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6TH JAMIA NATIONAL MOOT COURT COMPETITION 2016

IN THE HON’BLE SUPREME COURT OF INDIA

AT NEW DELHI

S.L.P No. 5, 12, 14/ 2016

(Filed under Article 136 of the Constitution of India, 1950)

Mr. Rohini …… Petitioner No. 1

Mr. Atul …… Petitioner No. 2

Mr. Madan …… Petitioner No. 3

Versus

State of NCT of Delhi ……Respondent

Written Submissions on behalf of the Petitioner,

JM 36,

Counsel for the Petitioner.

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………….

INDEX OF AUTHORITIES………………………………………………………………

STATEMENT OF JURISDICTION……………………………………………………..

STATEMENT OF FACTS……………………………………………………………….

STATEMENT OF ISSUES……………………………………………………………….

SUMMARY OF ARGUMENTS………………………………………………………….

ARGUMENTS ADVANCED……………………………………………………………..

PRAYER…………………………………………………………………………………
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LIST OF ABBREVIATIONS

1.
2. Hon’ble – Honorable
3. u/s – under section
4. IEA, 1872 – Indian Evidence Act, 1872
5. IPC, 1860 – Indian Penal Code, 1860
6. CrPC – Code of Criminal Procedure
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INDEX OF AUTHORITIES

Statutes

1. The Evidence Act, 1872

2. Indian Evidence Act, 1872
3. The code of criminal procedure 1973

Case laws

1. Woolmington v. Director Of Public Prosecutions (1935 AC 462)

2. Kailash Gour Vs. State Of Assam [2012 (1) MLJ (Crl) 807]
3. Chinnapillai And Another v. Inspector,
4. Taluk Police Station, Krishnagiri 2012 (2) L.W. (Crl) 499).
5. Ashish Batham v. State Of M.P. AIR 2002 SC 3206
6. Rethinam v. State Of Tamilnadu 2011 (11) SCC 140
7. Mohd. Khalid v. State of West Bengal (2002) 7 SCC 334
8. Babu v. Dy. Director, A.I.R. 1982 S.C. 756; Prasad v. Govinda swaray, A.I.R. 1982 S.C. 84;
Dhanjibhai v. State of Gujarat A.I.R. 1985 S.C. 603
9. A.I.R. 1986 S.C. 441. The Court noted that “where there are material irregularities affecting the said
findings or where the court feels that justice has failed and the findings are likely to result in unduly
excessive hardship this court could not 628 decline to interfere merely on the ground that findings in
question are findings on fact.
10. Uday Chand Dutt v. Saibal Sen, A.I.R. 1988 S.C. 367; See also Ram Singh v. Ajay Chawla, A.I.R.
1988 S.C. 514
11.
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STATEMENT OF JURISDICTION

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

The Beginning …

As any other person Mrs. Rohini Sariman is also a happy and very successful person. Born in
1984, Due to her highly ambitious nature since a very young age, Mrs. Rohini Sariman
obtained so much fame and reputation that she is hailed from Patna in Bihar. Mrs. Rohini
Sariman took her education and career very seriously and claims this hard work to be the
secret of her success. Mrs. Sariman is known to be particularly good at networking and has
been able to create amicable relationship with a lot of influential people. The Forbes
Magazine named Mrs. Rohini among the “50 most influential women in media business.”

Hike in Life, Career & Family

Mrs. Rohini Sariman a 40 year old woman who has attained so much as compared to others
in such a Short Span of her life. Mrs. Sariman with being an successful entrepreneur is also
the CEO of JM Media, a popular national media house. Mrs. Sariman enjoys a good
reputation as the head of her media network and is very well known within the elite social
spheres. Her behavior and nature is unaffected no matter where she present. Irrespective of
environments

In 2004, Mrs. Rohini married Mr. Akash Sariman, Who is an influential man in the Indian
music and film industry. In an interview to a popular media fanfare magazine, she spoke
about her previous marriage to Mr. Madan (1998-2002). Mrs. Rohini and Mr. Madan together
had a lovely daughter from the wedlock, her name is Ms. Nidhi. In 2005 Mr. & Mrs. Sariman
Legally adopted Ms. Nidhi giving her their surname. Mr. Akash & Mrs. Rohini’s have two
sons, Mr. Virat Sariman and Mr. Vikraant Sariman, which were from Mr. Sariman’s earlier
marriage to Mrs. Ananya and Ms. Nidhi Sariman

___________________
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However as Mr. Madan is a Businessman in Delhi. He used to be profit holder in Mrs.

