BANAST HALI VIDYAPITH

JAMNALAL BAJAJ SCHOOL OF LEGAL STUDIES

BEFORE THE HIGH COURT OF KANAK PRADESH

CRIMINAL APPEAL NO. 222 OF 2021

AJAY ....................................................................................... APPELLANT

V/S

STATE… ....................................................................................RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICE OF THE HIGH COURT OF KANAK PRADESH

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

• TABLE OF CONTENTS………………………………………………………….

• LIST OF ABBREVIATION……………………………………………………….

• INDEX OF AUTHORITIES …………………………………………...................

• STATEMENT OF JURISDICTION……………………………………………….

• STATEMENT OF FACTS………………………………………………………….

• ISSUE……………………………………………………………………………….

• SUMMERY OF ARGUMENTS ………………………………………………….

• ARGUMENTS ADVANCE ……………………………………………………….

• PRAYER ………………………………………………………………...................
 LIST OF ABBREVIATIONS

And &

Others Oth.

Article Art.

High Court H.C.

Supreme Court S.C.

Honourable Hon’ble

That is i.e.,

Union of India UOI

Verses V.

Justice J.
 LIST OF AUTHORITIES

ACTS AND STATUTES

• The Indivo Evidence Act, 1860
• The Criminal Procedure Code, 1973
• The Indivo Penal Code, 1860
BOOKS REFERRED
• Batuk Lal, The Indian Evidence Act (Central Law Agency 2018).
• ‘Jowitt’s Dictionary of English Law (2nd ed., Sweet & Maxwell 1977)
• Halsbury’s Criminal Law (5th edn, 2020) vol 21.
• J.W. Cecil Turner, Russell on Crimes (11th edn vol 1 Stevens & Sons Ltd 1958).
• K.D. Gaur, Textbook on Indian Penal Code (7th ed, LexisNexis 2020).
• Collins English Dictionary,
https://www.collinsdictionary.com/dictionary/english/pettycrime.
• Ratanlal & Dhirajlal, The Law of Evidence (27th edn, LexisNexis 2019).
 STATEMENT OF JURISDICTION

The Hon’ble Court has exclusive jurisdiction to try and entertain this appeal
under Section 374(2) in The Code of Criminal Procedure, 1973.

Section 374(2) stated that:

(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.
 STATEMENTS OF FACTS

BACKGROUND: The accused-appellant, Ajay had moved to the state of Kanak Pradesh
located in a developing country in the southern part of India. The appellant befriended the
deceased, Vimal in the University of Kanak Pradesh. The two were part of the football team
but Vimal was the leading goal-scorer while Ajay was put in the reserves for every game
despite being the main player in the teams of his previous academic institutions. Further,
Vimal routinely lent money to Ajay. Of late when Vimal approached Ajay to fulfil the debt,
Ajay expressed that he was unable to do so. Vimal kept reminding Ajay of the debt.
THE INCIDENT: Late one night, Ajay called Vimal and insisted they go out for dinner.
Despite his initial hesitation, Vimal gave in to Ajay's insistence and the two went to John’s
Kitchen. On their way back, Ajay suggested that they make a stop in an isolated place to
smoke. The deceased was known to carry an imported pack of cigarettes called Lucky Strike.
Vimal did not return home that night. On the following day, the police found Vimal's body in
a narrow ditch in an isolated area, a few blocks from Vimal's home, His parents identified the
body and stated that all his belongings seemed to be on him. Later that day, the police
questioned Ajay at his home.
THE INVESTIGATION: Ajay stated to the police that he had dropped the deceased a few
blocks from his home and hurried back home before the colony guard closed the main gate of
his residential complex for the night. The colony guard revealed that the entry point to the
appellant's complex that allowed the entry of motorcycles remained open through the night.
The existence of debt was also disclosed to the police by common friends of Ajay and Vimal
and thereby the appellant was taken for questioning. Ajay disclosed that he murdered Vimal
on account of jealousy and debt. He also disclosed that he hit Ajay with a heavy stone which
he then threw in a nearby stream. To this extent, Ajay identified the spot where he dumped
Vimal's body and the police also recovered a packet of Lucky Strike from Ajay's room. In
addition to the identification by Ms Anjali (waitress at John’s Kitchen), and Mr Prakash (toll
booth operator), one Mr Chirag also confirmed seeing the two boys arguing at the spot where
the body was recovered. An investigation report was created and the Trial began.
THE TRIAL COURT PROCEEDINGS AND THE APPEAL: The testimonies of Coach
Jignesh, Mr. Sagar and Kunjesh were held to establish and confirm a motive. Ms. Anjali, Mr.
Prakash and Mr. Chirag identified Ajay in court. The Investigating Officer restated the
contents of the investigation report and displayed corroborating documents. He added that no
independent witnesses or public persons were present during the preparation of the memo at
night. As for the defence, the accused merely reiterated that the deceased chose to be dropped
off a few blocks from his home. No other defence evidence was led by him. The Trial Court
held that the case had been proved beyond reasonable doubt. Cristo was held liable under
Sections 302 and 201. Ajay appealed the decision on the grounds of failure to establish the
essential ingredients of Section 299/300 of the Frisk Penal Code and contented that the chain
of events was not established beyond a reasonable doubt.
 ISSUED RAISED

