12th RC CHOPRA NATIONAL MOOT COURT COMPETITION

MEMORIAL

BEFORE THE HON’BLE HIGH COURT

APPEAL ( CRIMINAL )

APPEAL NO...................2023

IN THE MATTER BETWEEN

Y.............................APPELLANT

V.

STATE.....................RESPONDENT

APPEAL TO THE HIGH COURT FILED BY

APPELENT UNDER SECTION

OF 374(2) CRIMINAL PROCEDURE CODE, 1973

MEMORIAL ON BEHALF OF APPELLANT

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LIST OF ABBREVIATIONS

SC Supreme Court
HC High Court
U/S Under Section
Sec. Section
V. Versus
CrPC Criminal Procedural Code
T.N Tamil Nadu
U.P Uttar Pradesh
AIR All India Reporter
SCC Supreme Court Cases
IO Investigating Officer

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TABLE OF CONTENTS

1. List of Abbreviations...............................................................................2
2. Index of Authorities................................................................................4-5
3. Statement of Jurisdiction.........................................................................6
4. Statement of Facts.....................................................................................7-8
5. Statement of Issues..................................................................................9
6. Summary Arguments................................................................................10-12
7. Argument Advanced...............................................................................13-28
8. Prayer.........................................................................................................29

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INDEX OF AUTHORITIES

BOOKS REFERRED:-
I. Indian Evidence , Ratanlal And Dhirajlal
II. Indian Evidence, Batuk Lal
III. CrPC , Ratanlal And Dhirajlal

STATUTES REFERRED :-
I. Indian Evidence Act, 1872
II. Criminal Procedural Code, 1973
III. Constitution of India

Serial Case Law Page

No. No.
1 Hanumant V. State Of M.P AIR 1952 SC 13
2 Indrajit Das V. The State Of Tripura, AIR 2023,SC 14
3 State Of Punjab V. Kewal Kishan, AIR 2023, SC 14

4 Babubhai Udesinh Parmer V. State Of Gujarat , AIR 2006,SC 14

5 Bhagat Ram V. State Of Punjab AIR 1954 SC 14
6 Chenga Reddy and Ors. V. State of A.P. AIR 1996 10 SCC 193 15
7 Sharad Birdichand Sarda V. State Of Maharashtra AIR 1984 SC 15
8 Laxman Prasad V. State Of Madhya Pradesh AIR 2023 SC 743 15
9 State Of Punjab V. Kewal Krishan AIR 2023 SC 746 15
10 Central Bureau of Investigation V. Shyam Bihari AIR 2023 SC 844 16
11 Pannayar V. State Of T.N AIR 2009 SCC 152 16
12 Nandu Singh V. State Of Madhya Pradesh AIR 2022 SCC 1454 16
13 Shankar V. State Of Maharashta AIR 2023 SCC 268 16
14 Indrajit Das V. State Of Tripura AIR 2023 SC 16
15 Pyare Lal Bhargava V. State Of Rajasthan AIR 1963 SC 17
16 Puran V. State Of Punjab AIR 1953 SC 18
17 State Of T.N. V. Kutty alias Laxmi Narsimhan AIR 2001 SC 18
18 Shankar V. State of T.N AIR 1994 4 SCC 478 18
19 Sakharam Shankar Bansode V. State Of Maharashtra AIR 1994 SC 18
20 Bharat V. State Of U.P. AIR 1971 SC 18
21 State Of Delhi V. Vijay Pal AIR 1980 SC 1621 18
22 Mutthu Swami V. State Of Madras AIR 1954 SC 18
23 Adambhai Sulemanbhai Ajmeri Ors. V. State Of Gujarat AIR 2014 SC 19
24 Aloke Nath Dutta V. Stae Of West Bengal AIR 2006 SC 19
25 Smt. Dipanjali Borgohain & Ors. V. The State Of Assam AIR 2023HC 19

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26 Gobardhan Rajbanshi V. State Of Jharkhand AIR 2002 SC 19

27 Kehar Singh V. State ( Delhi Admn.) AIR 1988 SC 19
28 Rabindra Kumar Pal @ Dara Singh V. Republic Of India AIR 2011 SC 20
29 Shivappa V. State of Karnataka AIR 1995 2 SCC 76 20
30 Aloke Nath Dutta V. State Of West Bengal AIR 2006 SC 20
31 Indrajit Das V. State Of Tripura AIR 2023 SC 20
32 Manoj Kumar Soni V. State Of Andra Pradesh AIR 2023 SC 22
33 Silash Singh Kurid V. State AIR 2017 SC 22
34 Doodh Nath Pandey V.State of U.P AIR 1981 SC 911 23
35 Brijesh Mavi V. State Of NCT Delhi AIR 2012 SC 23
36 Navneetakrishnan V. The State By Inspector Of Police AIR 2018 SC 23
2027
37 Subramanya V. State Of Karnataka AIR 2022 SC 23
38 Indrajit Das V. State Of Tripura AIR 2023 SC 23
39 State Of Rajasthan V. Wakteng AIR 2007 SC 2020 24
40 Santosh @ Bhure V. State (G.N.C.T) Of Delhi AIR 2022 SC 24
41 State Of Punjab V. Kewal Kishan AIR 2023 SC 24
42 Indrajit Das V. State of Tripura AIR 2023 SC 24
43 M.Nagaraj V. Union of India, AIR 2007 SC 71 26