Rohini’s JM Media House. A sizable amount of profit was named to Mr. Madan. While
praising Mrs, Rohini’s hard work Mr. Madan says “I have known Rohini for a while now and
she had worked very hard to achieve all that she has till now and does not take people lightly
who interfere with her work.”

_________________________

Mr. Atul is driver for Mrs. Rohini. Mr. Atul is a simple personality who thinks keeping one’s
feet at ground and being loyal are best traits of an employee. Mrs. Rohini can trust Mr. Atul
with her most prized possessions. Mr. Atul has been in Mrs. Sariman’s service since 2004
after her wedlock to Mr. Akash Sariman.

____________________

STATEMENT OF ISSUE

A. Whether the trial court was correct to convict the petitioner solely on the basis of the
confession made to the police and whether the court was correct to use such
confession against petitioner no. 1 in the absence of any corroborative evidence?

B. Whether the opinion of the DNA expert is admissible as evidence?

C. Whether the petitioner are guilty under section 300 read with section 302, section 364
and section 201 of the Indian Penal Code?

D. Whether the High Court was correct to convert the sentence from life imprisonment to
death sentence?
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SUMMARY OF ARGUMENTS

A. Whether the trial court was correct to convict the petitioner solely on the basis of
the confession made to the police and whether the court was correct to use such
confession against petitioner no. 1 in the absence of any corroborative evidence?

This is humbly submitted that subject to certain provisions of Law of Evidence, confession is
always a substantial piece of evidence, and the conviction based on such confession is legal,
and justified.

It is also submitted that corroboration of evidence is not a rule of law but a rule of caution,
and thus when the court is otherwise satisfied about veracity of confession, corroboration
would not affect the legality of trial court’s decision.

B. Whether the opinion of the DNA expert is admissible as evidence?

It is humbly submitted that opinion of Dr. Har Gobind Khorana is in the definition of expert
evidence and is legally admissible in the trial. It may also be pointed out that expert out that
expert evidence fit on DNA testing and blood group types which is significantly proven and
the same was never contradicted during the trial.

C. Whether the petitioner are guilty under section 300 read with section 302, section
364 and section 201 of the Indian Penal Code?

Without prejudice to other submission, this is humbly submitted that once the guilt is
established in the trial court and the same is confirmed by High Court, this honourable court
never interferes with the concurrent finding of the Court below.
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It is submitted that the guilt of petitioner for the offence of murder u/s 302 IPC, abduction in
order to commit murder u/s 364 IPC, and disappearance of evidence u/s 201 IPC has been
established through beyond reasonable doubt in both of the subordinate courts.

D. Whether the High Court was correct to convert the sentence from life
imprisonment to death sentence?
It is humbly submitted that the conversion of life imprisonment to death punishment
is very much correct and sense full here.

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

ARGUMENTS ADVANCED

A. Whether the trial court was correct to convict the petitioner solely on the basis of
the confession made to the police and whether the court was correct to use such
confession against petitioner no. 1 in the absence of any corroborative evidence?

This is humbly submitted that subject to certain provisions of Law of Evidence, confession is
always a substantial piece of evidence, and the conviction based on such confession is legal,
and justified.

Confession Defined—
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Indian Criminal Law is modelled on the British Anglo-Saxonic Criminal Jurisprudence. The
basic foundation of criminal law/ responsibility is that ‘a person accused of an offence is
presumed to be innocent till the guilt alleged as against him is proved beyond all reasonable
doubts’.1 ‘As a necessary corollary, suspicion, however, strong or probable, may not take the
place of legal proof and when graver the charge, greater should be the standard of proof. The
distance between ‘may be true’ and ‘must be true’ is too long.2

However, law recognizes reception of admission of certain aspects of the case, made by the
accused, to some extent, under certain circumstances. As per Section 17 of the Evidence Act,
‘Admission’ of a fact or statement is relevant. Admission is a good form of evidence because
it emanates from the very maker. ‘Admission’ is generic and ‘confession’ is its species. When
the admission contains something towards the blameworthiness of its maker it becomes
confession. But, in tune with the basic principle of criminal law, to ensure genuineness and
voluntariness in such form of admissions, namely, confession, many safeguards are provided
in the Evidence Act itself.3