• WHETHER THE ESSENTIAL INGREDIENTS OF SECTIONS

299/300 AND 201 OF THE INDVIO PENAL CODE HAVE BEEN
MET IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT
CASE?

• WHETHER THE TRIAL COURT HAS CORRECTLY APPLIED

THE APPLICABLE TEST OF PROVING FACTS ‘BEYOND ALL
REASONABLE DOUBT’?
 SUMMARY OF ARGUMENTS

ISSUE-1 WHETHER THE ESSENTIAL INGREDIENTS OF SECTIONS 299/300 AND

201 OF THE INDVIO PENAL CODE BEEN MET IN THE FACTS AND
CIRCUMSTANCES OF THE INSTANT CASE?

It is submitted before the Hon'ble Court that the essential ingredients of Section 299/300 of the
Indivo Penal Code have not been satisfied. To this extent, the appellant had no motive and
intention to murder the deceased. The appellant indeed owed money to the deceased but he was
not jealous of him, they were good friends. The sudden fight arose between themappellant was
not prepared at all to murder the deceased. There was no intention to cause death to the
deceased both of them are good friends deceased usually seen in the company of the appellant.
Subsequently, it is established that the facts and circumstances invite theexceptions under
section 300.

ISSUE 2 WHETHER THE TRIAL COURT HAS CORRECTLY APPLIED THE

APPLICABLE TEST OF PROVING FACTS ‘BEYOND ALL RESONABLE DOUBT’?

It is submitted that the present case is one of circumstantial evidence and the respondent has
satisfied the standard of proof by the five golden principles of circumstantial evidence. The
circumstances relied upon by the prosecution conclusively establish an unbreakable chain of
circumstances that is consistent only with the guilt of the accused.
 ARGUMENTS ADVANCED

