COMMON INDUCTION MOOT 2018

CAMPUS LAW CENTRE

BEFORE THE HON’BLE COURT OF SESSIONS

AT WESTEROS
CC no. …./2018

STATE OF WESTEROS
Vs
JON SCAR AND OTRS

STATE OF WESTEROS .…PROSECUTION

JON SCAR and OTRS

…DEFENDANTS

MEMORANDUM FOR ACCUSED PERSONS

COUNSEL FOR DEFENCE
 TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................... 3

STATEMENT OF JURISDICTION...............................................................5

STATEMENT OF FACTS................................................................................... 6

STATEMENT OF ISSUES……………………………………………………………………………….7

SUMMARY OF ARGUMENTS……………………………………………………………………… 8

ARGUMENTS ADVANCED………………………………………………………………………… 10

PRAYER…………………………………………………………………………………………………….21

|Page 2
 INDEX OF AUTHORITIES

Statues
1. The Indian Penal Code, 1860

2. The Code of Criminal Procedure, 1973

3. The Indian Evidence Act, 1872

Books
1. PSA Pillai’s Criminal Law 13th Edition
2. RV Kelkar Criminal Procedure Code 6th edition
3. M Monir’s Textbook on Law of Evidence
Cases cited
1. G.Parashwanath v State of Kerala AIR 2010 SC 2914
2. Suresh and anr v State of Haryana 2018 SC
3. Hanumant v State of Madhya Pradesh AIR 1952 SC 343
4. Sharad Birdhichand Sarda v State of Maharashtra AIR 1984 SC 1622
5. Agnoo Nagesia v State of Bihar AIR 1966 SC 119
6. Palvinder Kaur v State of Punjab AIR 1952 SC 354
7. Madhu v State of Kerala (2012) 2 SCC 399
8. Navaneethakrishnan v The State by Inspector of Police 2018 SC
9. Jeewan kumar v State of Uttrakhand
10. Gangadhar Behera v State of Orissa
11. Manjit Singh v State of Punjab
12. Surinder Kumar v State of Haryana
13. Sapna Talwar v State(NCT of Delhi)
14. Pulukuri Kottaya v Emperor AIR 1947 PC 67
15. Jadeo Singh v State of MP 1979 CR LJ 236
16. Dhabi Yadav v State of Bihar 1989 CR LJ 193

|Page 3
17. Dhanabal v State of Tamil Nadu
18. State v Salman Khan
19. Reg v Hodge
20. Munish Mubar v State of Haryana AIR 2013 SC 412
21. Rammun v Emperor 27 CR LJ 709
22. Padala Veera Reddy v State of Andhra Pradesh AIR 1990 SC 79
23. Latesh v State of Maharashtra AIR 2018 SC 659

STATEMENT OF JURISDICTION

|Page 4
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with
Section 209 of the Code of Criminal Procedure, 1973.

Section 177:
`177. Ordinary place of inquiry and trial-
Every offence shall ordinarily be inquired into and tried by a court within whose local
jurisdiction it was committed.

Read with Section 209:

`209 Commitment of case to Court of Session when offence is triable exclusively by it-
When in a case instituted on a police report or otherwise, the accused appears or is
brought before the magistrate and it appears to the magistrate that the offence is triable
exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of section 207 or section 208,
as the case may be, the case to the court of session, and subject to the
provision of this code relating to bail, remand the accused to custody until
such commitment has been made;
(b) subject to the provisions of this code relating to bail, remand the accused to
custody during, and until the conclusion of, the trial;
(c) Send to that court the record of the case and the documents and articles, if
any, which are to be produced in evidence;
(d) Notify the public prosecutor of the commitment of the case to the court of
session.

STATEMENT OF FACTS

|Page 5
  Westeros is a developing democratic country in South Asia with abundant
reserves.
 There is one Mr. Jamie who is a business tycoon who has a small family
comprising of his wife Mrs. Cersie Sinister and two sons namely Tommen
Sinister and Joffery Sinister.
 It transpires from the facts that on 8th day of navratra in 2017, Tommen along with
his younger brother Joffery had gone to the High Priests temple in King’s landing
for evening prayers. As the prayer ended Tommen started looking for his brother
but unable to find him anywhere he thought that Joffery had left for home. After
which when he returned home he found that Joffery wasn’t there and thereafter he
duly informed his father Jamie about the incident.
 The very next day after the gruesome incident Mr. Jamie received a call from an
unknown number and was told that his son Joffery has been kidnapped.
 Learning about the abhorrent incident Mr. Jamie got registered a FIR and the
criminal law was set in due motion and thus the police officials began the
investigation.
 For the next six months the investigation was infructuous and the police officials
couldn’t even get a shred of evidence regarding the crime even the base of the
phone call was not established.
 On 29.03.2017 the police officials received an anonymous tip that Jon Scar and
Ned Scar had kidnapped and killed Joffery. On the basis of this information both
the accused were arrested and after which Jon Scar is said to have confessed to
kidnapping and killing the deceased in front of 2 independent witnesses.
Confession contained in Annexure 1.
 Subsequent to the information received a dead body is said to have been
recovered from a house in red keep locality where the accused Jon had confessed
to storing the dead body of Joffrey Sinister. The house was owned by Mr. Gendry.
The remains of the dead body were then sent for post mortem and DNA
examination. The post mortem report is annexure 2 and the DNA is said to have
conclusively establish that the remains were of Joffery.
 Based on the information received and the statements of the priest u/s 164
westeros criminal procedure code as well as of Mr. Gendry the charge sheet u/s
173 of the criminal procedure code (hereinafter the CrPC for the sake of brevity)
and a charge was framed against the accused persons u/s 302,363,34 and 120-B of
the Westeros Penal Code.

