TC - 09

ICFAI UNIVERSITY, DEHRADUN

VIII INTRA MOOT COURT COMPETITION - 2018

BEFORE THE HON’BLE HIGH COURT OF PUNJAB AND

HARYANA

Vijay and Ors.

(APPEALLANT)

v.

State of Punjab and Haryana

(DEFENDANT)

PETITION INVOKED UNDER SEC.374 OF

THE CODE OF CRIMINAL PROCEDURE, 1973

___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE HIGH COURT OF PUNJAB AND
HARYANA

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

PETITIONER TC-09

TABLE OF CONTENTS

Table of contents……………………………………………………………………..1
Index of abbreviations…………………………………………………………….....2
Index of authorities………………………………………………………………….3
Statement of jurisdiction……………………………………………………………6
Statements of facts…………………………………………………………………...7
Statement of issues…………………………………………………………...……...9
Summary of arguments………………………………………………………………10
Arguments advanced…………………………………………………………………11
Prayer…………………………………………………………………………………24

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PETITIONER TC-09

INDEX OF ABBREVIATIONS

& And

A.I.R All India Reporter

Art. Article

Cr.P.C. Code of Criminal Procedure

Hon’ble Honorable

Hrs. Hours

IEA Indian Evidence Act

Ltd. Limited

Ors. Others

r/w Read with

SC Supreme Court

SCC Supreme Court Cases

Sec Section

u/s Under Section

Cri Criminal

LJ Law Journal

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PETITIONER TC-09

INDEX OF AUTHORITIES

ACTS AND STATUTES

1. INDIAN PENAL CODE, 1860
2. THE CODE OF CRIMINAL PROCEDURE, 1973
3. THE INDIAN EVIDENCE ACT, 1872
4. THE CONSTITUTION OF INDIA 1950

BOOKS
1. Dr. J. N. Pandey, The Constitutional Law of India, 45 th Ed., Central Law Agency,
2008 Kolkata, 2009
2. Prof. S.N. Misra , The Code Criminal Procedure, 1973 , 20 th edition , Central Law
Publication
3. Indian Penal Code by Ratanlal and Dhirajlal, 2017edn
4. Batuk Lal, , The Law of Evidence , 20th edition , Central Law Agency
5. Prof. S.N. Misra , Indian Penal Code , 20th edition , Central Law Publication

LIST OF JOUNALS
1. All India Reporter(AIR)
2. Supreme Court Reporter (SCR)
3. Supreme court cases(SCC)

LEGAL DATABASE
1. Manupatra
2. SCC Online
3. Westlaw

CASES

Ajay Aggarwal v. Union of India 1993Cri LJ 2516 (SC)

Amit v. State of U.P. AIR 2012 SC 1433

Bhiva Doula Patil v. State of Maharashtra, AIR 1963 SC 599

Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 S.C. 599

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Brij Mohan v. State of Rajasthan AIR 1994 SC 739

C. Muniappan v. State of Tamil Nadu AIR 2010 SC 3718

George v. Joseph (1953) Tra 607

Heera v. State of Rajasthan AIR 2007 SC 2425

Husaniya v. Emperor, AIR 1936 Lah 380

Kishore Chand v. State of Himachal Pradesh, Air 1990 SC 2140

Lakshmi Ram v. State of Punjab, AIR1967 S.C. 792

Mahabir v. State of Bihar AIR 1972 SC 1331

Major E.G. Warsey v. State of Bombay, AIR 1961 SC 1762

Nagu Jhalla v. Emperor, 36 IC 480

Nirmal Kumar v. State of U.P. (AIR 1992 SC 1131)

Nirmal Singh v. State of Punjab AIR 2009 SC 984

Pakala Narain Suram v. Emperor, AIR 1939 PC 47

Paulose v. State of Kerala, 1990 Cr. L.J. 108 Ker.

