ASPIRATION

IN THE HONOURABLE HIGH COURT OF GUJARAT

(UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE,1973)

CRIMINAL APPELLATE NO.......... OF 2015

MOHAMMED SAHIR............................................................(APPELLATE)

V/S

STATE OF GUJARAT..........................................................(RESPONDENT)

MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS..4

INDEX

OF AUTHORITIES

List of statutes..5

List of cases..5

List of Internet Sources

6

List of books referred...6

SYNOPSIS...7

STATEMENT

OF

JURISDICTION

STATEMENT OF FACTS..10

ISSUES PRESENTED...........12

SUMMARY OF ARGUMENTS13

BODY OF PLEADINGS..14

PRAYER...20

LIST OF ABBREVIATIONS

A.I.R

--

ALL INDIA REPORTER

ART

--

ARTICLE

&

--

AND

ANR.

--

ANOTHERS

CJ

--

CHIEF JUSTICE

DB

--

DIVISION BENCH

FB

--

FULL BENCH

HC

--

HIGH COURT

I.e.

--

THAT IS

J.

--

JUSTICE

ORS.

--

OTHERS

PARA

--

PARAGRAPH

SCC

--

SUPREME COURT CASES

SCW

--

SUPREME COURT WEEKLY

SUPRA

--

ABOVE

V.

--

VERSUS

VOL.

--

VOLUME

IPC

INDIAN PENAL CODE

INDEX OF AUTHORITIES
LIST OF STATUTES

Indian evidence act, 1950

The Criminal Code procedure, 1973

The Indian Penal Code, 1860

TABLE OF CASES
1. R V. TAYLOR, WEAVER AND DONOVAN (1928) 21 CR. APP R, CA.
2. DPP V. KILBOURNE. [1973] AC. 729 AT 758.
3.R V. EXALL (1866), 4 F & F 922 POLLOCK CB. }
4. CHHOTKA V. STATE OF WEST BENGAL, 1958
5. (STATE OF PUNJAB V. SUCHA SINGH, 2003)
6. (ATLEY, 1955)
7. MOHIBUR RAHMAN V. STATE OF ASSAM 2000 CR LJ 4725 (4725)
8. (G PARSHWANATH V. STATE OF KARNATAKA AIR 2010 SC 2914)
9. CHHOTKA V STATE OF WB, AIR 1958 CAL 482
10.STATE V DINAKAR BANDU (1969) 72 BOM LR 905)
12.BOOTA SINGH V PP [1933] MLJ 195
13. GAMBHIR V. STATE OF MAHARASHTRA(AIR (1982) SC 1157),
14. RAM AVTAR V. THE STATE OF DELHI
15. LAVJI V. STATE OF GUJRAT (CRI LJ 3148).,
16. SUPREME COURT IN STATE OF U.P. V RAMESH PRASAD MISHRA AND ANR.83
17 . AMRIK SINGH V. STATE OF HARYANA CRLJNO.911
18. STATE VS. RAM PRASAD MISHRA & ANR AIR (1999) SC 1183),
19. SHEIKH ZAKIR VS. STATE OF BIHAR AIR 1983 SC 911
5

20. BHAGWAN DASS V. STATE (NCT OF DELHI), (2011) 6 SCC

21. KHUJJI V. STATE OF M.P., AIR 1991 SC 1853
22. NARAYAN SINGH V. STATE OF M.P., AIR 1985 SC 1678: (1985) 4 SCC 26
23.STATE OF RAJASTHAN V. BHUP SINGH, (1997)10 S.C.C. 675
24. ( STATE (NCT) OF DELHI V. NAVJOT SANDHU, (2005) 11 S.C.C. 600.)

JOURNALS REFERRED

All India Reporter

Supreme Court Cases

Law Suit (Supreme Court)

BOOKS REFERRED
1) Law of evidence , 17th edition vol 1 by sarkar, lexis nexis
2) Indian penal code, 33rd edition by Ratanlal & dhirajlal.
3) The code of criminal procedure code, 21st edition by ratilal & dhirajlal.
LIST OF INTERNET SOURCES

1.
2.
3.
4.
5.

www.google.co.in
www.manupatrafast.com
www.Indiankanoon.com
wwi\w.Legalservice.co.in
www.scconline.com

SYNOPSIS
The Defendant by way of the present appeal is invoking the inherent jurisdiction of this
Honble Court under Section 482 of the Code of Criminal Procedure, 1908, and prays
inter alia, to uphed the decision of the trial court for the Criminal Complaint for the
offences punishable U/s 302 of Indian Penal Code (IPC), filed by the appellent, issuing
process on the said complaint.

