(i)

Team Code- R-10

IN THE HO NBLE S U P R E M E C O U R T O F I N D IA AT New DELHI,

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CNLU INRTA MOOT COURT COMPETITION

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SLP NO. ****/2013

MRS . AJ I THA
v.

Appellant Respondent

S TATE OF DELHI ( NCT)

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MEMORIAL ON BEHALF OF THE RESPONDENT WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

(ii) TABLE OF CONTENTS

INDEX OF AUTHORITIES (iv) STATEMENT OF JURISDICTION (vii) STATEMENTS OF FACTS. (viii) STATEMENT OF ISSUES.. (x) SUMMARY OF PLEADINGS (xi) I. High Court was justified in refusing to exercise its revisionary power under Section 401 of Cr.P.C. ........ (1) A. There was grave suspicion on appellant that she was involved in the offence and the material on record is sufficient enough to frame the charges against her under section 228 of Code of Criminal Procedure. (3) i. There was established and clear motive of the appellant for being involved in offence and is a relevant fact under section 8 of Indian Evidence Act(3) ii. The Confessional Statement of Mr. Guruprasad is admissible against appellant by the virtue of Section 26 and 30 of Indian Evidence Act, 1872..(5) iii. The confessional statement of Mr. Guruprasad receives some general corroboration and is admissible as substantial evidence against the appellant under section 27 of Indian Evidence Act, 1872(6) B. The plea of alibi cannot be taken at the stage of framing of charges(8) The non speaking order can be sustained in law and it is not bad in law (9) A. Giving a speaking order is rule of prudence, not a rule of law. Non Speaking order is sustained in few exceptional cases (9) B. The High Court is not bound to give speaking order in present case where it affirmed the decision of lower court.. (9) i. The session court is not required to give reasoned order while framing the charges (10) Confessional statement of an approver can be retracted (11)

II.

III.

(iii) A. Legal Status of an approver and the procedure to become approver from accomplice (11) Mr. Guruprasad was eligible to be approver in this case as he fulfilled the criteria to be an approver (13) B. Pardon granted and later recalled by Session Court was justified in accordance with law and facts of the case.......... (13) i. Manner of retraction of the confessional statement of the approver (13) ii. Retraction has no meaning at the stage of Section 227 and 228 of Cr.P.C.. (14) i.

IV.

Retracted Confessional Statement can be admitted against co- accused and can be acted upon by the court (15) A. The confessional Statement can be used against co-accused by virtue of Section 30 of Indian evidence Act... (16) B. Retracted Confession is good confession, if made voluntarily (17) i. The confessional statement of Mr. Guruprasad was voluntary and was admissible by the virtue of Section 164 of Cr.P.C (18)

(iv) INDEX OF AUTHORITY NATIONAL AND REGIONAL CASES

1. Sheoraj Singh Alahawat & Ors. Vs. State of Uttar Pradesh & ANR [criminal appeal no. 1803 of 2012 arising out of the S.L.P, (CRL) No. 4649 of 2010] 2. State of Delhi Vs. Gian Devi (2000) 8 SCC 239 3. Aashish Chadha Vs. Asha Kumari (2012) 1 SCC 680 4. Soma Chakravarty Vs. State (2007) 5 SCC 403 5. Sajjan Kumar Vs. CBI (2010) 9 SCC 368 6. Sheetala Prasad Vs. Sri Kant (2010) 2 SCC 190 7. State of Punjab Vs. Sucha Singh (2003) 3 SCC 153 8. Rajkumar Prasad Tamarkar Vs. State of Bihar (2007)10 SCC 433 9. Chhotka Vs. State of West Bengal AIR 1958 Cal 482 10. Badam Singh Vs. State of Madhya Pradesh (2003) 12 SCC 792 11. State of Uttar Pradesh Vs. Babu Ram (2000) 4 SCC 515 12. Union of India Vs. Altaf Husain 1998,Crilj 2782 13. Suresh Budharmal Kalani Vs. State of Maharashtra (1998) 7 SCC 337 14. Balbir Singh v. State of Punjab AIR 1957 SC 216 15. P. Vijayan Vs. State of Kerala ( 2010) 2 SCC 398 16. CBI Vs. A. Ravi Shankar Prasad (2009) 6 SCC 351 17. Sunita Jain Vs. Pawan Kumar Jain (2008) 2 SCC 705 18. Atley Vs. State AIR 1955 SC 807 19. Vilayuda Vs. State (2009) 14 SCC 436 20. Subramania Goundan Vs. State of Madras AIR 1958 SC 66 21. Amitsingh Bikramsingh Thakur Vs. State of Maharashtra (2007) 1 SCC (Cri) 582 22. State of Delhi (NCT) Vs. Navjot Sandhu (2005) 11 SCC 600 23. State of Orrisa Vs. Debendra Nath Padhi (2005) 1 SCC 568 24. Rajendra Singh Vs. State of Uttar Pradesh (2007) 7 SCC 378 25. Jagtimba Devi Vs. Hem Ram (2008) 3 SCC 509 26. Kranti Associates (P) Ltd. Vs. Masood Ahmed Khan (2010) 9 SCC 496 27. CIT Vs. Kwality Biscuits (2006) 284 ITR 434 SC 28. S.N.Mukherjee Vs. Union of India (1990) 4 SCC 594 29. Om Wati Vs. State (2001) 4 SCC 333 30. Rajpal Bhiraram Vs. State of Maharashtra (1974) 3 SCC 633 31. Kanti Bhadra Shah Vs. State of West Bengal (2000) 1 SCC 715