Piara Singh v. State of Punjab, AIR 1969 S.C. 961

Proush Kumar v. King AIR 1951 Cal. 475

Qubec Railway Light Heat & Power Co. Ltd. v. Wendry AIR1900 PC 181

Ram Babu v. State of U.P. AIR 2010 SC 2143

Ram Krishana v. State of Bombay AIR 1955 SC 104

Ramdeo Rai Yadav v. State of Bihar AIR 1993 1780

Rameshwar v. State of Rajasthan, AIR 1954 SC 45

Rashid Gafoor Parker v. State of Maharashtra

Rattiram v. State of M.P. through inspector of Police 2012 SC 1485

Razik Ram v. J.S. Chouhan, AIR 1975 SC 667

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Sahib Singh v. State of Punjab [ (1996) 11 SCC 685]

Saravanabhavan v. State of Madras, AIR1966 S.C.1273

Satpaul v Delhi Administration AIR 1976 SC 294

State of Punjab v. Bhajan Singh (AIR 1975 SC 258)

State of U.P. v. Sukhpal Singh, AIR 2009 SC 1733

State of U.P. v. Vyas Tiwari, 1981 Cr. L.J. 38 (S.C.)

Sukhram v. State of Himachal Pradesh 2016

Tellu v. State, 1988 Cr L.J. 1063 (Delhi)

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STATEMENT OF JURISDICTION

Before the hon’ble High Court of Punjab and Haryana U/S 374 of Cr.P.C

The Honorable High Court of Punjab and Haryana has the jurisdiction in this matter u/s 374
of the Code of Criminal Procedure which read as follows:

“Appeals from convictions.

1. Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
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  2 has been passed against him or against any other person
convicted at the same trial], may appeal to the High Court.
3. Save as otherwise provided in sub- section (2), any person,-
a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge
or Magistrate of the first class, or of the second class, or
b) sentenced under section 325, or
c) in respect of whom an order has been made or a sentence has been passed under
section 360 by any Magistrate, may appeal to the Court of Session.”

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STATEMENT OF FACTS

 In one of a branch of ICICI bank at Amritsar, on 15.01.2009 at around 11:00 A.M. the
cash van of the bank came. It was driven by Gurmeet Singh with an armed guard,
Karun, containing Rs. 37 Lakh cash in Black steel box. When the guard took steel box
out of the van, suddenly a black Indica car of registration no. PB02-H-1706 came.
Two persons came out of the car started firing, one shot hit the guard who fell down
on the ground and two persons took the cash and ran away.
 On 16.01.2009. F.I.R was registered and police found the Indica car parked in a
village about 50 kms. from Amritsar on highway.
 On search of the car, there found two SIM card covers of Airtel, which had phone
numbers written on it.
 When the details of numbers were asked, those were belonged to Vijay and Sanjay of
Delhi. Both were arrested on 17.01.2009.
 On the basis of Technical Input the given Airtel no. were found in the Local Area
Network of Delhi on15.01.2009.
 Upon examination of mobile phones and call record details it was found that from
14.01.2009 till the arrest, 70 calls were made by Vijay to Sanjay and 60 calls were
made from Sanjay to Vijay. And both have three common numbers dialed from both
of them.
 Upon the verification the numbers belonged to Punjab, the two numbers were
belonged to Vicky and Sunny of Amritsar and the other belonged to Krishna of
Jalandhar
 All three were arrested. Upon interrogation statement of Vicky was recorded, who
upon police request became police approver, as police authorities assured that he
could escape the punishment.
 In his statement Vijay and Sanjay were masterminds. Sunny, Krishna and Gopi were
the persons who committed Dacoity at Amritsar. Sunny fired the guard, Krishna took
the cash and handed to Gopi who ran away with cash. Despite best efforts Gopi could
not be arrested and was declared a Proclaimed Offender.
 From, the search of the house of Sunny, a country made pistol revolver was recovered
which was sent for Ballistic Examination. The report confirmed that the bullet

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PETITIONER TC-09

recovered from the guard was fired from the revolver. From the search of house of
Krishna, few photographs of the locality in which the bank is situated were recovered.
 Upon the arrest, identification parade was conducted by the police authorities in
absence of any independent person or any judicial magistrate and only Krishna,
Sunny, Vijay and Sanjay participated in the identification parade. The guard identified
Krishna and Sunny.
 The F.I.R was registered under section 397/307/120-B of Indian Penal Code, 1860.
 On the basis of the above facts and circumstances of the case and testimony of the
approver and other evidences, the district and session court held Vijay, Sanjay, Sunny,
and Krishna liable for rigorous imprisonment of 10 years and fine of Rs.10,000 each.
Vicky being the approver, cooperated during the proceedings, shall be granted
imprisonment of 6 years.

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PETITIONER TC-09

STATEMENT OF ISSUES

1. WHETHER CHARGES IMPOSED UPON THE ACCUSED PARTY UNDER

SECTION 397/307 AND 120B ARE VALID?