I. THAT THE ESSENTIAL INGREDIENTS OF SECTIONS 299/300 AND 201 OF

THE INDIVO PENAL CODE HAVE BEEN MET IN THE FACTS AND
CIRCUMSTANCES OF THE INSTANT CASE:
It is submitted that the accused-appellant can't be charged with the offence of committing
voluntary culpable homicide amounting to murder and causing the disappearance of evidence.
The essential ingredients enlisted under Sections 299, 300, and 201 of the IPC have not been
met in the present facts and circumstances.
1.1 THAT THE ESSENTIAL INGREDIENTS OF SECTION 299 HAVE BEEN
Homicide is defined as the killing of a human being by another human being Under Section
299 of the IPC, homicide becomes ‘voluntarily culpable’ when
(i) a human being causes another human being’s death;
(ii) by committing or omitting an act which he is legally bound to do;
(iii) to thereby cause or knowledge that he is likely to cause the death of any person.
In the present case, the post-mortem report confirmed that Vimal the deceased, died after being
hit on his head with a blunt object. The appellant hit the deceased but he did not have the
intention and knowledge that by doing so Vimal would die. There was a sudden fight between
them due to provocation appellant hit the deceased.
1.1.1 That the Appellant Had Pre-requisite Mens Rea Towards Committing the Crime
Mens Rea is the mental element of the crime that formulates the whole essence of the crime.
The fact issue entails the commission of murder with no direct evidence. To this extent, the
appellant has conclusively established that:
• The appellant did not have a Motive to Commit Murder: The motive plays an
important role in the present facts and circumstances. The motive as a ‘drive force’ for
the actions but the appellant has established that he was angry towards the deceased due
to the deceased repeated demand for money even though the appellant told the family
of financial crises and requested to give time for return the amount and jealousy on
account of coach Jignesh's biased behaviour. The appellant was notjealous of Vimal
achievements. This indicates that the appellant had no motive to kill the deceased.
• The Appellant was Last Seen with the Deceased: It has been established through the
proximity of time and place that the appellant and the deceased were last seen together
by Mr. Ajay. The testimony of Mr Ajay was corroborated by the dock identification.
They were good friends so they were seen together even on that day when they went to
their favourite restaurant (John’s Kitchen) for dinner. It is not indicated that the
appellant had the intention to cause the death of the accused.
• The Appellant had no Intention to Commit Murder: It was established that the
appellant had no intention to murder the deceased. The criminal intent was not
established that the appellant had the intention to cause the death of the deceased. The
 deceased repeatedly demanded the amount of the loan back, the deceased even tried to
mentally harass them for money even though the appellant told every thing about the
family's financial crisis and also promised him to return the amount soon. On that day
deceased started demanding money and started a sudden fight between them which was
very rough and due to provocation and anger appellant hit accidently to the deceased.
appellant didn’t do any preparation before the act and in this, there was no intention to
cause death indicated.
Death caused without intention or knowledge
Alister Anthony Pareira v. State of Maharashtra1 : to constitute an offence of culpable
homicide, death must be caused by doing an act:
1. to cause death; or
2. to cause such bodily injury as is likely to cause death; or
3. with the knowledge that the doer is likely by such an act to cause death.
but, in this case, the appellant did not have any intention or knowledge to cause the death of
the deceased. In the absence of such intention or knowledge, the offence committed may be
grievous hurt or simple hurt. In those cases where death is attributed to an injury that the
offender did not know would endanger life or would be likely to cause death and which in
normal conditions would not be so, notwithstanding death being caused, the offence will not
be a culpable homicide but grievous or simple hurt in the case of Bai Jiba vs state2.
Surani Singh vs. the State of Punjab3, the question to be considered by the court is whether
