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WRITTEN SUBMISSIONS FOR THE DEFENSE

DETERMINATION

2ND AURO UNIVERSITY MOOT COURT COMPETITION, 2016

IN THE HONBLE DISTRICT COURT OF DELHI


PETITION NO. /2016

Smt Rekha and Ors... Defendants

v.

State of Delhi.....Prosecution

(Memorial for the Defendant)


COUNSELS ON BEHALF OF THE DEFENDANT

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WRITTEN SUBMISSIONS FOR THE DEFENSE

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................ ERROR! BOOKMARK NOT DEFINED.
INDEX OF AUTHORITIES ................................................................................................................. 3
LIST OF ABBREVIATIONS................................................................................................................ 6
STATEMENT OF FACTS ................................................................................................................... 8
STATEMENT OF JURISDICTION ....................................................................................................... 9
ISSUES RAISED .............................................................................................................................. 10
SUMMARY OF ARGUMENTS .......................................................................................................... 11
ARGUMENTS ADVANCED .............................................................................................................. 12
I.

THE EVIDENCE BROUGHT BEFORE THE COURT CANNOT BE RELIED UPON BY THIS COURT. ... 12
A.

DNA test as evidence is inadmissible in the present case .......................................... 12

B.

Narco Analysis must not be heeded by this court ....................................................... 13

C.

Hostile Witness statements must not be considered ................................................... 15

D.

Statements made to the Police do not constitute valid Admissions for this Court ..... 18

E. Circumstantial Evidence does not concretely prove guilt of the defendants ................. 20
II. THE CHARGES FRAMED CANNOT BE PLACED AGAINST THE DEFENDANTS. .......................... 22
A.

There may be no conviction for Murder under Section 302 ....................................... 22

B.

The charge of Kidnapping under Section 364 does not hold ..................................... 23

C.

There has been no causing of disappearance of evidence or giving false information

to screen offender by the defendants ..................................................................................... 24


D.

There exists no Criminal Conspiracy amongst the Defendants ................................. 25

E. There was no Common Intention amongst the Defendants ............................................ 25


F. The Defendants Rekha cannot be convicted for causing miscarriage ........................... 26
PRAYER FOR RELIEF .................................................................................................................... 27

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INDEX OF AUTHORITIES
ARTICLES REFERRED
1.

E.A.M. Graham, E.E. Turk & G.N. Rutty, Room Temperature DNA Preservation of Soft
Tissue for Rapid DNA Extraction: An Addition to the Disaster Victim Identification
Investigators Toolkit?, FSI Genetics (2008).

2.

N. von Wurmb-Schwark et al., Genetic Investigation of Modern Burned Corpses, Int'l


Cong. Series (2004).

3.

Schwark T et al., Reliable Genetic Identification of Burnt Human Remains, FSI


Genetics (2010).

4.

V. K. Kashyap et al., DNA Profiling Technologies in Forensic Analysis, Cent. Forensic


Sci. Lab. (2004).

BOOKS REFERRED
1. SUDIPTO SARKAR, LAW OF EVIDENCE (Wadhwa Nagpur Publications eds., 16th
ed. 2008).
2. WOODROFFE AND AMIR ALI, LAW OF EVIDENCE (Lexis Nexis Butterworth eds.,
19th ed. 2013).
CASES REFERRED
1. Badshah v. State of UP (2008) 3 SCC 681.
2. BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34.
3. Bodh Raj vs. State of J&K AIR 2002 SC 3164.
4. Commissioner of Police, Delhi v.Narender Singh, AIR 2006 SC 1800.
5. Dayabhai v. State of Gujarat, AIR 1964 SC 1563.
6. Duasan Bhoi v. State of Orissa, W.P.(C) No. 423 of 2013.
7. Fouzdar Rai v. Emperor, AIR 1918 Pat 193.
8. Hanuman v. State of Rajasthan 1994 Supp (2) SCC 39.
9. Jatinder Singh Bhatia v. State, 153 (2008) DLT 633.
10. Jhapasa Kabadi v. State of Bihar AIR 2002 SC 312.
11. K Ambazhagan v. Superintendent of Police, AIR 2004 SC 254.
12. Kalawati v. State of Himachal Pradesh (1953) SCR 546.
13. Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773.
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14. Kaluchand v. R, (1883) 13 Cal 53.
15. Kashmira v. S, 1952 SCR 526.
16. M.P. Sharma v. Satish Chandra, [1954] SCR 1077.
17. Mahboob v. State of Uttar Pradesh, 1982 CrLR 242.
18. Md Idris Ansari vs The State Of Jharkhand And Ors., W.P. (Cr.) No. 7 of 2014.
19. Mehboob Ali v. State of Rajasthan, Crl.A. No. 808 of 2010.
20. Miranda v. Arizona, 384 US 436 (1966).
21. Mohan Singh v. State of Bihar (2011) 9 SCC 272.
22. Mohan v. State of Rajasthan,1985 CrLR (Raj) 657.
23. Mohd. Faizan Ahmed v. State of Bihar (2013) 2 SCC 131.
24. Mohd. Khaild v. State of West Bengal (2002) 7 SCC 334.
25. Moideenkutty Haji and Ors. v. Kunhikoya and Ors.., AIR 1987 Ker 184.
26. Nandini Sathpathy vs P.L.Dani (1978) 2 SCC 424.
27. Nayeb Shahana v. Emperor, AIR 1934 Cal 636.
28. Nga Nyein v. Emperor, AIR 1933 Rang 57.
29. P Ratnasabhapathy Goundan v. Public Prosecutor, AIR 1936 Mad 516
30. Pappu v. The State of Maharashtra, 2015 (3) BomCR(Cri) 344.
31. Parasa Raja Rao v. State of Andhra Pradesh (2003) 12 SCC 306.
32. Phanindra Dey v. Bholanath, AIR 1982 Cal 397.
33. Prabhoo v. State of Uttar Pradesh, AIR 1962 SC 1118.
34. Prakash v. State of Rajasthan (2013) 4 SCC 668.
35. Premjibhai Bachubhai Khasiya v. State of Gujarat 2009 Cri. L.J. 2888 .
36. Province of Bihar v. Rameshwar Prasad Singh, AIR 1945 Pat 136.
37. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Thummala Janardhana
Rao, 1998 CrLJ 4450.
38. R v. Babu Lal, (1884) ILR 6 All 509.
39. R.K.Dey v. State of Orissa, A.I.R. 1977 S.C. 170.
40. Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170.
41. Ram Singh v. Sonia, AIR 2007 SC 1218.
42. Ramjee Rai v. State of Bihar (2006) 13 SCC 229.
43. Re Kalu Singh, AIR 1964 MP 30.
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44. S. Arul Raja v. State of T.N. (2010) 8 SCC 233.
45. Santosh Kumar Singh v. State through CBI 2010) 9 SCC 747.
46. Selvi v. State of Karnataka (2010) 7 SCC 263.
47. Sheo Shankar Singh v. State of Jharkhand and Anr (2011) 3 SCC 654.
48. Shivaji Sahebrao Bobade v. State of Maharashtra 1973 Cri LJ 1783.
49. Shobha Devi v. The State of Jharkhand and Nutan Kumari, 2011 CriLJ 4745.
50. Sivajirai Bobade v. State of Maharashtra AIR 1973 SC 2622.
51. Sonti Rambabu v. State of Andhra Pradesh, AIR 2004 AP 317.
52. State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820.
53. State of A.P. v. R. Punnayya 1977 Cr LJ 1.
54. State of Bombay v. Kathi Kalu Oghad & Others, [1962] 3 SCR 10.
55. State of Karnataka vs. David Razaria AIR 2002 SC 3272.
56. State of U.P. v. Babu Ram (2000) 4 SCC 515.
57. State v. Prasenjit Tapadar,1991 East Cr C 371 (C) (DB).
58. Sukhram v. State of Maharashtra (2007) 7 SCC 502.
59. Surendra Krishna Mandal v. Ranee Dasee, AIR 1921 Cal 677.
60. Sushil Sharma v. State of Haryana Crl.appeal No. 693/2007.
61. Tejinder Singh v. State of Punjab (2013) 12 SCC 503.
62. Tulsiram Shaw v. RC Pal, AIR 1953 Cal 160.
63. V.L. Tresa v. State of Kerala AIR 2001 SC 953.
64. Vinay Kumar v. State, CRL.A 670 OF 2007.
65. Vishal Yadav v. State of UP CRL.A. 741/2008.
STATUTES REFERRED
1. Code of Criminal Procedure, 1973.
2. India Evidence Act, 1872.
3. Indian Penal Code, 1860.

