Page |1 TEAM CODE

IN THE HONBLE SUPREME COURT OF INDIA

Under Article 136 of the Constitution of India

MS. AJITHA (Appellant) v. THE STATE OF DELHI NCT (Respondent)

...

Special Leave Petition (Criminal) No. .. / 2013

Submitted to the Honble Supreme Court of India Case concerning the alleged murder of Mr. Ajay

MEMORIAL ON BEHALF OF THE RESPONDENT

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Counsel appearing on behalf of: The Respondent TABLE OF CONTENTS

S. NO.

CONTENTS

PAGE NO

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

List of Abbreviations Index of Authorities Statement of Jurisdiction Statement of Facts Statement of Issues Summary of Arguments Arguments Advanced Prayer

3 4 7 8 10 11

13 26

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LIST OF ABBREVIATIONS A.I.R Art. Cr LJ Ed. FIR I.L.R. Inc. Mah. M.P. Ori p. QB Raj. S.C.C. SC Sec. U.O.I www All India Reporter Article Criminal law journal Edition First Information Report Indian Law Reports Incorporation Maharashtra Madhya Pradesh Orissa Page Number Queens Bench Rajasthan Supreme Court Cases Supreme Court Section Union Of India World Wide Web

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INDEX OF AUTHORITIES BOOKS Banerjee B.P., Judicial Control of Administrative Action (Lexis Nexis Butterworths, Nagpur 2012) Basu S.D., The Law of Evidence ( Allahabad Law Agency, Faridabad 2010) Dhiraj Lal & Ratanlal, The Law of Evidence (Wadhwa & Company, Nagpur 2008) Dogra S.K., Criminal Justice Administration in India (Deep & Deep Publication Pvt Ltd. New Delhi, 2009) Dr. M.D. Chaturvedi, Code of Criminal Procedure (Allahabad Law Agency, 2007) Dr. V. Krishnamachari, Law of Evidence (S. Gogia & Co., Hyderabad 2010) Gaur K D, Criminal Law: Cases and Materials (15th ed., Lexis Nexis Butterworths, 2008) Halsburys Laws of India, Vol.34 (2005) Massey I.P, Administrative Law (77th ed., 2008) Mondal A.H., The Criminal Procedure Code (R Cambray & Co. Private Ltd., 2011) Myeni S.R., The Law of Evidence (Asia Law House, Hyderabad 2008) Paranjape N.V., The Code of Criminal Procedure (Central Law Agency, Allahabad 2006) S.R.Myneni, The Law of Evidence (Asia Law House, Hyderabad 2007) Sarathi P. Vepa, Law of Evidence (Eastern Book Company, Lucknow 2006) Sathe S.P., Administrative Law (Lexis Nexis Butterworths, Nagpur 2004) Singh Avtar, Principles of the Law of Evidence (Central Law Publications, Allahabad 2007) Tandon M.P., Indian Evidence Act, 1872 (Sri Sai Law Publication, Faridabad 2006) Vijender Kumar, The Law of Evidence (6th ed., Asia law House, Hyderabad)

STATUTES

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Indian Evidence Act, 1872. Indian Penal Code, 1860 The Code of Criminal Procedure, 1973 The Constitution of India, 1950 CASES CITED & REFERRED Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230

Balbir Singh v. State of Punjab 1957 CriLJ 481 Chamanlal v. State of Punjab, AIR 2009 SC 2972. Drug Inspector Palace Road Bangalore v. Dr. B.K. Krishnaiah and Anr., AIR 1981 SC 1164 Emperor v. B.C. Pandey Hari Ram v. State of UP, 1987 CrLJ 294 Hem Raj v. The State, AIR 1954 SC 462 In re Kesava Pillai, AIR 1929 Mad 837 Kehar Singh v. State, AIR 1988 SC 1883 Lal Singh v. State of Gujarat, AIR 2001 SC 746 Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra, 1981 CriLJ 588 Munna Devi v. State of Rajasthan and Anr., (2001) 9 SCC 63 Nazir Khan v. State of Delhi, AIR 2003 SC 4427 P. S. Barkathali v. Directorate of Enforcement, New Delhi, AIR 1981 KER 81 R.C Dass v. U.O.I, AIR 1987 SC 593 Ram Kumar Laharia v. State of Madhya Pradesh and Anr., AIR 2001 SC 556 Ram Prakashv. State of Punjab, AIR 1959 SC 1: 1959 Cr LJ 90. S.N. Mukherjee v. Union Of India, (1990) 4 SCC 594 State of Kerala v. Ammini, AIR 1988 Ker 1(FB) State of M.P. v. S.B. Johari and Ors., AIR 2000 SC 665 State of Maharashtra v. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129

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State of Tamil Nadu v Kutty alias Lakshmi Narsimhan, AIR 2001 SC 2778 Tej Bir v. State of Haryana and Anr., AIR 2012 SC 943 Yogesh v. State of Maharashtra, AIR 2008 SC 2991 Y Venkaiah v. State of MP, AIR 2009 SC 2311.

