Appellant Format

MEMORANDUM for APPELANT
TABLE OF CONTENTS
Contents
TABLE OF CONTENTS ........................................................................................................ 2
LIST OF ABBREVIATIONS ................................................................................................. 3
INDEX OF AUTHORITIES ................................................................................................... 4
STATEMENT OF JURISDICTION ...................................................................................... 9
SUMMARY OF FACTS........................................................................................................ 10
ISSUES RAISED.................................................................................................................... 12
SUMMARY OF ARGUMENT ............................................................................................ 13
ARGUMENT ADVANCED ................................................................................................. 15
ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE? ............................................ 15
ISSUE II: WHETHER THE DOCTRINE OF ‘RAREST OF RARE CASE’ IS
APPLICABLE IN THIS CASE?.......................................................................................... 19
2.1 THAT THE ACCUSED HAVE LACK OF MENS REA AND INTENT ................. 21
2.2 CONSIDERING THE MITIGATING AND AGGRAVATING FACTORS ............ 25
2.3 THAT THE ACCUSED EXHIBITS A SUBSTANTIAL POTENTIAL FOR
REFORM .......................................................................................................................... 27
ISSUE III: WHETHER THE PUNISHMENT BASED ON CIRCUMSTANTIAL
EVIDENCE IS JUSTIFIED? ............................................................................................... 29
3.1 THAT THE CIRCUMSTANTIAL EVIDENCE IS UNRELIABLE ......................... 29
3.2 THAT THE CONVICTION SOLELY BASED ON CIRCUMSTANTIAL
EVIDENCE ...................................................................................................................... 32
3.3 UNJUSTIFIABLE PUNISHMENT BASED ON CIRCUMSTANTIAL EVIDENCE
.......................................................................................................................................... 34
ISSUE IV: WHETHER THE CONFESSION CASE BY ALOK IS ADMISSIABLE IN THE
CASE? .................................................................................................................................. 36
4.1 INADMISSIBILITY OF CONFESSION UNDER SECTION 25 AND 26 of IEA. . 36
4.2 NO FACTS WERE DISCOVERED THROUGH THE CONFESSION UNDER THE
PROVISO OF SECTION 27 of IEA. ............................................................................... 37
ISSUE V: WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS
A SUBSTANTIVE EVIDENCE; AND IS SUFFICIENT TO INFLICT DEATH PENALTY
UPON THE ACCUSED? ..................................................................................................... 40
PRAYER OF RELIEF .......................................................................................................... 44
2
LIST OF ABBREVIATIONS
AIR All India Reporter
Art. Article
CrPC Code of Criminal Procedure
Sec. Section
i.e. That is
u/s Under Section
IPC Indian Penal Code
Ed. Edition
Hon'ble Honourable
SCC Supreme Court Cases
Anr Another
v. Versus
& And
¶ Paragraph
HC High Court
s. Section
Ors. Others
r/w Read with
3
INDEX OF AUTHORITIES
Cases Referred:
1. A.V. Papayya Sastri v. Govt. of A.P., (2007) 4 SCC 221

2. Achyut Adhicary v. State of West Bengal, A.I.R. 1963 S.C. 1039.
3. Admn. V. Balakrishan AIR 1972 SC 3
4. Agnoo Nagesia v. State of Bihar (1966) 1 SCR 134
5. Anant v. State of Bombay, AIR 1960 SC
6. Ashok Kumar Chatterjee v. State of M.P. 4 (AIR 1989 SC 1890)
7. Bachan Singh v. State of Punjab (1982) 3 SCC 24
8. Badri Prasad v. Nagarmal, 1959 S.C.R. Supl. (1) 709
9. Bakshish Singh v. State of Punjab, (1971) 3 SCC 182 : AIR 1971 SC 2016
10. Balachandra R. Jarkiholi v. B.S. Yeddyurappa, (2011) 7 SCC 1;
11. Balakrishna Iyer v. Ramaswamy Iyer, A.I.R. 1965 S.C. 19.
12. Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350)
13. Binder Munda v. State 1992 Cr.L.J. 3508
14. Bodh Raj v. State of Jammu and Kashmir AIR 2002 SC 3164
15. C.C.E. v. Standard Motor Products, (1989) 2 SCC 303
16. C.I.T. v. Anusuya Devi, 1968 S.C.R. (2) 466
17. C.M. Beena v. P.N. Ramachandra Rao, (2004) 3 SCC 595
18. Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545
19. Chandrakant Patil v. State, (1998) 3 SCC 38
20. Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241 : A.I.R.
2005 S.C. 270.
21. D Sudhakar and Ors. v. D.N. Jeevan Raju and Ors., (2012) 2 SCC 708.
22. Dale and Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212
23. Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC
622;
24. Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570.
25. Dhakeshwari Cotton Mills Ltd. v. C.I.T., A.I.R. 1955 S.C. 65
4
26. Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors, 1954 AIR 520
27. Earabhadrappa @ Krishnappa vs. State of Karnataka (1983 2 SCC 330)
28. Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316)
29. Govinda Reddy v. State of Mysore, AIR 1960 SC 29.
30. Gulam Rashul v. State of UP 2022 SCC OnLine All 901
31. Hanumat's v. State of M.P. [1953] SCR 1091
32. Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359
33. Hukam Singh v. State of Rajasthan AIR (1977 SC 1063)
34. Jaffar Hussain Dastagir vs. State of Maharashtra (1969 2 SCC 872)
35. Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32
36. Jaiveer v. State (1995) 2 Chand Cri C 422
37. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC
214
38. Jidenranath v. Jubilee Hills Co.-op. House Building Society; (2006) 10 SCC 96
39. K.Chinnaswamy Reddy vs State of Andhra Pradesh (AIR 1962 SC 1788)
40. Kamal Kapoor v. State Through Delhi Administration 1997 Cri LJ 2106
41. Kartik Sahu v State of Orissa, 1994 Cri.L.J. 102 (Ori)
42. Kathi Ranning Rawat v. The State of Saurashtra, A.I.R. 1952 S.C. 123;
43. King v. Horry [1952 NZLR 111]
44. Lalitheswar v. Betester, A.I.R. 1966 S.C. 580 (595)
45. Laxman Naik v. State of Orissa, 1995 CrLJ 2692
46. Machhi Singh and Others v. the State of Punjab, 1983 AIR 957
47. Mahmood v. State of U.P. AIR 1976 SC 69
48. Mangal Singh v. State (1995) 1 Chand Cri C 45
49. Md. Inayatullah v. State of Maharashtra AIR 1976 SC 483
50. Mithu v. State of Punjab, 1983 2 SCC 277
51. Mohan Lal v. State of Uttar Pradesh, (1974) 4 SCC 607 : AIR 1974 SC 1144.
52. Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287
53. Mohd. Isa Khan vs State Of U.P., 1992 CriLJ 3987
54. N. Suriyakala v. A. Mohan Doss and Ors., (2007) 9 SCC 196
55. Nankaunoo v. State of U.P.,X (2016) 3 SCC 317
56. Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666
57. Naseem Ahmed v. Delhi Administration, (1974) 3 SCC 668 : AIR 1974 SC 691
5
58. Om Prakash Sood v. Union of India, (2003) 7 SCC 473.