Statement of Issues
|Page 6
1. Whether there is any incriminating evidence on record which can conclusively form
a chain so complete leading to only one inference of the guilt of the accused persons
and being incompatible with the innocence of the accused?
a. Whether the confession is voluntary and tenable in the eyes of law?
b. Whether the presence of the accused is established at the place
where the commission of offence is said to have taken place?
Whether the statements of the Priest and Mr. Gendry can be relied
upon?
2. Whether any motive has been established by the prosecution?
3. Whether the blatant violation of law has prejudiced the accused as to vitiate the principle of
fair trial and does a reasonable doubt exist in the same?

Summary of Arguments

|Page 7
 1. There is not a single iota of evidence on record which can justify, in all
probabilities, that it was the accused persons only who had committed the offence
of kidnapping and murder. The impugned record of the police is unjustifiable and
they have acted on their own whims and caprice. The dogmatism of the errant
police officials can be deduced from the fact that till 6 months when the
investigation was nugatory no closure report was filled as is mandated by section
169 of the CrPC. Furthermore the confession is involuntary due to fact that the
recovery of the dead body is highly doubtful and the same is evident from the
uncontroverted facts that the recovery has been made from a place which was not
in the special knowledge of the accused persons and was accessible to the whole
of Westeros. The fact that material witnesses in the case have not been examined
by itself draws a strong inference towards the malafides of the prosecution case
and therefore the prosecution doesn’t want to bring on record something which
could have a material bearing on the case. Lastly there is a material discrepancy
as far as the prosecution version is concerned wherein the police were said to have
been tipped off and in the confession of Mr. Jon Scar wherein there is a mention
that he willingly joined the investigation this fact by itself speak volumes as to
how Mr. Jon Scar has been treated as a scapegoat.
2. Secondly the presence of the accused persons at the place where the commission
of offence is alleged to have taken place is very skeptical as there is not a shred of
evidence which can substantiate the presence of the accused at or around the High
Priest Temple. The fact that the priest deposed to have seen Mr. Jon Scar amongst
400-500 people cannot be relied upon as the same doesn’t inspire confidence as
the priest and Mr. Jon Scar are not shown to have any pre acquaintance and
remembering his name out of the blue that on a typical day he had seen Mr Jon
Scar around the temple is clearly erroneous. The priest has not even entered the
witness box therefore his statement is legally untenable. His testimony is left
uncorroborated by any other independent evidence on record. Even if his
testimony is believed as a gospel truth doesn’t show that Jon Scar had any
opportunity to commit the crime amongst 400-500 people and his testimony
doesn’t talk about Joffery being last seen with Mr. Jon Scar and therefore the
same can’t flourish an event in the chain of events required for the circumstantial
evidence. The statements recorded under section 164 of the CrPC which states
recording of statements and confessions cant be relied upon as the same is
obscure till date to whom these statements have been made, whether these are
made to a magistrate or a police official, if made to the magistrate whether he was
having jurisdiction of the same and whether the magistrate followed the procedure
and mandate of section 164 CrPC. Furthermore Mr. Gendry in his deposition has
stated that the house has been rented to Mr. Ned Scar and his friends for the
purpose of Navratra which is totally unreliable as the same has not been duly
corroborated by any rent agreement or rent receipt or any other independent fact.
Gendry being a friend of Mr Ned has also not been substantiated by any fact other
than Mr. Gendry’s deposition and Thus reliance cant be placed upon the same.

|Page 8
 The body which is said to have been recovered was from another house of Mr.
Gendry other than the one which was rented.
3. In cases pertaining to circumstantial evidence motive plays a significant role in
the chain of events and flourishes an important link but in the case at hand the
prosecution has not been able to discover an impelling motive. The confession
which talks about the motive of easy money is still unfound as the same has no
basis no phone calls have been established to have been made my Mr. Jon Scar,
Mr. Ned Scar or anyone else at their behest. Further the statements of Mr. Gendry
talk about the motive of retaliation and the same has not been proved as their
families are not shown to be inimical. Further motive is often a matter of
conjecture and here in this case the same is lacking and incongruous to the very
facts of the case.

