ARGUMENTS ADVANCED

1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE

SANJAY AND VIJAY ARE LIABLE OR NOT?

It is humbly contended before this Hon’ble Court that the accused Sanjay and Vijay
are not liable of offence under section 120- B1 of IPC 1860. It has been wrongfully
alleged that the accused has committed Criminal Conspiracy.

According to Section 120- A of IPC: Definition of Criminal Conspiracy

When two or more persons agree to do, or cause to be done,-

1 an illegal act, or
2 an act which is not illegal by illegal means, such an agreement is designated
a criminal conspiracy:
Provided that an agreement except an agreement to commit an offence shall
amount to criminal conspiracy unless some act besides the agreement is done
by one or more parties to such agreement in pursuance thereof.

To constitute a conspiracy an agreement between two or more persons is necessary.

An agreement implies the meeting of two minds with reference to a particular matter,
and so long as matters are discussed and views are interchanged, but the plan of action
has not been settled by the concurrence of any two or more of the conspirators, the
stage of criminal conspiracy would not be considered to have been reached. The
essential ingredient of the offence of conspiracy is agreement between two or more
persons and not the residence of such person in India.2 It was held that in Yogesh alias
Sachin Jagdish Joshi v. State of Maharashtra3 that to constitute an offence of
conspiracy meeting of mind of two or more persons is the sin qua non. But it may not
be possible to prove agreement between them by direct proof. So as per the
preposition mere call record of Sanjay and Vijay from the date of 14.01.2009 till the
date of arrest cannot be considered as the evidence for proving the criminal
conspiracy against them. It cannot be said or determined that they both have meeting
of mind and have done agreement. Moreover they are not guilty of criminal

1
PUNISHMENT FOR CRIMINAL CONSPIRACY
2
Ajay Aggarwal v. Union of India 1993Cri LJ 2516 (SC)
3
(2008) 4 Cri L.J. 3872 (S.C.)
conspiracy as the statements given by Vicky to the police authorities are not
admissible

According to Section 25 of IEA, 1872: Confession to police officer not to be

proved-

“No confession made to a police officer, shall be proved as against a person accused
of any offence. The principal upon which the rejection of confession was made by an
accused to police officer or while in the custody of such officer is founded is that a
confession thus made or obtained is untrustworthy. The broad ground for not
admitting confessions made to police officer is to avoid the danger of admitting a
false confession4. The confession made to police either before or after the
investigation is not admissible at the court of law. 5 Statement made to a police
officer by one accused is inadmissible against a co-accused.6 It was held that the
statement made by an accused against the co-accused is groundless and is
inadmissible as evidence.7

Section 26 of IEA, 1872:  Confession by accused while in custody of police not to

be proved against him.

No confession made by any person whilst he is in the custody of a police

officer, unless it be made in the immediate presence of a Magistrate, shall be
proved as against such person.
The object of section 26 of the Evidence Act is to prevent the abuse of powers by
police, and hence confessions made by the accused persons while in the custody of
police cannot be proved against them unless made in the presence of the Magistrate.
The custody of police officer provides easy opportunity of coercion for extorting
confession obtained from accused person through any undue influence being received
in evidence against them. It provides that a confession which is made in the custody
of police officer cannot be proved against him. 8Unless it is made before a magistrate.
The proper construction of Section 25and 26 is one which excludes confessions to a
4
Paulose v. State of Kerala, 1990 Cr. L.J. 108 Ker.
5
Pakala Narain Suram v. Emperor, AIR 1939 PC 47; Husaniya v. Emperor, AIR 1936 Lah 380
6
Nagu Jhalla v. Emperor, 36 IC 480
7
Rashid Gafoor Parker v. State of Maharashtra
8
Kishore Chand v. State of Himachal Pradesh, Air 1990 SC 2140
police officer under any circumstances or to anyone else, while the person making it
is in a position to be influenced by a police officer unless the free and voluntary
nature of the confession is secured by its being made in the immediate presence of a
magistrate, in which a case the confessing person has an opportunity of making a
statement uncontrolled by any fear of police9.

Section 162 Cr.P.C, 1973: Statements to police not to be signed: Use of

statements in evidence.
 No statement made by any person to a police officer in the course of an investigation
under this Chapter, shall, if reduced to writing, be signed by the person making it; nor
shall any such statement or any record thereof, whether in a police diary or otherwise,
or any part of such statement or record, be used for any purpose, save as hereinafter.