LIST OF DATES AND EVENTS

Sr. No.

Date

Events

1.

1st

2.

2014
3rd December

December Rupa eloped with Mohd. Sahir.

Rupas father and brother along with some other people went to
Mohd Sahir to take back Rupa, they were confronted with the
family of Mohd Sahir and were told that Rupa and Sahir are

3.

After

now married.
few father of Rupa gave a statement before the media that all he

days

want is his daughters happiness and safety and that he is not

4.

Before that.

against inter-religious marriages.

Rupa had also given a statement that there is a threat to her and

5.

15th
December

Sahirs life from her family.

of Rupa visited her fathers place but did not returned back to her
matrimonial home. Sahir called Rupa on her mobile number
many times but was not answered.
7

6.

20th

of Sahir along with his father went to Rupas house to take Rupa

December

back they found many people unknown to them present in the

house. There they had a heated argument with Rupas father and

7.

26

Rupas father and brother threatened them away.

of Rupas family lodged a complaint in the police station to the

December,

at effect that Rupa is missing since last evening. They reported that

th

about 10 Am
7

oclock and left the house saying that I need to meet Sahir.
the Rupas dead body was found lying near a railway track. There

At

evening
were marks, bruises and injuries on the body.
th
27 December Sahir was arrested from his house and charged with the offence
at 8 AM

10

in

Rashmi told them that Rupa got a call last evening at about 5

of murder.
During the trial, Sahir pleaded that he had gone to the city for an
important work and returned back at about 6 Oclock in the
evening on 26th December.
Hence the present appeal.

Place:
Date:

9/09/2015

Advocate of the Defendant

STATEMENT OF JURISDICTION

The Respondent Has Submitted To The Jurisdiction Of This Honble High

Court Of Gujarat.
THIS HONOURABLE HIGH COURT OF GUJARAT HAS THE JURISDICTION TO
TRY, ADJUDICATE AND ENTERTAIN THIS MATTER UNDER 374(2 )OF CRIMINAL
PROCEDURE CODE,1973.

THE PARTIES SHALL ACCEPT ANY JUDGEMENT OF

THE COURT AS FINAL AND BINDING UPON THEM AND SHALL EXECUTE IT IN
ITS ENTIRETY AND IN GOOD FAITH.

STATEMENT OF FACTS

1.

Rupa (Victim), 21 years old belonged to an orthodox family who lived in the town of
Pratapgarh and there she used to stay with her parents and her elder brother.

2.

Her father owned two storey house who ran a grocery store on the ground floor and
lived with his family on the first floor.

3.

Rashmi was Rupas cousin and she often use to visit and stay there. Rupa requested
her father to do her further graduation going to big city but her brother opposed as he was
worried that her sister would be influenced by the vices of cosmopolitan culture of big city,
but her father permitted to persue her graduation and after completing immediately she
returned back to stay with her family.

4.

Nearby, Rupas house situated a meat shop owned by Mohd. Siraj whose 24 years old
son Mohd. Sahir assisted him in the shop.

5.

Rupas brother was highly influenced by Pro-Hindu Movements initiated by political

wings of some religious organisations agitating against conversion of Hindus.

6.

These organisations firmly believed that there is an organised attempt by some

individuals to provoke girls belonging to Hindu community to marry Muslim boys with the
aim to convert their religion into Islam

7.

Meanwhile a dispute arised between the families of Rupa and Mohd. Sahir as the
brother of Rupa with some other village people of same locality took up the issue to shift
the meat shop of Mohd. Siraj to some other place as it hurts the religious sentiments of
Hindus living in that locality.

8.

Mohd. Siraj put up his point saying that he was running the shop there since long time
and doesnt have any other place to shift but ultimately he was forced to discontinue the
shops which caused financial crises to in his household.