the accused has gone an act by doing which he has caused the death of another. whether it is
murder or culpable homicide, will depend on proof of such a causal connection between the
act of the accused and the resultant death.
Under this case, there were no direct or material shreds of evidence were given, which proved
the appellant's case that he had the intention to cause death made preparations and had
knowledge about the incident to cause death. The appellant and the deceased were good friends
they seem all the time in college and after college they usually went to parties with their
favourite restaurant (John Kitchen) on that day also they went to that restaurant for dinner.
After dinner they stopped smoking at that time vial started humiliating the appellant for
demanding money the appellant requested for some time the family's financial condition was
not well but the deceased started fighting with the appellant, due to a sudden reaction appellant
hit the deceased he had no intention to cause death even though he did not know about if he hit
him, he died.
• That the Actions of the appellant Resulted in the Unlawful Death of the Deceased
It is submitted that the appellant had not premeditated his actions to cause the death of the
deceased. Premeditation of an offence if shown to be preceded by preparation gains importance
under Section 8 of the IEA. In the instant case, the intention of the appellant has not been
conclusively established.

1 2012 (76) ACC 660

2
(1917)19 Bom.
3
(2017) 5 SCC 145
The facts indicate that the appellant insisted on having dinner with the deceased as they usually
went for dinner at their favourite restaurant (Jhon Kitchen). On their way back, the appellant
deliberately suggested that he and the deceased should stop in an isolated areaunder the
pretence of avoiding being seen smoking by the deceased’s parents. As Vimal usually used to
carry four strike imported cigarettes that Ajay and Vimal smoked during normal conversation
Vimal suddenly humiliated Ajay related to the loan amount whichamounted to convert
sudden fight between them in which Ajay tried to request him to give them some time to return
the amount but Vimal not listening Ajay at all which amount to rough fight between them in
between fight Ajay in anger put an object to hit Vimal and instantly died. thus, Ajay did not
have the intention to cause death to the deceased even though he did not have knowledge about
the cause of hitting the object and he did not do any premeditation before causing death.
1.2 THAT THE ESSENTIAL INGREDIENTS OF SECTION 300 HAVE BEEN MET IN
THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE
It is submitted that the accused-appellant can, not be charged with the offence of committing
voluntary culpable homicide amounting to murder and causing the disappearance of evidence.
The essential ingredients enlisted under Sections 299, 300, and 201 of the IPC have not been
met in the present Facts and circumstances.
SECTION 300 of IPC: Murder. —Except in the cases hereinafter excepted, culpable homicide
is murder, if the act by which the death is caused is done to cause death, or—
(Secondly) —If it is done to cause such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done to cause bodily injury to any person and the bodily injury intended to
be in•flicted is sufficient in the ordinary course of nature to cause death, or—
(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
Under this case there was no intention involved the act committed by the appellant was done
due to a sudden fight and anger provoked by the deceased. When they stopped smoking, they
were generally talking and suddenly Vimal started humiliating the appellant related to the
money even though the appellant granted time and requested to not humiliate the appellant
Vimal continued the same and started fighting with the appellant. The appellant reacts to the
circumstances by hitting the object without knowing the consequences of the act. which causes
death to the deceased on the spot. The appellant doesn't want to kill Vimal it's an accident or
situation in which he reacts like this when he hits Vimal.
In the case of Gurumukh Singh vs State of Haryana4: In the case, the SC enumerated several
factors which should be taken into consideration while sentencing an accused-
i. motive
ii. intention or knowledge while inflicting injury

