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Table of Contents

List of Authorities ......................................................................................................2


Statement of Jurisdiction............................................................................................3
Statement of Facts ......................................................................................................4
Issues Raised ..............................................................................................................6
Summary of Arguments .............................................................................................7
Arguments Advanced.................................................................................................8
1. Whether confessions/ admissions made by the appellant in the complaint can
be used against the appellant and conviction can be based upon it or not?............8
2. What is the position where a part of the admission is Exculpatory and a part
Inculpatory? ..........................................................................................................12
Prayer .......................................................................................................................16

Memorial on behalf of Appellant Page 1


List of Authorities

Memorial on behalf of Appellant Page 2


Statement of Jurisdiction

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Statement of Facts

 Mr. Anil Kumar Nanda (Appellant), married to Mrs. Geeta Nanda d/o Mr' Kapil Arora in the
year l99l and was residing along with his wife and one children in Urban Estate' Ludhiana'. On
2nd January, 2001 she left her matrimonial home on account of some serious issues between her

and her husband. She returned to her matrimonial house in l3'r' March' 2002. Geeta was having

illicit relationship with Mr. Sunil Gupta, Childhood friend of Anil who she was knowing from
the proceedings against Anil herein before the concerned trial court and that even after the out of
Court settlement, Sunil used to frequently visit the house of appellant for meeting Geeta.

 One day where Anil returned to his house in evening after work, Geeta informed him that Sunil
would be coming to their house and on hearing this he was enraged. Following the same, he
picked up an empty barrel from his house and therefore, went to a nearby petrol pump buying 10
liters of petrol. At around 21:00 pm, Sunil came to his house and around 22:30 pm they all had
dinner. After finishing their dinner around I 1:30 pm Geeta slept in her room' Sunil slept in their
guest room. And Anil with his mother slept outside in the veranda of the house'. At around 3:00
am on 17th January, 2005, Anil heard sounds of whispering between his wife and Sunil Gupta.
Anil got enraged by it and when he peeped into the room he noticed that his wife and Sunil were
sleeping together in an objectionable position.

 In the same outrage, he even lit up the house after which both Geeta and Sunil woke up feeling
the inferno and they tried to run out of the room. However at that time the appellant threw petrol
on both of them and resultant effect being that both of them caught fire. On hearing their shouts,
residents from the neighborhood gathered at the house of appellant. On the basis of message
given by some resident' an ambulance and police arrived at the house of Anil Kumar Nanda.

 Anil hirnself went to Police Station Kundhan Puri Division No 4 and gave a complaint in this
regard. He told police officer about the whole incident and about the extra marital affair of his
with his friend Sunil. He gave lnculpatory statement that he bought petrol from nearby petrol
pump in rage of anger, he was present at home when fire took place, he did not want to kill them

Memorial on behalf of Appellant Page 4


but he was so much in anger that he set them on fire' Necessary investigation was carried out and
Anil was arrested. During the course of trial the prosecution had examined l5 witnesses. The
prosecution has also collected and relied upon several documentary evidence like the inquest
panchnama of deceased Geeta, inquest panchnama of deceased Sunil, panchnama of scene of
offence and FSL Report etc.

 Anil in Session Court retracted from all his statements that he made before police officer and
give an exculpatory statement in his favour that he did not commit murder of both Geeta and
Sunil' The court after recording the statement of Anil under section 313 ultimately.

 Anil's Advocate Mr. Yogendra Thakur learned counsel, submitted that the impugned judgment
and order passed by Court is bad in law and erroneous. He submitted that except the averment
made in the complaint regarding purchase of petrol, there is nothing on record to establish the
guilt of Anil. There was no person who saw the same incident from his/her eyes. The post
mortem report of both the deceased does not show the presence of any external injuries other
than those caused by bums.

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Issues Raised

 Whether confessions/ admissions made by the appellant in the


complaint can be used against the appellant and conviction can
be based upon it or not?

 What is the position where a part of the admission is


Exculpatory and a part Inculpatory?

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Summary of Arguments

A. Whether confessions/ admissions made by the appellant in the


complaint can be used against the appellant and conviction can be based
upon it or not?

B. What is the position where a part of the admission is Exculpatory and a


part Inculpatory?