ARTICLES Justice P. Sathasivam, Framing of Charge: Principles And Law (2011) Khoo Ai Theng, Retracted Confession (2012) Sushant Rochiani, Revisional Jurisdiction of The High Court under Section 401, Cr.P.C.,1973 (2011)

WEBSITES www.judis.nic.in www.legalserviceindia.com www.lexisnexis.com www.manupatra.com www.scconline.com LEGAL DICTIONARIES B.A. Garner(Ed.), Blacks Law Dictionary (9th ed., 2009) Dr. Justice A.R. Lakshmana, Wharton Law Lexicon (15th ed., Universal Law Publishing Company, New Delhi) Oxford Advanced Learners Dictionary (7th ed., 2008) P. Ramanatha Aiyer, Advanced Law Lexicon, (3rd ed., 2005)

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STATEMENT OF JURISDICTION The Respondent humbly submits to the jurisdiction of the Honble Supreme Court of India under Article 136 of the Constitution of India. The party shall accept the judgment of the Court as final and binding and shall execute in its entirety and in good faith.

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STATEMENT OF FACTS Ajay got married to Ajitha. He worked as an Investment Banker in MNC Inc. at New Delhi where Ajitha was once his Secretary. After two years of the marriage, rumours about illicit relationship of Ajitha and her co-worker, Mr. Guruprasad, spread. This resulted in immense friction to an extent that the Petitioner left her matrimonial home and started living separately in a rented house at Jor Bagh, New Delhi. She filed a divorce petition before the Family Court, Saket Court Complex, New Delhi alleging incessant physical and mental torture by her husband and his illicit relationship with other women for which she had sufficient reason to believe. During the pendency of the petition, on the morning on 09 January, 2011 Ajays dead body was found dumped near Chattarpur Farms with bullet wounds on his chest. FIR was lodged against unknown persons under Sections 302, 325, 341, 342, 352, 363, 365 of the IPC. Upon questioning the relatives and the Petitioner, the investigation officer came to know about the divorce petition and the illicit relationship of the petitioner with Mr. Guruprasad. The petitioner and Mr. Guruprasad were arrested as suspects and were kept under police custody for 14 days. During investigation the police also recorded statements of two employees of MNC Inc. who stated in their opinion that the Petitioner and Mr. Guruprasad were more than friends. The Petitioner produced her flight tickets and boarding pass in support of the plea of alibi contending that she was in Rajkot from January 5 to 9, 2011 and returned in that evening. However, in the police custody, Mr. Guruprasad offered to turn approver and stated before the investigating officer in the presence of a magistrate that it was he who

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had shot Ajay with a gun given to him by Ms. Ajitha and that she had helped him in disposing off the body in Ajays car. In accordance with the statement, the police searched the area but failed to recover any weapon from there or from the residence of Mr. Guruprasad and the Petitioner. Also, the table lamp could not be recovered. No finger prints except that of Ajay were found inside his car. Basing the case on the confession of Mr. Guruprasad, charge sheet was filed against the petitioner before the Magistrate. Upon committal and placing the case for framing of charges against the petitioner, Mr. Guruprasad retracted from his statements, claiming innocent of all the charges, and demanded to be put to trial. Ajitha too denied the charges and claimed innocence. On hearing both the parties the Sessions Court recalled the conditional pardon and directed the framing of charges. The charges qua Mr. Guruprasad were murder, culpable homicide, destruction of evidence, criminal conspiracy, giving false information about an offence. Charges against the petitioner were of abetment of murder, destruction of evidence, criminal conspiracy. Ajitha filed a revision petition under Section 401 of the CrPC for quashing of charges. After hearing both the parties, the petition was dismissed by a non-speaking order. The Petitioner then filed a special leave petition before the Honble Supreme Court of India against the order of the High Court. The Court was pleased to grant special leave to appeal.