As a general rule an accused made a confession to the police while in police custody
is not relevant unless it has been made in the immediate presence of magistrate.

And as the statement which was given by Vicky about Sanjay and Vijay was when he
was in custody before the police officer and magistrate was not present that time. So,
the statement was not admissible.

The statement recorded in writing under Sec 162 can be used, whether by the accused
or by the prosecution, only for one purpose namely, to contradict the witness who had
made that statement in the manner provided in Sec 145 it cannot be used either as
substantive evidence, or for the purpose of any other witness- whether for the
prosecution or the defense or a court witness10.

So, the accused were not guilty of criminal conspiracy because the statement of Vicky
cannot be held admissible according to the provisions and the circumstances. The
evidences cannot be considered a substantive evidence.The confession of accused can
not been seen as relatable as the confession by a co-accused is considered as a very
weak form of evidence which is on a very low footing11.

9
Mahabir v. State of Bihar AIR 1972 SC 1331
10
Satpaul v Delhi Administration AIR 1976 SC 294
11
State of Punjab v. Bhajan Singh (AIR 1975 SC 258)
As the statement given by Vicky is inadmissible and is given to police authorities in
the absence of Magistrate so will not be used as the evidence against Vijay and
Sanjay. According to the provisions of the sections, the accused are not guilty of
criminal conspiracy.

Further Krishana and Sunny, the other accused are not guilty under Section 397, 307
and 120-B of IPC for the offence of dacoity, attempt to murder and criminal
conspiracy. The evidence against them are inadmissible because of improper
investigation and does not follow the proper procedure for investigation creates a
ground for benefit of doubt and hence should be dismissed.

As according to the provisions of Section 25, 26 of Indian Evidence Act, 1872 and
Section 162 of Code of Criminal Procedure, 1973, the statement of Vicky given to
police is inadmissible as an evidence against them.

Therefore, the statement of Vicky made to the police officer in police custody in the
absence of Judicial Magistrate cannot be relied on.

In the present case, there was also the fault on the behalf of police authorities
regarding the search of the house of Sunny and Krishan. According to the provision of
Section 16512 and 10013 of Code of Criminal Procedure, 1973, the police authorities
does not followed the proper procedure for the search of the house and cannot be
accepted as evidence against them, as the gun and pictures of locality of Bank were
found from their houses cannot be regarded as a proof for their commitment of crime
because as the provisions of Section 100(4) and (5) explain that, there should be two
witnesses present for the search of the house of alleged person when police does not
have any search warrant for it.

The provision of Section 100(4) state that, before making a search under this chapter,
the officer or other person about to make it shall call upon two or more independent
and respectable inhabitants of the locality in which the place to be searched is situated
or of any other locality if no such inhabitant of the said locality is available or is
willing to be a witness to the search, to attend and witness the search and may issue an

12
Search by police officer
13
Persons in charge of closed place to allow search
order in writing to them or any of them so to do. It was held that the accused was
acquitted because of the non-compliance of Section 100(4) of the code.14

The evidences which were collected against the accused was not admissible whether it
be the statement of Vicky or search warrant or identification parade as the procedures
was not conducted properly as mentioned in the provisions. The Prosecution has
failed to prove the guilt beyond Reasonable doubt. So, the accused cannot be
convicted on this basis.The SC observed in a no. of cases that the presence of the
witnesses at a search is always desirable and their absence may weaken the
evidence15. Mere recovery of weapon is not a proof that the accused had committed
the crime16.

Here, in the present suit, the admissibility of gun and pictures of locality found from
the house of accused is in question, as the procedure for the investigation was in fault
on the part of police authorities and cannot be accepted by the Court against the
accused.

In the present suit, the allegations on the accused cannot be proved beyond reasonable
doubt because of the aforesaid arguments. In light of all the aforesaid arguments, the
defence humbly submits before the Hon’ble Court that there exist a reasonable doubt
and hence the accused should be acquitted of the alleged crime. A reasonable doubt
must not be imaginary, trivial or possible doubt; but a fair doubt based upon reason
and common sense arising out of the evidence of the case.

Therefore, it is humbly submitted before the Hon’ble Court that the charges on the
accused has not been made out due and should be acquitted for the same.

14
Sukhram v. State of Himachal Pradesh 2016
15
Sahib Singh v. State of Punjab [ (1996) 11 SCC 685]
16
Nirmal Kumar v. State of U.P. (AIR 1992 SC 1131)