4. There has been a flagrant violation of the procedure followed in criminal

jurisprudence. The police officials have not followed the mandate of the CrPC.
Section 169 which talks about a closure report was not filled further even the
arrest is assailed as being violative of the most fundamental right as the due
process of law has not been followed. Thus the errant officials have overlooked
the procedure as defined in Section 41 of the CrPC. Further section 207 of the
CrPC has not been followed which has caused a great prejudice to the accused
and marred the trial. Further it is not unknown whether by was the case
committed as section 190 makes the committal of cases by magistrate. When the
important link goes, the chain of circumstances gets snapped and the other
circumstances cannot in any manner establish the guilt beyond a reasonable
doubt. There is a long distance between may be true and must be true and the
same divides conjectures from sure conclusion. Therefore even if there is a
suspicion without any legal proof the same must be excluded as there exists a long
mental distance between may be true and must be true. Reasonable doubt is
present in the case as all the evidence on record are doubtful and untrustworthy
and therefore a reasonable doubt which is a mean between excessive caution and
excessive indifference does exist in the present case and this Hon’ble Court shall
exercise this as there exists apparent gaps in the prosecution story which are left
incomplete or insufficiently proved.

Arguments Advanced

|Page 9
1. In the instant case the edifice of the prosecution version is solely based on
circumstantial evidence thus it is pertinent to take a view of what the law as regard to
the circumstantial evidence states. Circumstantial evidence does not prove the point
in question directly, but establishes it only by inference. Thus their lordships of the
Hon’ble Supreme Court in the case titled as G.Parshwanath v State of Karnataka 1
held that the evidence tendered in the court of law is either direct or circumstantial.
Evidence is said to be direct if it consists of an eye-witness account of the facts in
issue in a criminal case. On the other hand, circumstantial evidence is evidence of
certain facts from which, one can by process of intuitive reasoning, infer about the
facts in issue or factum probandum. In dealing with circumstantial evidence there is
always a danger that confession or suspicion lingering on mind may take place of
proof. Suspicion however strong it may be cannot be allowed to take place of a proof
and therefore the court has to be watchful and ensure that conjectures and suspicions
do not take place of a legal proof. However it is not derogation to say that it is
circumstantial. Human agency may be faulty in expressing picturisation of actual
incident, but the circumstances cannot fail. Therefore, many a times it is said that men
may tell lies but circumstances do not. In a recent judgment of the Hon’ble Supreme
Court titled as Suresh and anr v State of Haryana 2 the circumstantial evidence was
talked at length their lordships analyzing the judicial dichotomy which exists as to
what amounts to circumstantial evidence referred to some legal literature and
precedents which are as follows. In Thomas Starkie A practical treatise on law of
evidence and digest of proofs said that “in criminal cases, proof that the party accused
was influenced by a strong motive of interest to commit the offence proved to have
been committed, although exceedingly weak and inconclusive in itself and although it
be a circumstance which ought never to operate in proof of the corpus delicti, yet
when that has once been established aliunde, it is a circumstance to be considered in
conjunction with others which plainly tend to implicate the accused”. In the case
Peacock v The King which expounded the circumstantial evidence to mean “whether
the fact or that body of facts which is called the case is capable of bearing a particular
inference, is for the court, and unless it is so capable, the court’s duty is to withhold it
from the jury, as a single fact or as a case. But when the case is undoubtedly capable
of the inference of guilt, albeit some other inferences or theory be possible, it is for
the jury, properly directed and from them alone, to say not merely whether it carries a
strong probability of guilt, but whether the inference exists actually and clearly, and
so completely overcomes all other inferences or hypothesis as to leave no reasonable
doubt of guilt in their minds”. The Hon’ble Supreme Court in Hanumant and other v
State of Madhya Pradesh3 has expounded the test of complete chain link theory for the
prosecution to prove the case beyond a reasonable doubt based on circumstantial
evidence and held that in cases where the evidence is of circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so established should be consistent only
with the hypothesis of the guilty 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 another case namely Sharad
Birdhichand Sarda v State of Maharastra4 while dealing with circumstantial evidence,
it has been held that the onus was on the prosecution to prove that the chain is

|Page 10
 complete and the infirmity or lacuna in the prosecution cannot be cured by a false
defence or plea. The conditions precedent before conviction could be based on
circumstantial evidence, must be fully established. They are- (i) the circumstances
from which the conclusion of guilt is to be drawn should be fully established. The
circumstances concerned ‘must or should’ and not merely maybe established. (ii) the
facts so established should be consistent 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 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 be done by the accused. In
the case at hand all the evidence on record are doubtful and the chain is not formed as
all the facts available are disputed and totally unreliable and haven’t been established
cogently.
1.a The principle evidence which is the substratum of the prosecution version is
that there is a confession alleged to have been made by Mr. Jon Scar who is arraigned
as an accused and a subsequent recovery based on that confession. The confession in
law is unsustainable as the same is not made voluntarily and under suspicious
circumstances which can be deduced from the grave infirmities in the confession as
well as the prosecution version. Firstly the recovery of the remains said to have been
made pursuant to the confession is highly doubtful. The law regarding the confession
is found under the Indian Evidence Act (IEA) and CrPC. A confession is received in
evidence on the presumption that no person will voluntarily make a statement which
is against his interest, unless it is true. Section 24 IEA bars a confession which is
procured by inducement, threat or promise. Section 25 IEA makes inadmissible any
confession made to a police officer under any situation. Further Section 27 uplifts the
bar to the extent of recovery made subsequent to the confession. In the case titled as
Aghnoo Nagesia v State of Bihar5 where primary evidence consisted of a confessional
FIR with some recoveries, their lordships of the Hon’ble Supreme Court held that
these provisions bar confession made by an accused to a police officer or made by
him while he is in the custody of a police officer are not to be trusted and should not
be used in evidence against him. They are based upon grounds of public policy. For
the definition of “confession” the court referred the case of Pakala Narayanaswami v
King-Emperor where Lord Atkin observed “no statement that contains self
exculpatory matter can amount to the confession, if the exculpatory statement is of
some fact which if true would negative the offence alleged to be confessed. Moreover
the confession must either admit in terms the offence, or at any rate substantially all
the facts which constitute the offence. An admission of a gravely incriminating fact,
even a conclusively incriminating fact is not of itself a confession, e.g., an admission
that the accused is the owner of and was in recent possession of the knife or revolver
which caused a death with no explanation of any other man’s possession”. The court
further held that a confession may consist of several parts and may reveal not only the
actual commission of the crime but also the motive, the preparation, the opportunity,
the provocation, the weapons used, the intention, the concealment of the weapon and
the subsequent conduct of the accused. If the confession is tainted, the taint attaches