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STATEMENT OF ISSUES

1. Whether the High Court was justified in refusing to exercise its powers under Section 401 of the Code of Criminal Procedure, 1973? 2. Whether a non-speaking order can be sustained in law? 3. Whether confession on an approver can be retracted and in what manner at the stage of Section 227/228 of CrPC? 4. Whether a retracted confession by an approver may be used as evidence against the other accused? 5. Whether the charges framed by the Sessions Court are prima facie sustainable?

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SUMMARY OF ARGUMENTS 1. High Court was justified in refusing to exercise its powers. It is submitted that the settled law is that the powers of a High Court in its revision jurisdiction include order for retrial, commitment, or set aside commitment, direct inquiry, restoration of property, case of non-appealing accused and non applicant, expunge remarks, stay of proceedings enhancement of sentence etc. The revision power cannot be exercised in a routine and casual manner. It is premature and erroneous for the High Court to conclude that the material placed before the trial court is insufficient for framing the charge. Such a judgement is liable to set aside. The Court cannot appreciate the relevancy and evidentiary value of the material on record. 2. Non-speaking order can be sustained in law if it shows application of mind. It is submitted that indisputably the order of the High Court was passed after hearing both the sides. The mere fact that it was non-speaking cannot destruct the legality of the order as there was due observation of the principles of natural justice. The contravention of it cannot be presumed until injustice is shown. Also, it is well established from various case laws that Courts have mandate speaking orders in cases of orders passed by quasi-judicial or administrative authority. In the present case, since the Court had, prima facie, no powers to quash the charges, the dismissal of petition after hearing the parties to the case satisfies the test of natural justice. The order is not cryptic and at the cost of the rights of the parties. It reflects the application of mind by the Court, which is an essential requirement of the principles of natural justice. 3. Confession of an approver cannot be retracted at the stage of Section 227/228 of CrPC It is submitted that the settled law is that confession act as a substantive evidence at the stage of Section 227 and 228 of CrPC. Confession of an approver can be retracted like any other confession but thereafter he lose the right of approver and shall be tried and if found guilty will be punished. If the confession of an approver is retracted at the later stage without specifying

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any reason then no importance is attached1. At the stage of Section 227 and 228, the court frames charges or takes decision as to discharge, so, any retraction must be made before this stage and not at this stage. In the present case, since the retraction was done during these stages, it cannot be considered or attached any value. 4. Retracted Confession by an approver may be used as evidence against other coaccused. It is submitted that as a general rule the confession of an accused is not evidence against anyone but himself. However, Section 30 of the Evidence Act, act as an exception which permits Court to do so subject to certain conditions. A retracted confession may form the basis of the conviction but for it the Court has to consider the reasons given for making and attending facts and circumstances. There is no rule that corroboration is necessary. If the reasons given by the accused turned false then the confession can acted upon without any corroboration. Mere bald retraction cannot take away the high evidentiary value of the original confession, especially in a case it was made to avoid the clutches. The only question the Court needs to attend is that it must be voluntary and truthful. It would be wrong to lay a rule as injustice on mere saying that confession maker has retracted from it. For this the Court has to consider twin test of voluntarily-ness and positive reason. 5. Charges framed by the Session Court are prima facie sustainable. It is submitted that the charges framed by the Session Court against the petitioner stands prima facie sustainable in light of the circumstantial evidences and the confession statement of Mr. Guruprasad. The entire chain of events makes it probable to conclude that the petitioner had conceived the strategy with Mr. Guruprasad and aided him in executing the plan, thereby abetting the murder of Ajay. Further, investigation reveals the truth of a part of confession. It apparently manifests the role of the petitioner and Guruprasad in the destruction of evidences.