The principle that “no confession made to a police officer is admissible” is firmly ingrained
in Section 25 of the Evidence Act. But, there are certain exceptions to it. If it is made in the
presence of a Magistrate, it can be relied on.4 Further, a limited exception to this aspect is
also made in Section 27 of the Evidence Act. By way of a proviso to the preceding sections
prohibiting the admissibility of confession made to police, Section 27 provides limited
exception to the embargo in Section 25 of the Evidence Act. What is permitted in Section 27
is ‘so much of information’ in the confessional statement of the accused ‘leading to the
discovery or recovery of a fact’ and nothing more than that.5 Such recovery consequent upon
such information is commonly known as 'Section 27 Evidence Act Recovery' or 'Recovery
Evidence'. So much of information that led to the discovery of a fact although it was made to
police while the accused was in their custody is admissible. It can be relied on to convict the
maker.

Whenever, an accused is arrested by a Police Officer, during investigation, as often stated, the
accused is put to certain tough interrogation. The statement by accused so given is commonly
known as ‘confessional statement’ or ‘disclosure statement’. It is recorded for the limited
purpose provided in Section 27 of the Evidence Act. Usually, it will be complete narration of
the entire family history of the accused running to pages also containing many vital clues,
details, information with regard to the commission of the offence and also concealment of
crime objects, such as weapon, booty, etc., This statement will be of two types. One is, the
part containing 'incriminating information' about him, such as how he arranged the killing,

1
See Woolmington v. Director Of Public Prosecutions (1935 AC 462); See also See Kailash Gour Vs. State Of
Assam [2012 (1) MLJ (Crl) 807] and Chinnapillai And Another v. Inspector, Taluk Police Station, Krishnagiri
[2012 (2) L.W. (Crl) 499).
2
(See Ashish Batham v. State Of M.P. [AIR 2002 SC 3206] and Rethinam v. State Of Tamilnadu [2011 (11)
SCC 140]
3
See Section 24 to 27
4
See Section 26 of the Evidence Act)
5
See Pullukuri Kottaiya v. King-Emperor (AIR 1947 PC 67)
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how he carried it out or about robbery etc, why he killed the victim and under what
circumstances he had killed the victim, whether it was under grave and sudden or sustained
provocation, such as killing of his wife by the husband due to her complete waywardness.
The other one is the part containing 'non-incriminating information'. It will contain a
statement of fact leading to the recovery or discovery of such fact, such as hide-out of the
weapon or booty or spoils of the crime,6 usually recorded at the tail end of the confessional
statement of the accused.

On an analysis of section 24 to 27 of the Indian Evidence Act, 1872 and Section 162 of the
Code of Criminal Procedure, 1973 the following material propositions emerge:

(a) Whether a person is in custody or outside, a confession made by him to a police officer or
the making of which is procured by inducement, threat or promise having reference to the
charge against him and proceeding from a person in authority, is not provable against him in
any proceeding in which he is charged with the commission of an offence.

(b) A confession made by a person whilst he is in the custody of a police officer to a person
other than a police officer is not provable in a proceeding in which he is charged with the
commission of an offence unless it is made in the immediate presence of a Magistrate.

(c) That part of the information given by a person whilst in police custody whether the
information is confessional or otherwise, which distinctly relates to the fact thereby
discovered but no more, is provable in a proceeding in which he is charged with the
commission of an offence.

(d) A statement whether it amounts to a confession or not made by a person when he is not in
custody, to another person such latter person not being a .police officer may be proved if it is
otherwise relevant.

(e) A statement made by a person to a police officer in the course of an investigation of an

offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent
permitted by s. 27 of the 24 Indian Evidence Act, be used for any purpose at any enquiry or
trial in respect of any offence under investigation at the time when the statement was made in
which he is concerned as a person accused of an offence.
Sections 25 and 26 were enacted not because the law presumed the statements to be untrue,
but having regard to the tainted nature of the source of the evidence, prohibited them from
being received in evidence.