|Page 11
 to every part of it. It is not permissible in law to separate one part and admit in
evidence as a non-confessional statement. Each part discloses some incriminating
fact, i.e. some fact which by itself or along with other admitted or proved facts
suggests the inference that the accused committed the crime, and though each part
taken singly may not amount to a confession, each of them being a part of a
confessional statement partakes the character of a confession. If a statement contains
an admission of an offence, not only that admission but also every other admission of
an incriminating fact contained in the statement is part of the confession. In the case
Palvinder Kaur v State of Punjab6 it was held that a confession should either be
accepted as a whole or rejected as a whole. The mandate of Section 27 was explained
in Madhu v State of Kerala7 “As an exception, Section 27 of the Indian Evidence Act
provides that a confessional statement made to a police officer or while an accused is
in police custody, can be proved against him, if the same leads to the discovery of an
unknown fact. The rationale of Sections 25 and 26 of the Indian Evidence Act is, that
police may procure a confession by coercion or threat. The exception postulated
under Section 27 of the Indian Evidence Act is applicable only if the confessional
statement leads to the discovery of some new fact. The relevance under the exception
postulated by Section 27 aforesaid, is limited "...as it relates distinctly to the fact
thereby discovered...." The rationale behind Section 27 of the Indian Evidence Act is,
that the facts in question would have remained unknown but for the disclosure of the
same by the accused. Discovery of facts itself, therefore, substantiates the truth of the
confessional statement. And since it is truth that a court must endeavour to
search, Section 27 aforesaid has been incorporated as an exception to the mandate
contained in Sections 25 and 26 of the Indian Evidence Act.” Thus section 27 of the
Indian Evidence Act is applicable only if the confessional statement leads to the
discovery of some new fact. In the case titled Navaneethakrishnan vs The State by
Inspector of Police8 held that “Section 27 of the Evidence Act is applicable only if the
confessional statement leads to the discovery of some new fact. The relevance is
limited as relates distinctly to the fact thereby discovered. The said statements are
inadmissible in spite of the mandate contained in Section 27 for the simple reason that
it cannot be stated to have resulted in the discovery of some new fact. The material
objects which the police is claimed to have recovered from the accused may well
have been planted by the police. Hence, 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. The law is well settled that
each and every incriminating circumstance must be clearly established by reliable and
clinching evidence and the circumstances so proved must form a chain of events from
which the only irresistible conclusion about the guilt of the accused can be safely
drawn and no other hypothesis against the guilt is possible. In a case depending
largely upon circumstantial evidence, there is always a danger that conjecture or
suspicion may take the place of legal proof. The court must satisfy itself that various
circumstances in the chain of events must be such as to rule out a reasonable
likelihood of the innocence of the accused. When the important link goes, the chain of
circumstances gets snapped and the other circumstances cannot, in any manner,
establish the guilt of the accused beyond all reasonable doubt. The court has to be
watchful and avoid the danger of allowing the suspicion to take the place of legal