Aloke Nath Dutta v. State Of West Bengal , (2007) 12 SCC 230

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ARGUMENTS ADVANCED

1. High Court was justified in refusing to exercise its powers. It is submitted before the Honble Court that the settled law is that revisional power is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction which can be exercised only in exceptional cases. Section 401 CrPC confers a discretionary jurisdiction on the high court which should be exercised sparingly to decide question as to legality, propriety, regularity or correctness of any finding, sentence or order recorded or passed by the inferior criminal court. The idea is to correct miscarriage of justice which may arise from various causes such as misconception of law, irregularity of procedure, apparent harsh treatment etc. It is submitted that the power of the High Court in revision jurisdiction is that of an appellate court. It includes order for retrial, commitment, or set aside commitment, direct inquiry, restoration of property, case of non-appealing accused and non applicant, expunge remarks, stay of proceedings enhancement of sentence etc. In the present case, Ms. Ajitha preferred a petition before the Honble High Court of Delhi for quashing of the charges framed by the Session Court. It is well settled that at the stage of framing of charges the High court should not exercise its power of revision by way of quashing the charges by confining its attention only to the recitals in the F.I.R2.The High Court in criminal revision cannot appreciate and weigh the materials on record for coming to the conclusion that charge against the accused could not have been framed 3. As noted, at this stage, it is not open for the Court to weigh or assess the evidence. It cannot come to a conclusion that evidence was absurd or inherently improbable4. The revision power cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the FIR even if they are taken at the face value and accepted in their entirety do not constitute the

2 3

Tej Bir and Anr. Vs. State of Haryana and Anr., AIR 2012 SC 943 State of M.P. v. S.B. Johari and Ors., AIR 2000 SC 665 4 Ram Kumar Laharia v. State of Madhya Pradesh and Anr., AIR 2001 SC 556

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offence for which the accused has been charged5. In the present case, such is not the situation. If the charges are taken at the face value they constitute the offence for which the accused was charged. The police investigation prima facie revealed that the statement of Mr. Guruprasad made to the Investigating Officer was totally in contradiction. The investigation traced out that Ajita helped Guruprasad in destructing evidence as no weapon was collected from the secluded place and from the Ajithas house, also a single tyre mark was found and the table lamp was not recovered. Thus the Ajitha entered into a Criminal Conspiracy with Mr. Guruprasad. Handing over of revolver to Guruprasad and telling him to shoot Ajay and also dragging of body by both of them into the car followed by Ajithas driving of Ajays Car unequivocally establishes that Ajitha was encouraging Guruprasad in committing the offence of Murder. Thus, the charge for abetment of murder leveled against her was clearly valid. It will be premature for the High Court to say that the material placed before the trial court is insufficient for framing the charges. The extent of the liability of the accused would be established by evidence during trial. If this is exercised by the High Court then its judgment will be erroneous and is liable to be set aside 6. Thus, it is submitted that the High Court was justified in refusing to exercise its powers under Section 401 of the Code of Criminal Procedure, 1973. 2. Non-speaking order can be sustained in law. It is submitted before the Honble Court that, as it is undisputable and apparent, the order of the High Court dismissing the petition for quashing of charges was passed after hearing arguments submitted by both the parties. Further, it has been already established that in terms of the law and the factual matrix of the case, the High Court could not have exercised its powers under Section 401 CrPC to quash the charges framed by the learned Session Court. In the light of these facts and submissions, it seems quite reasonable and justifiable to conclude that the order of the High Court is good and sustainable. The mere fact that no detailed reasons are mentioned or that it is non-speaking cannot disrupt the legality of the order. The entire factual matrix and legal regime must be analyzed together. It is further submitted that the legality of a judicial pronouncement is judged against certain qualifications. The one among them is the due observation of the principles of the natural
5
6

Munna Devi v. State of Rajasthan and Anr.,(2001) 9 SCC 63 Drug Inspector,Palace Road, Bangalore vs. Dr. B.K. Krishnaiah and Anr., AIR 1981 SC 1164

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justice. It is settled law that the principles of natural justice requires application of mind by the judicial authority, the authority must act in good faith and not arbitrarily, and the opportunity of hearing must be given to both the parties. This is uniformly applicable for all Courts in the country. It would be seen that the rules of natural justice are flexible, and cannot be weighed in golden scales, nor can it be put in any straight-jacket. It depends on the extent to which the rights of an individual are affected. The role of these rules is to ensure justice to both the parties. Their contravention cannot be presumed, unless it can be shown that injustice has actually been done. What the courts have to examine is that whether non-observance of any of the rules is likely to prejudice any of the parties. Recently, a new parameter has been coined in a plethora of judgments.7 It stipulates the recording of reasons. An order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. This requirement of a speaking order has primarily been emphasized in cases of an administrative or quasi-judicial order.8 In another case Supreme Court is of the opinion that there is no statutory or administrative provision requiring the competent authority to record or communicate reasons.9 It is submitted that in the present case, it is not disputed that both the parties were heard before passing the order. Since the Court had, prima facie, no powers to quash the charges, the dismissal of petition after hearing the parties to the case satisfies the test of natural justice. It reflects the application of mind by the Court, which is an essential requirement of the principles of natural justice. The order is not cryptic and at the cost of the rights of the parties. There are no disputed facts to suggest any prejudice being caused to the parties by such dismissal. Therefore, it is submitted before the Honble Court that the order is sustainable in law. 3. Confession of an approver cannot be retracted at the stage of 227/228 of CrPC It is humbly submitted that a confession is an admission made at any time by a person charged with an offence, stating or suggesting the inference that he has committed the offence 10. A declaration is not an confession if it is not made with an animus confitendi, that is, with an intention to confess, or if it does not amount to an admission of facts from which guilt is directly
7 8