2. WHETHER THE IDENTIFICATION PARADE CONDUCTED BY THE

AUTHORITIES IS VALID OR NOT?

3. WHETHER THE TRAIL CONDUCTED WAS FAIR TRAIL OR NOT?

4.

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PETITIONER TC-09

SUMMARY OF ARGUMENTS

1. Whether the charges imposed upon the accused party under section 397/307
and 120B are valid?

It is humbly contended before this Hon’ble Court that the accused Sanjay and Vijay are
not liable of offence under section 120- B of IPC 1860. It has been wrongfully alleged
that the accused has committed Criminal Conspiracy.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.
2. Whether the identification parade conducted by the authorities are valid or
not?

It is humbly contented before the hon’able high court that identification parade
conducted in the case is not valid. Since it is done by the police authority in the absence
of any independent person or judicial magistrate. Identification Parade in the presence
of the Judicial Magistrate increases the reliability of the evidence and it can be used for
the corroboration or contradiction purposes. Therefore the identification done by the
guard cannot be even used as a corroborative evidence in court of law since the
reliability of the test conducted in the given case can not be held in its true sense.

3. Whether the trail conducted was a fair trail?

As per Art.21 of the Indian Constitution which provides for the protection of life &
personal liberty implies the concept of Fair Trail. It is clear that there are certain lacuna
in the investigation process since the investigation is unfair then trial cannot be fair as
fair investigation is an integral part of fair trial.

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PETITIONER TC-09

ARGUMENT ADVANCED

1. WHETHER CHARGES IMPOSED UPON THE ACCUSED PARTY UNDER

SECTION 397/307 AND 120B ARE VALID?

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

PUNISHMENT FOR CRIMINAL CONSPIRACY

2

Ajay Aggarwal v. Union of India 1993Cri LJ 2516 (SC)

3

(2008) 4 Cri L.J. 3872 (S.C.)

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PETITIONER TC-09

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 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
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 (1983) 85 BOMLR 35

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PETITIONER TC-09

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.
8
Unless it is made before a magistrate. The proper construction of Section 25and 26 is one
which excludes confessions to a 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.

Kishore Chand v. State of Himachal Pradesh, Air 1990 SC 2140

9

Mahabir v. State of Bihar AIR 1972 SC 1331

10

Satpaul v Delhi Administration AIR 1976 SC 294

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PETITIONER TC-09

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.

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.
11

State of Punjab v. Bhajan Singh (AIR 1975 SC 258)

12

Search by police officer

13

Persons in charge of closed place to allow search

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PETITIONER TC-09

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 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)

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PETITIONER TC-09

2. WHETHER THE IDENTIFICATION PARADE CONDUCTED BY THE

AUTHORITIES IS VALID OR NOT?

It is humbly contented before the hon’able high court that identification parade conducted in
the case is not valid. Since it is done by the police authority in the absence of any
independent person or judicial magistrate.

Sec. 9 of Indian Evidence Act 1872 provides for the fact which establish the identity of an
accused are relevant. Identification Parade belongs to investigation stage and if adequate
precautions are ensured, the evidence with regard to test identification parade may be used by
the court for the purpose of corroboration. The purpose of test identification parade is to test
and strengthen trustworthiness of the substantive evidence of a witness in a court. It is for this
reason that test identification parade is held under the supervision of a magistrate to eliminate
any suspicion or unfairness and to reduce the chances of testimonial error as magistrate is
expected to take all possible precaution17.Moreover it is clearly stated in the preposition that
identification parade was conducted by police authorities in absence of any independent
person or any judicial magistrate.

In the case of dacoity and murder, the trial court and the appellate court placed much
importance on the evidence of identify of accused and convicted the accused; the Supreme
Court held that until the exceptional circumstances are not proved the S.C. will not revalue
the evidence because to give the importance of such kind of witness is subject matter of court
of fact. In these circumstance due to lack of revaluation of fact the conviction of the accused
is confirmed. 18

Recently Sec. 54A was introduce in Cr.P.C 1973 to meet this situation according to which the
court can direct arrested person for identification parade on the request of the investigation
police officer. Sec54A of Cr.P.C 1973 provides that where a person is arrested on a charge of
committing an offence and his test identification by any witness is considered necessary by
any court having jurisdiction it shall be lawful for an Executive Magistrate acting at the
instance of such court to hold test identification of person arrested.