9.

Meanwhile, Rupa had friendship with Mohd. Sahir which in very short period of time
developed mutual liking, so Rupa showed her willingness to marry Mohd. Sahir before
family but her family got furious.

10.

On 1st December 2014, Rupa ran away with Sahir.

10 | P a g e

11.

On 3rd December when Rupas father and brother with some other people went to
Mohd. Sahir, they were confronted with the family of Mohd. Sahir and were told that Rupa
and Sahir are now married, there Rupa was present but she remained silent.

12.

There were many similar cases happening and being reported in the media similarly
this issue also got some media coverage.

13.

After few days father of Rupa gave statement before media that all he wants is his
daughters happiness and safety and that he is not against interreligious marriage.

14.

Before that Rupa also gave a statement that there is threat to her and Sahirs life from
her family and soon the matter closed down between both the families.

15.

On 15th December, Rupa visited her fathers place but did not return back to her
matrimonial home, so Sahir called Rupa on her mobile many times but was not answered.

16.

On 20th December, Sahir along with his father went to Rupas house where he found
many unknown people present, even they had a heated argument with Rupas father and
Rupas father as well as brother threatened them away.

17.

During those arguments, Rupa was present there but didnt say anything so while
going away, Sahir shouted I wont let you do this to me, Rupa you have to pay for it.

18.

On 26th December at about 10 Am, Rupas family lodged a complaint in the police
station as Rupa was missing since last evening.

19.

They reported that Rashmi told them that Rupa got a call last evening at about 5
Oclock and left the house saying that I need to meet Sahir.

20.

On 26th December at 7 in the evening Rupas body was found lying near Railway
track full of marks, bruises and injuries on her body.

21.

The body that was recovered was informed to Rupas family and Rupas father
blamed Sahir as a murderer.

22.

A person named Bhola gave the statement to the police that he saw Sahir and Rupa
together that evening.

23.

On 27th December at 8 Am Sahir was arrested from his house and charged for the
offence of Murder and then it was stated by the prosecution that he confessed his crime
before the police which leads to certain recoveries.
11 | P a g e

24.

On the next day of his arrest he was taken to his house by the police party and two
knives were recovered from his backyard which stated as weapon of offence in the court.

25.

The person having pan shop adjacent to Rupas house gave a statement to the police
that after coming from Sahirs house, Rupa was continuously forced to register complaint
against Sahir about assault, rape and forced conversion and for that she was beaten by the
family.

26.

During the trials, Sahir pleaded that he had gone to the city for important work and
returned back at about 6 Oclock on the evening on 26th December and he also stated that
his mobile was stolen while travelling back in the bus and before he lodged the complaint
for it, he was arrested.

27.

Sahir was found guilty by trial court and convicted with Life imprisonment u/s 302 of
IPC and being aggrieved by conviction, he preferred an appeal to the High Court of Gujarat.

ISSUES RAISED
ISSUE 1: Whether the fact and circumstance of the case the appellant is
guilty of murder

12 | P a g e

SUMMARY OF ARGUMENTS

1Whether according to the facts and circumstances of the case the appellant
is guilty of murder

The purpose of circumstantial evidence is to make reasonable inference to connect certain

evidence of facts to a conclusion of fact. As earlier observed, circumstantial evidence is
also direct but it is direct evidence of minor facts which are connected to other facts from
which other facts are inferred and this kind of fact is called factum probans. It is no
derogation of evidence to say that it is circumstantial. Its value lie in its potential for
proving a variety of relevant facts all of which point to the same conclusion as when it is
sought to establish that an accused committed murder by evidence of his preparation,
motive or opportunity for its commission, together with the discovery of the murder
weapon, capable of having caused the injuries sustained by the victim, Circumstantial
evidence, it has been said, works by cumulatively in geometric progression, eliminating
other possibilities One strand of the cord might be insufficient to sustain the weight, but
three stranded together may be quite of sufficient strength. Thus, it may be in
13 | P a g e

circumstantial evidence one may have a combination of circumstances, no one of which

would raise a reasonable conviction, or more than a mere suspicion8; but the whole taken
together, may create a strong conclusion of guilt, that is, with as much certainty as human
Slight affairs can require .incident can also become motive ,Conduct of accused after being
insulted at deceased house , Circumstancial evidence in corroboration with the facts ,
Evidence of hostile witness to apply last seen theory ,Confession given to police shall be
taken into consideration for the proper evidence against the appellant.