44 Balco Emolyees Union V. Union Of India AIR 2002 2 SCC 333 27

45 Avishek Goenka V. Union of India, AIR 2012 SCC 321 28
46 Abuzar Hussain V. State of West Bengal AIR 2012 SCC 489 28

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STATEMENT OF JURISDICTION

The counsel of appellant hereby submits to the jurisdiction of this honorable court u/s
374(2) of the criminal procedure code, 1973.

“Section 374(2): any person convicted on a trial by a session judge or an additional

session judge or on a trial held by any other court in which a sentence of imprisonment
for more than seven years has been passed against him or against any other person
convicted at the same trial; may appeal to the high court.”

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STATEMENT OF FACTS

1. 6 May,2020 one Mohanto called police station, informing the huge quantity of blood has been
seen on the Canal R2oad near Dilbagh extension.
2. After receiving the call the head constable Amar Das made due entry in GD register and along
with sub inspector Kishwar proceeded for the spot.
3. On the spot On there was huge blood on the roadside, some broken pieces of glass and some
pieces of blood stained paper was found. All these articles were taken into custody and
recovery memo was prepared.
4. On further investigation visible marks of dragging some heavy articles in jungle on the side of
the road were found. These continued unto river and then vanished.
5. While the investigation was still being conducted police station received information from
Balwaan that his son Sumit was missing since the previous evening that is 25th May,
2020.Summit had gone on his bike but did not return. Statement of mother recorded by
investigating officer revealed that Sumit around 5 PM went out from home and told his
mother not to prepare dinner as he was going out with his friends, Ganga and juvenile Devi.
6. Both Ganga and Devi were called in the police station but they did not report.
7. The investigation officer thereafter went to the house of both the friends of Sumit .
8. According to investigating officer both the accused confessed before him :-
a) That they had gone out with Sumit on 25 may,2020.
b) Three of them rod on the bike of Sumit together on Canal Road towards Dilbagh extension.
c) On the way they purchased bottle of alcohol and consumed it and started driving towards
Dilbagh extension .
d) After sometime they got down to answer the call of nature but Sumit was sitting on the
motorcycle.
e) At that stage they both assaulted Sumit with big knives. They threw the helmet and purse of
the victim in the nearby jungle and dragged the body and the motorcycle to the nearby river
and threw them in the river. Then they swam across the river and burnt their blood stained
clothes and hid the weapon of crime in the jungle.

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9 The police recovered the weapon of the crime. registered case against them under section302
read with section 34 of the Indus Penal Code and both were arrested by the police.
10 The dead body was not recovered
11 The accused were brought before the Magistrate for the purpose of recording the statement
under section 164 CrPC.
12 The Magistrate recorded the statement without recording the certificate under section 164
CrPC, in the presence of the investigating officer.
13 During trial, both the accused retracted from their confessions.
14 But even then Trial Court convicted both the accused for murdering Sumit and awarded
imprisonment for life U/S 302 read with 34.
15 By this appeal to the high court, both the accused allege that they were compelled to confess
the crime and they never committed the offence.
16 They argued that nobody had seen them committing the crime and their conviction is merely
on the basis of circumstantial evidence and discoveries u/s 27 of Indus evidence act is illegal.

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STATEMENT OF ISSUES

ISSUE:-1

CAN CONVICTION BE BASED ON CIRCUMSTANTIAL EVIDENCE

AVAILABLE IN THIS CASE ?

ISSUE:-2

IS CONVICTION BASED ON RETRACTED CONFESSION

APPROPRIATE?

ISSUE:-3

CAN CONVICTION BE BASED MERELY ON RECOVERY UNDER

SECTION 27 OF INDUS EVIDENCE ACT, IN THE ABSENCE OF ANY
FORENSIC EVIDENCE AND RECOVERY OF DEAD BODY ?

ISSUE:-4

IS THE CONVICTION OF THE JUVENILE ACCUSED BY THE TRIAL

COURT JUSTIFIED ?

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SUMMARY ARGUMENTS

ISSUE:- 1
Can conviction be based on circumstantial evidence available in this case ?