It may be noted that, though Section 24 excludes confession caused by inducement, threat or
promise, and Section 25 is imperative and provides that confession made before or even in
presence of a police officer under any circumstance is not admissible in evidence against the

6
(see Chinnasamy Reddy v. State Of A.P. [AIR 1962 SC 1788] and Limbaji And Others v. State Of
Maharashtra [2001 (10) SCC 340]
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accused, the ban so created, is relaxed by Section 26, which provides that no confession made
by any person while he is in the custody of a police officer, unless it is made in the immediate
presence of a Magistrate, shall be proved as against such person. The part of confessional
statement/information leading to discovery is admissible in evidence under Section 27 of the
Evidence Act as Section 27 of the Evidence Act is an exception to Section 26 of the Evidence
Act.
Once such statement, to the extent of ‘discovery’ is admissible, by virtue of Section 30 of the
Evidence Act such “confession made by accused persons affecting himself and some other of
such persons is proved”, the Court may take into consideration ‘such confession’ as against
such other person as well as against the person who makes such confession. It is by this
process, self inculpatory statement is admissible against co-accused. Section 30 of the
Evidence Act provide that any confession made by accused persons affecting himself and
some other of such persons is proved, the Court may take into consideration such confession
as against such other person as well as against the person who makes such confession. Hence,
self inculpatory statement is admissible against co-accused.

Corroboration—

It is submitted that corroboration of evidence is not a rule of law but a rule of caution, and
thus when the court is otherwise satisfied about veracity of confession, corroboration would
not affect the legality of trial court’s decision. In Mohd. Khalid v. State of West Bengal,7
Supreme Court outlined that “it is only when the other evidence tendered against the co-
accused points to his guilt then the confession duly proved could be used against such co-
accused if it appears to affect him as lending support or assurance to such other evidence.”

B. Whether the opinion of the DNA expert is admissible as evidence?

It is humbly submitted that opinion of Dr. Har Gobind Khorana is in the definition of
expert evidence and is legally admissible in the trial. It may also be pointed out that
expert out that expert evidence fit on DNA testing and blood group types which is
significantly proven and the same was never contradicted during the trial.

In Indian Evidence Act, 1872 Section 45 Says “Opinions of experts.—When the Court has to
form an opinion upon a point of foreign law or of science or art, or as to identity of
handwriting 35 [or finger impressions], the opinions upon that point of persons specially
skilled in such foreign law, science or art, 36 [or in questions as to identity of
handwriting] 35 [or finger impressions] are relevant facts. Such persons are called experts.
Illustrations

(a) The question is, whether the death of A was caused by poison. The opinions of experts
as to the symptoms produced by the poison by which A is supposed to have died are
relevant.
7
2002 7 SCC 334
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The expert opine in this case is based on DNA testing which is most modern and
reliable plus accepted technology all over the world. This branch of science is mostly
used to verify certain facts. DNA technology is based on DNA fingerprinting.

The PRINCIPLE OF DNA EVIDENCES simply involves and means:

“ DNA is Sometimes referred to a generic blueprint because it contains the

instructions that govern the development of an organism. Characteristics such as hair
color, eye color, height and other physical features all are determined by genes that
reside in just 2% of human DNA. This portion is called the coding region because it
provides the instructions for proteins to create these features. The other 98% of
Human DNA is considered non-coding and the scientific community has only recently
begun to identify its functions.

Forensic scientific, however use this non-coding DNA in criminal investigations.

Inside theis region of DNA are unique repeating patterns that can be used to
differentiate one person from another. These patterns, known as short-tandem repeats
(STRs), can be measured to define the DNA profile of an individual.

All cells, except mature Red Blood Cells (RBCs), contain DNA. Any sweat, semen,
body fluids or skin cells left behind at a crime can be examined for their unique STR
signature to possibly link a person to the sample. While thousands of people may
share several markers of their STR signature, there has been no case to date where
two people have been found to have matching STR markers in all 13 areas used for
comparison (except identical twins).

It is humbly submitted that according to the facts of the blood found on door handle of
the car and backseat is recognized as of deceased Ms. Soumya by DNA testing
method. It is also opined that such kind of blood spots is resultant of strangling and
thus is corroborates the confession made by Mr. Madan (accused no.3)
It may be pointed out that the blood stained cloths found had blood spots of the same
type of blood group as of deceased Ms. Soumya on the instance of Mr. Atul (accused
no.2) is not a mere coincidence. Thus is tantamount to discovery u/s 27 and a very
useful evidence.

C. Whether the petitioner are guilty under section 300 read with section 302, section
364 and section 201 of the Indian Penal Code?

(a) Without prejudice to other submission, this is humbly submitted that once the facts
relating to guilt are established in the trial court and the same is confirmed by High Court,
this honourable court have rarely interfere with the concurrent findings of the Courts below.