ARGUMENTS ADVANCED

1. Whether the fact and circumstance of the case the appellant is guilty
of murder
It is humbly submitted that the present is case in front of the honble high court is a classic
case of circumstancial evidence . The purpose of circumstantial evidence is to make reasonable
inference to connect certain evidence of facts to a conclusion of fact. As earlier observed,
circumstantial evidence is also direct but it is direct evidence of minor facts which are
connected to other facts from which other facts are inferred and this kind of fact s called
factum probans1.
In R v. Taylor, Weaver and Donovan2, it was observed that: It is no derogation of evidence
to say that it is circumstantial. Its value lie in its potential for proving a variety of relevant
facts all of which point to the same conclusion as when it is sought to establish that an accused
1 (Paul Bergman, A Bunch of Circumstantial Evidence, 30 U. S. F. L. Rev., (Summer 1996), 985 990.)

2 R v. Taylor, Weaver and Donovan (1928) 21 Cr. App R, CA.

14 | P a g e

committed murder by evidence of his preparation, motive or opportunity for its commission,
together with the discovery of the murder weapon, capable of having caused the injuries
sustained by the victim, buried in the accuseds backyard and bearing his fingerprints.
Circumstantial evidence, it has been said, works by cumulatively in geometric progression,
eliminating other possibilities3. It has been likened to a rope comprised of several cords: One
strand of the cord might be insufficient to sustain the weight, but three stranded together may
be quite of sufficient strength. Thus, it may be in circumstantial evidence one may have a
combination of circumstances, no one of which would raise a reasonable conviction, or more
than a mere suspicion4; but the whole taken together, may create a strong conclusion of guilt,
that is, with as much certainty as human affairs can require or admit of5.

SLIGHT INCIDENT CAN ALSO BECOME MOTIVE

In Empress v. Rama Birapa, 1878, it was observed that the Evidence Act intends to make
only those statements relevant which are the essential complement of acts done or refused to be
done so that the act itself or the omission to act acquires a special significance as a ground for
inference with respect to the issues in the case under trial.
Section 8 in The Indian Evidence Act, 1872
8. Motive, preparation and previous or subsequent conduct.Any fact is relevant which shows
or constitutes a motive or preparation for any fact in issue or relevant fact.
Motive is what induces a person to do or say anything. It is an emotion or desire which leads to
the doing of an act or anything being said. It is impossible to have any tangible evidence of a
persons motive but it can often be inferred from a persons behaviour or conduct. Previous
threats, altercations or litigations between parties may be admitted to prove motive 6. However,
motive is not a substitute for proof no matter how strong it is 7. The effect of the absence of
proof of motive is that the other evidence to prove guilt must be closely examined 8. But if the
other evidence is clear, cogent and reliable, or there is credible direct evidence, the Courts have
held time and time again that it does not matter if there is no proof of motive.

3 DPP v. Kilbourne. [1973] AC. 729 at 758.

4 See Irene Merker Rosenberg & Yale L. Rosenberg, Perhaps What Ye Say is Based Only
On Conjecture Circumstantial Evidence, Then and Now, 31 Hous. L. Rev. (Spring 1995),
1371.
5 R v. Exall (1866), 4 F & F 922 Pollock CB. }
6 Chhotka v. State of West Bengal, 1958
7 (State of Punjab v. Sucha Singh, 2003)
8 (Atley, 1955)
15 | P a g e