(v) 32. Kalawati Vs. State of Himachal Pradesh AIR 1953 SC 131 33. Ram Prakash Vs. State of Punjab AIR 1959 SC 1 34. Jameel Ahmed and others Vs. State of Rajasthan (2003) 9 SCC 673 35. Dara Singh Vs. Republic of India (2011) 2 SCC 490 36. Alokh Nath Dutta Vs. State of West Bengal (2007) 12 SCC 230 37. Manjeet Singh Vs. CBI 2011(11) SCC 578 38. Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav (2005) 2 SCC 42 39. Pyarelal Bharghav Vs. State of Rajasthan AIR (1963) SC 1094 40. State of Madhya Pradesh Vs. Mohanlal Soni (2000) 6 SCC 338 41. Kaptan Singh Vs. State of Madhya Pradesh, (1997) 4 SCC 211 42. State of Punjab v. H.G. Khotari, AIR 1960 SC 360 43. Alagirisami, (1910) 33 Mad 514,517 44. Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257 45. Bipin Bihari Sarkar v. state of west Bengal. AIR 1959 SC 13 46. Nupur Talwar v. CBI (2012) 11 SCC 465Ammini v. State of Kerela (1998) 2 SCC 301 47. State of Bihar v. Ramesh Singh (1977) 4 SCC 39 A. Books and Digest 1. R.V. Kelkars, Criminal Procedure, Fifth Edition, 2008, Eastern Book Company, Lucknow. 2. D.D.Basus, Criminal Procedure Code, 4th Edition, 2010, Lexis Nexis, Mumbai 3. Ratanlal Dhirajlals, Code of Criminal Procedure, Volume 2, 19th Edition, 2011, LexisNexis India, Hyderabad 4. S.C.Sarkars, The Code of Criminal Procedure, Set of 2 Volume, 10th Edition, 2012, Lexis-Nexis India, Lucknow 5. V Nageshwar Raos, The Indian Evidence Act, 1st Edition, 2012, LexisNexis Butterworths Wadhwa, New Delhi 6. C.K.Thakkar Takwani, Code of Criminal Procedure ,(3rd Ed., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012.) 7. Chief Justice M. Monir, Law of Evidence (14th edition, Universal Law Publishing House New Delhi, 2006). 8. D.D.Basu, Commentary on Constitution of India (8th ed., Wadhwa and Company, Nagpur, 2010). 9. D.N.Sen, The Code of Criminal Procedure, (Premier Publishing Company, Allahabad, 2006).

(vi) 10.H.M.Seervai, Constitutional Law of India, (4th ed. Universal Publishing House, New Delhi, 2007). 11.I.P. Massey, Administrative Law, (7th ed. Eastern Book Company, Lucknow, 2008)

DICTIONARIES 1.Brayan A. Garner, Blacks law dictionary, (9th ed. Thomson West, 2009). 2.The International Websters new universal dictionary (2nd ed. International, USA, 1983). Trident Press

3. P. Ramnatha Iyer, The Major Law Lexicon ( 4th ed. Vol. 6, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010)

STATUTES 1. 2. 3. 4. Constitution of India, 1950. Code of Criminal Procedure, 1973. Indian Evidence Act, 1872. Indian Penal Code, 1860.

(vii) STATEMENT OF JURISDICTION The Appellants have the honor to submit before the Honorable Supreme Court of India the memorandum for the appellants in the Special Leave Petition no..../2013 under Article 136 of the Constitution of India, 1950. The Respondent humbly submits to the jurisdiction of this Honorable Court. The present memorandum sets forth the facts, contentions and arguments in the present case.

(viii) STATEMENT OF FACTS Ajay Kumar worked as an Investment Banker at the New Delhi office of MNC Inc. He was married to Ms. Ajitha, who was once his secretary at the MNC Inc. However, after about 2 years of their marriage, there were rumors about Ms. Ajitha having illicit affair with one Mr. Guruprasad, who also worked at MNC Inc., and in fact was supervising Ajays work at the firm. 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 Jor Bagh, New Delhi. Thereafter she filed for divorce, before the Family Court, Saket Court Complex, New Delhi, alleging therein that she was subjected to incessant physical and mental torture at the hands of Ajay and that she had reasons to believe that he was having an illicit relationship with other women. 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 Sections 302, 325, 341, 342, 352, 363, 365 of the Indian Penal Code, 1860 against unknown persons and began investigation. Upon questioning the relatives and neighbors 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. During interrogation, Mrs. Ajitha took the defense of alibi as she claimed that she was at Rajkot with her parents when the incident took place. Mr. Guruprasad on the other hand in his confession said that he was in Ajithas house on the night of January 8, 2011 when unfortunately Ajay also came there and found Ajitha & Guruprasad in compromising position. After heated arguments between Ajitha and Ajay, the former pulled out a revolver from drawer and gave it to Guruprasad to shoot Ajay. 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

(ix)

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. The confession was made in presence of Magistrate in Police Custody and also the statement of two employees of MNC Inc. was recorded who stated in their opinion that Guruprasad and Ajitha were more than friends. 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 tier 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. 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 leveled 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. Ld. Session Court recalled the conditional pardon and directed faming of charges on Ajitha and Guruprasad. Mrs. Ajitha preferred a petition for quashing of charges framed by Ld. Session Court before honorable High Court under section 401 of Cr.P.C but the said petition was dismissed by High Court after listening both parties through a nonspeaking order. 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.

(x)

STATEMENT OF ISSUES
I. WHETHER THE HONBLE HIGH COURT WAS JUSTIFIED IN REFUSING TO EXERCISE ITS POWERS UNDER SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973?

II. WHETHER A NON-SPEAKING ORDER CAN BE SUSTAINED IN LAW? III. WHETHER CONFESSION OF AN APPROVER CAN BE RETRACTED AND IN WHAT MANNER AT THE STAGE OF S 227/228 OF Cr.P.C? IV. WHETHER A RETRACTED CONFESSION BY AN APPROVER MAY BE USED AS EVIDENCE AGAINST THE OTHER ACCUSED?