State of Maharashtra v. Vithal Rao Pritirao Chawan , (1981) 4 SCC 129 S.N. Mukherjee v. Union Of India, (1990)4 SCC 594 ; R.C Dass V U.O.I, AIR 1987 SC 593 9 AIR 1991 SC 1216 10 Stephens Digest on the Law of Evidence

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deducible11.In the Privy Council decision of P. Narayana Swami v. Emperor 12 Lord Atkin elucidated the meaning and purport of the expression 'confession' in the following words:" A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession." Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. "Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law" 13. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. It must be noted that Section 164 of Cr.P.C. is a salutary provision which lays down certain precautionary rules to be followed by the Magistrate recording a confession. The object of recording statements under Section 164, is twofold: first , to deter witnesses from changing their stories subsequently and secondly , getting over the immunity from prosecution in regard to information given by witnesses under Section 162. It cannot be rendered nugatory by the stock argument that if the statement of a witness is recorded under Section 164, the evidence of the witness recorded in the court should be discarded 14. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused, as mentioned in Section 24, Evidence Act15. The Magistrates may record any statement or confession made to them in the course of an investigation under Chapter XII or under any other law for the time being in force, or at any time afterwards before the commencement of the enquiry or trial16. Thus, the confession can be made during the investigation and also during the trial. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation17. It cannot be said that confessional statements made under section 164, were made
11 12

Karu, (1937) Nag 524. AIR 1939 PC 47 13 Taylor's Treatise on the Law of Evidence Vol. I 14 AIR 1941 Oudh 517 15 Kuthu Goala v. State of Assam, 1981 Cr LJ 424 (Gau) 16 Sub-section (1) 17 AIR 1936 PC 253

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during the course of the police investigation 18. The section has no application to a statement or confession made before the investigation was started 19. But a confession made by the accused during remand proceedings before a Magistrate which is not recorded in accordance with the provisions of this section, must be excluded from consideration 20.Further, the statement of the accused recorded during the trial is not a confession contemplated by section 21. If the confession was not made in the course of an investigation, then it must be made at any time afterwards but before the enquiry or trial commenced. But the condition requiring the confession to be prior to the commencement of the enquiry or trial is only imposed when the investigation has ceased, and not when it is made in the course of the investigation 22.However, under Section 164, a confession cannot be recorded by a Magistrate after the case has been sent up to him for enquiry23. A confession recorded by a Magistrate after the investigation has concluded and enquiry has commenced before the committing Magistrate, cannot be taken in evidence24. Statement recorded during trial cannot become inadmissible only because of the reason that the confession was recorded after commencement of trial 25. However, Rajasthan High Court has held that statement under section 164 cannot be recorded after cognizance is taken26. It is submitted that sometimes an accused is found to resile from his confession. Generally, where an accused adheres at the trial to a previous judicial or extra judicial confession, it may if Court believes it be acted upon without corroboration 27. Thus confession of approver can be retracted like any other confession but thereafter the approver loose the right of approver and will be tried and if found guity will be punished. If the confession of an approver is retracted at the later stage i.e. before Investigation without specifying any reason then no importance will be attached28. At the stage of Section 227 and 228 the court frames charges or takes decision as to discharge so any retraction must be made before this stage and not at this stage. The purpose of framing a charge under Section 228 is to give intimation to the accused of
18 19

AIR 1955 Pat 425. ILR (1940) Mad 428 20 137 IC 57 : 33 PLR 25. 21 Jit Bahadur v. State, 1977 Cr LJ 1833 (Gau). 22 37 Cal 467 23 AIR 1930 Lah 454 24 AIR 1955 All 138 25 P.V. Narsimha Rao v. C.B.I., IV (1997) CCR 290 (Del). 26 Madan Mohan v. State, IV (1997) CCR 706 (Raj) ; also Ram Kumar v. State of U.P., 1998 (1) A Cr R 428 (All). 27 20 Cr LJ 721 28 Aloke Nath Dutta & Ors vs State Of West Bengal, (2007) 12 SCC 230