|Page 12
 proof for sometime unconsciously it may happen to be a short step between moral
certainty and legal proof. There is a long mental distance between “may be true” and
“must be true” and the same divides conjectures from sure conclusions. The Court in
mindful of caution by the settled principles of law and the decisions rendered by this
Court that in a given case like this, where the prosecution rests on the circumstantial
evidence, the prosecution must place and prove all the necessary circumstances,
which would constitute a complete chain without a snap and pointing to the
hypothesis that except the accused, no one had committed the offence, which in the
present case, the prosecution has failed to prove”. Judging the confession on the anvil
of law the recovery is highly doubtful as the same doesn’t satisfy the test of
reasonableness and voluntariness. The fact that the confession states that Mr. Jon Scar
has confessed to the Head Panchayat who has then warned him after which the
confession was made to the Police Officials shows that the confession was made
under suspicious circumstances. This circumstance itself puts a dent in the
prosecution story. Furthermore the police are said to have been tipped off and the
confession talks about Mr. Jon Scar joining the investigation himself this material
discrepancy in the prosecution case speak volumes that the prosecution story is
nothing but a canard and the same cast scars on the prosecution story. The effect of
material discrepancy has been observed by the Supreme Court in case titled Jeewan
and ors vs State of Uttarkhand9 and it was held that “discrepancy has to be material
and seriously affecting the case of the prosecution. Every minor and immaterial
discrepancy would not prove fatal to the case of the prosecution. The Court has to
keep in mind that evidence is recorded after years together and to expect the
witnesses to give a minute to minute account of the occurrence with perfection and
exactitude would not be a just and fair rule of evidence. The law in this regard is well
settled. Even an omission or discrepancy in the inquest report may not be fatal to the
case of the prosecution. The Court would have to examine the entire case and discuss
the prosecution evidence in its entirety to examine the real impact of a material
contradiction upon the case of the prosecution. Trustworthy evidence cannot be
rejected on fanciful ground or treated to be in the nature of conjectures. Furthermore
in the case titled as Gangadhar Behera and ors vs State of Orissa 10 it was held with
regard to material discrepancies that “normal discrepancies in evidence are those
which are due to normal errors of observation, normal errors of memory due to lapse
of time, due to mental disposition such as shock and horror at the time of occurrence
and those are always there however honest and truthful a witness may
be. Material discrepancies are those which are not normal, and not expected of a
normal person. Courts have to label the category to which a discrepancy may be
categorized. While normal discrepancies do not corrode the credibility of a
party's case, material discrepancies do so.
1.2 The confession is said to have been made before two independent
witnesses but the same haven’t been examined by the prosecution which casts a scar
on the prosecution story and makes it even more skeptical. The law with regard to the
effect of non-examination of material and independent witnesses is laid down in
Manjit Singh v State of Punjab11 wherein the Supreme Court held that it is not the
number and quantity but the quality that is material. It is the duty of the court to
consider the trustworthiness of evidence on record which inspires confidence and the

|Page 13
 same has to be accepted and acted upon and in such a situation no adverse inference
should be drawn from the fact of non-examination of other witnesses. That apart, it is
also to be seen whether such a non-examination of other witness would carry the
matter further so as to affect the evidence of other witnesses and if the evidence of a
witness is really not essential to the unfolding of the prosecution case, it cannot be
considered a material witness. In another case before the Hon’ble Supreme Court
titled as Surinder kumar v State of Haryana12 it was held that the failure on the part of
the prosecution in non-examing the two children when both of them were present at
the site of the crime amounted to failure on the part of the prosecution.
1.3 In the case at hand the recovery is said to be made by the police officials and
no recovery witness is available in case who can depose to have seen the recovery. In
Sanspal Singh v State of Delhi 13, the Hon’ble Supreme Court was of the view that
when public witnesses were available and could have been associated to witness the
recovery. Thus such a recovery casts doubt on the prosecution’s case. The arrest and
recoveries made pursuant to the disclosure are also not substantiated with sound
evidence. In another case before the Hon’ble Delhi Court titled as Sapna Talwar and
anr v State14 the court held as follows “ there is no direct or indirect evidence on
record to connect the accused Yunus with the alleged offence. The prosecution
version in this case is doubtful as the prosecution did not join any independent
witness as attesting witness to the alleged disclosure statement as well as recovery.
The disclosure statement without any discovery of fact is also meaningless. Non-
joining of public witness as attesting witness smacks of malafide and make
prosecution version more doubtful. The prosecution is not able to establish the chain
of circumstances so complete to connect the accused Yunus with the alleged offence.
Thus this strengthens the doubt on the prosecution version with regard to the recovery
as whether the same is true or planted by any chicanery on the part of the errant
police officials.
1.4 The foul play can also be inferred from the fact that the prosecution has
not even prepared a recovery memo of the same which can be believed upon and
therefore it cant be said that the recovery was in actual made the same points towards
a false implication and a reasonable hypothesis of the accused persons being innocent
scapegoats is available. Further the place from which it is recovered cant be said to be
within the special knowledge of the accused persons. In Balwinder Singh v State of
Punjab15 the Supreme Court held “The evidence of extra-judicial confession is a weak
piece of evidence and if it lacked plausibility and did not inspire confidence then the
conviction cant be based. It requires appreciation with great deal of case and caution
and independent reliable corroboration before placing any reliance upon the same. In
the case Pulukuri Kottaya v Emperor16 it was held by the privy council that “Section
27, which is not artistically worded, provides an exception to the prohibition imposed
by the preceding section, and enables certain statements made by a person in police
custody to be proved. The condition necessary to bring the section into operation is
that the discovery of a fact in consequence of information received from a person
accused of any offence in the custody of a Police officer must be deposed to, and
thereupon so much of the information as relates distinctly to the fact thereby
discovered may be proved. The section seems to be based on the view that if a fact is
actually discovered in consequence of information given, some guarantee is afforded