(xi) SUMMURY OF PLEADING 1) Honble Delhi High court was justified in refusing to exercise its revisionary jurisdiction under section 401 of the code of criminal procedure. It is fully under the discretionary power of the High court whether to exercise its revisionary power to quash the charges or not. High courts interfere with the trial process and quash the charges only in extraordinary and rare cases where there is glaring defect of law and miscarriage of justice, which is not in this particular case. The motive of accused is very strong link to connect her with crime. The confessional statement of Mr. Guruprasad on the basis of which the charges has been framed against the appellant, creates a grave suspicion which makes the court presume the involvement of appellant in crime. This confessional statement also receives some general corroboration. The plea of alibi cannot be taken at the stage of framing of charges. Hence, there is no doubt that the High Court was fully justified in sustaining the charges against the appellant. 2) A non speaking order is an order in which no reasons are given. This type of orders are not generally issued and sustained in law, but in some cases there is no requirement of reasoned order. No speaking order is required when the High court affirms the decision of lower court. A High court is required to give reasons when it decides to quash the charges but not when it orders framing of charge. Even the trial court need not to record reasons for framing of charges as it would increase the burden of judiciary. So, the high court was justified in giving a non speaking order and it is good in law. 3) A confessional statement can be retracted at any stage of judicial process by a notice given by the prosecution to the court. There is no particular manner or stage defined in code of criminal procedure for the retraction of confession but at the stage of framing of charges, if an approver who is enjoying conditional pardon retracts from his confession, then his conditional pardon will be recalled and the trial will be initiated in accordance with the Section 308 of Cr.P.C. . This retraction will have no effect on the trial of coaccused. The evidentiary value of the confession will not be lost upon retraction. So, the framing of charges against appellant is justified.

(xii)

4) The confessional statement of an accused can be used as evidence against him and can be taken into consideration against its co-accused. Article 20(3) does not prohibit the court from taking a voluntary judicial confession against the accused and co-accused. Retracted confessions are good confessions if taken voluntarily and in accordance with law. The court may act upon the uncorroborated testimony of an accomplice and even a conviction based on it is not bad in law. Confessional statement of a co-accused which was retracted later on, can be the sole basis for establishing a prima facie case if it is coupled with motive. So, the framing of charge on the basis of retracted confessional statement of coaccused was fully justified.

Pg 1

DETAILED PLEADINGS
I. High Court was justified in refusing to exercise its revisionary power under Section 401 of Cr.P.C. With the respect of first issue the counsel on behalf of respondent wants to humbly plead that the honorable high court was fully justified in refusing to exercise its power under section 401 of the Code of Criminal Procedure. Taking the facts of the case into consideration, it is very clear and apparent that court had enough reasons to believe that there is a grave suspicion on the innocence of appellant Mrs. Ajitha and there is sufficient evidence to initiate trial against her. The Ld. Session court has ordered the framing of charges against the accuse after proper hearing of both the parties and the Ld. Court is satisfied that there is sufficient ground in presuming that the accused has committed the offence which is exclusively triable by court. As per the facts of the case, the honorable High Court after hearing both the parties and following the due process of the law the Court dismissed the revision petition which is purely under the discretion of honorable High Court. Various judicial pronouncements consistently held that during framing of charges the court is not expected to go deep into the probative value on material on record. What need to be considered whether there is ground for presuming that the offence has been committed and not the ground for the conviction of the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form the presumptive opinion as to the existence of factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of commission of that offence.1 It is well settled that the order of quashing the charges can be passed only in exceptionable cases and on rare occasion. Moreover, once the trial court has framed the charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence

Sheoraj Singh Ahlawat & Ors. Vs. State of Uttar Pradesh & ANR [criminal appeal no. 1803 of 2012 arising out of the S.L.P, (CRL) No. 4649 of 2010]

Pg 2 from the prosecution side should be placed on record. Any attempt by an accused for quashing of charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases.2 It is the trial court which has to decide whether evidence on record is sufficient to make a prima facie case against the accused so as to frame charges against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether evidence collected by the prosecution to disclose prima facie against accused or not.3 The revisionary jurisdiction of the High Court ought not to be exercised lightly and that it that it could be exercised only in exceptional cases where the interest of public justice required interference for the correction of the manifest illegality or the prevention of the cross miscarriage of the justice.4 Considering the facts of the case, it can easily be inferred that there was no illegality in the decision of trial court as the Ld. Session Court followed the due process of law. Framing of charges cant be termed as miscarriage of justice as thousands of accused are acquitted from court of law because the charges are proved to be false at times. So just by framing of charges, it cant be infused that there is miscarriage of justice, even though the ac cused is acquitted later on. So High Court was right in not exercising its revisionary power. In case of Soma Chakravarty v. State through Central bureau of Investigation5 , Supreme Court observed On the basis of material on record, the court could form an opinion that the accused might have committed the offence, it can frame charges. The tough for conviction the conclusion is required to be proved beyond all reasonable doubts that accused have committed the offence. At the time of framing of charges the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true.