It is humbly submitted that it has been said in a series of decisions that ordinarily this court in
a Special appeal will not interfere with a finding of fact which is not shown to be perverse or
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based on no evidence.8 It was noted in Ganga Bishan v. Jay Narayan,9 that ordinarily this
Court, under Article 136 of the Constitution, would be averse to interfere with concurrent
findings of fact recorded by the High Court and the Trial Court. So also in Uday Chand Dutt
v. Saibal Sen,10 it was said that in an appeal by special leave under Article 136 of the
Constitution of India where there are concurrent findings of the courts below this court is not
called upon to reconsider the entire evidence in detail to ascertain whether the findings are
justified.

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

Conspiracy—

This submitted that the facts categorically disclose conspiracy between Accused Rohini,
Accused Mandan and accused Atul. Before narrating the facts about conspiracy, following
law dealing with the same may be considered—

Section 10: Things said or done by conspirator in reference to common design.—

Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written
by any one of such persons in reference to their common intention, after the time when
such intention was first entertained by any one of them, is a relevant fact as against
each of the persons believed to so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such person was a
party to it.

Illustration: Reasonable ground exists for believing that A has joined in a conspiracy
to wage war against the Government of India. The facts that B procured arms in
Europe for the purpose of the conspiracy, C collected money in Calcutta for a like
object, D persuaded persons to join the conspiracy in Bombay, E published writings
advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the
money which C had collected at Calcutta, and the contents of a letter written by H
giving an account of the conspiracy, are each relevant, both to prove the existence of
the conspiracy, and to prove A’s complicity in it, although he may have been ignorant
of all of them, and although the persons by whom they were done were strangers to
him, and although they may have taken place before he joined the conspiracy or after
he left it.

8
Babu v. Dy. Director, A.I.R. 1982 S.C. 756; Prasad v. Govinda swaray, A.I.R. 1982 S.C. 84; Dhanjibhai v.
State of Gujarat A.I.R. 1985 S.C. 603
9
A.I.R. 1986 S.C. 441. The Court noted that “where there are material irregularities affecting the said findings
or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship
this court could not 628 decline to interfere merely on the ground that findings in question are findings on fact.
10
Uday Chand Dutt v. Saibal Sen, A.I.R. 1988 S.C. 367; See also Ram Singh v. Ajay Chawla, A.I.R. 1988 S.C.
514
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It is humbly submitted that in Jayendra Saraswati Swamigal v. State of Tamil Nadu,11

Supreme Court ruled that “if prima facie evidence of existence of a conspiracy is given and
accepted, the evidence of acts and statements made by anyone of the conspirators in
furtherance of the common object is admissible against all.” The very object of Section 10 of
Evidence Act is to make acts and statements of a co-conspirator admissible against the
whole body of conspirators, because of the nature of crime.12

Conspiracy is conceived as having three elements: (1) an agreement; (2) between two or more
persons by whom the agreement is effected: and (3) a criminal object, which may be either
the ultimate aim of the agreement, or may constitute the means, or one of the means by which
that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects.

The common law definition of ‘criminal conspiracy’ was stated first by Lord Denman in
Jones’ case that an indictment for conspiracy must “charge a conspiracy to do an unlawful
act by unlawful means” and was elaborated by Willies, J. on behalf of the judges while
referring the question to the House of Lords in Mulcahy v. Reg, and House of Lords in
unanimous decision reiterated in Quinn v. Leathem: “a conspiracy consists not merely in the
intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do
a lawful act by unlawful means. So long as such a design rest in intention only, it is not
indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act
of each of the parties, promise against promise, actus contra actum, capable of being
enforced, if lawful; punishable of for a criminal object, or for the use of criminal means.”

The gist of the offence is an agreement to break the law. The parties to such an agreement
will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been
done. So too, it is an ingredient of the offence that all the parties should agree to do a single
illegal act. It may comprise the commission of a number of acts. Under Section 43 of the
India Penal Code, an act would be illegal if it is an offence or if it is prohibited by law.