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clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial 29. On consideration of the authorities on the scope of Section 227 and 228 of the Code, multifarious principles emerge. The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The Court cannot act merely as a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, shift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Further, if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. Thus, a confession act as a substantive evidence at the stage of Section 227 and 228 of CrPC. If the approver wants to retract from the confession already made then he must do so before this stage. During this stage no opportunity is provided to retract for the general convenience of the court. In the present case, Mr. Guruprasad sort to
29

V.C. Shukla v. State, 1980 SCC 92

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retract from his confession during the framing of charges stage. In the light of the above discussed legal principles, it is submitted that the retraction cannot attached importance in the legal parlance. 4. Retracted Confession by an approver may be used as evidence against other co-accused. It is submitted before the Honble High Court that it is surefire that as a general rule the confession of an accused is not evidence, against anyone but himself. Nevertheless Section 30 of the Evidence Act acts as an exception which permits a court to take into consideration the confession made by one person as against certain other persons also, subject to the conditions which are: more persons than one are being jointly tried for the same offence, confession should have been made by one of them and the confession should affect the maker and the others who are sought to be fastened with the confession. Further, as per Section 133, Evidence Act, an accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. This amounts to no more than saying that an accomplice may be put into the box as a witness, and his testimony will not be ruled out as inadmissible. But to say that evidence is not inadmissible is not to say that the Court should or ought to act upon it. The question whether evidence is admissible or not is after all important only in so far as such evidence can be acted upon. As to whether the evidence of an accomplice ought to be acted upon, the Evidence Act itself lays down an unerring guide in Illus. (b), Section 114, which says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. The words in the section no doubt are "may presume," and not "shall presume". All the same, as Rankin, C.J., pointed out in Ambica Charan Roy v. Emperor30 , the Court is not concerned with merely recording a conviction that is not illegal, but is to be satisfied that the conviction is properly based. That being so, it seems that the rule of caution embodied in Illus. (b) to Section 114 is as good as a rule of law for all practical purposes. In the present case, it seems apparent that Guruprasad and Ajitha were involved in one way or the other in committing the crime and the confession was made by Mr. Guruprasad was not exculpatory in the nature. It has its bearing on both the maker and the co-accused. A confession of a crime, made by a person who has perpetrated it carries high evidentiary value in the eyes of
30

AIR 1931 Cal 697

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the law, as usually it is the outcome of penitence and remorse. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For this Court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. If the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration 31.So where the confession was voluntary and represented the true state of facts and the accused did not give any reasons why he made the confession which he later on retracted, a conviction can be based on such retracted confession.32. A retracted voluntary confession is admissible in evidence not only against the accused but also against his whole case 33. In the present case, the facts necessarily draw an inference that no reasons were given by Mr. Guruprasad for retracting the confession. Simply claiming himself to be innocent of all the charges leveled against him and demanding further to be put for trial cannot form a strong base to rely on retractment. Thus, it does not appear necessary that the same must be corroborated by some material evidence on record. It is submitted that, as established, mere bald retraction cannot take away the importance and evidentiary value of the original confession34, specially in view of the fact that in this case, the deponent of the statement had provided the minute details relating to the transactions. Even though the statement was subsequently retracted, the significance of admission in the first place cannot be under-mined. It appears that the retraction statement was made purely to avoid clutches of law which had caught up with him and laid bare his nefarious activities. . It is, however, right that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration 35. In the present case, the confession was voluntarily made by Mr. Guruprasad in the immediate presence of the Magistrate in the police custody. There is nothing in the facts of the case which draws a inference that there existed threat or inducement in making the confession. Even though the
31 32

In re Kesava Pillai [ILR 53 Mad 160 : (AIR 1929 Mad 837)] AIR 1949 Mad 817 33 2 PLJ 80 34 P. S. Barkathali v. Directorate of Enforcement, New Delhi ,AIR 1981 KER 81 ;State of Tamil Nadu vs Kutty alias Lakshmi Narasimham, 2001 SCC(Cri)1177 35 Aloke Nath Dutta v.State of West Bengal, (2007) 12 SCC 230