2 3

State of Delhi v. Gian Devi , (2000) 8 SCC 239 Ashish Chadha Vs. Asha Kumari, (2012) 1 SCC 680 4 Kaptan Singh Vs. State of Madhya Pradesh, (1997) 4 SCC 211 5 (2007) 5 SCC 403

Pg 3 In another case of Sajjan Kumar Vs. CBI6, it was held that when the material placed before the court disclose grave suspicion against the accuse, which has not been properly explained, the court will be fully justified in framing the charge and proceeding the trial. One of the criteria in which the revisionary power of High Court can be exercise, relevant to this case is that when it is seen that the order is passed on considering irrelevant evidences7. This situation does not arise in this particular case So the Respondent wants to plead that there was grave suspicion and enough relevant admissible evidences on the basis of which Ld. Session Court ordered the framing of charges and the High Court affirmed the same. A. There was grave suspicion on appellant that she was involved in the offence and the material on record is sufficient enough to frame the charges against her under section 228 of Code of Criminal Procedure. The Counsel on the behalf of Respondent wants to humbly plead that on the basis of evidences submitted by the prosecution arises a grave suspicion that the accused has committed the offence under section 307, 201 and 120B of Indian Penal Code. i. There was established and clear motive of the appellant for being involved in offence and is a relevant fact under section 8 of Indian Evidence Act. The first thing that should be taken into consideration on the basis of facts is the clear and apparent motive of the accused which is the prima facie the reason of the crime committed by the accused. A strong motive creates a strong suspicion8. The motive of the appellant or accused becomes very clear when we take into consideration the facts that the relationship between the appellant and the deceased was not very cordial and their married life was not normal. It is mentioned that the appellant had left her matrimonial house because of the increasing rift between the appellant and the deceased. Furthermore, the appellant had put the allegation of cruelty against the deceived which manifest the clear enmity between the deceased and the appellant.
6 7

(2010) 9 SCC 368 Sheetala Prasad Vs. Sri Kant (2010) 2 SCC 190 8 State of Punjab Vs. Sucha Singh (2003) 3 SCC 153

Pg 4 It can also be inferred from the fact that the appellant had the illicit relationship with one of the superior of the deceased, Mr. Guruprasad, who is facing the charge of murder of the deceased. This fact came in the knowledge of the police in primary investigation and was further affirmed by statements given by two of the employs of the same MNCs in which the Appellant, deceased and Guruprasad was working. This fact was again reaffirmed by the confessional statement given by Mr. Guruprasad, in which he confessed that he and the appellant was in compromising position at the home of appellant. It is well settled in law that illicit relationship between two people can form the motive for crime.9 Another fact which clearly proves the motive of the appellant was the divorce petition which was pending in the Saket family court. In this petition appellant alleged that the deceased torture her mentally and physically and she had reason to believe that the deceased had illicit relation with other women. It is well settled in law that previous threat, previous alteration or previous litigation between parties is admitted to show motive.10 Even though existence of motive losses significance when there is reliable ocular testimony, yet in a case where the ocular testimony appears to be suspect, the existence or absence of motive acquire significance regarding the probability of the prosecution case11. Supreme Court has held that motive is relevant factor in all criminal cases whether based on testimony of eye witness or circumstantial evidences and if the prosecution proves the existence of motive particularly in a case depending on circumstantial evidences such motive could then be counted as one of the circumstances12. So the counsel wants to humbly plead that as there is very clear motive of appellant for committing the offence, so the honorable court should take into consideration as it creates a grave suspicion on the innocence of appellant.

Raj Kumar Prasad Tamarkar v. state of Bihar (2007)10 SCC 433 Chhotka v. state of west Bengal AIR 1958 Cal 482 11 Badam Singh Vs. State of Madhya Pradesh (2003) 12 SCC 792 12 State of Uttar Pradesh Vs. Babu Ram (2000) 4 SCC 515
10

Pg 5 ii. The Confessional Statement of Mr. Guruprasad is admissible against appellant by the virtue of Section 26 and 30 of Indian Evidence Act, 1872. The most important evidence which establishes the prima facie case against the appellant is the confessional statement made by Mr. Guruprasad, who is the co-accused in the evidence on the basis of confessional statement of Guruprasad the police filed a charge sheet and the learned Session Court ordered framing of charges against both of them after hearing both the parties. Mr. Guruprasad and the appellant are jointly tried for same offence so these statements have a proper evidentiary value against the appellant by virtue of sec 30 Indian Evidence Act. The recorded statement of Mr. Guruprasad was well admissible in law because it was recorded in the immediate presence of magistrate by the virtue of sec 26 of Indian evidence act. It is recorded in the police custody but because of the presence of magistrate it becomes a judicial confession. In his statement Mr. Guruprasad narrated the whole story of how crime was committed he clearly stated that it was appellant who gave the gun to him and abated him to kill the deceased further Guruprasad stated that the appellant helped him in disposing the body of deceased in secluded location which amount to the destruction of evidence. He also affirmed that he himself and appellant had the common intention to kill the deceased and this common intention creates the criminal conspiracy. Guruprasad also stated that just after heated argument the appellant took out the gun from the drawer and abated Guruprasad to kill deceased. It can be easily inferred that no prudent and reasonable person will use such deadly weapon in response to just a verbal threat and heated argument. So the behavior of the appellant clearly manifests the evil intention of her and it affirms her mens rea. On point of law it is well settled that a confessional statement of a co-accused is enough for making prima facie case against the accused.13 At this stage of framing of charges the court is required to confine his attention to the issue that whether the confessional statement of Mr. Guruprasad can be legally translated into evidence or not. The court should not ponder upon the further evidences or the defenses that prosecution or defense may adduce in trial which would

13

Union of India V. Altaf Hussain 1998,CriLJ 2782

Pg 6 commence only after the charges are framed and the accused denied charges14. And by the virtue of Section 30 of Evidence Act, this statement is very much admissible15. This situation was discussed in detail in the case of P. Vijayan v. State of Kerela16 The facts of this case were similar to the present situation. In this case, the ld. Trial court relied on the confessional statement of one of the accused to frame the charges on the appellant of this case, the plea of revision was dismissed by the honorable high court and the SLP was filed in supreme court, supreme court held that After evaluating the materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the Appellant and another accused, framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the Appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the Trial Judge dismissing the discharge petition. The counsel wants to humbly plead that the Honble High Court was purely justified in refusing to exercise its revisionary jurisdiction as this power can be exercised in extraordinary cases 17 which are rarest of rare case18, and in the present case no extraordinary circumstances are there. The burden of proof to prove the exceptional nature of the case lies on the party which sought such a relief. iii. The confessional statement of Mr. Guruprasad receives some general corroboration and is admissible as substantial evidence against the appellant under section 27 of Indian Evidence Act, 1872. The counsel on behalf of respondent wants to humbly plead that the statement given by Mr. Guruprasad, who is jointly tried with the appellant for the same offence is greatly corroborated
14 15

