TABLE OF ABBREVIATIONS

ABBREVIATION EXPLANATION

& And

fj Paragraph

AIR All India Reporter

Art. Article

CriLJ Criminal Law Journal

CrPC. Code of Criminal Procedure

Etc. Etcetera

Govt. Government

Hon’ble Hon’ble

IEA Indian Evidence Act

IPC Indian Penal Code

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

U/S Under Section

UOI Union of India

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 INDEX OF AUTHORITIES

STATUTES

1. Code of Criminal Procedure,1973

2. Indian Penal Code, 1860
3. Indian Evidence Act. 1872

BOOKS

1. A. ASHWORTH, LOGIC, REASONING AND CRIMINAL LIABILITY

(6th Edition, Oxford, 2009).
2. CECIL TURNER, KENNY‟S OUTLINES OF CRIMINAL LAW,
(19th Edition, Universal, 2004).
3. DAVID ORMEROD, SMITH AND HOGAN CRIMINAL LAW, (15th
Edition, Oxford, 2018).
4. R. A. Duff, PHILOSOPHY AND THE CRIMINAL LAW: PRINCIPLE
AND CRITIQUE (1998).
5. I, NELSON R. A. INDIAN PENAL CODE, (10th Ed. 2008).
6. DINSHAW FARDUNJI MULLA, COMMENTARY ON THE CODE OF
CRIMINALPROCEDURE (21st ed., Delhi Law House 2019).
7. DR. AVATAR SINGH, PRINCIPLES OF LAW OF EVIDENCE (23rd
ed., Central LawPublications 2018).
8. K.I. VIBHUTE, DD BASU, COMMENTARY ON CODE OF
CRIMINAL PROCEDURE (12th ed., Whyte & Co. 2016).
9. RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE (24th ed.,
LexisNexis 2016).

WEBSITES

1. HeinOnline
2. LexisNexis India (Advance)
3. Manupatra
4. SCC Online
5. Westlaw India & International

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 CASE LAWS

1. K.M. Nanavati vs. State of Maharashtra (AIR

1962 SC 605)

2. Nishi Kant Jha v. State of Bihar (2005)

3. K. Ramachandra Reddy v. The Public Prosecutor

(1976)

4. State of Maharashtra v. Damu s/o Gopinath Shinde And

Others on 1 May (2000) SC

5. State of Maharashtra v. Suresh (2000)

3
 STATEMENT OF JURISDICTION

This appeal has been preferred out of the Judgement passed by the

Learned Trial Court who has convicted the appellant with imprisonment

for life through that impugned Judgement. In view of the imprisonment

for life, this appeal has been preferred by the appellant before the Hon’ble

High Court Under provision of Section 374(2) Cr.P.C. Accordingly, this

Hon’ble Court has ample jurisdiction to hear this matter and adjudicate the

same on merit.

For your Kind perusal Section 374 (2) Cr.P.C. as hereunder: -

“374: Appeals from convictions.

(1) xxx

(2) Any person convicted on a trial held by a Sessions Judge or an

Additional Sessions 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”

(3) xxx

4
 STATEMENT OF ISSUE

1. Whether Ajay's dying declaration is conclusive in nature and that can be

a base of conviction?

2. Whether Rajesh's confession was as accordance with the law and that is
admissible in law?

3. Whether Extra Judicial confession, res gestae statements and forensic

reports are reliable evidence and admissible in law and Can these be
bases of conviction? And whether the Learned Lower Court has
assessed the evidence as accordance with the law and appreciated them
rightly?

5
 STATEMENT OF FACT
Rajesh stands accused of murdering his business partner, Ajay, in a
heated argument over financial discrepancies in their joint venture.
Before succumbing to his injuries, Ajay managed to utter a few words
implicating Rajesh as his assailant. Ajay’s statement was recorded by a
magistrate at the hospital just hours before his demise. Several witnesses
present at the scene of the crime claim to have heard Rajesh making
incriminating statements immediately after the altercation with Ajay.
These witnesses assert that Rajesh confessed to the murder and expressed
no remorse. During police interrogation, Rajesh confessed to the crime.
However, he later retracted his confession, alleging coercion by the
investigating officers. Forensic experts analyzed the crime scene and
concluded that the nature of the injuries sustained by Ajay was consistent
with the weapon recovered from Rajesh’s possession. Additionally, the
forensic report suggests that Rajesh’s clothing bore traces of the victim’s
blood. The defense argues that Ajay’s statement should be deemed
inadmissible as a dying declaration due to inconsistencies and the
possibility of undue influence by external factors. The defense also
challenges the reliability of the res gestae statements, claiming that they
are hearsay and lack corroboration. They even assert that his confession
was extracted under duress and is therefore unreliable. They move to have
it declared inadmissible. The validity of the forensic evidence is also
questioned, suggesting that it was mishandled and may not conclusively
link Rajesh to the crime. Rajesh is, nevertheless, convicted by the Trial
court and given a sentence for life. Rajesh has now filed an appeal.