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LIST OF ABBREVIATIONS
ABBREVIATION

FULL FORM

A.P.

Andhra Pradesh

AIR

All India Reporter

Andh.

Andhra

BomCR

Bombay Case Reporter

Cal.

Calcutta

Cent.

Center

Cong.

Congress

Cr.

Criminal

Cri

Criminal

Cri. L.J.

Criminal Law Journal

CRL.A

Criminal Appeal

Ctr

Control

DB

Division Bench

DLT

Delhi Law Tribunal

DNA

Deoxyribonucleic Acid

FSI

Forensic Science International

Int'l

International

J&K

Jammu and Kashmir

Lab

Laboratory

LT

Law Tribunal

Mad

Madras

MP

Madhya Pradesh

No.

Number

Pat

Patna

Regina
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Rang

Rangoon

SC

Supreme Court

SCC

Supreme Court Cases

Sci

Science

SCR

Supreme Court Review

Supp

Supplementary

T.N

Tamil Nadu

UP

Utter Pradesh

US

United States

v.

Versus

vs

Versus

W.P.

Writ Petition

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STATEMENT OF FACTS
1.

Trisha Das was born to Rekha Das alias Rekha Mukherjee and Siddhartha Das. After her
parents split, Rekha moved to Delhi to study computers and Rekha was raised by her
grandparents. Rekha later was in a relation with Suhas Kumar and once that broke, she
married Jacoob Mukherjee.

2.

On Rekhas request, Trisha moved to Delhi and obtained a degree from St. Xaviers college
and started working for KVS infrastructure in 2009 where she met Ruhi, who became a close
confidant. Ruhi was in touch with Trisha until Rekha was arrested. After joining Delhi
Metro One in 2011, she got into a relation with Jacoob Mathews son, Shobhit.

3.

Trisha sent in her written resignation on 24th April 2012 and sent a breakup message to
Shobhit Mukherjee. Rekha maintained that Trisha had gone to the US and therefore no
missing FIR was filed. Following this, Shobhit approached the Lajpat Nagar police station on
30th April seeking to register a FIR. On Shobhits insistence, the police went to Rekhas
residence where they were told that Trisha was in the US. Later Rekha went to the station to
report that due to Shobhits stalking, Trisha left for the US.

4.

On the tip off of Rekha harming her daughter, she was placed under surveillance. However
the arrests were made on 21st August 2015 when her driver, Shyam Sahu was arrested for
possessing arms and he allegedly confessed to Trishas murder. There was a body found in
2012 near the Kausani forests and was unidentified till that point of time. An FIR was filed,
where it was alleged that Rekha had planned the murder and was assisted by Suhas Kumar.

5.

A DNA test was allegedly carried out, whereby it was indicated that the dead body was that
of Trisha Das. In the investigation, the Narcoanalysis allegedly corroborated the FIR, and
Kumars phone was allegedly traced back to Kausani forrest area on 25th April, 2012. Rekha
was arrested on 25th August for the murder and on the following day, Suhas was also arrested
and allegedly confessed to the crime.