4 (1982)3 SCC 185

 iii. age and gender, the health of the accused
iv. nature and size of the weapon
v. criminal background of the accused
vi. whether the accused has taken the injured or deceased to the hospital immediately for
proper treatment.
before the conviction of murder, the court had to follow these points but in a recent case court
did not find any material evidence that proved that the appellant had the intention to cause the
murder of Vimal. the court convicted the appellant without considering the principal points.
THAT THERE WAS GIVEN AND SUDDEN PROVOCATION:
The phrase grave and sudden provocation constitutes an act or series of acts, which by their
very nature, would induce sudden and temporary loss of self-control in a reasonable man so
that it can be said that he is no longer master of his mind.
Provocation must be grave and sudden. -Provocation under this exception must be both grave
and sudden. The test of grave and sudden provocation is:
(1) Whether a reasonable man, belonging, to the same class of society as the accused, placed
in the situation in which the accused was placed would be so provoked as to lose his self-
control
(ii) In certain circumstances words and gestures may also cause grave and sudden
provocation.
(iii) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden provocation,
for committing the offence.
(iv) The fatal blow should be clearly traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time, or otherwise giving
room and scope for premeditation and calculation.
In the matter of Khairati Ram vs. State of Punjab5: in case A confessed (in the absence of X
) to her husband H at about 2 p.m. that she had illicit intimacy with X. Enraged at the conduct
of X the Husband went into a relationship and borrowed his revolver and some cartridges on
a false pretext loaded the same went to the flat of X at about 4:30 p.m entered his bedroom and
shot him dead. here H would not succeed in his plea of grave and sudden provocation because
enough time had passed for the passion to cool down and secondly because he had gone to his
relation in search of a revolver to shoot X.
In the present case, there was no sufficient time to decide or think about the act the act done by
the appellant was sudden even he couldn't recognise the consequences of the act or not having
the intention to cause the death to the deceased.
In Shuklal Sarkar vs. U.O.I6: deceased was unarmed. He was only trying to wake up the
appellant-accused Ist constable to do patrolling duty. Even assuming that the deceased had
slapped and pushed the appellant it was held that said action of the deceased could not be

5 AIR 1953 SC 980

6 (2012) SC 401
characterised as a grave and sudden provocation to provoke the appellant to fire at the deceased
killing him on the spot. It was further held that grave and sudden provocation is a question of
fact and not one of law. Hence each case is to be considered according to its facts.
in the present case, there was no material evidence was given that proved the appellant had
the intention to kill the deceased and made preparation for it. The deceased death was just an
accident, the appellant didn't want to kill the deceased.
Exception 4 - Death caused in sudden fight: For the application of this exception the following
conditions must be fulfilled:
(1) Death must be caused in a sudden fight.
(2) A sudden fight must be without any premeditation.
(3) It must occur in the heat of passion upon a sudden quarrel. (4) The offender must not have
taken undue advantage or must not have acted cruelly or unusually.
(5) It is immaterial as to which party offered the provocation or committed the first assault.
(6) The fight must have been with the person killed.
By fight here means something more than a verbal quarrel. A fight is a combat between two
or more persons whether with or without weapons. Mahanarain vs. Emperor7.
Soju Parsad vs. state8: Fight per se is not a palliating circumstance, it must be sudden, pre-
arranged or premeditated. Therefore, the time gap between the quarrel and the fight is very
important. If there was sufficient intervening time for passion to subside and for reason to
interpose this exception shall not apply? A mere exchange of hot words is not enough, an
exchange of blows is necessary, but the use of weapons is not necessary. The fight must be
with the person who is killed and not with another person. Undue advantage means unfair
advantage.
Gali Venkataiah v. State of A.P.9 , Gali Krishnaiah, the deceased and the appellant Gali
Venkataiah are brothers. They had strained relations. Before the incident, the appellant
threatened the deceased that he would kill him. One day at about 8.30 a.m. the appellant to kill
the deceased armed with a knife went to him, pulled him stabbed him on the left side of the
chest and caused vital stab injury, besides causing another cut injury over the middle of the left
arm. The knife pierced into the chest of the deceased and he died on the way to the hospital.
The incident started with an exchange of hot words, then a quarrel between the two and finally,
it culminated in the accused inflicting a knife blow on the chest of the deceased.It was held
that death was caused in a sudden fight between the two and the accused was entitled to the
benefit of Exception 4 to Section 300, I.P.C. Therefore, the accused was liable to be convicted
under Section 304, Part I and not under Section 300, I.P.C.
In Sayaji Hammat Bankar v. State of Maharashtra10, a sudden fight ensued between the
accused and his wife as soon as he entered a house in a drunken condition. Accused