Suresh Budharmal Kalani v. State of Maharastra (1998) 7 SCC 337 Balbir Singh v. State of Punjab AIR 1957 SC 216 16 ( 2010) 2 SCC 398 17 Central Bureau of Investigation v. A. Ravishankar Prasad (2009) 6 SCC 351 18 Sunita Jain v. Pawan Kumar Jain (2008) 2 SCC 705

Pg 7 with the other findings of this case and the same can be admitted as evidence against the appellant by the virtue of Section 30 of the Indian Evidence Act. The first corroboration is with the proven motive of the appellant. It is also well settled in law that the existence of motive is a circumstance corroborative against the accused.19 The second corroboration can be inferred from the facts given, it is mentioned that Mr. Guruprasad gave the statement that he and the appellant disposed the body of deceased in secluded location of Chattarpur Farms, and upon the information given by Mr. Guruprasad, police searched the area in which the body of Ajay was found and police found the car and the tier marks which prove the reliability of the confessional statement. Although the murder

weapon and the finger prints were not found, it does not contradict the statement. It is very common practice in criminals to destroy the evidences after committing the offence, and in present case, the murder is a much planned one, so there is every possibility of destruction of evidence. Furthermore, it is well settled in law that each and every piece of information mentioned in confession need not to be corroborated by independent evidences, 20 only a general corroboration is sufficient.21 The facts also reveal that Mr. Guruprasad was having the knowledge and the mental consciousness about the crime committed. He had the knowledge about Dead body, Car and other relevant facts of this case. So, his consciousness also comes in the domain of Sec 27 Of Indian Evidence Act. Various judicial pronouncements also affirm such notion. In one of its judgment Honble Supreme Court observed The expression Facts Discovered includes not only the physical object produced but also the consciousness and knowledge of accused to this.22 In another Case, Honble Supreme Court held that Nature and scope of information that can be proved by discovery of facts cannot be equated to object produced or found, it is more than that. The discovery of facts arises by reason of the fact that information given by the accused exhibit the knowledge or the mental consciousness of the informant accused in relation thereto.
19 20

Atley v. State AIR 1955 SC 807 Vilayuda v. State (2009) 14 SCC 436 21 Subramania Goundan v. State of Madras AIR 1958 SC 66 22 AmitSingh BikramSingh Thakur v. State of Maharashtra (2007) 1 SCC (Cri) 582

Pg 8 However, it is only so much of the information as relates distinctly to the facts thereby discovered that can be proved and nothing more.23 So it is humbly pleaded by the counsel that the confessional statement of Mr. Guruprasad should be taken into consideration and as it creates grave suspicion on appellant, the trial should be initiated against her so that the justice can be served. B. The plea of alibi cannot be taken at the stage of framing of charges. The facts of the case mention that the appellant took a plea of alibi to show her innocence and she pleaded that she was at Rajkot when the offence was committed. She produced flight tickets and boarding pass for her journey from Rajkot to Delhi. This plea of her cannot be taken into consideration by the Honble court as the accused is not entitled to produce any documentary evidence at the stage of framing of charges, rather it can only be produced at the stage of trial 24. Only the evidences from the side of prosecution can be taken into consideration.25 No finding on a plea of alibi can be recorded by the Honble High Court for the first time in a revision petition for quashing of charges under Section 482 of Cr.P.C26. Furthermore, boarding pass is not at all an authentic proof for taking a plea of alibi as the tickets and the boarding pass can be printed through internet sources anywhere, so it do not prove the presence of any person at any particular place. So, the counsel on behalf of respondent wants to humbly plead that such plea of alibi should not be taken into consideration and the decision of high court should be affirmed as justified. This petition should be dismissed with immediate effect.

23 24

State of Delhi (NCT) v. Navjot Sandhu (2005) 11 SCC 600 State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 25 Supra 1 26 Rajendra Singh v. State of U.P (2007) 7 SCC 378

Pg 9 II. The non speaking order can be sustained in law and it is not bad in law. A. Giving a speaking order is rule of prudence, not a rule of law. Non Speaking order is sustained in few exceptional cases.

On the second issue that has been raised in front of the honorable court, the counsel on behalf of the respondent wants to humbly plead that the Non speaking order is very well sustained in law and it is within the jurisdiction of honorable court that whether it issues a speaking or nonspeaking order. Non- speaking order is an order in which no reasons are given in the order. The order does not speak for itself. It can be given in single word dismissed. No statute or legal provision makes it compulsory for the high court to issue a reasoned order. It is a rule of prudence rather than a rule of law to give reason behind the judgment. Providing the reason behind the order given indicates the application of judicial mind and it serves the cause of natural justice27. Furthermore, it insures the accountability and transparency on part of judicial system and helps sustaining the litigants faith in justice delivery system28. B. The High Court is not bound to give speaking order in present case where it affirmed the decision of lower court. Honble High Court, as a matter of prudence do not generally issue non-speaking order except in few case in which it affirms the decision of lower court.29 Taking into consideration the present facts and circumstances, the High court was fully justified in giving a non reasoned order as it was affirming the order given by the learned session court. The compulsion to give reasons arises only when the decision quashes the order given by lower court but not when the appellate or revisional authority affirms such decision. Honble Supreme Court in its full bench judgment affirmed this notion.