6.

The car was not found, nor the weapon. There are no-eye witnesses to the event whatsoever.
There is no substantive evidence to the crime, only retracted statement recorded by police in
its custody to which all the people involved later denied in the court of law.

7.

The Prosecution has now approached the Honourable District and Sessions Court for
prosecuting the accused under Sections 302, 364, 201, 120-B, 34 and 313 of the Indian Penal
Code.
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STATEMENT OF JURISDICTION

The Prosecution has approached the Honble District Court under Section 226, Chapter XVIII of
the Code of Criminal Procedure, 1973 in the present matter. The Defense submits to the
jurisdiction of the Court.

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ISSUES RAISED

The issues raised before the Honble court are as follows:


I.
II.

WHETHER THE EVIDENCE BROUGHT BEFORE THE HONBLE COURT CAN BE RELIED UPON BY
THIS COURT.
WHETHER
THEM.

THE

DEFENDANTS

CAN BE CONVICTED UNDER THE CHARGES PLACED AGAINST

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SUMMARY OF ARGUMENTS
I.

THE

EVIDENCE BROUGHT BEFORE THE COURT CANNOT BE RELIED UPON BY THIS

COURT.

Firstly, DNA results alleging the identity of the deceased to be Trisha Das may not be admitted
by this court;
Secondly, Narco analysis of the defendants may not be relied on by the court for the statements
therein;
Thirdly, the statements made by the hostile witness Rambahadur may not be used by the
Prosecution to prove its case;
Fourthly, the circumstantial evidence that is sought to be brought by the Prosecution does not
concretely indicate the commission of crime by the defendants; and
Lastly, the confessions of the defendant Sahu to the police may not be used by the court as
corroboration of the circumstantial evidence.
II.

THE DEFENDANTS

CANNOT BE CONVICTED UNDER THE CHARGES PLACED AGAINST

THEM.

Firstly, the defendants are innocent of the charge of Murder of the deceased under Section 302
of the IPC;
Secondly, they plead innocent of the charge of Kidnapping with the intent of murder, under
Section 364;
Thirdly, they did not cause the disappearance of any material evidence to the case, as charged
under Section 201;
Fourthly, they did not take part in a criminal conspiracy to commit crimes, under Section120-B;
Fifthly, they lacked any common intention to commit crime under Section 34;
Finally, Rekha must be acquitted of the charge of causing the miscarriage of the deceased Trisha
Das, as under Section 313 of the IPC.
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ARGUMENTS ADVANCED
I.

THE

EVIDENCE BROUGHT BEFORE THE COURT CANNOT BE RELIED UPON BY THIS

COURT.

The Defense submits that firstly, the DNA results alleging the identity of the deceased to be
Trisha Das may not be admitted by this court [A], and also that the Narco analysis of the
defendants may not be relied on by the court for the statements revealed therein [B].
Furthermore, the statements made by the hostile witness Rambahadur may not be used by the
Prosecution to prove its case [C], while the confessions of the defendant Sahu to the police may
not be used by the court as corroboration of the circumstantial evidence [D]. Lastly, the
circumstantial evidence that is sought to be brought by the Prosecution does not concretely
indicate the commission of crime by the defendants [E].
A. DNA TEST AS EVIDENCE IS INADMISSIBLE IN THE PRESENT CASE
Although DNA tests are admissible under Section 45 of the Evidence Act, its acceptance and
reliability is for mere medical tests and not concrete evidence. In cases of murder, the Supreme
Court has accepted DNA evidence as admissible but not sufficient for a conviction.1 The
Supreme Court reiterated its stand on DNA evidence by stating that no conviction can be done
by the court solely on the basis of DNA evidence. At the same time, it held that if the DNA
evidence is in the negative, in such cases, the case will fall.2
In cases of extreme fire impact, only hard tissues may be left for DNA analysis. DNA extracted
from burnt bone fragments may be highly degraded, making an amplification of genetic markers
difficult or even impossible. Identification via DNA analysis is reliably and reproducibly
possible from well preserved and semi-burnt bones.3 Usually samples collected for DNA
identification are usually stored at -20C to halt the degradation processes and then preserved
over a 12-month period of to allow DNA profiling.4
However, it is submitted that in the case at hand, the corpse was left in the forest for three years,
and there was absolutely no concept of preservation of the corpse for the purpose of DNA
1

Sushil Sharma v. State of Haryana, Crl.appeal No. 693/2007.


Premjibhai Bachubhai Khasiya v. State of Gujarat, 2009 Cri. L.J. 2888
3
N. von Wurmb-Schwark et al., Genetic Investigation of Modern Burned Corpses, INT'L CONG. SERIES (2004).
4
E.A.M. Graham, E.E. Turk & G.N. Rutty, Room Temperature DNA Preservation of Soft Tissue for Rapid DNA
Extraction: An Addition to the Disaster Victim Identification Investigators Toolkit?, FSI Genetics (2008).
2

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profiling. This creates a doubt as to the level of degradation of the DNA which might have been
extracted from the burned corpse. When forensic analysis is dealt with burnt and charred bodies
of which only bones or bone fragments are available for reliable genetic identification, highly
degraded DNA is retrieved, which hampers STR analysis.5
It is submitted that, as discussed by the courts before, the FSL uses PCR and STR amplification
process for DNA profiling6, and although STR markers are very precise in determining human
identity, they might fail to amplify when the template DNA is insufficient, extensively degraded
and has undergone modifications.7 The courts have noted that despite having good Forensic
Science Laboratories having latest equipment, due to lack of knowledge among the Investigating
Agency, they are not being properly utilized.8
The remains may be contaminated with external DNA, during post-cremation processing i.e.
handling of the ashes, grinding of bones, etc. As a consequence, STR typing of cremation
remains has to be considered unreliable and not suitable for forensic purposes.9
Thus, it is humbly submitted that even though the extraction and subsequent STR typing of DNA
from the ashes of a cremated person is possible and in some cases does yield reproducible
results, a reliable post-cremation identification seems to be unlikely.
Thus, the lack of any corroborating evidence to support the fact the body found was of Trishas
or that she was murdered by the accused, exonerates the accused from their liability.
B. NARCO ANALYSIS MUST NOT BE HEEDED BY THIS COURT
The present case witnesses the use of narco analysis of Rekha, Sahu and Kumar ( herein known
as the accused)10. The question of narco analysis is invariably related to the persons right to
silence, an established right under Article 20(3) of the constitution of India. This right gives the
Accused the right against having information being forcibly obtained during an interrogation
through certain methods like narco analysis.