7 (1937)39 BOMLR 61
8 AIR 1965 SC 843
9 APPEAL 1533 of 2007
10 (2021)3 SCR 1137
thereupon first threw water pot and then burning lamp on deceased wife. As a result, the wife
received 70% burns because of the nylon saree worn by her. It was held that death resulted
because of the sudden fight without premeditation. Hence accused was liable to be convicted
under section 304 Pt. I and not for murder.
In State of Punjab v. Jagtar Singh11, it was alleged that the accused carried the deceased from
his field to their house and strangulated him along with their sister as both had sexual relations.
The defence version was that the deceased had sneaked into the house of the accused and was
strangulating their sister and watching the accused strangulate the deceased. Semen was found
in the vaginal swab of the sister of the accused. It was held that this evidence shows that the
prosecution theory of the accused having taken the deceased to their house is unreliable and
the theory of the accused having watched the deceased and their sister in a compromising
position at their house and killed the deceased in sudden convicted only under section 304 Part
I for culpable homicide not amounting vocation is more probable. Therefore, the accused was
held not liable to be to murder.
1.3 THAT THE ESSENTIAL INGREDIENTS OF SECTION 201 HAVE BEEN MET IN
THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE
The appellant can't be convicted of an offence under section 201 of the IPC, he should not
intend to the disappearance of the evidence. That the appellant and deceased were good friends
in the college they were usually seen together. On the incident day, they went to the Jhon
Kitchen which was one of their favourite places for them. Anjali saw the appellant and the
deceased together on that which is not indicated that the appellant had the intention to cause
harm to the deceased, they were friends they usually went to the restaurant for dinner. The
appellant and Vimal stop in an isolated area to smoke where Vimal has importedcigarettes
which they smoke together during a casual conversation between them which does not look at
all a disease one. But suddenly Vimal started to humiliate the appellant based on the due amount
even though the appellant requested time to return the amount when the family's financial
condition became stable Vimal started fighting with the appellant due to the sudden fight
appellant hit the Vimal with stones without knowing the consequences of the act. which
indicates that the appellant did not have any intention to cause death. However, the appellant
did not remove any evidence police found a cigarette from the appellant's residence which did
not indicate that the appellant disappeared from the evidence the cigarette was found by an
appellant resident. that the appellant and vimal smoked on that day and they usually smoked
that cigarette which is common to find that cigarette and that stone appellant hit the vimal also
not disappeared by the appellant, that stone also found out the crime spot. that indicates the
appellant did not try to remove the evidence even though the police did not find any material
evidence against the appellant.
Section 201 in The Indian Penal Code:
Causing disappearance of evidence of the offence, or giving false information to screen
offender.—Whoever, knowing or having reason to believe that an offence has been committed,
causes any evidence of the commission of that offence to disappear, to screen the offend•er
from legal punishment, or with that intention gives any infor•mation respecting the offence
which he knows or believes to be false; if a capital offence.—shall, if the offence

11 APPEAL (Crl), 2136 of 2010

which he knows or believes to have been committed is punishable with death, be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable
with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be
punished with imprison•ment of either description for a term which mayextend to three
years, and shall also be liable to fine; if punishable with less than ten years imprisonment.—
and if the offence is punishable with imprisonment for any term not extend•ing to ten years,
shall be punished with imprisonment of the description provided for the offence, for a term
which may extend to one-fourth part of the longest term of the imprisonment pro•vided for the
offence, or with fine, or with both. Illustration A, knowing that B has murdered Z, assists B in
hiding the body to screen B from punishment. A is liable to imprisonment of either description
for seven years, and also to fine. that the appellant didn't pre-meditated the incident and that
the act done by the appellant was an accident.
In Padmini Mahendrabhai Gadd v. State of Gujarat12, accused I and accused, 2 (wife of a
deceased victim) were living in an illicit relationship and in pursuit of the same, they committed
the murder of the deceased on the complainant ie, the brother-in-law of the deceased, the trial
Court convicted her under Section 201, IPC for allegedly shifting the dead body of deceased
and cleaning the place of offence thereby destroying the evidence and sentenced her to 2 years
imprisonment which was enhanced to seven years by the High Court of Gujarat.
On appeal, the Supreme Court noted that both the Courts below had convicted the appellant
without satisfying the ingredients of Sec. 201 of IPC and the conviction was based more on
surmises and conjectures and, therefore, it has to be set aside. Giving reasons, the Supreme
Court held that the appellant (accused) had declared her desire to have a divorce and as such
she did not have a mind to murder her husband at any point in time. Her silence while seeing
her husband being attacked by a knife and killed might have been due to fear of saving herself
and her children from further attack.
In the case of Palvinder Kaur, the Supreme Court made it clear that the evidence showed that
a person had died and his body was found in a trunk and discovered in a well and that the
accused had taken part in the disposal of the body but there was no evidence to show the cause
of his death or the manner of circumstances in which it came about, it was held that the accused
could not be convicted for an offence under this section. The ingredients of this section are as
follows:
1. Knowing or having reason to believe that an offence has been committed.
2. Causing the disappearance of any evidence of the commission committed, of that offence,
to screen the offender from legal punishment,
3. With the intention of screening, the offender from legal punishment gives any information
respecting the offence which he knows or believes to be false,
4. The accused must have either destroyed or caused the disappearance of the evidence about
the offence or intentionally given false information about it to save the real offender from being
punished, or