27

Jagtimba Devi v. Hem Ram (2008) 3 SCC 509 Kranti Associates (P) Ltd. v. Masood Ahmed Khan (2010) 9 SCC 496 29 CIT v. Kwality Biscuit (2006) 284 ITR 434 SC
28

Pg 10 In S.N. Mukharjee v. Union of India30 Supreme Court held that The need for recording of reason is grater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order need not give separate reason if the appellate or revisional authority agrees with the reason contained in the order under challenge. Considering the facts of this case, it is mentioned that the learned session court after hearing both the parties ordered framing of charges and subsequently the appellant filed a revision petition in high court for quashing of charges and high court after following due process of law by hearing both the parties dismissed the petition without giving any separate reasons. High Court was fully justified in doing so because court is required to record its reasons only if it decides to discharge the accused but it is not required to do so if it is to frame charges against the accused.31 This point was further affirmed by Honble Supreme Court in case of Rajpal Bhiraram v. State of Maharashtra32. It was held that The appellate court has got power to dismiss summarily a criminal appeal. If, however, the appeal rises an arguable and sustainable point, the court should give reason for rejecting the appeal. In appropriate cases, this court may examine the evidences for itself and dispose the appeal on merits. Even though the high court has dismissed the appeal by a single word order dismissed and has given no reason in support of the order, the impugned order cant be set aside for the solitary reason that it was not a speaking order. i. The session court is not required to give reasoned order while framing the charges. Framing of charges is a routine pre- trial process in which do not require much elaborated application of judicial mind. High court need not to give reasons when it permits the framing of charges. Supreme Court observed that even the trial court is not required to record reasons when it orders framing of charges. It was held in the case of Kanti Bhadra Shah v. State of West

30 31

(1990) 4 SCC 594 Om Wati v. State (2001) 4 SCC 333 32 (1974) 3 SCC 633

Pg 11 Bengal33 that There is no legal requirement that the trial court should write an order showing the reasons for framing a charge, as there is no need to further burden the already burdened trial court with such extra work. The time has reached to adopt all possible measures to expedite the court procedure and to chalk out measures to avert all possible roadblocks causing avoidable delays. If a Magistrate or a Judge is to write detailed order at different stages merely because the counsel would address arguments at all stages, the snail- paced process of proceeding in a trial court would further be slowed down. A detailed order may be passed to culminating the proceedings before them, but it is quite unnecessary to write detailed order at other stages, such as issuing process, remanding the accused to custody, Framing of charges, passing over to next stage in trial. So, considering the above judgment and the decision in S.N. Mukharjee case, we can easily infer that the need for providing reasoned order is at the original stage, which is the sessions court in this case and if the trial court is itself exempted from such responsibility at the stage of framing of charges, no such obligation arises on High court while considering the revision petition. So, the high court need not to give an elaborated and reasoned order for affirming the decision of learned sessions court for the matter of framing of charges as it will amount to further burdening of our already burdened high court. The counsel on behalf of respondent wants to humbly plead that the non- speaking order can be sustained in law and in the present case, it was not only sustainable but completely justified. III. Confessional statement of an approver can be retracted A. Legal Status of an approver and the procedure to become approver from accomplice With the reference of third issue that has been raised in front of this court, the counsel wants to humbly plead that as nowhere in the Cr.P.C. `Approver` is defined but in general parlances an approver is someone who is involved in a crime, but who confesses and offers to serve as a witness for the prosecution. In exchange for the confession and testimony, the approver is given
33

(2000) 1 SCC 715

Pg 12 a pardon for his or her role in the crime. Allowing people to confess in exchange for concessions such as a pardon encourages people with information about crimes they were involved in to come forward, facilitating law enforcement investigations and increasing the likelihood that a case can be successfully prosecuted and brought to a close. Technically, an approver is an accomplice and involved in the planning, execution, or cover up of the crime. The accomplice may have known that the crime was going to happen and not taken any steps to prevent it, or may have engaged in other activities which were designed to make the crime easier to commit or less likely to be detected. This gives the approver a rather unique insight on the crime, as he or she was directly involved.

An accomplice becomes approver when he granted pardon under sec 306/307 of Cr.P.C. This section deals with the subject of tender of pardon to an accomplice. It can come into effect only when the offence is one which is: (i) Punishable with imprisonment of seven years or upwards (ii) Triable exclusively by the court of session. (iii) Triable by a special judge under criminal law amendment act,195234 The object of this section is to obtain true evidences of offences by the grant of pardon to accomplice so as to prevent the escape of offender from punishment for lack of evidence. 35 The object is to obtain evidence of an accomplice so as to facilitate conviction of others. The power to grant pardon is not a inherent power of criminal court. It is a substantive power which has to be specially conferred.36 The reasons for tendering a pardon to any person must be stated. In the cases in which a pardon is tendered, the intended approver should always be made clearly to understand the extent of the pardon offered to him, it should be explained to him that he is being tendered a pardon and will not be prosecuted in respect of such and such a case, and no others. The person who has accepted the pardon must be examined as the witness.37

34

State of Punjab v. H.G. Khotari, AIR 1960 SC 360 Alagirisami, (1910) 33 Mad 514,517 36 Harshad S. Mehta v. state of Maharastara, (2001) 8 SCC 257 37 Bipin Bihari Sarkar v. state of west Bengal. AIR 1959 SC 13
35