11

The importance of this right has been upheld by

N. von Wurmb-Schwark et al., Genetic Investigation of Modern Burned Corpses, INT'L CONG. SERIES (2004).
Vinay Kumar v. State, CRL.A 670 of 2007.
7
V. K. Kashyap et al., DNA Profiling Technologies in Forensic Analysis, Cent. Forensic Sci. Lab. (2004).
8
Md Idris Ansari v. The State Of Jharkhand And Ors., W.P. (Cr.) No. 7 of 2014.
9
Supra note 5.
10
Factsheet Page 2.
11
Nandini Sathpathy v. P.L.Dani, (1978) 2 SCC 424.
6

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the judiciary on certain occasions. The courts have liberally interpreted Article 20(3) of the
constitution granting the right of silence , especially with regard to interrogation methods such as
narco analysis12 and upto such an extent as to not only include the accused but anyone with a
connection with the offence itself.13
The Supreme Court of India has relied upon the Supreme Court of the United States in regard to
custodial confessions wherein it has thus been held by the court that a confessional statement
before the police is inadmissible before the court unless it was given on a voluntary basis after
prior warnings.14 The Indian Supreme Court has accepted this while holding the same test to any
person being interrogated in police custody for the commission of any offence.15

While

upholding the general principle, the court also held that there is no blanket inadmissibility with
regard to such statements that are made in police custody. It was held that any statement made, if
made on a voluntary basis, then such a statement is not completely inadmissible.16
In specific terms with narco analysis, the court has come down heavily against the practice. It has
held that such practices as violative of the persons right against self incrimination as granted
under Article20(3) of the constitution.

17

It held that such a violation can trample upon the civil

liberties of a person. Due to the overwhelming ability of the abuse of process by using narco
analysis, it has been categorically held by the court that narco analysis is not to be allowed
during the investigation process unless certain stringent safeguards are in place. The two most
important safeguards that have been sought for is that primarily, the tests must be made on a
completely voluntary basis and that secondly, he must have prior warning. The court still does
not give complete admissibility to such statements but merely allows such a statement to be
under the scope of Section 27 of the Indian evidence act.18
As has been held by the courts, the usage of narco analysis has been given a very limited use.
One of the most important conclusions of the courts decision on the use of narco analysis is that

12

M.P. Sharma v. Satish Chandra, [1954] SCR 1077.


State of Bombay v. Kathi Kalu Oghad & Others, [1962] 3 SCR 10.
14
Miranda v. Arizona, 384 US 436 (1966).
15
Nandini Sathpathy vs P.L.Dani, (1978) 2 SCC 424.
16
Ibid.
17
Selvi v. State of Karnataka, (2010) 7 SCC 263.
18
Ibid.
13

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the statements that are obtained by narco analysis is to be treated as any other statement as made
under Section 27 of the Indian Evidence Act, 1872.
A statement under Section 27 of the Evidence act requires a statement to be made in police and
that it makes admissible any fact that was discovered due to a statement made.19 Further, while
looking at the essentials of Section 27, one of the main essentials that was noticed by the court
was that consequent to the information that was given by the accused, that information should
have led to a discovery of some fact.20
Thus applying the principles of narco analysis and section 27, it can be concluded that the narco
analysis of Rekha, Kumar and Sahu are not in conformity with the requirements of Section 27 as
these statements merely corroborated the FIR21 and did not lead to any discovery of Fact that is
required for a statement to be brought under the ambit of Section of the Evidence Act. Thus the
whole narco analysis cannot be accepted by the court as all statements need to be treated as
statements made under Section 27.
Thus, as the defect in the narco analysis will lead to its invalidity and thus all further
corroboration that was relied upon by the narco analysis also cannot be considered by the court.
C. HOSTILE WITNESS STATEMENTS MUST NOT BE CONSIDERED
A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the
interest of the party calling him. Hence, unfavorable testimony does not declare a witness hostile.
Hostility is when a statement is made in favour of the defense due to enmity with the
prosecution.22
A witness is considered adverse when, in the opinion of the judge, he bears a hostile animus to
the party calling him, and not merely when his testimony contradicts his proof23, or whenever his

19

State of Karnataka v. David Razaria, AIR 2002 SC 3272.


Bodh Raj v. State of J&K, AIR 2002 SC 3164.
21
Factsheet Page 2.
22
R.K.Dey v. State of Orissa, A.I.R. 1977 S.C. 170.
23
Surendra Krishna Mandal v. Ranee Dasee, AIR 1921 Cal 677; Fouzdar Rai v. Emperor, AIR 1918 Pat 193.
20