12 AIR 359 SCC 321

5. If the accused is charged with causing the disappearance of evidence or knowingly giving
false information about a serious offence having been committed by the person whom he is
trying to screen from punishment, it is for the prosecution to prove that the alleged offence is
punishable with a sentence of death or life imprisonment or with imprisonment for a term of
ten years.'
Knowing or having reason to believe that an offence has been committed conviction under this
section it must be proved that an offence, the evidence of which the accused is charged with
causing to disappear, has been committed and that the accused knew, or had sufficient
information to lead him to believe, that the offence had been committed.
The intention of screening the offender. -Under this section, the intention to screen the offender
must be the primary and sole object of the accused. The fact that the concealment was likely to
have that effect is inadequate Help rendered to conceal the crime. Where a person because of
fear did not interpose to prevent the commission of a murder but afterwards helped the
murderers in concealing the body, it was held that he was guilty of an offence under this section.
 II. THAT THE TRIAL COURT HAS CORRECTLY APPLIED THE TEST OF
PROVING FACTS ‘BEYOND ALL REASONABLE DOUBT
It is submitted before the Hon’ble Court that the evidence put by the prosecution-respondent
is insufficient to prove beyond reasonable doubt and there was no material evidence were
there to indicate that the appellant murdered intentionally and with full preparation is
inconsistent with the appellant's guilt. No circumstances have been established which proved
that the appellant had the intention or knowledge to cause the death.
To this extent, it is submitted that the totality of the evidence submitted by the respondent in
the present case signifies the surmises and conjectures in the judgment of the Trial Court
convicting the appellant. The circumstances relied upon by the respondent are not conclusive
and the guilt of the accused-appellant is not the only hypothesis that can be derived from the
evidence on record. Thus, it is contended that the chain of evidence remains incomplete and
there exists reasonable doubt in the chain of events and evidence alleged before the Trial
Court.
2.1 MOTIVE IS NOT ESTABLISHED ON THE PART OF THE APPELLANT
Motive induces a person to act in a certain way. It is recognised that motive alone is not
sufficient to impose criminal liability but remains a relevant factor in forming intention. But
in the instant case, no motive arises to cause the death of the deceased person, if we look into
the fact that the appellant was angry towards the deceased behaviour for repeatedly
demanding money when Ajay assured that he would return the money at the earliest and
jealously on account of coach Jignesh biased behaviour not for Vimal.
The testimonies of Mr Prem and coach Jignesh have stated that he never saw Vimal and Ajay
argue or fight with each other because they were good friends. Hence, the motive has not
been established to commit the murder.
An unsettled monetary transaction such as a debt between the deceased and the accused is not
sufficient to prove that a mental element existed to cause murder. Thus, under Section 8 of
the Indian Evidence Act 1872 (“IEA”), non-repayment of debt owed by the appellant to the
deceased is a non-relevant fact that formulates motive.
Coach Jignesh simply made a subjective assessment and comparison of the football skills of
the appellant and the deceased. He did not, however, in his testimony allude to any
resentment or animosity between the deceased and the appellant. On the contrary, both he and
the father of the deceased were deposed to the fact that the appellant and the deceased were
good friends and had never fought before. Therefore, any inference that there existed any
animosity or resentment between the appellant and the deceased due to the loan or football
thus indicating motive is uncorroborated and weak. On the other hand, no inference of motive
from the accused-appellant's confession can be drawn as the confession is in itself
inadmissible as established earlier. Thus, the evidence of motive is purely conjecture put forth
by the respondent and is uncorroborated by any independent evidence.
2.2 THE APPELLANT DID NOT HAVE MENS REA TO CAUSE DEATH
The intention makes up a part of the mens rea or mental element of an act and constitutes an
essential element of a crime and a central aspect of criminal liability." The burden of proving
the intention also lies on the prosecution." Presently, there is no evidence on record proving
that the appellant intended to cause the death of the deceased or had knowledge that the death
of the deceased is likely to be caused. The alleged confession of the appellant admitting to
having caused the death of the deceased with a heavy stone is inadmissible as established
earlier and cannot be relied upon to establish the intention of the appellant.
2.3 THE TESTIMONIES OF THE WITNESSES ARE NOT CREDIBLE
The identification evidence of a witness is admissible under Section 9 of the IEA. The
identification before the Trial Court has to be preceded by a Test Identification Parade
(“TIP”). The TIP assumes importance particularly if held within a reasonable time after the
commission of the offence. The testimony of a witness can be discarded or become
admissible on the ground that no TIP was conducted before the dock identification. Presently,
the accused-appellant was identified by three witnesses in the court. The testimonies of these
witnesses are not credible:
Testimonies of Ms Anjali and Prakash are not Admissible:
The accused-appellant picked up the deceased from his home and they went to John’s
Kitchen where they were seen by Ms. Anjali. When the accused is known to the witness and
is identified by the witness in Court, a TIP is essential as she was a long-serving waitress at
John’s Kitchen and it was the favourite eatery of the appellant and the deceased where he
usually goes whether she saw the parties or not, a TIP was essential in her case. The
appellant and the deceased left John’s kitchen and were spotted on the appellant’s bike by the
toll booth operator Mr. Vimal en route to the deceased’s home. Presently, Mr. Prakash
recalled seeing them because they were not wearing helmets it is not possible that he
correctly identified such a person so easily and confidently gave the statement that the
appellant caused the death of the deceased. Hence, it cannot be concluded that Mr Vimal had
a specific reason to remember the appellant. Hence, TIP was required in his case and the
credibility of these two witness testimonies can be suspected on the ground that a TIP was not
held. The supreme court in Musheer Khan v. State of M.P.13, states that the identification of
witnesses at the TI parade of the scooter and the accused persons was held to be not reliable
because their presence at the place of occurrence was itself doubtful and identification by the
main witness was also doubtful because he had a fleeing chance of looking at the run-away
hired criminals not belonging to the locality.
Mr Chirag's Testimony is not Credible:
Mr. Chirag was in a rush to get medicines for his son, his mental state as a worried and
stressed parent, could not have been sufficient for him to have gained an enduring impression
of the accused's identity. This is thus not a case where the occurrence took place in broad
daylight with the witness having an opportunity to notice the appellant's features. Thus, the
testimony of the witness is highly susceptible to errors and a miscarriage of justice.
Furthermore, the testimony of the witness that he saw two boys roughly' around the same age
as the deceased and appellant" is vague, at best, with no specific features identified. Given
the rise in crimes in Kanak Pradesh, it cannot be concluded from this that the only
possibility/hypothesis is that it must have been the appellant and the deceased and
consequently leaves room for doubt. The benefit of this doubt will be in the favour of the