It is hereby submitted to this honorable court though conviction can be based on

circumstantial evidence but the court must take into consideration the major principles for
convicting the accused solely on the basis of circumstantial evidence. For convicting the
accuse under circumstantial evidence the chain of evidence must be established and be so
concrete which proves beyond any reasonable doubt the guilt of accused the absence of any
forensic evidence, any witnesses, non recovery of dead body leads to the conclusion that the
chain of evidence is not fully established which ascertain that the guilt of accused is under
suspicion. It is an established principle that if two inferences can be drawn in a case one
pointing guilt of the accused and other is innocence then the view which is favorable to the
accused must be adopted.

ISSUE:-2
Is conviction based on retracted confession appropriate ?

No, the conviction based on retracted confession is inappropriate in this case. Because for
convicting the accused on the basis of retracted confession the court must satisfy itself that
Firstly, the confession made by him was true and voluntary and Secondly it is supported by
independent and corroborative evidence. It is humbly submitted to this honorable court that in
this case the confession given by accused to investigating officer is under suspicion of
inducement and influence of investigating officer. Even the statement of accused recorded by
magistrate can’t be relied because the magistrate has made default by not issuing
memorandum and taking the statement of accused in the presence of investigating officer
which again gives the impression that the statement was given to the magistrate was not
voluntary and was given under influence of investigating officer . The accused in this case has

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constitutional right under article 20(3) which gives him protection against self-incrimination
and the conviction of accused on the basis of retracted confession would be infringement of
his fundamental right. Moreover in this case corroborative evidence and the chain of
evidences if not fully established and not proved beyond reasonable doubt that the accused
has committed the offence. So the conviction in this case on retracted confession is
inappropriate.

ISSUE:-3

Can conviction be based merely on the recovery under section 27 of Indus

Evidence Act, in the absence of any forensic evidence and recovery of dead
body ?

No, the conviction cannot be solely based on the recovery under sec.27 of evidence act in the
absence of any forensic evidence and recovery of weapon. As stated under sec.27 of evidence
act that only that part of information given by the accused in the custody of police officer
which leads to the discovery of fact may be proved. But such disclosure or discovery would
not automatically leads to the conclusion that the offence was committed by the accused. For
convicting the accused it must be established beyond reasonable doubt that the weapon or any
material discovered was used by the accused in commission of the offence. Corroborating
evidences and fully established chain of circumstances must be established beyond reasonable
doubt for the conviction of accused. It is humbly submitted to this court that in this particular
case the only weapon is recovered under sec.27 of evidence act and there is absence of any
corroborating evidences such as in this case there is absence of forensic report which gives the
proof that it was the accused who used the weapon, absence of witness which gives inference
that nobody has seen the accused attacking the victim, even non recovery of dead body and
other circumstances such as non recovery of helmet, purse, motorcycle; all this gives the
inference of the innocence of the accused. The conviction of accused cannot be made such a
case solely on the basis of recovery made under sec.27 of evidence act in the absence of any
forensic evidence and recovery of dead body.

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ISSUE:-4

Is the conviction of the juvenile accused by the trial court justified ?

It is humbly submitted before the honorable high court that the trial court erred in convicting
the juvenile accused as first, in the light of facts and circumstantial evidence it is crystal clear
that both the accused have not committed any offence. Secondly, it is scientifically proven
that a brain of a person below 18 years of age is under developing phase thus Dev should be
treated as juvenile and not as an adult. Furthermore there is a huge irregularity done in the
process of law followed by the trial court because on knowing that Dev is juvenile they
haven’t forwarded his case to the juvenile justice board. Therefore the act of trial court for
convicting juvenile is not justified.

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ARGUMENTS ADVANCED

ISSUE:-1
CONVICTION CANNOT BE BASED ON CIRCUMSTANTIAL EVIDENCE IN
THE CASE

Circumstantial Evidence is not direct to the point in issue but consists of evidence of
various other facts which are so closely associated with the fact in issue that taken
together they form a chain of circumstances from which the existence of the
principle fact can be legally inferred or presumed.1 Hanumant V. State Of M.P AIR
1952 SC, in this case doctrine of circumstantial evidence which is commonly known as
Hanumant’s Doctrine was established. In this case SC gave a set of guidelines which
are as follow:-
a) Circumstances from which conclusion of the guilt is to be drawn should be fully
established.
b) All the facts should be consistent only with one hypothesis of the guilt of the accused.
c) Chain of evidence should be complete and not leave any reasonable ground for a
conclusion of the innocence of the accused.
d) Must show within all human probability the act must have been done by the accused.

It is humbly submitted to this honorable court that all the aforesaid points are not covered
in this case. Like in this case the circumstances from which conclusion of guilt is to be
drawn are not fully established. This case gives the other hypothesis regarding the
innocence of the accused. Chain of evidence is broken and is not proved beyond reasonable
doubt that the act was done by the accused.

Broken chain of circumstantial evidences can be inferred from following points:-

i. There was no eye witness who has seen both the accused (Ganga and Dev)
committing offence and dragging Sumit.