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testimony is such that it does not support the case of the party calling him24, or is not in accord
with the evidence of the other witnesses.25
The general rule followed by the courts to call a person hostile is that, firstly, when the person
shows through his behaviour, hostility to the party that called him to the witness stand and
secondly, he speaks something contrary to what is expected from him. 26
It is submitted that in the present case, the petrol pump attendant Rambahadur i.e. PW2 had no
palpable hostile animus to the prosecution, since he has no interest in the case, and stands to
neither lose or gain from the outcome of the trial. Merely since the examination of PW-2 in court
proved to be unfavourable for the prosecution, as well as contrary to what was expected by them,
the witness may not be deemed as a hostile witness adverse to the proceedings.
Before seeking permission to declare a witness hostile, the prosecution must demonstrate either
by referring to his statement recorded under S. 161 of CrPC or otherwise, that the witness was
not telling the truth and only then can the court exercise its judicial discretion in favour of the
prosecution.27
The court is endowed with the power and jurisdiction to grant permission to a party to crossexamine its own witnesses, and such permission can be granted at any stage of the proceedings.
However, the said discretion is required to be exercised in a judicious manner. Such permission
may only be granted by the court if it satisfies that the witness has exhibited an element of
hostility to the party for whom he or she is deposing.28
It is submitted that the mere fact that a witness does not adhere to, or subsequently makes a
statement different from his previous statement, does not, of itself, justify the employment of the
power given by this section.29 It is, of course, clear that the mere fact that a witness tells two
different stories does not necessarily and in all cases show him to be hostile. The proper
inference which may be drawn , in such a case, from contradictions going to the whole texture of
24

Tulsiram Shaw v. RC Pal, AIR 1953 Cal 160.


Province of Bihar v. Rameshwar Prasad Singh, AIR 1945 Pat 136; P Ratnasabhapathy Goundan v. Public
Prosecutor, AIR 1936 Mad 516.
26
BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34.
27
State v. Prasenjit Tapadar,1991 East Cr C 371 (C) (DB).
28
Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Thummala Janardhana Rao, 1998 CrLJ 4450.
29
Nga Nyein v. Emperor, AIR 1933 Rang 57; Nayeb Shahana v. Emperor, AIR 1934 Cal 636.
25

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the story being that the witness is neither hostile to his side nor the other, but that the witness is
one who ought not to be believed unless supported by other satisfactory evidence.30
When the public prosecutor has not sought permission of the court by resorting to S. 154 even
though the witnesses have resiled from their earlier testimony, the subsequent testimony of the
witnesses remains uncontroverted.31 So, declaration of a witness as hostile is to be done
immediately at the time of examination of witness and cannot be permitted long after the witness
has been examined.32 An application for recalling a witness whose examination is over and to
treat him as a hostile witness and cross-examine him will be rejected.33
Permission to cross-examine own witness should be given only in special cases and not as a
matter of course, and discretion should not be exercised in a casual manner without weighing the
circumstances.34
It is to be noted that a court would not give leave to the party calling a witness to question him
until it is satisfied that there is some hostility or adverseness displayed by the witness to the very
party on whose behalf he has come to give evidence. If his memory plays a trick in regard to a
detail, and he does not show any disinclination to tell the truth, then he is not hostile or adverse.35
Due to the substantial difference between the present case and the case of Bhagwan Dass, its
ruling of accepting hostile witness statement can be accepted as there is no extrajudicial
confession of any type in the present case. 36
It is thus submitted that in the present case, as well, there is no reason for the witness to turn
hostile or adverse to the proceedings in the District Court, since in no way is PW-2 interested in
the acquittal or conviction of the Defendants, nor was any extra-judicial confession made to him.
PW-2 is merely an obscure and wholly unrelated person who has been dragged into the present
trial, and fluctuations in his statement may not be used by the Prosecution as an excuse to crossexamine him further and induce him to confirm his earlier statement to the Police. Thus, it is
30

Kaluchand v. R, (1883) 13 Cal 53.


K Ambazhagan v. Superintendent of Police, AIR 2004 SC 254.
32
Jatinder Singh Bhatia v. State, 153 (2008) DLT 633.
33
BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34; Dayabhai v. State of Gujarat, AIR 1964 SC 1563.
34
Phanindra Dey v. Bholanath, AIR 1982 Cal 397; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170.
35
Re Kalu Singh, AIR 1964 MP 30.
36
Pappu v. The State of Maharashtra, 2015 (3) BomCR(Cri) 344.
31

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submitted that the Court accept PW-2s deposition that he did not recognise the Defendant Sahu
as admissible evidence, which is in turn an indication of the lack of any concrete proof against
the Defendants.
D. STATEMENTS MADE TO THE POLICE DO NOT CONSTITUTE VALID ADMISSIONS FOR THIS
COURT
One of the basic tenets of criminal law is that a confession made to a police officer may not be
used against the person so making it. This implies, under Section 162 of the CrPC, that
statements made by an accused to the police in the course of investigation are inadmissible,37
while also under Section 25 of the Indian Evidence Act, that such confession may not be proved
as against the person so accused of a crime38.
These legislative provisions indicate that the legislature had in view the malpractice of police
officers in extorting confessions from accused persons in order to gain credit by securing
convictions, and that those malpractices have gone to the length of positive torture. It is
impossible not to feel that the average Indian policeman, with the desire to satisfy his superiors
before, and the terms of the Police Acts and Rules behind him, is not likely to be over-nice in the
methods he adopts to make short-cuts to the elucidation is a difficult case by getting a suspected
person to confession.39
Thus, if a confession be made to a police officer, the law says that such a confession shall be
absolutely excluded from evidence, because the person to whom it was made is not to be relied
on for proving such a confession, and he is moreover suspected of employing coercion to obtain
the confession.40 The words any person in S. 162 of the CrPC, in their ordinary meaning, will
include any person, though he may, after making the statement under the section, become an
accused.
Section 26 is an extension of Section 25, and states that incriminating statements41 made while in
the custody of the police are inadmissible, unless made in the presence of a magistrate.42 The
term custody therein has a wide connotation. It implies that the police must have control over
37

Mahabir Mandal v. State of Bihar, AIR 1972 SC 1331.