Pg 13 i. Mr. Guruprasad was eligible to be approver in this case as he fulfilled the criteria to be an approver. Considering all these provision related to pardon, the pardon was granted to Mr. Guruprasad in this case. In this case he was eligible to be an approver he was directly concerned with the case and he himself offered to be an approver38 this shows that he voluntarily decided to be the approver. It shows that whatever confession made by Mr. Guruprasad is free from any inducement, threat and promise. This makes the confessional statement of Mr. Guruprasad valid because it was made in immediate presence of magistrate and it was free from any inducement, threat and promise. But at the later stage he retracted from his confessional statement and he demanded to be put on trial. He was justified in doing so, he has every right to retract from his statement under section 308 of Cr.P.C. B. Pardon granted and later recalled by Session Court was justified in accordance with law and facts of the case. i. Manner of retraction of the confessional statement of the approver. For the retraction of the confession of an approver, the approver is given opportunity to retract from his confession by filing a petition regarding his retraction in the trial court. Then the prosecution is entitled to move a petition informing the court that the approver wants to retract from his statement and it also pray the court for the withdrawal of the pardon granted under section 306/307 Cr.P.C, after the withdrawal of the pardon Section 308 Cr.P.C. apply to the approver which deals with the trial of person not complying with the condition of pardon. it reads as where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the public prosecutor certifies that in his opinion such person has, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence which he appears to have been guilty

38

See para no.3 fact sheet

Pg 14 in connection with the same matter, and also for the offence of giving false evidence. 39 Here it is stated that after withdrawal of the pardon the accomplice lost the status of approver and he may treated as a accused and tried for the respective offence which he seems to be involved in. It is well established in law that an approver has a right to retract. Even an accused of any person can`t be compelled to be witness against himself.40This is fundamental rights guaranteed by the constitution of India. As far as criminal cases are concerned there is no any defined stage in Cr.P.C, where an approver can retract from his confession. But generally it can be done before the stage of section 227 and 228 of Cr.P.C i.e. discharge and framing of charge respectively. At this stage learned session court is satisfied or dissatisfied with the evidences produce before it. If the produced evidences are not enough to establish a strong suspicion about the involvement of the accused in the commission of crime then it will discharge on the other hand when court is satisfied that evidence on record is sufficient to establish a strong suspicion on about the involvement of accused in the commission of crime then it order for framing of charges. So at this stage the court only give order about discharge or framing of charge. So every retraction should be done before this stage and not at this stage. In this case the same thing happened to the approver retracted from his statement during the filing of charge sheet and then pardon was recalled and charges were framed against the accused. ii. Retraction has no meaning at the stage of Section 227 and 228 of Cr.P.C Taking into consideration the present fact it is very clear that Mr. Guruprasad upon committal and framing of charges, retracted from his confession and pleaded innocence he demanded to be put to trial and he never challenged the charges so learned session court recalled the conditional pardon and directed the framing of charges against Mr. Guruprasad. Even though he retracted from his confession it`s evidentiary value in not completely lost and learned session court found

39 40

Sec 308 (1) Code of Criminal Procedure 1973 Article 20 (3) constitution of India,1950

Pg 15 it sufficient for framing of charges against the appellant. In the present case, there are no other substantial evidences against Mr. Guruprasad himself other than his own confessional statement from which he retracted. In demanded to be put to trial and he never challenged the charges framed against him. He also never said that his confessional statement was under any threat, coercion or promise. He is charged for more serious offence than the appellant, as he confessed that he committed the murder on the abatement of the accused. It is very clear that he was not trying to shift his burden of crime as he was aware that his crime is not that light, which could be fully pardoned because he gave evidence against the other accused. As, the prime accused, Mr. Guruprasad is facing the charges of murder on the basis of his own statement, his crime partner, the appellant should not be allowed to set free. Even though the confession has been retracted, but the trial should proceed against the approver Mr. Guruprasad and his co-accused, the appellant without delay. The question that whether the confession is true and will it lead to conviction or not will arise at the stage of trial. At the stage of framing of charges, the truth, veracity and effect of the evidence which the prosecutor proposes to produce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of framing of charges.41 IV. Retracted Confessional Statement can be admitted against co- accused and can be acted upon by the court. With the reference of fourth issue that has been raised in front of this honorable court, the counsel on behalf of respondent wants to humbly plead that the retracted confession of a coaccused has evidentiary value against the co- accused by the virtue of Section 30 of Indian Evidence Act 1872. The counsel on behalf of respondent wants to humbly plead that the confessional statement of Mr. Guruprasad should be taken into consideration against the appellant and the trial should be initiated against her and the state should be given opportunity to prove the guilt of appellant.

41

State of Bihar v. Ramesh Singh (1977) 4 SCC 39

Pg 16 Section 30 of Evidence Act makes the confession of one accused admissible against his coaccused who is jointly tried for the same offence. In this case Mr. Guruprasad and appellant are jointly tried for the murder of deceased as the offence includes its abatement and attempt.42 The counsel wants to plead that the Retracted confession of the accused can be used as evidence against him and can be taken into the consideration against the co-accused and it do not offend the Article 20 (3) of Indian constitution and cannot be taken as self incriminatory if the confession is made voluntary and in accordance with the section 164 of Cr.P.C.43 A. Retracted Confessional Statement can be admitted against co- accused and can be acted upon by the court. It is submitted that by the virtue of Section 30 of Evidence Act, the confessional statement of Mr. Guruprasad can be taken against the appellant. Various judicial pronouncement affirms this notion .In case of Ram Prakash v. State of Punjab44, Honorable Supreme Court observed that Although a retracted confession is admissible against a co- accused by virtue of Section 30 of Evidence Act, as a matter of prudence and practice, a court would not act ordinarily upon it to convict the co-accused without corroboration. Taking this notion of honorable court into consideration, it is clear that it is not the rule of law but rather rule of prudence that the court will not act upon the uncorroborated retracted confession to convict the co-accused, but in the present case, there is no complex question of conviction, but it is the stage of framing of charges and the confessional statement of co-accused can be a basis for it. Further it was also held by the Supreme Court that the court can act upon the uncorroborated confessional statement if the court is satisfied with the probative value of the statement. The degree of corroboration must be enough for a prudent man to believe the confessional statement.45 So, the court should take the statement into consideration and should allow the state to initiate trial.