13 Criminal Appeal No. 1180 of 2005

appellant. In such circumstances, it was necessary to conduct a TIP. The absence of the TIP
and the fleeting and difficult circumstances in which Mr Chirag alleges to have seen the
appellant cast serious doubt on the veracity of his testimony.
2.4 THE DECEASED WAS LAST SEEN WITH THE APPELLANT
The “last seen theory” is a legal theory where the accused is the last person seen with the
victim. The theory is not enough to convict someone of a crime and not strong enough as the
sole piece of evidence in murder cases if there are no other links to corroborate the theory.
This theory cannot function on the presumption that if the deceased was last seen in the
company of the accused right before his death, the accused is said to have caused the death.
Both the deceased and appellant were good friends and always seen together. Hence no
motive arose which caused death to the deceased.
2.5 THAT THE ACCUSED HAS NO INTENTION TO MURDER THE DECEASED
Intention is the purpose or design with which an act is done. In the present case, the post-
mortem report indicated that the deceased died as a consequence of a head injury. An injury
on the head of the deceased was suddenly caused when the deceased repeatedly demanded
money. The appellant assured that he could return the money as soon as possible but the
deceased could not listen to the facts and continuously provoked and humiliated the appellant
because of this a fight occurred between the deceased and the appellant which he was not
aware of his actions that it leads to death of the deceased.
Despite this, the witnesses cannot see the incident and have no material evidence to prove the
statement that the appellant caused death. Such as in the instant case, the injury on the head
occurred on sudden provocation implying that no intention to murder the deceased. To this
extent, it is established that the appellant has no intention of causing murder. Hence, the death
is accidental, not intentional.
In his deposition, the investigating officer stated that no independent witnesses were present
during the preparation of the memos. The Code of Criminal Procedure (‘CrPC’) provides that
the report on the recovery of a dead body and the memo on the recovery of an item seized
during a search under Section 174(1) and Section 100(4), (5) respectively, must be made in
the presence of two respectable inhabitants of the locality and search shall be made in the
presence of witness and list of things seized in the course of such search shall be prepared by
such officers, or other person and signed by such witnesses.
In the instant case, the investigating officer explained that no public persons were available
during the preparation of memos. The witnesses stated that it is a reasonable possibility that
no individual in the locality could make themselves available for this purpose. Public
witnesses may not be joined but the effort to join them must be there and the explanation of
the officer implies that there were attempts made to join independent witnesses but there was
no public person available given the lateness of the hour. Such a statement cannot be accepted
at all where according to section 100(5) of CrPC, stated that the search shall be made in the
presence of a witness. It is visible that at the time of preparation of the memorandum,
witnesses were avoiding the investigation because there is no reason that a witness could not
come late at night, he could save the deceased negligently and be so concerned about him.
The Supreme Court in Malak Khan v. Emperor14 and State v. Raijibhai15 observed that the
presence of the witnesses at a search is always desirable and their absence may weaken the
evidence.
Hence, the absence of independent witnesses during the preparation of the memos is
harmless. Consequently, the same would materially alter the credibility of the evidence.
2.6 THE RECOVERY OF PACK OF ‘LUCKY STRIKE’ CIGARETTES FROM
APPELLANT’S ROOM IS NOT RELEVANT
A fact is relevant under Section 8 of FEA if it demonstrates previous or subsequent conduct
about a fact in issue or relevant fact. Presently, the friendship between the appellant-accused
and the deceased has been established by the deposition of Mr. Prakash and Coach Jignesh. It
is common for good friends to share their goods and products and there is an implied consent
between friends to borrow from each other. Moreover, this act of sharing or exchanging
belongings could have happened at any point in the duration of their friendship.
On the night of the incident, the deceased and the appellant, on the appellant’s suggestion,
stopped in an isolated area a few blocks away from the deceased’s home to smoke cigarettes
It is a well-known fact that the deceased used to carry a rare and imported cigarette packet
called Lucky Strike. During the search conducted at the appellant’s residence, the Police
recovered this pack of Lucky Strike cigarettes which was found in the appellant's room
whereas, the deceased’s parents were not aware of his smoking habit and could not have
reasonably pointed out that the packet of Lucky Strike was not on the body of the deceased.
Such facts do not create any evidence, the deceased and appellant were good friends and they
shared things and smoked together was the night of the murder. The recovery of the cigarettes
in the possession of the appellant does not create any motive or not having intention to store
the cigarettes to hide any clues because at the incident, the appellant was not aware of it thus,
it cannot create any chain of evidence which establish the fact that the appellant has the
motive to cause the death of the deceased person.
It is submitted that the accused-appellant was wrongly convicted by the Trial Court under
Sections 302 and 201 of the Indivo Penal Code, 1860 (‘IPC’). The instant case where the
confession to police officers is not to be proved under section 25 of the Evidence Act. This
section clearly says that such a statement cannot be proved against any person accused of any
offence. This means that even if the accusation is after the statement, the statement cannot be
proved 16 . The principle upon the rejection of confession made to a police officer or confession
made by the accused 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 a
police officer is to avoid the danger of admitting a false confession17. The statement being not
a confession was received as evidence against him, as showing his presence on the spot and is
inadmissible in evidence18.

14
(1946) 48 BOMLR 132
15
Criminal Appeal No. 650 of 2006 with Criminal Appeal No. 8 of 2007
16
Bheru Singh v. State of Rajasthan (1994)2 SCC 467
17 Paulose v. State of Kerela, 1990 Cr LJ 108 Ker
18 Queen Empress v. Jagrup, (1885)7 ALL. 646
Section 164 of CrPC states that no confession shall be recorded by a police officer on whom
any power of a magistrate has been conferred under any law. During the Trial proceedings, the
respondent pleaded not guilty and had not proved the chain of circumstances that incriminated
the appellant beyond reasonable doubt and there was no material evidence were there to
indicate that the appellant murdered intentionally and with full preparation is inconsistent with
the appellant's guilt. Therefore, the conviction by the trial court and rigorous imprisonment for
life is completely irrelevant hence, the decision of the high court has been quashed according
to the following circumstances and substantial evidence was led by the appellant to indicate his
innocence, which further credited the case to the prosecution.
 PRAYER

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HONORABLE COURT
MAY BE PLEASED TO DECLARE THAT:
Set aside the impugned judgment/ order as further by the trial court of District Calicuta
convicting the Appellant under sections 299/300 and 201 of Indivo Penal Code on the ground
that:

1. Prosecution herein the respondent has failed to establish its case against the accused
beyond reasonable doubt.
2. The ingredients of an offence under section 299/300 and 201 of the Indivo Penal Code
is not made out.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT
IN THE INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.

All of which is humbly prayed,

Counsels for the Appellant.