Mahboob v. State of Uttar Pradesh, 1982 CrLR 242.
39
R v. Babu Lal, (1884) ILR 6 All 509.
40
WOODROFFE AND AMIR ALI, LAW OF EVIDENCE 1405 (Lexis Nexis Butterworth eds. ,19th ed. 2013).
41
Prabhoo v. State of Uttar Pradesh, AIR 1962 SC 1118.
42
Mohan v. State of Rajasthan,1985 CrLR (Raj) 657.
38

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WRITTEN SUBMISSIONS FOR THE DEFENSE


the persons movement43, and thus, if the movements of the accused were restricted or the
accused was kept under direct or indirect police surveillance, Section 26 comes into play.44
The policy underlying behind Section 25 and 26 is to make it a substantive rule of law that
confessions whenever and wherever made to the police, or while in custody of the police, shall
be presumed to have been obtained under the circumstances mentioned in S. 24, and therefore
inadmissible, except in cases when S. 27 applies.45
Further, though a statement with a police officer may sometimes be allowed to be used in crossexamination, however, if it is a joint trial along with some other accused, the language of the
section may not be stretched so as to bring the confession of the co-accused within the fold of
admissibility, especially if serious penal consequences will follow.46
As for Section 27, there must be a recovery in pursuance to the information furnished by the
accused and that information must not have already been known to the police.47 A statement by
the accused that he had committed the offence with respect to objects already discovered by the
police does not fall within S.27, because such a statement is not at all required to lead up to the
production of the property.48
Thus, it is submitted that in this case, since the statement made to the police did not lead to the
discovery of the body, since they had already been aware of the location of the body, this
means that even Section 27 will not apply to the statement, and it may not, under any
circumstance, be admitted by the Court.
Additionally, since these statements are not admissible as confessions, Section 30 shall not apply
in this scenario even against the co-accused Rekha and Suhas, especially since this is not
evidence as per S.3.49

43

WOODROFFE AND AMIR ALI, supra note 40, at 1450.


Ram Singh v. Sonia, AIR 2007 SC 1218.
45
Commissioner of Police, Delhi v. Narender Singh, AIR 2006 SC 1800.
46
State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820.
47
Mehboob Ali v. State of Rajasthan, Crl.A. No. 808 of 2010.
48
Duasan Bhoi v. State of Orissa, W.P.(C) No. 423 of 2013.
49
SUDIPTO SARKAR, LAW OF EVIDENCE 688 (Wadhwa Nagpur Publications eds., 16th ed. 2008); Kashmira
v. S, 1952 SCR 526.
44

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It is thus finally humbly submitted to the court, that in light of Section 24-27 and Section 30 of
the Indian Evidence Act, the statement made by Sahu to the police officer be held as
inadmissible by the court, both as against him, as well as against Rekha and Suhas.
E. CIRCUMSTANTIAL EVIDENCE DOES NOT CONCRETELY PROVE GUILT OF THE DEFENDANTS
In the case of circumstantial evidence, where there is no motive, the evidence needs to
scrutinized in great detail in order to remove any doubt. For circumstantial evidence to be the
basis of a conviction, the panchsheel formula was developed wherein, the following points need
to be fulfilled:
1. It is a primary principle that the accused must be and not merely may be guilty before a Court
can convict, and the mental distance between 'may be' and 'must be' is long and divides vague
conjectures from sure conclusions;
2. 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;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. 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.50
It has also been held that if two views of the available evidence are possible, then the view which
is favorable to the accused must be followed, and this rule should be especially followed in cases
of circumstantial evidence.51 Furthermore, it has been held that there must be some credible
evidence which must link the accused to the crime; mere suspicion indicating inconsistency of
innocence of the accused cannot make an accused liable. Seriousness of the gravity of the crime
should not motivate a court to punish an accused. 52
The court has stated time and again that circumstantial evidence is not used in conviction as the
difference between may be and must be is too large.

50

Shivaji Sahebrao Bobade v. State of Maharashtra 1973 Cri LJ 1783.


Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773.
52
Mohd. Faizan Ahmed v. State of Bihar (2013) 2 SCC 131.
51

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WRITTEN SUBMISSIONS FOR THE DEFENSE


In the present case, the lack of discovery of any instrument of murder, no witness and no strong
motive except a hypothesized motive indicate towards an ambiguous evidence.
In a case of circumstantial evidence, if the res gestate suggests that the relationship of the
accused with the deceased was strenuous, it cannot be a basis to convict the accused in lack of an
express evidence or proof implicating the accused and proving the prosecutions story. This has
been held by the court by way of an example that: 53
Assume that in a murder case there are five circumstances: A - motive/strain
in the relationship. B - That the accused and the deceased had quarreled a
little prior to the incident. C - That the accused was seen running away from
the room where the deceased was lying with injuries. D - Dying declaration
made by the deceased implicating the accused. E - Extra judicial confession
by the accused.
The High Court held that only the presence of circumstances A and B do not implicate the
accused in cases of circumstantial evidence. Conclusions consistent with innocence of the
accused may be possible even if circumstances A & B are proved convincingly. Here, in the
present case, it is only an assumption that Trisha and Rekha shared a strenuous relationship,
hypothesized based on the presented facts, thus, no conclusive evidence.
The Supreme Court held that proving of motive is a must in cases of circumstantial evidence, as
it is even necessary in cases where the evidence is not all circumstantial. This should be coupled
with a witness testimony. But even is a motive is proved, the lack of any other evidence or
witness does not take the prosecutions case home.54 There are no testimonys in the present
case, and no evidence which establishes the story of the prosecution. A mere motive will not
make Rekha, Suhas, and Sahu liable.

53
54

M.G.Agarwal v. State of Maharashtra, AIR 1963 S.C 200.


Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3 SCC 654.

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WRITTEN SUBMISSIONS FOR THE DEFENSE


II.