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Arguments Advanced

1. Whether confessions/ admissions made by the appellant in the


complaint can be used against the appellant and conviction can be based
upon it or not?
It is humbly submitted that the confessions made by the appellant to the police officers are not
admissible and cannot be used against him and further, his conviction cannot be based upon the
same. The term confession has not been defined in the Evidence act so, the definition gives under
section 17 of the Act for admission, becomes applicable to confession also. A close scrutiny of
the sections 17 to 30 of the Act, discloses that the statement is the genus, admission is the species
and confession is the sub-species.1 The acid test which distinguishes a confession from an
admission is that when conviction can be based on a statement alone, it is a “Confession” and
where some supplementary evidence is required to authorize a conviction, and then it is
“admission”.2

The law relating to confession is to be found generally in sections 24 to 30 of the Evidence Act
and section 162 and 164 of code of Criminal Procedure. The meaning of the word “Confession”
is “as an acknowledgement of offence”.3 In order to amount a “confession” it must be a direct
admission or acknowledgment of his guilt. In India the definition generally accepted by the
courts was what had been propounded by Stephen;4 which is as followed:

“A confession is an admission made any time by a person charged with a crime stating or
suggesting an inference that he committed crime.”

It is also humbly submitted that Confessions may be divided into two classes namely- Judicial
and Extra-judicial. But in the case in hand, only type that needs to be considered is Extra-judicial
confession. Extra-Judicial confessions are those which are made by the party elsewhere than
before a Magistrate or in court. This term embracing not only express confession of crime but all
those admissions and acts of the accused from which guilt may be implied. As held in the case

1
Sahoo v. State of U.P. AIR 1966 S.C. 42.
2
Ram Singh v. State, All. L.J. 660 1958. All. C.R. 462.
3
Webster Dictionary.
4
Stpehen, J.F. : A Digest of the Law of Evidence 12th Ed. 21.

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Bhisheshwar Dhani Ram v. State,5 the Extra-Judicial confessions embrace those which are made
to private individuals as well as to the officers of justice such as constable police officers etc.

It is humbly submitted that confessions whether judicial or extra-judicial must be voluntary and
genuine and besides, should have some corroboration to be relied upon and to be the basis of a
conviction. Therefore, the circumstances under which the confession is made the manner in
which it is made the person to whom it is made are aspects to be borne in mind before acting on
a confession, particularly on a non-judicial confession. Two rules of caution are to be followed
as held by the Supreme Court in the case Wakil Nazek v. State of Bihar,6 before such action
namely:

 Whether the evidence of confession is reliable.


 Whether it finds corroboration.

As regards an extra-judicial confession the Supreme Court observed in Prabhakar Narayan


Upadhyaya v. State of Maharashtra7 that:

“It is true that the evidence of extra-judicial confession has to be scrutinized carefully and
received with great caution. In this connection the court would have to consider whether it was
natural for the accused person to have confided in and confessed to the person who is deposing
to the confession. The relationship of that person with the accused before the court is most
material and vital. Then against the court would have to consider what has been confessed and
whether the same is consistent with the facts about the incident as deposed to by the other
witnesses and discovered during the course of the police investigation. The scrutiny has to be
minute and great caution has to be exercised.”

Further it is put forth that Section 25 of the Indian Evidence Act, 1872 talks about confession
made to Police Officers and its admissibility plays a huge role in the instant case. Therefore, it is
important to understand section 25, which states that:

“No confession made to a police officer shall be proved as against a person accused of any
offence.”

5
(1963) ILJ 645.
6
1972 Cr. L.J. 566.
7
(1971)LXXIV Bom. L.J. 299.

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The only reasons for exclusion of confession to police-If confessions to police were allowed to
be proved in evidence, the police would torture the accused and thus force him to confess to a
crime which he might not have a committed. A confession so obtained would naturally be
unreliable. It would not be voluntary. In Niranjan Singh v. Prabhakar Rajaram8 the Supreme
Court emphatically observed that, "The police instead of being protector of law, have become
engineer of terror and panic putting people into fear."

Taking support from a decision of this Court in Aghnoo Nagesia Vs. State of Bihar9, it becomes
quite clear that “a confession made to a police officer under any circumstances is not admissible
in evidence against the accused. It covers a confession made when the accused was free and not
in police custody, as also a confession made before any investigation has begun”.

In State of Punjab Vs. Barkat Ram10, it is contended that the confession made to any member of
the police, of whatever rank and at whatever time, is inadmissible in evidence as per Section 25
of the Evidence Act. The impugned judgement is based only on conjectures and surmises and not
on any cogent and reliable evidence. It is settled principle of law that statements made by an
accused before police official which amount to confession is barred under Section 25 of the
Indian Evidence Act.11

The policy underlying behind sections 25 and 26 is to make it a substantive rule of law that
confessions whenever and wherever made to the police, or while in the custody of the police to
any person whomsoever unless made in the immediate presence of a Magistrate, shall be
presumed to have been obtained under the circumstances mentioned in section 24 and, therefore,
inadmissible, except so far as is provided by section 27 of the Act.12