1
Lectures on Indian Law of Evidence,Ed.1,2020; Paramjit Kaur

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ii. The confession given to IO is also unreliable and giving suspicion that it was taken
under influence of IO. The confession was an extra- judicial confession which is a
weak piece of evidence.2
iii. The weapon recovered after the confession of accused acc. to IO is also under
suspicion because there is absence of any forensic evidence. Therefore, it had very
little incriminating value to sustain conviction of the accused.3
iv. The statement given to magistrate is also shrouded in suspicion because he took the
statement of accused in the presence of IO which gives the inference that the
statement was made under the influence of IO. The major discrepancy on the part of
the magistrate which comes to light in this case is the non-issuance if the certificate.
The compliance with the statutory provision of sec.164 CrPC is mandatory which
should be in letter and spirit and not in a routine or mechanical manner.4
v. In this case no dead body was found from which it can be ascertained that the
accused murdered Sumit. Moreover the police was unable to recover the helmet and
purse which was acc. to IO confessed by the accused to have been thrown in jungle.
So, all this leads to the other hypothesis that relates to the innocence of the accused.
The aforesaid points proves that in this case the chain of circumstantial evidence is
broken and has failed to eatablish beyond reasonable doubt the guilt of the accused.

There are various other cases which support the view that conviction based
circumstantial evidence is not available in this case:-

i. Bhagat Ram V. State Of Punjab AIR 1954 SC:- In this case it was laid down that
where the case depends upon the conclusion drawn from the circumstances the
cumulative effect of the circumstances must be such as to negative the innocence of the
accused and proves the offence beyond reasonable doubt.
The current case at hand is not proving beyond reasonable doubt the guilt of the
accused.

2
Indrajit Das V. The State Of Tripura, AIR 2023,SC
3
State Of Punjab V. Kewal Kishan, AIR 2023, SC
4
Babubhai Udesinh Parmer V. State Of Gujarat , AIR 2006,SC

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ii. Chenga Reddy and Ors. V. State of A.P. AIR 1996 10 SCC 193 :- In this case the SC
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
must be conclusive in nature. Moreover all the circumstances should be complete and
there should be no gap left in the chain of evidence.
In the current case the conviction cannot be based on circumstantial evidence because
the circumstances from which guilt of accused is drawn are not fully proved and there is
various gaps in the chain of evidence.
iii. Sharad Birdichand Sarda V. State Of Maharashtra AIR 1984 SC :- In this landmark
case SC laid down following five golden principles i.e. the panchsheel of the proof of a
case based on circumstantial evidence:-
a) The circumstances from which the conclusion of guilt is to be drawn should be fully
established. There is a legal distinction between ‘may be’ and ‘must be or should be’.
b) The facts so established should be consistent only with the hypothesis of the guilt of
the accused and there should be no other hypothesis except that the accused is guilty.
c) The circumstances should be of conclusive nature
d) They should exclude every other hypothesis except the one to be proved
e) 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.
So, conviction based on circumstantial evidence is not available because all these
five major principles are lacking in this case.
iv. Laxman Prasad V. State Of Madhya Pradesh AIR 2023 SC 743 [14-06-23]:- In
this case SC held that in a case of circumstantial evidence the chain of evidence has to
be complete in all respects so as to indicate the guilt of the accused and also exclude any
other theory of crime.
v. State Of Punjab V. Kewal Krishan AIR 2023 SC 746 [21-06-23]:- In this case SC
supported the decision of Punjab & Haryana High Court that the incriminating
circumstances were not proved beyond reasonable doubt and the chain of evidence was
not complete to interfere with a degree of certainty of accused having committed the
crime and thus, burden could not be placed on the accused to prove his innocence.

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vi. Central Bureau of Investigation V. Shyam Bihari AIR 2023 SC 844 [17-07-23]:- In
this case observed that “ to clinch a conviction on the basis of circumstances, the
circumstances ought to have formed a chain so far complete as to indicate that in all
human probability it was the persons facing trial and no one else who committed the
crime”.

Absence of motive in cases based on circumstantial evidence and its significance :-

a) Pannayar V. State Of T.N AIR 2009 SCC 152:- In this case the court held that the
absence of motive in a case based on circumstantial evidence is a factor that weighs in
favour of the accused.
b) Nandu Singh V. State Of Madhya Pradesh AIR 2022 SCC 1454:- In this case SC stated
that where conviction was based on circumstantial evidence motive assumes great
significance.
c) Shankar V. State Of Maharashta AIR 2023 SCC 268 [15-03-23]:- In this case SC held
that the failure to establish the motive had weakened the case of prosecution and was not
able to establish chain of evidence. Court in this case gave benefit of doubt to the accused
and ordered acquittal.
d) Indrajit Das V. State Of Tripura AIR 2023 SC [28-02-23]:- In this case SC held that in
a case of circumstantial evidence, motive has an important role to play. Motive may also
have a role to play even in a case of direct evidence but it carries much greater
importance in a case of circumstantial evidence than a case of direct evidence. It is an
important link in the chain of circumstances.
So, motive is considered an important link in cases based on circumstantial evidence. In
this particular case there is absence of motive, absence of any forensic evidence,
absence of any eye witness and the broken chain of circumstances gives the inference
of the innocence of the accused. Owing to this the benefit of doubt must be given to the
accused and their innocence must be considered.