In the present case When Rupa kept the marriage proposal regarding willingness to marry
Mohd Sahir, the family got furious . They where not happy with the decision but later when
they went to meet Rupa , The father admitted that all he want is his daughters happiness and
safety and that he is not against inter-religious marriages. Later when Rupa did not visit her
matrimonial home ,Sahir along with his father went to Rupas house to take Rupa back. While
leaving the house he clearly shouted I wont let you do this to me, Rupa you have to pay for
it.Hence this statement of sahir throws light on the motive of sahir to destroy her life . His
intention was to harm her and her familys life as she had to pay for the wrong done.
However, in a case which is based on circumstantial evidence, motive plays an important role
and absence of motive would go a long way to weaken the prosecution case
In case where it was shown that where there is clear proof of motive for commission of crime ,
it afforts added support to the finding of the court that the accused was guilty of offence he was
charged with . In Mohibur Rahman v. State of assam9 motive was proved by the fact that that
the accused had embitted relation with with the deceased for having an affair with sister in law.
Very often a motive is alleged to indicate the high degree of probability that the offence was
committed by the person who was prompted by the motive. In a case when the motive alleged
against accused is fully established, it provides foundational material to connect the chain of
circumstances. It afforts a key on a pointer to scan the evidence in the case in that perspective
and as a satisfactory circumstance of corroboration10.

CONDUCT OF ACCUSED AFTER BEING INSULTED AT DECEASED HOUSE

The conduct of any party in reference to a suit or proceedings will be scanned under sec 8 of
indian evidence act . afact can be proved by conduct of party and by surrounding
circumstances. Statement accompanying or explaining conducts are also relevant as part of
conduct it self. Conversation over telephone for settling details for passing bribe money was
recorded by secret instrument .this was held to be evidence of conduct
Sec 811, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or
preparation for any fact in issue or relevant fact. Thus, previous threats or altercations between
parties are admitted to show motive. 12 It is further pertinent to note that if there is motive in
9 Mohibur Rahman v. State of assam 2000 cr lj 4725 (4725)
10 (G parshwanath v. state of Karnataka AIR 2010 sc 2914)

11 Indian evidence act, section 8

12 Chhotka v State of WB, AIR 1958 Cal 482
16 | P a g e

doing an act, then the adequacy of that motive is not in all cases necessary. Heinous offences
have been committed for very slight motive. 13
In Boota Singh v PP14 [1933] MLJ 195, where a report to the police made by the deceased
against the accused several months before the murder of the deceased is not admissible under
Section 32 of the Evidence Ordinance. However, it is admissible under Section 8, not as
evidence of the truth of the allegations of the deceased against the prisoner, but as showing the
relations between the parties and in support of the motive alleged by the prosecution. In this
case a report made by the deceased against the prisoner nine months before the murder was
admitted in evidence by the trial Judge, as showing a motive for the crime. The report was,
however, put forward by the prosecution as showing or constituting motive under Section 8. It
indicated that the deceased was on bad terms with the accused, and supported the oral evidence
to the same effect. The conduct of the deceased in making a report and statement made against
the accused is made relevant by the express terms of Section 8.
In the present case when sahir along with his father went to Rupas place, he while leaving
shouted I wont let you do this to me, Rupa you have to pay for it. Six days later to this
incident a complaint was lodged regarding the missing Rupa. As per the statement given by
Rashmi, the cousin of Rupa Rupa got a call last evening at about 5 oclock and left the house
saying that I need to meet Sahir. At 7 in the evening, Rupas dead body was found lying
near a railway track. There were marks, bruises and injuries on the body. Also as per the
statement of Bhola, Sahir and Rupa were found together that evening.

CIRCUMSTANCIAL EVIDENCE IN CORROBORATION WITH THE FACTS

An item of circumstantial evidence is an evidentiary fact from which an inference may be

drawn rendering the existence of a fact in issue more probable15.
In Gambhir v. State of Maharashtra16 the appellant was convicted for an offence of murder
of three persons under s 302 of the Penal Code and sentenced to death. On appeal, Mistra J in
delivering the judgement of Supreme Court held: It has been pointed out that there is no
13 State v Dinakar Bandu (1969) 72 Bom LR 905)
14 Boota Singh v PP [1933] MLJ 195
15 2 Jo Shaw, Jo Hunt & Chloe Wallace, Evidence Raymond Emson, p. 15, 4th Edition,
(Palgrave Macmillan, 2006))
16 Gambhir v. State of Maharashtra(AIR (1982) SC 1157),
17 | P a g e

direct evidence of eye witness in this case and the case is based only on circumstantial
evidence. The law regarding circumstantial evidence is well-settled. When a case rests upon
the circumstantial evidence, such evidence must satisfy three tests:
1