17

Ram Babu v. State of U.P. AIR 2010 SC 2143

18

Ramdeo Rai Yadav v. State of Bihar AIR 1993 1780

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PETITIONER TC-09

Test Identification Parade is meant to test the veracity of the witness and his capacity to
identifynunknown persons. Test Identification Parade is not necessary where all the state that
they otherwise know accused persons and they are not strangers to them and in the moonlight
and lantern, they clearly identify them19. The evidence of Test Identification Parade is not a
substantial evidence. It has only corroborative value20. Therefore much importance is given to
the Identification Parade as they assist in corroborating evidence. In the cases where the FIR
is lodged against the unknown person the question of identity assumes paramount importance
necessary for the investigation authority for conducting the Identification Parade in the
presence of Magistrate. In case of dacoity the accused person were to be produced before
magistrate Baparda for the remand and put on test identification parade within 24 hrs. of their
arrest21.

The purpose of the test identification parade is that “The identification proceedings
are in the nature of tests and significant, therefore, there is no provision for it in the code22
and evidence conducted as soon as after the arrest of accused this become necessary to
eliminate the possibility of the accused being shown to the witnesses prior to the test
identification parade. This is a very common plea of the accused and, therefore, the
prosecution has to be cautious to ensure that there is no scope for making such allegation. If,
however, circumstances are beyond control and there is some delay, it cannot be said to be
fatal to the prosecution.”23

The important aspect of the Test of Identification Parade is that police officer should
not be present at the time of identification parade, whether it is of the accused or of the
properties. If it is conducted in the presence of police officer, it amounts to a statement

19

State of U.P. v. Sukhpal Singh, AIR 2009 SC 1733

20

C. Muniappan v. State of Tamil Nadu AIR 2010 SC 3718 ; Amit v. State of U.P. AIR 2012 SC 1433
21

Brij Mohan v. State of Rajasthan AIR 1994 SC 739

22

The Code of Criminal Procedure, 1973

23

Heera v. State of Rajasthan AIR 2007 SC 2425

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PETITIONER TC-09

within the meaning of Sec. 162 Cr.P.C, and becomes inadmissible in evidence and cannot be
then used for the purpose of corroboration24.

Sec. 162 Cr.P.C states that Statements to police not to be signed: Use of statements in
evidence.

(1)  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
provided, at any inquiry or trial in respect of any offence under investigation at the time
when such statement was made: Provided that when any witness is called for the prosecution
in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part
of his statement, if duly proved, may be used by the accused, and with the permission of the
Court, by the prosecution, to contradict such witness in the manner provided by section 145
of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so
used, any part thereof may also be used in the re- examination of such witness, but for the
purpose only of explaining any matter referred to in his cross- examination.
(2)  Nothing in this section shall be deemed to apply to any statement falling within the
provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to
affect the provisions of section 27 of that Act. Explanation.- An omission to state a fact or
circumstance in the statement referred to in sub- section (1) may amount to contradiction if
the same appears to be significant and otherwise relevant having regard to the context in
which such omission occurs and whether any omission amounts to a contradiction in the
particular context shall be a question of fact.
The object of Sec. 162 is to impose a general bar against the use of a statement made before
the police except for the limited purpose set out in the provisio.25 It was intended to protect
the interest of the accused. However, under this section bar is only in the relation to the
statement made before the police. If the statement is made before an office, who is not a
police officer , viz. an officer of the Railway Protection Force making an inquiry under

24

Ram Krishana v. State of Bombay AIR 1955 SC 104

25

Tellu v. State, 1988 Cr L.J. 1063 (Delhi)

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PETITIONER TC-09

section 8(1) of the Railway Property Act, 1966, the ban imposed under this section shall not
come into operation.26 The statement provided to the police is hit by the sec. 162 and is
inadmissible evidence. Even a statement of a witness recorded by the investigators during the
inquest under section 174 would be within the inhibition of section 162. It cannot be used as a
substantive piece of evidence.27 So it can be construed that Identification Parade conducted
by the police authorities is not admissible. In the case Proush Kumar v. King 28 it was held
that “no police officer should be present in the vicinity where Test Identification Parade is
conducted. Police officer should not accompany identifying witness even for sometime prior
to Test Identification Parade”
Where nothing was elicited in the cross examination in order to hold that the whole of the
Test Identification Parade was not conducted in the manner, it was to be held and the
identification of the appellant was not proved in the manner known to law and such
identification was to be proved to the satisfaction of the court, there was nothing more to be
proved about the manner in which it was held or to find any flaw in the holding of the Test
Identification Parade29. Lexicon to the preposition the Identification Parade was conducted
by the police authorities is not in the manner as prescribed by the law and therefore
identification done by the guard in the absence of any judicial magistrate does not stand as an
evidence in the court of law. Conducting the Test Identification Parade in the presence of the
Judicial Magistrate increases the reliability of the evidence and it can be used for the
corroboration or contradiction purposes.30 Therefore the identification done by the guard
cannot be even used as a corroborative evidence in court of law since the reliability of the test
conducted in the given case cannot be held in its true sense.