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ISSUE:-2
CONVICTION BASED ON RETRACTED CONFESSION INAPPROPRIATE
IN THIS CASE

RETRACTED CONFESSION:- The concept of retracted confession is derived from Article

20(3) of the Constitution of India, keeping in mind the rights of the accused. This concept
questions the reliability of the confession made by the accused. In Pyare Lal Bhargava V.
State Of Rajasthan5 the SC held that a retracted form of confession can form basis of a
conviction if and only if the court is satisfied that it was true and was made voluntarily. It was
also held that a court shall not base a conviction on such a confession without corroboration.

In this particular case the accused retracted from their confession because they said that
they were compelled to give confession and moreover nobody has seen them committing
offence. They have the right to retract from confession under Article 20(3) of the Indian
Constitution which gives right against self-incrimination to the accused. The extra-judicial
confession in this case taken by investigating officer of the accused is under the suspicion
of influence and inducement. The magistrate also recorded the statement in the presence of
IO which gives the inference that the accused gave their statement under the influence of
IO and moreover the magistrate made default by not issuing memorandum which is a
major discrepancy on the part of magistrate while recording statement of accused. So,
under these circumstance the conviction of accused based on retracted confession is
inappropriate because it is apparent that earlier confession made by accused were not true
and voluntary.

5
Pyare Lal Bhargava V. State Of Rajasthan AIR 1963 SC

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Cases which support the view that conviction cannot be based on retracted
confession:-

a) Puran V. State Of Punjab AIR 1953 SC 6:- It was held by SC that “it is a settled law of
evidence that unless a retracted confession is corroborated in material particulars, it is not
prudent to base conviction in a criminal case.”
b) State Of T.N. V. Kutty alias Laxmi Narsimhan AIR 2001 SC7 :- It was held by SC that to
retract from a confession is the right of the confessor. The court has the duty to evaluate the
evidence concerning the confession by looking at all aspects.
c) Shankar V. State of T.N.8 :- In this case SC held that though conviction based on
uncorroborated confession of an accused person is not illegal but as a rule of prudence
which has become a rule of law, Courts look for corroboration before accepting retracted
confession.
d) Sakharam Shankar Bansode V. State Of Maharashtra AIR 1994 SC :- The SC held that ,
it is well settled that retracted confession though a piece of evidence on which reliance can
be placed but the same has to be corroborated by independent evidence.
e) Bharat V. State Of U.P. AIR 1971 SC :- In this case SC held that court may take into
account the retracted confession, but it must look for the reasons for the making of the
confession as well as for its retraction, and must weigh the two to determine whether the
retraction affects the voluntary nature of the confession or not. The courts do not act upon
the retracted confession without finding assurance from some other sources as to the guilt of
the accused.
f) State Of Delhi V. Vijay Pal9 :- In this case SC held that as a matter of prudence and caution
which has sanctified itself into a rule of law, a retracted confession cannot be made solely
the basis of conviction unless the same is corroborated.
g) Mutthu Swami V. State Of Madras 10 :- In this case SC held that where the circumstances of
the case cast a suspicion in the genuineness of the confession, corroboration is needed.

6
Puran V. State Of Punjab AIR1953 SC 459
7
State Of T.N. V. Kutty AIR 2001 6 SCC 550
8
AIR (1994) 4 SCC 478
9
AIR 1980 SC 1621
10
AIR 1954 SC

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h) Adambhai Sulemanbhai Ajmeri Ors. V. State Of Gujarat AIR 2014 SC:- In this case SC
held that the confessional statements which were retracted must be corroborated by
independent evidence, to convict the accused for the charges framed against them. One rule
is almost certain that no judgment of conviction shall be passed on an uncorroborated
retracted confession.
i) Aloke Nath Dutta V. Stae Of West Bengal AIR 2006 SC :- In this case SC held that
retracted confession should be construed in the light of Article 20(3) which includes right to
remain silent. In a case of retracted confession, the courts while arriving at a finding of guilt
would not ordinarily rely solely thereupon and would look forward for corroboration of
material particulars. Such corroboration must be independent and conclusive in nature.
j) Smt. Dipanjali Borgohain & Ors. V. The State Of Assam AIR 2023 Gauhati HC 11:- In this
Gauhati HC held that conviction can’t be based on retracted confession without
corroboration. The confessional statement can only be used for the purpose of corroboration
and if it is to be used as the basis of conviction, there has to be corroboration of the same
from the evidences from other sources.