the circumstances from which an inference of guilt is sought to bedrawn, must be cogently
and firmly established.
2 those circumstances should be of a definite 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.
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. The circumstantial
evidence should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence.
In the light of the legal position about the circumstantial evidence, we have to examine
whether
the circumstantial evidence in the instant case satisfies the requirements of law.
In the present case when Sahir was leaving he threatened the deceased by shouting that I
wont let you do this to me, Rupa you have to pay for it. Also Rupa informed her cousin
while she was leaving her home to meet sahir, the moment she received the call at 5 pm.
Later after 2 hours the dead body was found lying near a railway track. And taking into
consideration the statement of the hostile witness that he saw both of them together. The
circumstances clearly throws light on sahir that he might have committed the murder. Also
the rage of initial incidents can be taken into consideration.
In Ram Avtar v. The State17 , the appellant was convicted under s 302 of the Indian Penal
Code and sentenced to imprisonment for life by the High Court. The case against the
appellant was purely on circumstantial evidence. Fazal Ali J in delivering the judgment of the
Supreme Court said: At the very outset we might mention that circumstantial evidence must
be complete and conclusive before accused can be convicted thereon. This, however, does not
mean that there is any particular or special method of proof of circumstantial evidence. We
must, however guard against the danger of not considering circumstantial evidence in its
proper perspective, e.g. Where there is a chain of circumstances linked up with one another, it
is not possible for the court to truncate and break the chain of circumstances. In other words
where a series of circumstances are dependent on one another they should be read as one
integrated whole and not considered separately, otherwise the proof of circumstantial
evidence would be defeated.
In Lavji v. State of Gujrat18 the appellant was convicted on charge of murder for causing the
death of his wife by inflicting injuries with an axe. The prosecutions case rested on
circumstantial evidence, retracted extra judicial confession and recovery of blood stained
17 Ram Avtar v. The State of delhi
18 Lavji v. State of Gujrat (Cri LJ 3148).,
18 | P a g e

shirt of the deceased. The trial court acquitted the appellant as there was insufficient evidence
to sustain the charge. On the appeal by the prosecution, the High Court held that the
circumstances put forward on the sets of facts were sufficient to establish the guilt and
accordingly convicted the appellant. On further appeal to the Supreme Court by the appellant,
the Supreme Court confirmed the conviction and inter alia, held that the High Court had
rightly interfered where it convicted the appellant. The Supreme Court also found that there
are two views possibly against the appellant. It is one of the stated principles of law that a
witness may lie but not the circumstances. But this court through a number of
pronouncements has repeatedly cautioned that the court must adopt cautious approach while
basing its conviction purely on circumstantial evidence.
4

EVIDENCE OF HOSTILE WITNESS TO APPLY LAST SEEN THEORY

In todays scenario the problem of witnesses turning hostile is quite evident. Generally a
witness is labeled as hostile, when he furnishes a certain statement on his knowledge about
commission of a crime before the police but refutes it when called as witness before the court
during the trial. The Wikipedia Encyclopedia defines hostile witness as a witness in a trial
who testifies for the opposing party or a witness who offers adverse testimony to the calling
party during direct examination .
The law is now well settled that merely because the witness is declared as hostile witness,
whole of his evidence is not liable to be thrown away.
Reference in this context may be made to the decision of the Supreme Court in State of U.P.
V Ramesh Prasad Mishra and anr19
it is equally settled law that the evidence of a hostile witness would not be totally rejected if
spoken in favour of the prosecution or the accused, but it can subjected to close scrutiny and
that portion of the evidence which is consistent with the case of the prosecution or defence
may be accepted.
In Amrik Singh V. State of Haryana 20 It is trite law that evidence of a hostile witness also
can be relied upon to the extent to which it supports the prosecution version. Evidence of
such a witness cannot be treated as washed off the record. It remains admissible.
State vs. Ram Prasad Mishra & Anr 21. The evidence of a hostile witness would not be
totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to
close scrutiny and the portion of the evidence which is consistent with the case of the
prosecution or defence may be accepted.