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statement was made in police custody there is no scope of torture or harassment of the police as the same was made before the immediate presence of the Magistrate which provides safeguard and guarantee to the confession and it is not even clearly stated whether the police was present nearby when the magistrate was recording the confession. Thus the confession was voluntarily in nature .The truthfulness of the confession here infers that the part of the information give by the person must distinctly relates to the facts of the case thereby discovered. Here the confession given by Mr. Guruprasad was in some or other way totally related to the facts discovered. Even as a matter of prudence a retracted confession cannot be made solely the basis of conviction unless the same is corroborated, it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It is sufficient, as the general trend that it must be substantiated by some evidence which would tally with what is contained in the confession.36 In the present case the recorded statement of 2 employees of MNC Inc. by police during investigation who stated in their opinion that Mr. Guruprasad & Mr.Ajitha were more than friends clearly cast a suspicion on the involvement of both in the crime. The illicit relationship of Ms. Ajitha with Mr. Guruprasad even after knowing the fact that she is married hold a strong reason for removing her husband, Mr. Ajay from their way and thus abetting Mr. Guruprasad in resulting the same. Confession can only be corroborated by evidence discovered by the police after a confession had been made and any material that is already in possession cannot be put in evidence in support of it is not valid37. In it submitted that the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his coaccused38. Confession by one of the accused can be used against other when conspiracy on their part is proved39.To prove conspiracy however there need not be evidence of direct concert nor even of any meeting together of the conspirators. The agreement can be inferred from collateral acts but these acts must show a common plan so as to exclude a reasonable possibility of the

36

Balbir Singh v. State of Punjab , 1957CriLJ481 Hem Raj V The State ,AIR 1954 SC 462 38 Ram Prakashv. State of Punjab, AIR 1959 SC 1: 1959 SCR 1219: 1959 Cr LJ 90. 39 State of Kerala. Ammini, AIR 1988 Ker 1(FB).
37

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acts of the conspirators having been done separately and connected only by coincidence 40. In this case, the confession statement clearly proves involvement of Mr.Ajitha in abetting the crime with Mr. Guruprasad. Giving of gun to Mr. Guruprasad and telling him to shoot Mr. Ajay ,and further dragging of the body into the car with Mr. Guruprasad and then driving the car by herself clearly proves the Mrs. Ajitha played a vital role in the commission of the offence. Even if she tries to take the defence of alibi by showing flight tickets and boarding pass, it will not hold good here. She visited her parents in Rajkot from 5 January 2011 to 9 January 2011. The crime took place in the night of 8 January 2011. It is very much possible on her part to present at the crime scene and thereafter again return back to her parents home. The same can also be substantiated by the fact that the distance between the Rajkot and Jor Bagh is only 15 hours approx. It is submitted that in the light of the legal principles and the facts of the present case, it would be injudicious to jettison a judicial confession on mere premise that its maker has retracted from it. The court has duty to evaluate the confession by looking all the aspects. The twin test is to ascertain whether confession is voluntary and that once the test is found positive, the next endeavor is to see whether there is any other reason which stands in the way of acting on it. Even for that retraction is not ground to throw confession over-board41. Here, the confession was made in the immediate presence of the Magistrate, thus, it was a guaranteed one. There existed no scope of involuntariness. Mr. Gurupasad gave no reason for the retraction of the confession. Simply, claiming himself to be innocent of all the charges leveled against him and demanding further to be put for trial cannot be considered so as to undermine the use of retracted confession of Mr. Guruprasad as evidence against the petitioner. 5. Charges framed by the Sessions Court are prima facie sustainable It is humbly brought to the notice of this Court that the Sessions Court framed charges of abetment of murder, destruction of evidence and criminal conspiracy against the Petitioner. It is submitted that as per Section 108 of IPC a person is guilty of abetment of an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or
40 41

Emperor v. B.C. Pandey State of Tamil Nadu v Kutty alias Lakshmi Narsimhan, AIR 2001 SC 2778