It may be humbly pointed out that in Ajay Agarwal v. Union of India,13 It was held that “it is
not necessary that each conspirator must know all the details of the scheme nor be a
participant at every stage. It is necessary that they should agree for design or object of
conspiracy.” In Yash Pal Mittal v. State of Punjab,14 the rule was laid that:

“The very agreement, concert or league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and every detail of the conspiracy
as long as they are co-participators in the main object of the conspiracy. There may be
so many devices and techniques adopted to achieve the common goal of the conspiracy
and there may be division of performances in the chain of actions with one object to

11
AIR 2005 SC 716
12
Badri Rai v. State of Bihar, AIR 1958 SC 953
13
(1993) 3 SC 203
14
[1977] SCC 540
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achieve the real end of which every collaborator must be aware and in which each one
of them must be interested. There must be unity of object or purpose but there may be
plurality of means sometimes even unknown to one another, amongst the conspirators.
In achieving the goal several offences may be committed by some of the conspirators
even unknown to the others. The only relevant factor is that all means adopted and
illegal acts done must be and purported to be in furtherance of the object of the
conspiracy even though there may be sometimes misfire or overshooting by some of the
conspirators.”

Following ‘facts’ discloses about ‘conspiracy’ to kill soumya-

i. In his confession, Mr. Madan (accused no.3) and Mr. Atul (accused no.2) have
mention about the conspiracy.
ii. Confession made by Mr. Atul (accused no.2) confirms about conspiracy, when he
disclosed that while Soumya was stangled by Mr. Madan (accused no.3), Mrs.
ROhini (accused no.1) was absolutely unfazed.
iii. Testimony of Virat, and Arsh disclosed conspiracy, the reasons and motives of
crime.
iv. The phone call of Deceased Soumya to her brother Arsh, and his testimony during
trial is admissible as evidence.
v. The fact that Soumya was staying at Rohini’s (accused no.1) residence since 2010,
and her statement to Virat, as well as Police about ‘US study’ is an statement
admissible under Section 10 of Evidence Act, since was in furthereance of the said
Conspiracy.
vi. Confessional Statements are confirmed and corroborated by DNA test of blood
samples collected from the vehicle (Maruti Sedan).
vii. The fact that alleged vehicle is sold, without knowledge of Mrs. Rohini (accused
no.1), the owner, is beyond any human reason. It is also noted that the same is not
clarified during her testimony.
viii. Recovery of blood-stained cloths of deceased, matched with blood spots found on
back seat as well as the door handle of car, allegedly involved in the crime.

In Sardar Sardul Singh Caveeshar v. State of Maharashtra,15 Supreme Court narrated about
the Section. According to the Court “the opening lock” of that provision is the existence of
“reasonable ground to believe” that the conspirators have conspired together. This condition
will be satisfied even when there is some prima facie evidence to show that there was such a
criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by
one of the conspirators becomes substantive evidence against the other, provided that should
have been a statement “in reference to their common intention”..

15
Sardar Sardul Singh Caveeshar v. The State of Maharashtra, AIR (1965) SC 682
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In State v. Nalini,16, it is submitted that “in a given case, however, if the object of conspiracy
has not been achieved and there is still agreement to do the illegal act, the offence of a
criminal conspiracy continues and Section 10 of the Evidence Act applies.”

In State of Maharashtra v. Bharat Chaganlal Raghani,17 it was held that a requirement of

corroboration even in a retracted confession is not a rule of law but a rule of prudence, and
the general corroboration of confessional statement is sufficient to sustain conviction on the
basis of such confession.

As for as evidence against Accused Atul is concerned, it may be humbly pointed out that in
Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra,18 , it was held
that for an offence under Section 120B IPC, the prosecution need not necessarily prove that
the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may
be proved by necessary implication. Thus, where trustworthy evidence establishing all links
of circumstantial evidence is available the confession of a co-accused as to conspiracy even
without corroborative evidence can be taken into consideration. 19 It can in some cases be
inferred from the acts and conduct of parties.20

Confession by Co-accused—

It is humbly submitted that Section 30 of the Evidence Act requires that before a confession
of co-accused be admitted, and permitted to operate against the other accused, the confession
should be strictly established. In other words, what must be before the Court should be a
confession proper and not a mere circumstance or information which could be an
incriminating one. Secondly, it being the confession of the maker, it is not to be treated as
evidence within the meaning of Section 3 of the Evidence Act against the non-maker co-
accused and lastly, its use depends on finding other evidence so as to connect the co-accused
with crime and that too as a corroborative piece. It is only when the other evidence tendered
against the co-accused points to his guilt then the confession duly proved could be used
against such co-accused if it appears to effect him as lending support or assurance to such
other evidence.