26

State of U.P. v. Vyas Tiwari, 1981 Cr. L.J. 38 (S.C.)

27

Razik Ram v. J.S. Chouhan, AIR 1975 SC 667

28

AIR 1951 Cal. 475

29

Subhash Kumar v. State of Goa, AIR 2012SC 3003

30

R. Shaji v. State of Kerala (2013) 14 SCC 266

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PETITIONER TC-09

3. WHETHER THE TRAIL CONDUCTED WAS FAIR TRAIL OR NOT?

It is humbly contented before the hon’able court that the appellant was not provided with a
fair trial. As per Art.21 of the Indian Constitution which provides for the protection of life &
personal liberty implies the concept of Fair Trail. Conducting fair trial for those who are
accused of criminal offences is cornerstone of democracy. A fair trail is the heart of criminal
jurisprudence and in a way important facet of a democratic polity that is governed by rule of
law.31

Lexicon to the preposition there are certain lacuna in the investigation process and the court
relying on that information gives the judgment. For instance, when the police recover two
SIM cards with covers of Airtel, which had Phone no. written on it. The police authority
immediately called local Airtel office and asked them about the details of the mobile numbers
but they did not verify the SIM, which was recovered in the cover of Airtel, to whom they are
issued.

Therefore, it can be interpret that the investigation was not fair. In Nirmal Singh Kahlon v.
State of Punjab,32 the court has held that fair trail includes fair investigation. Fair
investigation and fair trail are concomitant to preservation of fundamental right of an accused
under Art.21 of the constitution.

As per given in the preposition that when Vicky on assurance of police that he will be able
escape the punishment, becomes approver and his punishment also reduced. Mere becoming
police approver does not mean he will be able to escape punishment, as approver is an
accomplice who is tendered pardon by the court on the condition making full and true
disclosure of the whole circumstances of the case. Approver has been dealt with under the
31

Rattiram v. State of M.P. through inspector of Police 2012 SC 1485

32

AIR 2009 SC 984

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PETITIONER TC-09

provisions of sec.306 of Cr.P.C. He is known under Cr.P.C as an accomplice to whom the

court grants the pardon. Sec 306 of Cr.P.C. is as follows:

(1)  With a view to obtaining the evidence of any person supposed to have been directly or
indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial
Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or
the trial of, the offence, and the Magistrate of the first class inquiring into or trying the
offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition
of his making a full and true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person concerned, whether as principal
or abettor, in the commission thereof.
(2)  This section applies to-
a) any offence triable exclusively by the Court of Session or by the Court of a Special
Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 );
b) any offence punishable with imprisonment which may extend to seven years or with a
more severe sentence.
(3)  Every Magistrate who tenders a pardon under sub- section (1) shall record-
a) his reasons for so doing;
b) whether the tender was or was not accepted by the person to whom it was made, and
shall, on application made by the accused, furnish him with a copy of such record
free of cost.
(4)  Every person accepting a tender of pardon made under sub- section (1)-
a) shall be examined as a witness in the Court of the Magistrate taking cognizance of
the offence and in the subsequent trial, if any;
b) shall, unless he is already on bail, be detained in custody until the termination of the
trial.
(5)  Where a person has, accepted a tender of pardon made under sub- section (1) and has
been examined under sub- section (4), the Magistrate taking cognizance of the offence shall,
without making any further inquiry in the case,-
a) commit it for trial-
i. to the Court of Session if the, offence is triable exclusively by that Court or if the
Magistrate taking cognizance is the Chief Judicial Magistrate;
ii. to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952
(46 of 1952 ), if the offence is triable exclusively by that Court;