6
 SUMMARY OF ARGUMENT

Issue No1. Whether this occurrence is out of sudden provocation and

whether Rajesh's confession was as accordance with the law?

No doubt death of Ajay is “Homicidal” in nature and Honourable Court

has to find it out, whether it is culpable homicide not amount to murder or
it is a murder. The case in our hand, as it is surfaced, shows that the
incident is outcome of a heated argument due to financial discrepancies
between two partner of a business firm, one is the appellant and another
one the deceased. As the incident is outcome of a heated argument, there
is no pre-planning, pre-preparation for perpetrating of the offence. So, it is
a clear case of Culpable homicide not amounting to murder, punishable
U/Sec 304 I.P.C. So the conviction U/s 302 IPC is wrong and not tenable.
Apart this, it is settled principle of the criminal Law that the confession
must be voluntary and without any undue influence, coercion, threat etc.
here in this case Rajesh himself has stated that he had confessed his guilty
by coercion of the Investigating Officer during interrogation. So, as the
confession was not voluntary and the same is being influenced by coercion
of the investigating officer, cannot be admissible in law. So the
punishment passed on the basis of the confession of the accused, is illegal
and liable to be set-aside. Otherwise the same would be miscarriage of
justice.

Issue No2. Whether Ajay's dying declaration is conclusive in nature

and that can be a base of conviction?

Before going in to this issue it may be humbly submitted that, the settled
principle of the Criminal Law is that “1000 culprits can escape, but, one
innocent person should not be punished” in the above noted case, the
Learned Lower Court passed the sentence of conviction on the basis of

7
Ajay's dying declaration and hold it as a piece of conclusive proof. The
evidence of dying declaration is a piece of circumstantial evidence and
that should be corroborated other evidence. Apart this, the dying
declaration should be consistent, reliable, free from external influence and
coercion. Here it is admitted that there is enmity between the deceased and
the accused. There was financial irregularity in joint business. So, there is
preponderance of probabilities of having influence for such a dying
declaration. So the decision of learned court by arriving at a conclusion
that the dying declaration is admissible and according to law is wrong and
need to a fresh scrutiny. In view of the above, the decision taken by the
learned lower Court is challenged and the same need to be set-aside.

Issue No3. Whether Extra Judicial confession, res gestae statements

and forensic reports are reliable evidence and admissible in law and
Can these be bases of conviction?

These issue is one of the main points of discussion to re asses the standard
of proof adduced by the prosecution and which are held admissible by the
learned Loser Court. Here the extra judicial confession of the accused,
confession during the investigation and forensic reports are all parts of
circumstantial evidence. And when a case entirely rests on circumstantial
evidence the case must be assessed very meticulously with cogent and
clear evidence. Otherwise there is every chance of miscarriage of justice
and there is also every possibility of awarding punishment to an innocent
person. These things also happen here as the learned lower court
erroneously taken that the extra judicial confession and confession are
accordance of law and genuine. Similarly the learned lower court has also
given ample emphasis on these circumstantial evidences without any
corroboration. Though there is a lot of reasonable doubt, still the leaned
lower court convicted the accused. These illegal order needs to be
properly scrutinize and Set aside.
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 ARGUMENTS ADVANCED

Issue No. 1. Whether this occurrence is out of sudden provocation

and whether Rajesh's confession was as accordance with the law?

Initially, as mentioned in the statement of facts, Rajesh was accused and

later convicted for murder, stemming from a heated argument with Ajay,
his business partner, over financial discrepancies within their joint
venture. From the presented facts, it becomes evident that there was no
premeditated intent on Rajesh's part to cause harm to Ajay. The heated
exchange leading to the tragic event indicates a lack of premeditation or
Pre-plan criminal design. Therefore, the occurrence can be contextualized
within the framework of "Exception 1 of Section 300 of the Criminal
Procedure Code,1973". This provision recognizes instances where grave
and sudden provocation leads to fatal consequences. In this scenario,
Rajesh's actions were impulsive and driven by the immediate
circumstances rather than a calculated intention to commit murder.
Consequently, the act does not meet the legal criteria to be
deemed as murder. In a landmark case of K.M. Nanavati vs. State of
Maharashtra (AIR 1962 SC 605)1, it involved a naval officer who shot
and killed his wife's lover, claiming provocation. The Supreme Court held
that the circumstances surrounding the killing amounted to grave and
sudden provocation, and thus, the act was covered under Exception
1 of Section 300. In view of this point, the Judgement delivered by the
Learned Lower Court for offence of Murder is not accordance with the
law. At best the learned lower Court would have taken this case as
Culpable Homicide not amount to murder and he would pass an order
under Section 304 I.P.C. So, it can be said that, the Learned Lower Court

1
K.M. Nanavati vs. State of Maharashtra (AIR 1962 SC 605)
9
has not applied his judicial mind to convict the appellant for Murder.
Accordingly the punishment for life imprisonment is not tenable.