Bar of inadmissibility is also created by section 162 and operates not only on statements of
witnesses but also on statements of accused made to the police officer. Reliance was placed by
the prosecution upon the statements alleged to have been made by accused in the Police custody
or in the presence of police. Such statements are legally not admissible in evidence and cannot be
used as substantive evidence. According to section 162 of the Code of Criminal Procedure, no

8
(AIR 1980 SC 785)
9
(1966) 1 SCR 134
10
(1962) 3 SCR 338
11
Pawan Kumar @ Monu Mittal vs State Of U.P. & Anr, AIR 2015 SC 2050
12
Commr. Of Police, Delhi vs. Narender Singh, AIR 2006 SC 1800

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statement made by any person to a Police Officer in the course of an investigation shall be signed
by the person making it or used for any purpose at any enquiry or trial in respect of any offence
under investigation at the time when such statement, was made. It is also well established that the
bar of inadmissibility operates not only on statements of witnesses but also on those of the
accused13

In Alok Nath Dutta. vs. State of West Bengal14, the Supreme Court noticed the law in regard to
the effect of a confessional statement sections 24 to 30 deal with of the accused in the following
terms confession. . Section 24 speaks of the effect of a confession made by an accused through
inducement, threat or promise proceeding from a 'person in authority'. Whereas section 25 and
section 26 deal with situations where the 'person in authority' is police. It is an institutionalized
presumption against confession extracted by police or in police custody. In that frame of
reference, section 24 is the genus and sections 25 and 26 are its species. The policy underlying
behind sections 25 and 26 is to make it a substantive rule of law that confessions whenever and
wherever made to the police, or while in the custody of the police unless made in the immediate
presence of a magistrate, shall be presumed to have been obtained under the circumstances
mentioned in section 24 and, therefore, inadmissible, except in so far as is provided by section 27
of the Act.15

Section 27 appears to be based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true and
accordingly it can be safely allowed to be given in evidence. It does not, however, mean that any
statement made in terms of the aforesaid section should be seen with suspicion and it cannot be
discarded only on the ground that it was made to a police officer during investigation. The Court
has to be cautious that no effort is made by the prosecution to make out a statement of accused
with a simple case of recovery as a case of discovery of fact in order to attract the provisions of
sections 27 of the Evidence Act.16

Therefore, in the instant case, though he made an inculpatory statement to police but looking at
the statement carefully, firstly he had never confessed to setting the place on fire to police and

13
Narayan Swami v Emperor AIR 1939 PC 47
14
2006 (13) SCALE 467
15
Bishnu Prasad Sinha v State of Assam AIR 2007 SC 848
16
GeejagandaSomaiah v State of Karnataka AIR 2007 SC 1355

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secondly assuming arguendo, even if he did, as stated earlier that the confession made to police
are not admissible as enshrined under section 25 of the Indian Evidence Act, 1882. The instant
case also does not draw’s the exceptions of the section 27 as on the basis of that confession
nothing materialistic has been discovered. Moreover, the evidences that have been relied upon
also do not establish the guilt of the appellant. Even the post mortem reports suggests towards no
external injuries and there has been no eye witness as well providing conclusive evidence for the
appellant to be convicted.

Therefore, in the end the counsel would just like to state that in the light of arguments raised and
authorities cited, the confession made by the appellants are not admissible and cannot become
the base for his conviction.

2. What is the position where a part of the admission is Exculpatory and a


part Inculpatory?
It is humbly submitted that before understanding the concept of exculpatory and inculpatory
statements, we need to realize the and understand the actual meaning of admission and
confession as enshrined under the Evidence act, 1882.

Admission, as defined under section 17 of The Indian Evidence Act, 1872 as:

“An admission is a statement, oral or documentary or contained in electronic form, which


suggests any inference as to any fact in issue or relevant fact, and which is made by any of the
persons, and under the circumstances hereinafter mentioned.”

Admissions are statements that attach a liability, as inferred from the facts in issue or relevant
facts, to the party who made such statements; the statement, denouncing any right, should be
conclusive and clear, there should not be any doubt or ambiguity. This was held by the Supreme
Court in Chikham Koteswara Rao v C Subbarao17. They are only prima facie proof and not
conclusive proof.

Whereas on the other hand, confession is nowhere defined under the act and it occurs under the
heading ‘admission.’ The definition of ‘admission’ under Section 17, hence, becomes applicable

17
(AIR 1981 SC 1542)

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for Confessions. In terms of the act, a relevant statement made in a civil case is an admission and
an admission made in a criminal case is a confession.

In Palvinder Kaur v State of Punjab18 the Supreme Court upheld the decision of the Privy
council in Pakala Narayan Swami v Emperor19 and cited two points: confession must either
admit the guilt in terms or admit substantially all the facts and secondly, a mixed up statement,
containing confessional statements which will lead to acquittal is no confession. The court
cannot remove the exculpatory part out of a statement and deliver a decision on the basis of the
inculpatory part of the statement.