Conviction cannot be made in case of procedural defect in recording confession :-

Discrepency while taking Judicial confession:-

a) Gobardhan Rajbanshi V. State Of Jharkhand AIR 2002 SC :- In this case SC held that a
confession which is not made voluntarily is liable to be rejected. Where the voluntariness of
confession has not been ascertained by the magistrate at the time of recording confession it
amounts to non-compliance of sec.164 CrPC and the same defect could not be cured, by the
examination of magistrate on witness. This very valuable piece of evidence has thus been
lost because of ineptness on the part of the Magistrate, which indicates not only his
Ignorance of law, but also utter carelessness on his part.
b) Kehar Singh V. State ( Delhi Admn.) AIR 1988 SC:- In this SC held that a judicial
confession not given voluntarily is unreliable, more so, when such a confession is retracted,
the conviction cannot be based on such retracted judicial confession. Non-compliance

11
Popularly known as Dhemaji Bomb Blast Case,2004

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of Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession
and renders the confession unworthy of credence.
c) Rabindra Kumar Pal @ Dara Singh V. Republic Of India AIR 2011 SC:- In this case SC
held that Section 164 Cr.P.C. requires strict and faithful compliance. The failure to observe
safeguards not only impairs evidentiary value of confession but cast a doubt on nature and
voluntariness of confession on which no reliance can be placed.
d) Shivappa V. State of Karnataka12:- In this case SC held that full and adequate compliance
not merely in form but in essence with the provisions of sec.164, CrPC. And the rules
framed by high court is imperitive an dits non-compliance goes to the root of the
magistrate’s jurisdiction to ecord the confession and renders the confession unworthy of
credence.
e) Aloke Nath Dutta V. State Of West Bengal13 :- In this case SC held that where confession
is made in the presence of a Magistrate conforming the requirements of Section 164, if it is
retracted at a later stage, the court in our opinion, should probe deeper into the matter.
Evidences brought on records by way of judicial
confession which stood retracted should be substantially corroborated by other independent
and cogent evidences

Retraction from extra judicial confession:-

a) Indrajit Das V. State Of Tripura AIR 2023 SC:- In this case SC held that the extra judicial
confession is a weak piece of evidence and especially when it has been retracted during trial.
It requires strong evidence to corroborate it and also it must be established that it was
completely voluntary and truthful.

So, it is hereby humbly submitted to this honorable court that in this particular case
conviction on the basis of retracted confession is inappropriate because it is not established
in this case that the earlier confession given by accused to IO is voluntary or truthful and it
gives the inference that it was made under the influence or inducement or threat of IO,

12
AIR 1995 2 SCC 76
13
AIR 2006 SC

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moreover according to sec.24 of Indus Evidence Act,1872 a confession made by an accused

person irrelevant in a criminal proceeding, if the confession caused by inducement, threat or
promise of person in authority. IO is a person in authority and the confession of accused
taken by him is under the suspicion of inducement or influence or threat, so in such a case
accused have rightly retracted from his involuntary confession and the conviction based on
such retracted confession is inappropriate. Even in this case the statement recorded by
magistrate of the accused in the presence of IO and the non-compliance of the rules
mentioned in sec.164 CrPC for recording confession of accused gives the inference that the
judicial confession was not voluntary and truthful. So, in such circumstances the accused has
right to protect himself against self-incrimination and his retraction from earlier confession
does not make him liable to be convicted on the basis of retracted confession.

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ISSUE:-3

CONVICTION CANNOT BE BASED MERELY ON THE RECOVERY U/S

27 OF EVIDENCE ACT, IN THE ABSENCE OF ANY FORESIC EVIDENCE
AND RECOVERY OF DEAD BODY

SECTION 27 EVIDENCE ACT :- Section 27 has been made very meticulously and must be
considered with utmost attention. The conviction of an accused cannot be made solely on the
basis of recovery under sec. 27 of evidence act. But it must be articulated that discovery of the
material object at the disclosure of accused would not automatically lead to the conclusion
that the offence was committed by the accused. The burden lies on the prosecution to establish
a close link between discovery of the material object and its use in the commission of the
offence.

(3.1.1) Cases in which it was held that conviction cannot be base merely on recovery u/s 27 of
Evidence Act:-

a) Manoj Kumar Soni V. State Of Andra Pradesh AIR 2023 SC [12-08-23]: - In this case SC
observed that disclosure statements cannot be the sole basis for conviction in a criminal
case,
“Although disclosure statements hold significance as a contributing factor in unriddling a
case, in our opinion, they are not so strong piece of evidence sufficient on its own and
without anything more to bring home the charges beyond reasonable doubt.”
b) Silash Singh Kurid V. State AIR 2017 SC:- It was held by SC in this case that where no eye
witness is available in a murder case and the case is based on circumstantial evidence,
recovery of weapon and evidence on the basis of disclosure of the accused alone would not
automatically lead to the conclusion that the offence was committed by the accused In fact,
the burden lies on the prosecution to establish a close link between discovery of the
material object and its use in the commission of the offence.