Apart this, the issue, whether Rajesh's confession was as accordance

with the law and admissible in law is another matter to discuss in this
appeal. It is settled principle of the criminal Law that the confession must
be voluntary and without any undue influence, coercion, threat etc. here in
this case Rajesh himself has stated that he had confessed by the coercion
of the Investigating Officer during interrogation. So, as being influenced
by coercion the confession was confessed, it cannot be admissible in law.
There is also no corroboration to the confessional statement of Rajesh and
all the witnesses are hearsay witnesses. All the witnesses are only
representing the words of Rajesh which are produced by the coercion of
the Investigating Officer. In view of the same, the conviction basing on
confession alone is fatal and it may be miscarriage of justice. Article
20(3) of the Indian Constitution, which protects all individuals of India
from being compelled to be witnesses against themselves. Any confession
obtained under duress or coercion violates this constitutional right. In
support of this point, it can be cited through the case of Nishi Kant Jha v.
State of Bihar (2005)2, wherein the Hon’ble Supreme Court has held that
“confessions made under police pressure are unreliable and should be
rejected”.

In view of the above facts and circumstances the convict deserves to

be acquitted from all charges.

2
Nishi Kant Jha v. State of Bihar (2005)
10
Issue No.2. Whether Ajay's dying declaration is conclusive in nature
and that can be a base of conviction?

The Learned lower Court has not applied its judicial mind to appreciate all
the evidence adduced by the prosecution and defense in their credit
jointly. The learned lower court has given much emphasis to the
prosecution evidence and not to the points of the defense. The prosecution
had biased to the concerned Court to pass the order of conviction. The
Learned Lower Court has not scrutinized the admissibility of Ajay's Dying
Declaration rather emphasize it to convict the accused. Dying
Declaration is a piece of circumstantial evidence and link of the chain of
the case that has been created by the prosecution party. The essence of the
criminal law is to testify the veracity of a statement by different method
and cross examination is one among them. But in case of a Dying
Declaration the person who adduce any evidence about a crime through a
Dying Declaration, cannot put to cross examine as he had died after
declaration of the statement. So, Dying Declaration is a very crucial piece
of evidence to accept or deny in a case. Here as this case appears, Ajay's
statement should be deemed to be inadmissible as a Dying Declaration
due to several reasons. Firstly, the statement of Ajay is inconsistent, there
is ample of doubt on its reliability. Secondly, there is a possibility of
external influence or coercion that could have affected Ajay's testimony as
there was money discrepancy in the joint business of both the deceased
and the accused. This may therefore, would have influenced Ajay's Dying
Declaration. Thirdly the enmity between the parties may create a crime or
it may influence for labeling a false allegation. As Ajaya had made the
financial discrepancy or irregularity in joint venture of both the parties and
as the same was alleged in front of several persons, it is possible due to
shame, probability of future litigation for such financial irregularity;
hardship of repayment to remove the financial discrepancy, Ajaya might
11
have committed suicide. If Ajaya has in good state of mind to realize
about his version then he must understood that he is going to die and in
such a case he may say against Rajesh to take revenge for which he is
forced to commit suicide. Apart this, at the time of the recording of Dying
Declaration the physical standard of the deceased was not so good and he
could utter only a few words to implicate Rajesh. If he was not in good
state of health, it is also a matter to discuss whether he was in good state
of mind to understand about his statement against the accused. It is also
not clear that whether the words were direct incriminating or just
indicative. The magistrate has not reproduced the exact words of the
Dying Person rather he has recorded the statement in his own words. So,
the statement is not at all believable beyond reasonable doubts that it is
beyond influence of other source for making such a declaration. Recording
of such a Dying Declaration and giving full details of the declaring
person’s health condition and mental status were highly essential to
adduce credibility to such evidence but the same has not followed and
maintained here in this by the recording magistrate. So, the so called
Dying Declaration is not admissible in law.

In view this argument it can be cited through the case of K.

Ramachandra Reddy v. The Public Prosecutor (1976) 3, wherein the
Hon’ble Supreme Court has held that “a dying declaration should inspire
full confidence of the court and must be free from inconsistencies”. Hence
it is crystal clear that the decision of the lower court is not proper and need
to be set aside.