|Page 14
 thereby that the information was true, and accordingly can be safely allowed to be
given in evidence; but clearly the extent of the information admissible must depend
on the exact nature of the fact discovered to which such information is required to
relate. Normally the section is brought into operation when a person in police custody
produces from some place of concealment some object, such as a dead body, a
weapon, or ornaments, said to be connected with the crime of which the informant is
accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact
discovered" is the physical object produced, and that any information which relates
distinctly to that object can be proved. Upon this view information given by a person
that the body produced is that of a person murdered by him, that the weapon produced
is the one used by him in the commission of a murder, or that the ornaments produced
were stolen in a dacoity would all be admissible. If this be the effect of Section 27,
little substance would remain in the ban imposed by the two preceding sections on
confessions made to the police, or by persons in police custody. That ban was
presumably inspired by the fear of the legislature that a person under police influence
might be induced to confess by the exercise of undue pressure. But if all that is
required to lift the ban be the inclusion in the confession of information relating to an
object subsequently produced, it seems reasonable to suppose that the persuasive
powers of the police will prove equal to the occasion, and that in practice the ban will
lose its effect. On normal principles of construction their Lordships think that the
proviso to Section 26, added by Section 27, should not be held to nullify the
substance of the section. In their Lordships' view it is fallacious to treat the "fact
discovered" within the section as equivalent to the object produced; the fact
discovered embraces the place from which the object is produced and the knowledge
of the accused as to this, and the information given must relate distinctly to this fact.
Information as to past user, or the past history, of the object produced is not related to
its discovery in the setting in which it is discovered. Information supplied by a person
in custody that "I will produce a knife concealed in the roof of my house" does not
lead to the discovery of a knife; knives were discovered many years ago. It leads to
the discovery of the fact that a knife is concealed in the house of the informant to his
knowledge; and if the knife is proved to have been used in the commission of the
offence, the fact discovered is very relevant. But if to the statement the words be
added "with which I stabbed A", these words are inadmissible since they do not relate
to the discovery of the knife in the house of the informant”. Thus a nexus between the
commission of offence and the object recovered has to be made. In the present case
the prosecution has tried to corroborate the recovery with medical report and the
DNA. It is humbly contended that the medical opinion can’t be given any regard as
the same suffers from grave infirmities. The medical report which is said to have been
made by one Dr. Samuel Tully hasn’t been examined. Even his signatures are even
not available on the medical report. It was held in Babuji@Mulsingh Dhudaji v State
of Gujarat17 by the Gujarat High Court that “it was obligatory for the prosecution to
examine medical officer to prove post mortem report. The process adopted by the trial
court admitting the post mortem report without examining the doctor was illegal”. In
Jadeo Singh v State of UP18 it was held that post mortem is not a substantive piece of
evidence by itself and it can be used by the doctor for refreshing his memory while he
is giving evidence for the court”. In Dhabi Yadav v State of Bihar 19 it was held that

|Page 15
 “the post mortem report in itself doesn’t become admissible unless and until the
doctor is examined. Thus the post mortem report is nugatory and can’t be used for
corroboration. On the question of DNA as corroborating the same can be the sample
of his brother as the prosecution has resorted to chicanery and the same can’t be ruled
out. It is humbly contended before this Hon’ble Court that the presence of the accused
persons is highly doubtful at the place from where the commission of offence has
taken place. The only evidence that the prosecution relies upon in this regard is the
statement of Priest said to be regarded under section 164 CrPC. Section 164 CrPC
reads as follows :- Recording of confessions and statements
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the course
of an investigation under this Chapter or under any other law for the time being in
force, or at any time afterwards before the commencement of the inquiry or trial:
Provided that no confession shall be recorded by a police officer on whom any power
of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person
making it that he is not bound to make a confession and that, if he does so, it may be
used as evidence against him; and the Magistrate shall not record any such confession
unless, upon questioning the person making it, he has reason to believe that it is being
made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall
not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for
recording the examination of an accused person and shall be signed by the person
making the confession; and the Magistrate shall make a memorandum at the foot of
such record to the following effect:-" I have explained to (name) that he is not bound
to make a confession and that, if he does so, any confession he may make may be
used as evidence against him and I believe that this confession was voluntarily made.
It was taken in my presence and hearing, and was read over to the person making it
and admitted by him to be correct, and it contains a full and true account of the
statement made by him. 
(signed)A. B. Magistrate (5) Any statement (other than a confession) made under sub-
section (1) shall be recorded in such manner hereinafter provided for the recording of
evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the
case; and the Magistrate shall have power to administer oath to the person whose
statement is so recorded.
(6)The Magistrate recording a confession or statement under this section
shall forward it to the Magistrate by whom the case is to be inquired into or tried.
It is ample clear from the judgment of the Hon’ble Supreme Court in Dhanabal and
anr v State of Tamil Nadu19 that the witness must be confronted with their previous
statements in the committal court which are to be read over to them in extensor. The
court in the same case placed reliance upon Tara Singh v State of Punjab, wherein it
was held that the evidence of committal court cannot be used in the sessions court
unless the witness is confronted with his previous evidence as required under Section
145 of the Indian evidence act. The court further held that if the prosecution wishes to