19 Supreme Court in State of U.P. V Ramesh Prasad Mishra and anr.83

20 Amrik Singh V. State of Haryana CrLjNo.911

21 State vs. Ram Prasad Mishra & Anr AIR (1999) SC 1183),
19 | P a g e

Similarly in Sheikh Zakir vs. State of Bihar 22 this Court held : It is not quite strange that
some witnesses do turn hostile but that by itself would not prevent a court from finding an
accused guilty if there is otherwise acceptable evidence in support of the conviction.
In the landmark judgment of Bhagwan Dass v. State23 supreme court held that Held,
statement to police is ordinarily not admissible in evidence in view of S. 162(1 )of Criminal
procedure code, but as mentioned in proviso to S. 162(1), it can be used to contradict
testimony of witness -Herein, mother of appellant-accused also appeared as witness before
trial court, and in her cross-examination, she was confronted with her statement to police, to
whom she had stated that her son (appellant) had told her that he had killed his daughter - On
being so confronted with her statement to police, she denied that she had made such a
statement -Held, her statement to police can be taken into consideration in view of proviso to
S. 162(1), and her subsequent denial in court is not believable, because she obviously had
afterthoughts and wanted to save her son (appellant) from punishment - In fact, in her
statement to police, she had stated that dead body of deceased was removed from bed and
placed on floor - Hence, her statement to police can be taken into consideration in view of
provison to S. 162(1)
In the present case Bhola can be considered as the last suspect to watch the deceased and
appellant together on the evening of murder. So per the Last seen theory The statement of the
Hostile witness should be taken into consideration. As The sister of the deceased had not seen
them together but only heard from the mouth of deceased that she was going to meet sahir. It
may not be considered as the sin quo nom evidence but definitely the statement can be taken
into consideration.
5

CONFESSION GIVEN TO POLICE

Under the Evidence Act, there are two situations in which confessions to police are admitted
in evidence. One is when the statement is made in the immediate presence of a Magistrate,
and the second, when the statement leads to the discovery of a fact connected with the crime.
The discovery assures the truth of the statement and makes it reliable even if it was extorted.
This is so provided in Section 27 of indian evidence act24.
The section is quite apparently laid out as a proviso or an exception to the preceding section
which deal with confessions in police custody and other involuntary confessions. Thus it
seems that the intention of the legislation that all objections to the validity of that part of the
statement are washing which leads to the discovery of an article connected with the crime
finding of articles in consequence of the confession appears to the trustworthy that part which
relates to them.25 Whether such a states are proceeds out of inducements, threats or torture
are absolutely immaterial Statements made by the accused in connection with an
22 Sheikh Zakir vs. State of Bihar AIR 1983 SC 911
23 Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC
24 Khujji v. State of M.P., AIR 1991 SC 1853
20 | P a g e

investigation in the other case which lead to the discovery of a fact are also relevant. 26.That is
of an involuntary confession confirmed by the discovery of real evidence admissible because
the truth of the statement is established by that evidence.
The fact discovered on the basis of information supplied may qualify for relevancy if it is the
immediate and proximate cause of the information. It is not necessary that the accused should
be taken to the spot to point to the place of hiding, through this fact may be taken into
account for evaluation of evidentiary value. 27In the present case after receiving the
information from the Bhola . The appellant was arrested and taken into the custody .While in
custody the appellant confessed about the crime which led to the discovery of two nights
which are considered as murder weapon.

PRAYER
25 (Narayan Singh v. State of M.P., AIR 1985 SC 1678: (1985) 4 SCC 26)
26 State of Rajasthan v. Bhup Singh, (1997)10 S.C.C. 675
27 ( State (NCT) of Delhi v. Navjot Sandhu, (2005) 11 S.C.C. 600.)

21 | P a g e

Wherefore it may please this Honourable Court in the lights of facts presented, issues raised,
arguments advanced, and authorities cited, the counsel for the Petitioner humbly pray before
this Honourable Court, to kindly adjudge and declare:
1) This Hon'ble Court after considering the aforesaid substantial questions of
law to dismiss the appeal;

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondents as in duty bound, shall humbly pray.

Respectfully Submitted
Sd/COUNSELS ON BEHALF OF REESPONDENT

22 | P a g e