42 43

Explanation of Section 30 of Indian Evidence Act 1872 Kalawati v. State of Himachal Pradesh AIR 1953 SC 131 44 AIR 1959 SC 1 45 Jameel Ahmed and others v. State of Rajasthan (2003) 9 SCC 673

Pg 17 Various judicial pronouncements also affirms that the confessional statement of one accused is admissible against the co-accused as an evidence46 although it is weak evidence47 but it is enough to create a suspicion in mind of a prudent person and it can lead to framing of charges. B. Retracted Confession is good confession, if made voluntarily It was held by Supreme Court in the case of Manjeet Singh V.CBI48 that the confessional statement given by an accused shall not be discarded merely for the reason that same has been retracted. Judicial confessions are usually retracted but retracted confessions are held to be good confession if they are made voluntarily and in accordance with law. So, as the retraction is as abundant as confession in our judicial system the retraction should not be taken as the proof of untruthfulness of confession. It is well settled in law the retracted confession must be seen with suspicion and court should enquire deeply into the matter49, and it also well settled that the probative value or the reliability of the evidence can only be checked on the stage of trial and not before that50. So the counsel wants to humbly plead that the trial should be initiated and the charges should be sustained so that the evidences can be weighed and checked in detail in depth. Most relevant and important judgment considering the present fact and circumstances is the case of Kalyan Chandra Sarkar V. Rajesh Ranjan alias Pappu Yadav 51 the fact of this case is very much similar to the present case. The brief fact of this case are Mr. Ajit Sarkar who was the MLA of the Purniya constituency of Bihar assembly he was allegedly killed by Mr. Rajesh Ranjan alias Pappu Yadav with some of his fellow party men as a result of political rivalry. Charges were framed against him and he was sent into police custody. The only substantial evidence on which the prosecution was relying was confessional statement of a co accused which was later retracted. The contention that was raised by Mr. Pappu Yadav in response to the petition filed by the brother of the deceased against the grant of bail by Patna high court, in the
46 47

Dara Singh v. Republic of India (2011) 2 SCC 490 Ammini v. State of Kerela (1998) 2 SCC 301 48 2011(11) SCC 578 49 Alok Nath Dutta v. State of West Bengal (2007) 12 SCC 230 50 Nupur Talwar v. CBI (2012) 11 SCC 465 51 (2005) 2 SCC42

Pg 18 Hon`ble Supreme Court was that the state failed to establish a prima facie case against him and the retracted confessional statement of the co accused had no value against him. The Hon`ble Supreme Court observed that High court was not justified in granting relief as it overlooked its own previous decision and the guidelines of supreme court. It was held that there is a prima facie case against Pappu Yadav and against the accused on the basis of confessional statement of a co accused which was retracted later. Supreme Court relied on the confessional statement along with the established motive to establish the prima facie case against the accused. Furthermore it was it was affirmed that the admissibility and the effect of the confessional statement already adduced by the prosecution and merit of the evidence adduced hereinafter are all matters considered at a stage of trial. In the present case also the Ld. Session court relied on the retracted confessional statement of Mr. Guruprasad along with the established motive to frame the charges against appellant which is purely justified and in accordance with the guideline of Supreme Court. i. The confessional statement of Mr. Guruprasad was voluntary and was admissible by the virtue of Section 164 of Cr.P.C Regarding the authenticity of confessional statement the Supreme Court observed that there nothing in record to suggest that the confessional statement made by co accused under section 164 of Cr.P.C. before the magistrate was under threat or coercion. Whether the safe guard envisaged in section 164 of Cr.P.C. was observed or not is a matter of evidence which is still to come in front of the court, it is not required to speculate quantum and nature of evidence which would be led by prosecution at the stage of trial.52 So the counsel wants to humbly plead that in absence of any fact denoting the use of threat or coercion while recording the statement, the court should draw no adverse presumption. In the light of fact it is very much clear that the statement made by Mr. Guruprasad is voluntarily because he himself offered to be an approver.

52

Ibid.

Pg 19 The counsel wants to draw the attention of the honorable court towards the section of 133 of Indian Evidence Act. It reads as An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Further in the illustration (b) of section 114 of Indian Evidence Act gives an illustration that an accomplice is unworthy of credit, unless he is corroborated in material particular, which makes it rule of prudence. Simultaneously, reading both the section we can infer that even the conviction based on uncorroborated testimony is not bad in law.53 The point that should be noted in this matter is that if conviction can be done on this evidence then framing of charges in pre trial process in which there is not much scope of scrutinizing the evidence54. The honorable High Court rightly sustained the charges and orders the initiation of trial. So the counsel on behalf of Respondent wants to humbly plead that the confessional statement of Mr. Guruprasad should be relied upon for the purpose of framing of charges against the appellant. An opportunity should be given to the prosecution to prove the guilt against the accused Mrs. Ajitha beyond all reasonable doubts.

53 54

Pyarelal Bhargav Vs. State of Rajasthan AIR (1963) SC 1094 State of M.P vs. Mohanlal Soni, (2000) 6 scc 338

Pg 20

PRAYERS In the lights of the issues raised, pleadings and authorities cited the respondents humbly submit that the honorable court be pleased to adjudge and declare that: The charges on the appellant should be sustained and the decision of honorable High Court should be upheld. The court should order immediate initiation of trial without any further delay

And any other order that the court may deem fit in the interest of justice and equity. For this act of kindness the respondent shall be duty bound forever.

All

of

which

is

humbly

prayed

Counsel on behalf of Respondent