|Page 16
 use the previous testimony as substantive evidence then it must confront the witness
with those part of it which were to be used for the purpose of contradicting him and
then only the matter can be brought in as a substantive evidence under S.288. In
Parmanand v Emperor it was observed by the Nagpur High Court that the statement
made under Section 164 has the endorsement of the Magistrate that the statement had
been made by the witness. In State v Salman Khan 20 the Rajasthan High Court held as
follows “The entire case is built around the statement of Harish Dulani.
The statement of Harish Dulani was recorded under Section 164 of the Cr.P.C.
However, he never appeared in the witness box and nor was examined. It is well
settled proposition of law that statement under Section 164 cannot be taken into
consideration, in case, a witness is not examined and nor cross- examined.” It was
further stated that “Thus, one of the prime requisites for the statement to be
admissible is that accused should have been granted an opportunity to cross-
examine a witness whose statement is sought to be admitted into evidence. When
a statement is recorded under Section 164 Cr.P.C., the accused does not have a right
to cross-examine and nor he is given an opportunity to cross- examine such a witness.
Hence, it is necessary that the said witness should not only be examined in court
as witness but opportunity to cross-examine should also be granted and in case, the
said condition is not fulfilled, the statement recorded under Section 164 of the Cr.P.C.
cannot be read in evidence as per Section 33 of the Evidence Act. The Calcutta High
court in Banchit Guli Majhi v State of West Bengal place reliance on The Supreme
Court case in Ram Kishan Singh v. Harmit Kaur, observed that
a statement under Section 164 of the Code of Criminal Procedure is not substantive
evidence. It can be used to corroborate the statement of a witness and it can be used to
contradict a witness. In Dhanabal v. State of Tamil Nadu 21, a three-Judges Bench of
the Supreme Court held that, the 164 Cr. PC statement that is recorded has the
endorsement of the Magistrate that the statement had been made by the witness. The
mere fact that the police had reasons to suspect that the witnesses might be gained
over and that it was expedient to have their statements recorded by the Magistrate,
would not make the statements of the witnesses thus recorded, tainted. If
the witness sticks to the statement given by him to the Magistrate
under Section 164 Cr. PC no problem arises. If the witness resiles from
the statement given by him under Section 164, the witness can be cross-examined on
his earlier statement and held The principle of law discussed above make it clear
that 164 Cr. PC statement of the witness is not substantive evidence but the same is
only corroborative in nature. If the witness whose statement was recorded earlier
while giving evidence in Court sticks to his earlier statement recorded
under Section164 it can be acted upon subject to the rule of caution. When
the witness resiles from his earlier statement under Section 164 of Cr. PC, the
procedure is that the witness should be cross examined and the
earlier statement recorded under Section 164 of Cr. PC should be read in extenso to
the witness, and then only the prosecution can place reliance on such statement and
that too subject to rule of caution and if there are other sufficient evidence before the
Court. In the present case before us the Magistrate who recorded the statement of
P.W. 4 was not examined by prosecution. During her examination the learned Public
Prosecutor-in-Charge of the case did not read over the contents of the entire 164 Cr.

|Page 17
 PC statement to P.W. 4. As the contents of the 164 Cr. PC statement were not read
over or confronted to P.W. 4 when she was examined in Court and who resiled from
her such earlier statement, the 164 Cr. PC statement cannot be the basis of foundation
of conviction of appellant in this case. Further in the present case the Priest has not
been examined therefore the Statement which although suffers from legal as well as
logical infirmities cannot be regarded in view of the rule of law laid down by the
different courts as well as section 164 CrPC. Furthermore it is highly improbable that
a person could remember as to whom he saw at a certain place amongst 400-500
people with no pre-acquaintance been established. The statements haven’t been
endorsed by the magistrate and neither the witness has stepped into the witness box
and therefore the corollary and the sequitur of the same is that he must be disregarded
and his statements be nugatory before this Hon’ble Court. The same goes with the
evidence of Mr. Gendry who has deposed that Ned has taken on rent his house which
is just an omnibus allegation and nothing else. It suffers from legal infirmities and is
clearly untenable and untrustworthy in the eyes of law, therefore placing any reliance
on the same would be a travesty of justice. The statement of Mr. Gendry has not been
corroborated by any other reliable evidence such as the rent receipt or rent agreement
or any other independent evidence. Further it is still obscure that to whom the
statements were made and whether were they made to a magistrate or a police
official, if to magistrate whether he was entitled to record statements and if he was
entitled to then was the procedure followed as the mandate of endorsement of
magistrate there or not. These questions speak volumes and the façade of the
prosecution case is infirm and non-examination of a witness who has given the
statement under section 164 CrPC is fatal to the prosecution case and shows that the
prosecution wants to sweep under the carpet something. Therefore an inference of
these two witnesses being a stock witness or a shadow witness can be made. However
it is not even know that there is a priest and a person named Gendry who haven’t
turned up before the court after giving Statements to the magistrate. The onus of
proof that is on the prosecution in a criminal case has not been discharged by the
prosecution and prosecution relies upon doubtful and suspicious to substantiate there
case, the circumstances themselves suffer infirmities legal as well as factual and
therefore legal credibility cannot be merited to them in the court of law. Reliance
upon such doubtful evidence cannot be made and therefore the statements of Mr.
Gendry and the Priest must be discredited and discarded.
2. Now the next issue of prime importance is whether there is any motive. A note of
caution has also been struck regarding the role of imagination. In the case of Reg v.
Hodge22, it was said: "The mind was apt to take a pleasure in adapting circumstances
to one another, and even in straining them a little, if need be, to force them to form
parts of one connected while; and the more ingenious the mind of the individual, the
more likely was it, considering such matter, to overreach and mislead itself, to supply
some little link that is wanting, to take for granted some fact consistent with its
previous theories and necessary to render them complete.' It has been impressed that
suspicion and conjecture should not take place of legal proof It is true that the chain
of events proved by the prosecution must show that within all human probability the
offence has been committed by the accused, but the Court is expected to consider the
total cumulative effect of all the proved facts along with the motive suggested by the