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b) in any other case, make over the case to the Chief Judicial Magistrate who shall try
the case himself.
But in the given case Vicky has neither disclose the full and true facts as he didn’t
mention about his role in the offence nor the liberty given to him in punishment was
tendered by court but police authorities assured him. Ordinarily a court must seek
corroboration of evidence of an approver before convicting a person that evidence. The
court must satisfy itself that the statement of the approver is credible in itself & then it
must seek the corroboration of the approver’s evidence with respect to the part of the
accused person in the crime. The appreciation of the approver’s evidence must satisfy
double test, i.e., his evidence must show that he is a reliable witness and then his
evidence, must receive sufficient corroboration. 33 Where there are more accused than
one, accomplice evidence must be corroborated in respect of all them.34 However,
corroboration in respect of every portion of statement and in all details is not necessary.
All that is required is that there must be some additional evidence rendering it probable
that the story of the accomplice is true and that it is reasonably safe to act upon it.35 An is
undoubtedly a competent witness but the courts are reluctant to act on such evidence
unless it is corroborated in material particulars by other independent evidence.36 To base
a conviction merely on accomplice evidence is not illegal,37 but there must be its
corroboration in material particulars.38
Therefore relying on Vicky statement does not hold in its true sense and not act as neither
a corroborative evidence nor a substantive evidence in court of law.

33

Saravanabhavan v. State of Madras, AIR1966 S.C.1273; Lakshmi Ram v. State of Punjab, AIR1967 S.C. 792
34

Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 S.C. 599

35

Rameshwar v. State of Rajasthan, AIR 1954 SC 45

36

Piara Singh v. State of Punjab, AIR 1969 S.C. 961

37

Bhiva Doula Patil v. State of Maharashtra, AIR 1963 SC 599

38

Major E.G. Warsey v. State of Bombay, AIR 1961 SC 1762

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Another inference of unfair trail is that the court declared Gopi a proclaim offender and
did not take any step to arrest him. As per sec. 82 of Cr.P.C court has power to make
necessary steps to arrest the proclaim offender. Sec 82 of Cr.P.C. is as follows:
(1)  If any Court has reason to believe (whether after taking evidence or not) that any person
against whom a warrant has been issued by it has absconded or is concealing himself so that
such warrant cannot be executed, such Court may publish a written proclamation requiring
him to appear at a specified place and at a specified time not less than thirty days from the
date of publishing such proclamation.
(2)  The proclamation shall be published as follows:-
i. (a) it shall be publicly read in some conspicuous place of the town or village in
which such person ordinarily resides;
(b)  it shall be affixed to some conspicuous part of the house or homestead in which
such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court- house;
ii. the Court may also, if it thinks fit, direct a copy of the proclamation to be published
in a daily newspaper circulating in the place in which such person ordinarily resides.
(3)  A statement in writing by the Court issuing the proclamation to the effect that the
proclamation was duly published on a specified day, in the manner specified in clause (i) of
sub- section (2), shall be conclusive evidence that the requirements of this section have been
complied with, and that the proclamation was published on such day.
The courts are invested with ample of powers to enforce execution of warrant issued by them.
When warrant also cannot be executed, the court may proceed under sec.82 &83 and issue
proclamation & attach property of the person who is evading service of process.39 The failure
to publish the proclamation will vitiate the proclamation.40 That too happens in the case as
Gopi has been absconded. Moreover, it is clearly stated in the facts that despite of best efforts
Gopi cannot be arrested and declared proclaim offender, which shows that magistrate issuing
proclamation is satisfied that the accused had absconded or concealed himself.41 Therefore
court declaring them guilty in absence of Gopi is unfair.
39

George v. Joseph (1953) Tra 607

40

Qubec Railway Light Heat & Power Co. Ltd. v. Wendry AIR1900 PC 181
41

ILR (1977) 1 Kant 780

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So from all the facts and circumstances it is clear that there are certain lacuna in the
investigation process since the investigation is unfair then trial cannot be fair as fair
investigation is an integral part of fair trial.
4.

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PRAYER

Wherefore in the lights of facts stated, issues raised, authorities cited, and arguments
advanced, it is most humbly prayed before Honorable Court that it may pleased to :
1. The charges imposed upon the accused party under section 397/307 and 120B are not
valid.
2. The identification parade conducted by the authorities was not valid.
3. The trail conducted was not the fair trail.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and
Good Conscience
For which the counsel shall ever pray,

And for this the petitioner as in duty bound , shall humbly pray

COUNSELS ON BEHALF OF APPELLANT

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