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c) The discovery does not connect accused with the offence:- In Doodh Nath Pandey
V.State of U.P14 the evidence of recovery of pistol at the instance of an accused cannot by
itself prove that he who pointed out the weapon in the offence.
d) Brijesh Mavi V. State Of NCT Delhi AIR 2012 SC:- In this case SC held that mere recovery
of weapon was not sufficient to convict the accused for murder.
e) Navneetakrishnan V. The State By Inspector Of Police 15:- In this case SC held that in the
absence of any connecting link between the crime and the things recovered, there recovery
on the behest of accused will not have any material bearing on the facts of the case.
f) Subramanya V. State Of Karnataka AIR 2022 SC:- In this SC held that mere discovery
cannot be interpreted as sufficient to infer authorship of concealment by the person who
discovered the weapon.
g) Indrajit Das V. State Of Tripura AIR 2023 SC:- In this case SC held that in this case the
recoveries was made from an open place and could not have been in exclusive and special
knowledge of the accused persons. Giving accused benefit of doubt the court acquitted the
accused.

So, it is humbly submitted to this honorable court that in this case the recovery of weapon
u/s 27 of evidence act can’t become the sole basis to conviction of accused in the absence of
forensic evidence and recovery of dead body. As we have read above that discovery of
weapon is considered as a weak evidence in absence of any corroborating evidence which
gives inference that the weapon was used by the accused in committing the offence. In this
case nobody has seen the accused committing offence, no dead body was recovered, the
accused said that their confession was taken under compulsion and even the judicial
confession was inadmissible because of non-compliance of proceedings of sec.164 CrPC
and it was taken in the presence of IO. In such a case where is broken chain of evidences,
absence of forensic evidence and non recovery of dead body the conviction of accused
cannot be maintained on the basis of recovery u/s 27 of evidence act.

14
AIR 1981 SC 911
15
AIR 2018 SC 2027

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ABSENCE OF FORENSIC EVIDENCE:-

a) State Of Rajasthan V. Wakteng AIR 2007 SC 2020 :- In this case the SC held that when the
sword, the weapon of murder, was alleged to be recovered on the disclosure statement of the
accused but it was not sent for any examination by the Forensic Science Labortory and the
report, if any was not exhibited in such a case the conviction of accused on the basis of
evidence could not be upheld.
b) Santosh @ Bhure V. State (G.N.C.T) Of Delhi AIR 2022 SC :- In this case there was no
independent witness to support the recovery of knife which was made at the instance of
accused and there was absence of forensic evidence connected with the knife. Court held
that the circumstances with regard to making of disclosure statements and consequential
discoveries/recoveries were not proved beyond reasonable doubt and the prosecution failed
to establish chain of circumstances. Hence in this case court acquitted the accused.
c) State Of Punjab V. Kewal Kishan AIR 2023 SC:- In this case the SC held that As regards
recovery of the Khanjar (knife) is concerned, the same was denied by the accused and there
was no serologist report to connect it with the crime. Therefore, it had very
little incriminating value to sustain conviction on its own basis.

So, it is hereby submitted to this court that the conviction cannot be made merely on the
basis of recovery u/s 27 of evidence act and in the absence of forensic evidence. In this
particular case there is no forensic evidence relating to the recovered weapon from which it
can be ascertained that the weapon was used by the accused in the commission of offence.

NON RECOVERY OF DEAD BODY:-

a) Indrajit Das V. State of Tripura AIR 2023 SC :- In this case the SC held that
i. Referring to the principle of corpus delicti the court stated that there are judgment
on both sides- conviction can be recorded in absence of recovery of corpus and no
conviction can be recorded in absence of corpus.
ii. The reason behind the view that conviction cannot be recorded in absence of
corpus is that if the corpus is alive then one has to undergo sentence without
having committed the offence.

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iii. The court held that non-recovery of corpse would have relevance in considering the
other links of chain of circumstances.
In this case the SC acquitted the accused by giving them benefit of doubt because the
prosecution was unable to establish the chain of evidences beyond reasonable doubt.

So, it is hereby submitted that the conviction in non-recovery of corpse cases can be based
only if the chain of evidences is fully established beyond reasonable doubt. In this
particular case the chain of evidences is not fully established, there is non recovery of
corpse and in the absence of any forensic evidence and corroborating evidences of the
recovery made u/s 27 of evidence act the conviction of accused cannot be made. The
accused must be given benefit of doubt and must not be convicted merely on the basis of
recovery u/s 27 of evidence act.