Now let’s discuss both inculpatory and exculpatory statements. Inculpatory evidence is evidence
that establish the guilt of an accused. It indicates that a defendant committed a crime. Inculpatory
evidence shows, or tends to show, a defendant's involvement in an act. In criminal law, evidence
that favors the prosecution's case is called the inculpatory evidence. On the contrary, exculpatory
evidence indicates the innocence of the accused.

A self-exculpatory statement obviously cannot amount to a confession. It has been held in Pati
Soura v. State20 that a statement that contains self-inculpatory matter does not amount to
confession if the exculpatory part relates to some fact which if true would negative the offence
alleged to be confessed”. The court is of view in Kanayalal Chamanlal v. State of Gujrat21 that a
statement which when read as a whole is of an exculpatory character and in which prisoner
denies his guilt is not a confession and cannot be used in evidence to prove his guilt. A fully self-
inculpatory statement admitting all ingredients of the offence would on the other hand be a clear
confession. The difficulty arises only in case of statements which are partly selfexculpatory and
partly inculpatory.

The hon’ble Supreme Court cleared the stance taking help from the decision in Palwi Narain
Swamy’s case and reiterating the same the hon’ble Supreme Court held in Hanumant Govind
Nargendkar v. State of M.P22 that an admission must be used as a whole or not at all. It is not
open to the court to split up and use an admission as to a fact in corroboration of the prosecution

18
(1953 SCR 94)
19
(AIR 1939 PC 47)
20
(1970)36 Cut. LT 774
21
1970 Cr. L.J. 54 (Guj).
22
1952 SCR 1091.

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case and to ignore an explanation given in the course of the same statement as to an admitted
fact. A similar was the view was also expressed by the Allahabad High Court in the case of
Emperor v. Balmukund23, where the hon’ble Allahabad High Court laid down 2 tests for the
courts to follow and which have proved to be of great help in the cases to come. These tests are
as followed:

 Where there is other evidence, a portion of the confession may in the light of that
evidence; be rejected while acting upon the remainder with the other evidence; and
 Where there is no other evidence and the exculpatory element is-not inherently
incredible, the court cannot accept the inculpatory element and reject the exculpatory
element.

According to the Full Bench of the Allahabad High Court the two rules above stated had been
applied during the last one hundred years and the Full Bench answered the reference by holding
"where there is no other evidence to show affirmatively that any portion of the exculpatory
element in the confession is false, the court must accept or reject the confession as a whole ,and
cannot accept only the inculpatory element while rejecting the exculpatory element as inherently'
incredible."

The view was further endorsed by the Supreme Court in Palvinder Kaur v. State of Punjab24, as:

“It is not open to the court to accept only the inculpatory part of the statement of the
accused and at the same time to reject the exculpatory part of explanatory part as inherently
false and incredible.”

However, the Supreme Court found no fault in Nishikant Jha v. State of Bihar25 with the High
Court accepting the exculpatory part of the statement and rejecting the inculpatory part on the
ground that it was not only inherently incredible, but was contradicted by other evidence in the
case. Thus it was a matter of appreciation of evidence and not of admissibility of the statement.
The statement if not hit by the provisions of Evidence Act should be admitted in evidence and
both parts must be open to scrutiny of the court at the time of appreciation of evidence.

23
ILR 1930 All 1011.
24
1953 SCR 94.
25
1962 (2) SCR 1033.

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It is humbly submitted that this is now the settled law according to the judgment passed in
Bhagwan Singh v. State of Haryana26 that it is permissible to believe a part of a confessional
statement and to disbelieve another and that is enough if the whole of the confession is tendered
in evidence so that it may be open to the court to reject the exculpatory part and to take the
inculpatory one into consideration if there is other evidence to prove its correctness.

In the end, it is clear from the authorities cited that both the parts cannot be separated when it
comes to appreciation of evidence an in such cases, the statements have to be observed as a
whole irrespective of the inculpatory or the exculpatory part of that statement.

26
AIR 1976 SC 1797

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Prayer

Wherefore in the light of facts of the case, arguments advanced and authorities cited, it is most
humbly prayed before the Hon’ble Court that it may be pleased to hold, adjudge and declare-

 The Confession/ Admission is not admissible and cannot be the base for appellants
conviction.

 Both the inculpatory and exculpatory parts be read as a whole.

And/or any other relief that this Hon’ble Court may be pleased to grant in the interest of justice,
Equity and Good conscience.

And in these premises the Appellant as duty bound shall forever pray.

Counsels on behalf of Appellant

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