THE CHARGES FRAMED CANNOT BE PLACED AGAINST THE DEFENDANTS SO AS TO


CONVICT.
It is submitted that the defendants are innocent of the charge of Murder of the deceased Trisha
Das under Section 302 of the IPC [A], and they plead innocent of the charge of Kidnapping with
the intent of murder, under Section 364 [B]. They submit that they also did not cause the
disappearance of any material evidence to the case, as charged under Section 201 [C].
Furthermore, they submit that they did not take part in a criminal conspiracy to commit crimes,
under Section120-B [D], and that they lacked any common intention to commit crime under
Section 34 [E]. Lastly, it is submitted that Rekha must be acquitted of the charge of causing the
miscarriage of the deceased, as under Section 313 of the IPC [F].
A. THERE MAY BE NO CONVICTION FOR MURDER UNDER SECTION 302
Murder is act of culpable homicide done intentionally, murder being the specie of the genus of
culpable homicide.55 The necessities of culpable homicide amounting to murder being:
i)

Act should be done to cause death or likeliness that it would cause death

ii)

Should not be arising out of provocation56, in private defence57, done in advancement


of public duty by public servant58, out of premeditation59, or by way of foreseeable
risk.60

Motive is an important element to carry out the intention to carry out death of another,
especially, in cases of circumstantial evidence.61 Presence of motive in cases of circumstantial
evidence itself forms a link in the chain of the crime.62 The Supreme Court has further accepted
the main contention of the Defendants that although motive cant alone convict a person, it can
help in connecting all further circumstances. 63
Thus, in the present case, there has been a considerable lack of a credible motive due to which
the Defendants have committed the murder of the victim. As seen above from the Court
decisions, the motive is an essential piece in any trial and without that, a conviction is very hard.
55

State of A.P. v. R. Punnayya, 1977 Cr LJ 1.


Exception 1, Section 300, Indian Penal Code, 1860.
57
Exception 2, Section 300, Indian Penal Code, 1860.
58
Exception 3, Section 300, Indian Penal Code, 1860.
59
Exception 4, Section 300, Indian Penal Code, 1860.
60
Exception 5, Section 300, Indian Penal Code, 1860.
61
State of U.P. v. Babu Ram, (2000) 4 SCC 515.
62
Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3 SCC 654.
63
Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747.
56

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WRITTEN SUBMISSIONS FOR THE DEFENSE


Thus, due to the lack of motive and the principles laid down by the court, it can be held that the
Defendants cannot be held accountable for the offence of murder.
B. THE CHARGE OF KIDNAPPING UNDER SECTION 364 DOES NOT HOLD
The necessary ingredients under this section as iterated by the Apex Court are64:
i)

Abduction must be proved

ii)

Person charged must have had the intention at the time of abduction to murder the
abducted or be put in such danger

A conduct which destroys the presumption of innocence is a material fact. In a case where the
accused misled the kidnap rescue search and not allowing to search specific places created a cast
iron doubt over his innocence, establishing liability.65
Firstly, there is no proof of Trishas kidnapping whatsoever. This section is attracted when the
kidnapping is sufficiently proved but its intent, that of murder, has to be ascertained. The first
elements itself is not proved. In cases which have attracted Section 364 and the evidence is
primarily circumstantial, the Supreme Court has strictly adopted the approaches:
i)

The circumstantial evidence must be proved beyond doubt66,

ii)

The kidnapping/abduction must be conclusively ascertainable or proved. In order to


ascertain this, the courts have used the last seen theory, whereby, the victim must be
last seen with the accused.67 When there is an element of murder, there is additional
requirement that it be proved that a. there was a kidnapping and b. that kidnapping
was for the purpose of murder.68

iii)

The court also held that the use of force against the deceased was an important factor
in the conviction under Section 364.69

Thus, Trishas kidnapping cannot be conclusively proved or ascertained beyond the shadow of
doubt. If the Panchsheel70 formula for circumstantial evidence for conviction under Section
364 is applied in the present case it can be found that Trishas kidnapping itself cannot be

64

Badshah v. State of UP, (2008) 3 SCC 681.


Jhapasa Kabadi v. State of Bihar, AIR 2002 SC 312.
66
Prakash v. State of Rajasthan, (2013) 4 SCC 668.
67
Ibid.
68
Badshah and Ors v. State of Uttar Pradesh, (2008) 3 SCC 681.
69
Vishal Yadav v. State of UP, CRL.A. 741/2008.
70
Sivajirai Bobade v. State of Maharashtra, AIR 1973 SC 2622.
65

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WRITTEN SUBMISSIONS FOR THE DEFENSE


proved, let alone the involvement of the 3 accused in it. Further, no use of force or deceitful
means can be proved to be have been used, and there has been no discovery of the instrument
used for murder or the car.
Rekha was diligent to report to the police upon return, informing them the reasons for Trishas
absence. The police could have built upon their search upon this information. Later, she was also
put under surveillance, which from the facts can be understood to be for 40 months, but nothing
out of the ordinary casting doubt can be said to be assumed.
C. THERE

HAS BEEN NO CAUSING OF DISAPPEARANCE OF EVIDENCE OR GIVING FALSE

INFORMATION TO SCREEN OFFENDER BY THE DEFENDANTS

The main ingredients which invoke Section 201 are:


i)

Commission of an offence

ii)

Cause any evidence to disappear

iii)

Intention of screening the offender from legal punishment.