3
K. Ramachandra Reddy v. The Public Prosecutor (1976)
12
Issue No. 3. Whether Extra Judicial confession, res gestae statements
and forensic reports are reliable evidence and admissible in law and
Can these be bases of conviction?
This issue is the main issue to determine whether Extra Judicial
confession, res gestae statements and forensic reports are reliable evidence
or not and whether these evidences are admissible in law or not. Similarly
whether these evidences can be bases of conviction or not and more
specifically whether the Learned Lower Court has assessed all these
evidences as accordance with the law and appreciated them rightly by
applying his judicial mind or not to discuss these questions it may be seen
as the res gestae statements made by witnesses claiming to have heard
Rajesh confessing to the murder are not reliable. These types of evidence
are only meant for corroboration and contradiction. Here, if the persons
are present in the place of occurrence, they must have watched the event
as an eye witness. But the case record shows that they have heard from the
occurrence from Rajesh himself. So, all the witnesses those have deposed
from listening from Rajesh, they are of the category of “Hear-say”
witnesses. Their evidence is not at all trustworthy in the eyes of law. The
speaker is the only person who knows the truth. And here, these persons
are only the carrier of the statements. In this case, it is alleged that after
the occurrence, Rajesh had confessed his guilty of murder to which these
witnesses had heard. But latter, before the Magistrate, Rajesh told that he
was put to coercion to confess his guilty by the investigating agency. In
view of such a statement before the Magistrate, these witnesses have only
hard what the police had forced Rajesh to tell. Now it is clear that the
basis of confession is the coercion made by the I.O. for which the
confession and the res geste evidence is not believable and admissible in
the law.

13
 It is admitted that statements are hearsay and lack of corroboration.
Without substantial corroborating evidence, the res gestae statements
should not be considered as reliable evidence against Rajesh.

In view of this point of argument, the case of State of Maharashtra

v. Damu (2000)4, may be referred, where the Hon’ble Supreme Court has
emphasized on the need for corroboration of res gestae statements and
cautioned against relying solely on hearsay evidence

Similarly Forensic Evidence is also a piece of circumstantial

Evidence, by which an inference can be drawn on the alleged offence. At
the same time, it is not conclusive and this piece of evidence also required
corroboration with other evidences. Forensic experts analyzed the crime
scene and they concluded that the nature of the injuries sustained by Ajay
was consistent with the weapon recovered from Rajesh’s possession. This
finding cannot fasten Rajesh with the crime, unless and until the forensic
examination would prove that the seized weapon has been used for
perpetrating the crime. Not only in the possession of Rajesh but also in
possession of many others, the same kind of weapons may be recovered.
This type of weapon can commonly available in almost all households.
The prosecution has not detailed that in which way the weapon is related
with the crime. So, only finding of a weapon, cannot be a base for
conviction.

Apart this, only finding of blood from the dress of Rajesh that
contain the same group of the deceased cannot be conclusive proof against
Rajesh. The prosecution has not proved the Blood Group of Rajesh. By
many other ways the dress may contain trace of blood stain. It is the
burden of the prosecution to prove that during the course of incident the
trace of blood came into the dress of the accused. The forensic evidence

4
State of Maharashtra v. Damus/o Gopinath Shinde And Others on 1 May (2000) SC .
14
could be mishandled or contaminated while samples were collected and
seized during investigation. In absence of direct link with the accused and
with the alleged crime,the forensic report has no conclusiveness. Without
reliable forensic evidence, directly linking Rajesh to the murder, the
prosecution's case loses its strength. Here the prosecution has not
produced any iota of evidence to show that group of blood stain is of no
other person than of the deceased. It is also necessary to find out that at
the time of the incident the accused wore the dress and during the incident
for which reason the cloth stained with blood of the deceased. In absent of
these factual aspects, the finding of forensic report is not at all relevant
and the same cannot be a base of conviction.

It may be worthwhile to cite the case of State of Maharashtra v.

Suresh (2000)5, where the Hon’ble Supreme Court has emphasized the
importance of proper handling and analysis of forensic evidence. Any
discrepancies or lapses in the forensic investigation should be highlighted
to cast doubt on the reliability of the evidence.

5
State of Maharashtra v. Suresh (2000)
15
 PRAYER

On the light of issue raised, argument advanced and authorities cited, the
counsel for the appellant prays that the Hon’ble Court be pleased to
adjudge, hold and declare:

1. The Appeal may kindly be allowed and the order of conviction may
turn into acquittal.
2. The lower Court order may kindly be stayed pending appeal.
3. The Convict may kindly be allowed to go on bail during pendency
pending the appeal.
And kindly pass the order that this Hon’ble Court may deem fit and
proper in the interest of justice, equity and good conscience. And for this
act of kindness, the Appellant may duty bound forever pray.

Sd/-
(Counsel for the Appellant)

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