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ISSUE:-4

CONVICTION OF JUVENILE ACCUSED BY THE TRIAL COURT NOT

JUSTIFIED

NO OFFENCE COMMITTED BY EITHER OF THE ACCUSED:-

As contended in the above issues the chain of circumstantial evidence is not being fully
established beyond reasonable doubt and accused are entitled to get the benefit of doubt as the
guilt of the accused is under suspicion. As per the circumstances of this case in the absence of
motive, broken chain of evidences, non recovery of dead body, last seen theory not proven and
even in the absence of any forensic evidence both the accused must be given presumption of
innocence and must be given benefit of doubt. Thus Dev irrespective of being a minor cannot be
convicted for the crime which is not established. Therefore he is not guilty.

CONVICTION OF A PERSON UNDER THE AGE OF 18 IS NOT JUSTIFIED:-

It is humbly submitted that even and otherwise case accused Dev cannot be convicted as he is a
minor and by treating Dev as an adult the proposed system will incorrectly treat two distinct
categories equally. This strikes at the very core of Article 14. SC has repeatedly endorsed as part
of article.14 mandate the principle that injustice arises not only when equals are treated
unequally, but also when unequals are treated equally.16

Further it is submitted that under the Indus law a person under the age of 18 years is not allowed
to vote17 , is considered minor for entering into contract18. A child who is less than 18 years
cannot marry19, yet here in this case a child is being tried as an adult and it is presumed the child
to have the understanding and knowledge of the alleged crime which he has been accused for.
The counsel for appellant hereby submits that such a scenario is nothing but a travesty of justice.

16
M.Nagaraj V. Union of India, AIR 2007 SC 71
17
Article 326 of the constitution
18
Section-11 of the contract act
19
Section-5, Hindu Marriage Act

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Further the age of criminal responsibility for juvenile has been decided by Indus legislature as 18
years in various laws such as contract act, motor vehicle act etc. while keeping in the mind the
emotional, mental and intellectual maturity of the children.

It is submitted to this honorable court that Article 37 specifically state that a child below the age
of 18 years should not be punished in a cruel or harmful way and should not be held behind the
bars along with adults.

Furthermore in Balco Emolyees Union V. Union Of India SC held that the age so decided
cannot be seen as unconstitutional even in case of serious offences because this age has been
fixed on account of the understanding of the experts in child psychology and behavioral patterns
that till such age the children in conflict with law could still be redeemed and restored to the
mainstream society instead of becoming hardened criminals in future.20

Thus convicting Dev under life imprisonment by trial court is not justified.

IRREGULARITY OF PROCEDURE BY TRIAL COURT AS PER

JUVENILE JUSTICE ACT:-

It is humbly submitted to this honorable court that as per section 23 of juvenile justice ( care and
protection of children) Act,2015 there shall be no joint proceedings of a child alleged to be in
conflict with law, with a person who is not a child. Therefore in this case there has been
irregularity of procedure by trial court because they tried both the adult accused Ganga and
juvenile Dev simultaneously.

Sec.3 of Juvenile Justice Act, 2015 provides some fundamental principles such as Presumption
of innocence, Principle of repatriation and restoration, Principle of dignity and worth, Principle
of best interest etc. Therefore in this case the trial court has erred in considering these principles.

Sec.9 of Juvenile Justice Act, 2015 provide that “When a Magistrate, not empowered to exercise
the powers of the Board under this Act is of the opinion that the person alleged to have
committed the offence and brought before him is a child, he shall, without any delay, record such
opinion and forward the child immediately along with the record of such proceedings to the
Board having jurisdiction.”
20
AIR 2002 2 SCC 333

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In this case the trial court on finding that Dev was juvenile must have forwarded him to the
juvenile justice board and made a major discrepancy by jointly proceeding the juvenile accused
with an adult accused. Therefore, in this case the conviction of juvenile accused by trial court is
not justified.

It is humbly submitted to this court that the main objective of the act is to provide care,
protection, treatment and rehabilitation of the neglected or the delinquent juveniles.21 In a
decided case the SC observed that the essence of the act is restorative and not retributive,
providing for rehabilitation and integration of children in conflict with law back into mainstream
society.22

Therefore, it is not justified to treat a juvenile at par with an adult and the conviction of juvenile
by trial court in this case is unjustified.

21
Avishek Goenka V. Union of India, AIR 2012 SCC 321
22
Abuzar Hussain V. State of West Bengal AIR 2012 SCC 489

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PRAYER

Wherefore in light of the facts of the case, issues raised, arguments advanced and authorities
cited, this honorable court may be pleased to:

Find that:

1. Conviction cannot be based on the circumstantial evidences available in this particular

case as the chain of evidences is not fully established.
2. Conviction cannot be based on retracted confession.
3. Conviction cannot be based solely on the discovery made under section 27 of the
evidence act, especially in the absence of dead body and forensic report.
4. Conviction of the juvenile by the trial court is not justified.

And pass any other order that it may deem fit in the ends of justice, equity and good conscience.
All of which is respectfully submitted.

Place: s/d----------------------------

Date: ( counsel on behalf of petitioner)

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