To attract the provisions of Section 30, it should for all purposes be a confession, that is a
statement containing an admission of guilt and not merely a statement raising the inference
with regard to such guilt. The evidence of co-accused cannot be considered under Section 30
of the Evidence Act, where he was not tried jointly with the accused and where he did not
make a statement incriminating himself along with the accused. As noted above, the
confession of co-accused does not come within the definition of evidence contained in
Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of

16
State v. Nalini, [1999] 5 SCC 253
17
(2001) 9 SCC 1
18
(1981) 2 SCC 443
19
Baburao Bajirao Patil v. State of Maharashtra, [1971] 3 SCC 432
20
Shivanarayan Laxminarayan Joshi and Ors. v. State of Maharashtra and Ors,, AIR (1980) SC 439
 18
WRITTEN SUBMISSIONS FOR THE RESPONDENT

the accused, and it cannot be tested by cross-examination. It is only when a persons admits
guilty to the fullest extent, and exposes himself to the pains and penalties provided for his
guilt, there is a guarantee for his truth.

Legislature provides that his statement may be considered against his fellow accused charged
with the same crime. The test is to see whether it is sufficient by itself to justify the
conviction of the person making it of the offence for which he is being jointly tried with the
other person or persons against whom it is tendered. The proper way to approach a case of
this kind is, first to marshal the evidence against the accused excluding the confession
altogether from consideration and see whether if it is believed, a conviction could safely be
based on it. If it is capable of belief independently of the confession, then of course it is not
necessary to call the confession in aid. But cases may arise where the Judge is not prepared to
act on the other evidence as it stands even though, if believed, it would be sufficient to
sustain a conviction. In such an event the Judge may call in aid the confession and use it to
lend assurance to the other evidence.

This position has been clearly explained by this Court Kashmira Singh v. The State of
Madhya Pradesh.21 The exact Scope of Section 30 was discussed by the Privy Council in the
case of Bhubani v. The King.22 The relevant extract from the said decision which has become
locus classicus reads as follows:

Section 30 applies to confessions, and not to statements which do not admit the guilt of
the confessing party........But a confession of a co-accused is obviously evidence of a
very weak type.....It is a much weaker type of evidence than the evidence of an approver
which is not subject to any of those infirmities. Sec. 30, however, provides that the
Court may take the confession into consideration and thereby, no doubt, make it
evidence on which the Court may act but the section does not say that the confession is
to amount to proof. Heady there must be other evidence. The confession is only one
element in the consideration of all the facts proved in the case; it can be put into the
scale and weighed with the other evidence. The confession of the co-accused and be
used only in support of other evidence and cannot be made the foundation of a
conviction”.

Kashmira Singh’s principles were noted with approval by a Constitution Bench of these
Court Hart Charan Kurmi and Jodia Hajam v. State of Bihar.23 It was noted that the basis on
which Section 30 operates is that if a person makes a confession implicating himself that may
suggest that the maker of the confession is speaking the truth. Normally, if a statement made
by an accused person is found to be voluntary and it amounts to a confession in the sense that
it implicates the maker, it is to likely that the maker would implicate himself untruly. So
Section 30 provides that such a confession may be taken into consideration even against the
co-accused who is being tried along with the maker of the confession. It is significant
21
AIR (1952) SC 159
22
AIR (1949) PC 257
23
[1964] 6 SCR 623
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however that like other evidence which is produced before the Court it is not obligatory on
the Court to take the confession into account. When evidence as defined by the Evidence Act
is produced before the Court it is the duty of the Court to consider that evidence. What weight
should be attached to such evidence is a matter in the discretion of the Court. But the Court
cannot say in respect of such evidence that it will just not take that evidence into account.
Such an approach can however be adopted by the Court in dealing with a confession because
Section 30 merely enables the Court to take the confession into account. Where, however, the
Court takes it into confidence, it cannot be faulted.

The principle is that the Court cannot start with confession of a co-accused person; it must
begin with other evidence adduced by the prosecution and after it has formed its opinion with
regard to the quality and effect of the said evidences, then it is permissible to turn to the
confession in order to receive assurance to the conclusion of guilt which the judicial mind is
about the reach on some other evidence. That is the true effect of the provision contained in
Section 30.

In Shankaria v. State of Rajasthan,24 the Court suggested to apply double test for deciding the
acceptability of a confession i.e. (i) whether the confession was perfectly voluntary; and (ii) if
so, whether it is true and trustworthy.

Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the
confession appears to the Court to have been caused by any inducement, threat or promise,
such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected. If the
first test is satisfied, the Court must before acting upon the confession reach the finding that
what is stated therein is true and reliable.

It is humbly submitted that, the facts shown as well as in the decision of Trial Court, there is
no mention of any coercion or threat about making of ‘confession’ by both of the co-accused.

Circumstantial Evidence—

More than six decades back this honourable Court in Hanumant Govind Nargundkar v. State
of M.P.,25 had laid down the principles as under:

“It is well to remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should be in the first
instance be fully established, and all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive
nature and tendency and they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the innocence of the

24
(1978) Crl. LJ. 1251
25
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WRITTEN SUBMISSIONS FOR THE RESPONDENT

accused and it must be such as to show that within all human probability the act must have
been done by the accused.”

In Sharad Birdhichand Sarda v. State of Maharashtra,26 the five golden principles which
have been stated to constitute the panchsheel of the proof of the case based on circumstantial
evidence are

(i) the circumstances from which the conclusion of guilt is to be drawn must or
should be and not merely ‘may be’ fully established,
(ii) the facts so established should be consistent only with the hypothesis of the
guilt of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved,
and
(v) there must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have been done by the
accused.

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

This Court in the case of Yusuf v. State of West Bengal,28 has held as under: “Undoubtedly,
conviction can be based solely on circumstantial evidence. However, the court must bear in
mind while deciding the case involving the commission of serious offence based on
circumstantial evidence that the prosecution case must stand or fall on its own legs and
cannot derive any strength from the weakness of the defence case. The circumstances from
which the conclusion of guilt is to be drawn should be fully established. The facts so
established should be consistent only with the hypothesis of the guilt of the accused and they
should not be explainable on any other hypothesis except that the accused is guilty. The
circumstances should be of a conclusive nature and tendency. There must be a chain of
evidence so complete as not to leave any reasonable ground for the conclusion consistent
26
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Krishnan v. State, (2008) 15 SCC
430; Wakkar v. State of Uttar Pradesh, (2011) 3 SCC 306; Haresh Mohandas Rajput v. State of Maharashtra,
2011 (12) SCC 56; Joseph v State of Kerala reported in 2000 SCC (Crl) 926; Padala Veera Reddy v State of
A.P. 1991 SCC (Crl) 407; State of U.P v Ashok Kumar Srivastava, 1992 SCC (Crl) 241; State of Rajasthan vs.
Raja Ram (2003 (8) SCC 180), State of Haryana vs. Jagbir Singh and Anr. (2003 (11) SCC 261)
27
28
Yusuf v. State of West Bengal, AIR 2011 SC 2283 in para 26
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with the innocence of the accused and must show that in all human probability the act must
have been done by the accused.”

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

It is humbly submitted that prosecution has proved the chain of circumstance and each
circumstance has been established that—

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

The facts of Conspiracy, circumstances resulting into Soumya’s death and manner of
disposing dead body is established through Confession made by Mr. Madan (accused no.3)
and Mr. Atul (accused no.2), and the same is corroborated by Statement of Mr. Arsh, and Mr.
Virat.

In State Of U. P v. Deoman Upadhyaya,29 of the verbiage, let us look at the result brought
about by the combined application of s. 27 of the Evidence Act and s. 162 of the Code of
Criminal Procedure. A and B stabbed C with knives and hid them in a specified place. The
evidence against both of them is circumstantial. One of the pieces of circumstantial evidence
is that both of them gave information to the police that each of them stabbed C with a knife
and hid it in the said place. They showed to the police the place where they had hidden the
knives and brought them out and handed them over to the police; and both the knives were
stained with human blood.

D. Whether the High Court was correct to convert the sentence from life
imprisonment to death sentence?
It is humbly submitted that the conversion of life imprisonment to death punishment
is very much correct and sense full here.

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

In this case, Rohini (accused no.1), Madan (accused no.3) and Atul (accused no.2)
involved in the murder of deceased Soumya and then deleting the evidence relating to
it. Deceased Soumya

29
1960 AIR 1125
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PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;

1.
2.
3.
4.

and pass any other order it may deem fit in the interest of justice, equity and good conscience.

All of which is humbly prayed,

JM 36,

Counsel for the Respondent.