|Page 18
 prosecution which induced the accused to follow a particular path. The existence of a
motive is often an enlightening factor in a process of presumptive reasoning in cases
depending on circumstantial evidence. Motive as according to Section 8 of Indian
evidence Act is a relevant factor. There is hardly any action without a motive and it is
said that an action without a motive would an effect without a cause. Often it is
important to find out whether the accused had any interest in committing the offence.
It was held in Munish Mubar v State of Haryana 23 by the Supreme Court it was held
that “Where the case is based on circumstantial evidence, motive for committing the
crime assumes great importance. In such circumstances absence of motive will put
the court on its guard to scrutinize the evidence very closely to ensure that suspicion,
emotion or conjectures do not take place of a legal proof.” In the case Rammun v
Emperor24 it was held as thus “Mere evidence of motive can never supply the want of
reliable evidence direct or circumstantial of the commission of crime. Motive cannot
thus supply the gaps in the prosecution story”. Motive is the reason which induces a
man to do a certain act and the intention shows the nature of the said act. Thus in the
present case the motive cannot be inferred from the facts of the case. The tainted
confession states the motive to be easy money which cannot be inferred from the facts
as there has been no overt act in form of making phone calls or any other means used
to get easy money. Further there has been no phone call made by Mr. Jon Scar, Ned
scar or by someone on their behest. Hence motive which is generally inferable and
goes beyond the act is lacking in the case and the prosecution has failed to prove any
other motive like enmity and thus this relevant fact by itself speak volumes. Further
no opportunity as is relevant under section 7 of the IEA or preparation relevant under
section 8 has been brought out by the prosecution. As far as the actus reus and the
mens rea are concerned the prosecution hasn’t been able to form the chain which is
relevant to prove and for the sake of convenience is being recapitulated herein as was
held in the Padala Veera Reddy v State of Andra Pradesh 25 by the Hon’ble Supreme
Court (1) the circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established;(2) those circumstances should be of a
definite tendency unerringly pointing towards guilt of the accused;(3) the
circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was
committed by the accused and none else; and (4) the circumstantial evidence in order
to sustain conviction must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent with his innocence.
Thus not even the first point of the test is satisfied the prosecution has failed to put
the circumstances from which the link has to be inferred cogently and thus a doubt is
casted over the prosecution version and the shoddy investigation that has taken place
in the case. From   the   aforesaid   circumstances the
hypothesis canvassed by the prosecution cannot be said to have been   proved  
beyond   reasonable   doubt   as   there   exist   apparent gaps   in   the   prosecution  
story,   which   are   left   incomplete   or insufficiently proved. In
Latesh v. State of Maharashtra26, the Hon’ble Supreme
court had observed the ‘When you consider the
facts, you have a reasonable doubt as to whether the matter is

|Page 19
 proved or whether it is not a reasonable doubt in this sense. The
reasonableness of a doubt must be a practical one and not on an abstract   theoretical  
hypothesis.   Reasonableness   is a virtue that forms as a mean between excessive
caution and excessive indifference to a doubt.’ 

3. Furthermore there is a blatant violation of law as the mandates of the Criminal

Procedure Code have not been followed even the arrest can be assailed as being
violative of the rule of law. The mandate of filing a closure report was overlooked
and wasn’t filled as the investigation was not successful. Further the mandate of
section 207 and 208 were not followed. Section 173(2) states that the investigation
when complete the police officer shall forward the report to the magistrate Section
193 was not complied with which states that the magistrate empowered by Section
190 to commit the case to the sessions. The committal was made by whom is still
obscure. Thus non-compliance of these provisions have caused a great prejudice to
the accused persons and incurable in nature the violations vitiate the whole trial and
the procedure of a FAIR TRIAL.

PRAYER

In the light of the arguments advanced and authorities cited, the Defence humbly submits
that the Hon’ble Court may be pleased to adjudge and declare that:

|Page 20
 1. That Mr. Jon Scar and Mr. Ned Scar be acquitted of all the charges brought
against them by the prosecution

AND/OR

Any other order as it deems fit in the interest of equity, justice and good conscience

For this act of kindness the accused shall as in Duty bound forever humbly pray

Counsel for the defence

|Page 21