandra Kant ChimanLal Desai vs. State of Gujrat64

it was

held that confession cannot be made the foundation of the conviction and can be only used in

support of other evidence and when this confession is retracted then material must be placed

upon its voluntariness, truthfulness and corroboration with independent evidences. In the case of

Brutonvs. US65

it was held that under the traditional rule of evidence, a co-accused confession

inculpating himself is inadmissible against another co accused as hearsay.

In the instant case, retracted confession of the Guruprasad was made the sole basis of frming

charge against the appellant Ajitha. There were no material evidences against Ajitha except the

retracted confessional statement of the Guruprasad, whose veracity is at stake.

b- Retracted confession of approver was not true.It is submitted by the appellant that the retracted confession of the approver was not true. It does

not stand the test of veracity. In the case ofZahiraHabibullah Sheikh &Anrvs. State Of Gujarat

&Ors66

the Hon,ble Supreme Court declared the petitioner as a self condemned liar as

petitioner use to retract from her statement regularly in each hearing. In the insatant case also the

approver retracted from his confession made in the police custody and pleads innocence. His

confession doesnt corroborated with any of the evidence and neither it lead to the discovery of

anything used in the murder of the Ajay. His confession doesnt corroborate with any of the

evidence and neither it led to the discovery of anything used in the murder of the Ajay. There

62AIR 1958 SC 66.63AIR 1964 SC 1184.64(1992) 1 SCC 477.65 391 US 123.66(2006)3 SCC 374.


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was no recovery of any materials except the car on his confessional statement. On the car also

there in only finger print of Ajay. On the occurrence site there is only single tyre mark, which

contradicts the confessional statement of Guruprasad that he was in Ajays car and was followed

by Ajitha in another car. The murder weapons were also not recovered by the officials, hence it

shows that Guruprasad was lying his statement cannot be relied upon and also his statement

cannot be used against the Ajitha.

c- Confession made in the police custody was not voluntaryIn the English case ofState v. Mullin

67'Voluntary', was defined as a statement made of the free

will and accord of accused, without coercion, whether from fear of any threat of harm, promise,

or inducement or any hope of reward. Lord Sumner inIbrahim v. Regem68

said, "it has long been

established as a positive rule of English criminal law that no statement by an accused is

admissible in evidence against him unless it is shown by the prosecution to be a voluntary

statement, in the sense that it has not been obtained from him either by fear of prejudice or hope

of advantage exercise or held out by a person in authority.Devendra Prasad Tiwaryvs. State of

UP69

it was pointed out that where confessional statement suffer from the the serious infirmities

in that, the magistrate did not question the accused as why he was making the confession, and

there is nothing on record to show that all the requirements of section 164 Cr.p.C were fulfilled ,

that confessional statement cannot be relied upon as it lacks the voluntariness of the accused to

make such confession. In the case ofMahabir Singh vs. State of Haryana 70 it was pointed out

that where confessional statement neither points out any warning against the making of the

confession, nor does it shows that confession was made voluntarily, the confessional statement

cannot be used against the accused and the court will presume that the confession was

involuntary one.

In the instant case, Guruprasad made his confessional statement in the police custody and under

promice and inducement of pardon which cannot be said to be voluntary and hence it cannot be

used against the Ajitha.

d- Ajitha cannot be charged on the basis of confession of acuused6785 NW 2nd 598, 600, 249 lown 10.68(1914) AC 599.69AIR 1978 SC 1544.70(2001) 7 SCC 148.


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It is humbly submitted by the appellant that the, appellant cannot be charged on the basis of the

confession ofGuruprasad by applying the provisions of Section 30 of the Indian Evidence Act,

1872. In the case ofBhuboniSahuVs.. The King71

it was ruled that Section 30, however, provides

that the Court may take the confession into consideration and thereby, no doubt, makes it

evidence on which the Court may act; but the section does not say that the confession is to

amount to proof. Clearly 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. Their Lordships think that the view which has prevailed in most of the High

Courts in India, namely that the confession of a co-accused can be used only in support of other

evidence and cannot be made the foundation of a conviction. Honble Supreme Court in the case

ofMohd. Khalid v. State of West Bengal72

held that the requirement of Section 30 of the

Evidence Act is that before it is made to operate against the co-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 an 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 co-accused and lastly, its use depends on

finding other evidence so as to connect the co-accused with the 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. In the case of Suresh

BudharmalKalanivs. State of Maharastra73

the confession of an accused cannot be use to frame a

charge against the other accused unless there is some other evidences for the purpose. When a

confession of one accused taken in the absence of the another accused, and the latter have no

opportunity of denying that what fellow accused has said, such confession can not be said to be

proved.74

Again in the case of ReSheobhajanAhir and ohersvs.. King Emperor75

an approver

cannot be deemed as tried jointly with the accused, his confession is not, therefore, admissible

under section 30 against the other accused. Thence, in this instant case the confession made by

the Guruprasad which was later retracted could not produce any substantial value as it was not

71AIR 1949 PC 257.72(2002) 7 SCC 334.73(1998) 7 SCC 337.74R vs.Lakshman, (1882) 6 Bom 124.75 AIR 1921 Pat. 499.


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supported by other evidences and was not corroborative in nature. There being no other

independent evidences his retracted confession cannot be relied upon and hence convicting

Ajitha solely on the foundation garment of this retracted confession is procuring the miscarriage

of justice and non-compliance of the procedure. In the instant case, there was no any other

independent evidences against the appellant except the confessional statement of the Guruprasad,

which was later retracted. The confessional statement of the Guruprasad being the weak evidence

can only be used to support the other evidence, but in the instant case there lacks the independent

evidence against Ajitha. To seek the provision of Seton 30 both the accused must be jointly tried,

but in the instant case, Guruprasad being the approver cannot be said to be jointly tried and hence

his statement cannot be used against the Ajitha. Further the confession must be proved to attract

the provision,but here Guruprasad retracted from his statement before the closing of the case and

also there is no other independent evidences against Ajitha hence Ajitha cannot be charged upon

the confessional statement of Guruprasad and it cannot be used against the Ajitha. Ergo, this

retracted confession which is a weak type of evidence should be repealed and abrogated and

should not be made any basis of conviction of Ajitha.

PPRRAAYYEERR

Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities cited, it

is most humbly prayed and implored before the Honble Court, that it may be graciously pleased

to adjudge and declare-

1. High Court made an error by not interfering into the findings of lower court by exercisingits power under Section 401, Code of Criminal Procedure.

2. Honble High Court was not justified in dismissing the petition by non speaking order.


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3. Guruprasad can retract at the stage of framing of charge.4. The retracted confession of Guruprasad cannot be used against Ajitha.5. All the charges against Ajitha should be quashed.

And pass any other order that it may deem fit in the favour of accused in ends of equity, justice

& good conscience.

All of which is most humbly and respectfully submitted.

COUNSEL FOR THE APPELLANT

final memorial (cnlu mci)

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