As a matter of practice a Court will not convict a person both of the main offence and under this
section.71 Although the Supreme has allowed for conviction under this section on circumstantial
evidence, it held that this evidence needs to establish guilt beyond a reasonable doubt.72 This has
been accepted on multiple occasions wherein the court has not accepted a conviction if the
circumstantial evidence does not provide guilt beyond reasonable doubt.73 The court further held
that the prosecution could not present any positive evidence to prove the destruction or removal
of the evidence in the first place. A combined reading of S. 101 and S. 104 of the Evidence Act
also puts the burden on the prosecution to present a positive evidence to prove the damage or
loss of it and convict the accused on its basis. The accused cannot be convicted on the
disappearance or loss of something whose existence itself is disputable.74
The present factual matrix does not provide a situation wherein the circumstantial evidence
relied on by the prosecution does not give an element of proving beyond a reasonable doubt that
is required for the prosecution under this section. The facts do leave certain questions due to
which the question of prosecution cannot be answered in the positive.
71

Kalawati v. State of Himachal Pradesh, (1953) SCR 546; V.L. Tresa v. State of Kerala, AIR 2001 SC 953.
Sukhram v. State of Maharashtra, (2007) 7 SCC 502.
73
Hanuman v. State of Rajasthan, 1994 Supp (2) SCC 39.
74
Tejinder Singh v. State of Punjab, (2013) 12 SCC 503.
72

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Thus, with the facts of the case with the legal principles laid down, the Defendants cannot be
prosecuted under Section 201.
D. THERE EXISTS NO CRIMINAL CONSPIRACY AMONGST THE DEFENDANTS
The essential ingredients of a criminal conspiracy are:
i)

There must be an agreement between the persons who are alleged to conspire

ii)

The agreement must be for a) doing an illegal act, b) doing a legal act illegally.

The present case presents no substantive evidence for a criminal conspiracy between the parties.
Although it has been accepted that for Conspiracy occurs in secrecy and direct evidence is not
always available75, there is a requirement that there need to some substantive corroboration to the
hypothesis even if only circumstantial evidence is available.76 There is a minimum requirement
that a minimum level of corroboration is required if the charge of criminal conspiracy is to be
proved.77
In the present case, it can be proved as to why the three alleged persons would come together to
result the murder of the deceased. Suhas Kumars motive and intention cannot be established on
the give facts, thus, no Suhas cannot share a common intention with Rekha. It cannot be
established as to why would accused Suhas Kumar would fly to Delhi to especially kill Trisha
againt whom on the basis of current facts he shared no animosity or had no relationship with.
Similarly, Sahus involvement in furthering Rekhas motive or sharing a common motive cannot
be adduced by the surrounding circumstances. No substantive evidence has been placed which
established that the accused persons acted in concert with a common intention, therefore, an
agreement to result Trishas abduction and murder cannot be established.
E. THERE WAS NO COMMON INTENTION AMONGST THE DEFENDANTS
Section 34 is used not substantively but to bring under the ambit of all persons accomplice to a
common crime, where it is difficult to distinguish between the acts of the individual members of
the common intention of all. All such people are deemed guilty as the presence of an accomplice

75

Mohd. Khaild v. State of West Bengal, (2002) 7 SCC 334.


Mohan Singh v. State of Bihar, (2011) 9 SCC 272.
77
S. Arul Raja v. State of T.N., (2010) 8 SCC 233.
76

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WRITTEN SUBMISSIONS FOR THE DEFENSE


gives encouragement, support and the final shape to the criminal act.78 The main ingredients79 for
Section 34 are:
i)

common intention;

ii)

participation by all accused in the act or acts in furtherance of the common intention,.

Furtherance means action of helping forward, which was adopted by the Supreme Court.80
The parties must be shown to be having a common intention to come together to commit a crime,
the act being a positive act in concert. The Supreme Court has held that it is the essence of the
section that a person must be physically present to commit the act. In fine, if common intention
cannot be inferred from the evidence of facts and circumstances of the case, then section 34
I.P.C. is cannot be invoked. In this case, the facts suggest that Suhas Kumar came all the way to
Delhi to abduct and kill Trisha and that the driver Shyam Sahu complied with the criminal acts
of his employer Rekha. On the basis of surrounding facts, no common intention can be adduced,
and as already proved above no substantive evidence proves the existence of an agreement to
further the crime.
F. THE DEFENDANTS REKHA CANNOT BE CONVICTED FOR CAUSING MISCARRIAGE
Courts have declared that on the strength of vague evidence and in the absence of corroborative
medical evidence, conviction for a serious offence under Section 313 IPC cannot be done. In
such cases, benefit of doubt must be given to the accused.81 The Prosecution must bring in
adequate medical evidence and testimonial evidence as to the consent for abortion.82
Furthermore, when there has been no case against the Doctor who conducted the abortion, it may
be assumed that there was no lack of consent.83
It is submitted that owing to lack of concrete evidence, it may not be assumed that Rekha forced
Trisha to abort the child. Mere disagreement to a childs birth owing to the social realities and
taboos of India cannot be said to be pressurizing. Trishas abortion was with her own consent,
done freely, as Trisha and Shobhit were merely cohabiting and had not married.
78

Ibid.
Ramjee Rai v. State of Bihar, (2006) 13 SCC 229.
80
Parasa Raja Rao v. State of Andhra Pradesh, (2003) 12 SC 306.
81
Sonti Rambabu v. State of Andhra Pradesh, AIR 2004 AP 317.
82
Shobha Devi v. The State of Jharkhand and Nutan Kumari, 2011 CriLJ 4745.
83
Moideenkutty Haji and Ors. v. Kunhikoya and Ors., AIR 1987 Ker 184.
79

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PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Hon'ble Court that it may be pleased to adjudge and declare
the following:
1. The Defendants are innocent of the charge of murder of Trisha Das under Section 302 of
the Indian Penal Code;
2. The Defendants are innocent of the charge of kidnapping of Trisha Das under Section
364;
3. The Defendants are innocent of the charge of causing disappearance of evidence under
Section 201;
4. The Defendants are innocent of common conspiracy to commit a crime under Section
120-B and had common intention thereof under Section 34; and
5. The Defendant Rekha is innocent of the charge of causing miscarriage without consent
under Section 313.

OR

May pass any other order that it deems fit in the light of Justice, Equity and Good Conscience.

Sd//_______________
(Counsel for the Defendant)

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