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knowledge as that of the abettor. In the present case, the confession of Mr. Guruprasad manifests that handing over of revolver to Guruprasad by Ajitha, telling him to shoot Ajay and also dragging of body by both of them into the car followed by Ajithas driving of Ajays Car apparently establishes that Ajitha was constantly aiding Guruprasad in the commission of an act which is otherwise an offence as per Section 300 of IPC. These facts prima facie justify the charge of abetment of murder of Ajay. Ajitha stands jointly liable with Mr. Guruprasad as per Section 34 of the IPC which provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. It is further submitted that in the present case the entire factual matrix apparently manifest that Ajita helped Guruprasad in destructing evidence. As per the confession statement of Mr. Guruprasad when the police conducted search no weapon was collected from the secluded place and even from the Ajithas house which according to Mr. Guruprasad was dumped along with the dead body of Ajay, also table lamp was not recovered while according to Mr. Guruprasad Ajay grabbed and headed towards him in an intimidating manner that feared him of his own and Ajithas safety and consequently leading him to fire three shots at Ajay. Also, as per the confession statement after they both assured that Ajay was dead they dragged his body into his own car which Mr. Guruprasad drove to Chattarpur Farms followed by Ajitha who drove Mr. Guruprasads car. Thus, two tyre marks must have been there. But during the investigation only single tyre mark was found. This chain clearly manifests that Ajitha was in some or other way constantly engaging in destructing the evidence. It is submitted that as per Section 120A of IPC criminal conspiracy is an agreement, by two or more persons to do, or cause to be done, an illegal act or an act, which is not illegal, by illegal means. The gist of the offence is the agreement between two or more persons to do one or the other of the acts described in the section. 42 It has been held in a plethora of cases 43 that since the essence of conspiracy is secrecy, direct evidence to prove conspiracy is rare. It is to be proved largely on the inference drawn from illegal act or omissions committed by the conspirators in pursuance of common design. There may be no witness to say that the conspirators agreed to carry out an unlawful object. Thus, the meeting of minds and its objective can be inferred from
42 43

Chamanlal v. State of Punjab, AIR 2009 SC 2972. Nazir Khan v. State of Delhi, AIR 2003 SC 4427; Lal Singh v. State of Gujarat, AIR 2001 SC 746.

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the surrounding circumstances and parties conduct. The agreement may be inferred from circumstances which raise a presumption of a concocted plan to carry out an unlawful design, and give rise to a conclusive or irresistible inference of such agreement to commit an offence. 44 However, it is necessary that the incriminating circumstances must form a chain of events from which a conclusion about the accuseds guilt could be drawn.45 In the present case the investigation traced out that Ajita helped Guruprasad in destructing evidence as no weapon was collected from the secluded place and from the Ajithas house, also a single tyre mark was found and the table lamp was not recovered. Handing over of revolver to Guruprasad and telling him to shoot Ajay and also dragging of body by both of them into the car followed by Ajithas driving of Ajays car unequivocally establishes that Ajitha was encouraging Guruprasad in committing the offence of Murder. It is submitted that the above stated facts when examined together clearly indicate a preconceived and planned trap and reflects meeting of minds to murder Mr. Ajay. The broad features stands proved by trustworthy evidence connecting all the links of a complete chain. Charge of common intention and prior concert stands proved since there is inescapable conclusion that the facts are not compatible with the accuseds innocence nor they could be explained on any other reasonable hypothesis.46 It was held in Kehar Singh v. State
47

that if facts were sufficient to show that they were

planning something secret, this was enough to constitute a prima facie evidence of conspiracy within the meaning of Section 10 of the Indian Evidence Act. It is a settled law that criminal conspiracy can be proved by circumstantial evidence. In Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra48, it was held that for an offence under Section 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement, may be proved by necessary implication. Thus, it is submitted that the charge of criminal conspiracy is sustainable in the light of factual matrix and legal principles.

44 45

Hari Ram v. State of UP, 1987 CrLJ 294. Yogesh v. State of Maharashtra, AIR 2008 SC 2991. 46 Y Venkaiah v. State of MP, AIR 2009 SC 2311. 47 AIR 1988 SC 1883. 48 1981 CriLJ 588.

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Therefore, it is humbly submitted before this Honble Court that in light of the material on record, the arguments advanced, the authorities cited and inferences drawn, it can be safely concluded that the order of the Honble Delhi High Court whereby the petition of Ms. Ajitha came to be dismissed was in pursuance of the proper compliance with statutory procedure and legal principles. The legality of the order must be upheld in the interest of the justice.

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PRAYER

In the light of submissions made, arguments advanced and authorities cited, the Respondent respectfully prays before this Honble Court to:

Upheld the legality of the order passed by the Honble Delhi High Court. Provide any other relief as the Court deems fit in the ends of justice, equity, and good
conscience.

All of which is most humbly and respectfully submitted.

-Counsel Respondent

for

the

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MEMORIAL ON BEHALF OF THE RESPONDENT