59. Palvinder Kaur v. The State of Punjab 1952 AIR 354
60. Pawan Kumar v. State of Haryana, (2003) 11 SCC 241;
61. Pradeep Kumar Singh v. State of Bihar, AIR 2007 SC 3059
62. Prem Sagar Manocha vs State (Nct Of Delhi) AIR 2016 SC 290
63. Pritam Singh v. The State, A.I.R. 1950 S.C. 169.
64. Prithviraj v. State of Rajasthan, 2004 CrLJ 2190, 2196
65. Pulukuri Kottaya vs. Emperor AIR 1947 PC 67
66. Raigarh Jute Mills v. Eastern Railway, A.I.R. 1958 S.C. 525 (528)
67. Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
68. Rajkrushna v. Bindo, A.I.R. 1954 S.C. 202 (204)
69. Ram deo prasad vs State of Bihar (2013) 7 SCC 725
70. Ram Kishore v. State (1990 NOC 118)
71. Ram Singh v. Central Bureau of Narcotics, AIR 2011 SC 2490
72. Ravishankar Alias Baba Vishwakarma v. State of Madhya Pradesh (2019) 9 SCC
689
73. Ravule Hariprasada Rao v. State, AIR 1951 SC 204
74. Reddy Sampath Kumar v. State of A.P., (2005).
75. S. Gopal Reddy v. State of A.P. AIR 1996 SC 2184
76. Sahara India Real Estate Corpn. Ltd. v. SEBI, (2013) 1 SCC 1
77. Sandeep Subhash Parani v. State of Maharashtra, (2006) 7 SCC 501 :
78. Sangram Singh v. Election Tribunal, A.I.R. 1955 S.C. 425
79. Santosh Kumar Bariyar v. State of Maharashtra (2009) 6 SCC 498
80. Santosh Kumar Singh v. State Through Cbi, (2010) 9 SCC 747
81. Sanwant Singh v. State of Rajasthan, A.I.R. 1961 S.C. 715 : (1961) 3 S.C.R. 120.
82. Sehr v. State of Karnataka, AIR 2010 SC 1974
83. Shamshul Kanwar vs. State of U.P. (1995 4 SCC 430)
84. Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622
85. Shatrughna Baban Meshram v. State of Maharashtra (2021) 1 SCC 596
86. Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and Mfg. Co. Ltd., A.I.R.
1962 S.C. 1314;
87. Solanki Chimanbhai Ukabhai v. State of Gujarat (1983) 2 SCC 174
88. Sripur Paper Mills v. Commr. of Wealth Tax, (1970) 1 SCC 795
6
89. State of A.P. v. S. Viswanatha Raju, (1995) 3 SCC 327

90. State of Haryana v. Bhagirath, (1999) 5 SCC 96
91. State of Karnataka v. David Rozario (2002) 7 SCC 728
92. State of Karnataka v. Umadevi, (2006) 4 SCC 1 : A.I.R. 2006 S.C. 1806.
93. State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700
94. State of Maharashtra v. Vilas Pandurang Patil, 1999 CrLJ 1062, 1065 (Bom)
95. State of Punjab vs. Rafiq Masih (White Washer), AIR 2015 SC 1267.
96. State of Rajasthan v. Tej Ram, (1999) 3 SCC 507
97. State of Rajasthan vs. Bhup Singh 1997 10 SCC 675
98. State of U.P. v. Dr. R.P. Mittal, (1992) 3 SCC 300 : AIR 1992 SC 2045
99. State of U.P. v. Indian Hume Pipe Co. Ltd., (1977) 2 SCC 724;
100. State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224)
101. State Of U.P. vs Deoman Upadhyaya, AIR 1960 SC 1125
102. Subash Babu v. State of A.P., (2011) 7 SCC 616.
103. Sunil Sharma v NCT of Delhi, (2014) 4 SCC 375
104. Suraj Singh v. State of U.P., (2008) 16 SCC 686
105. Swamy. Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767
106. Thangaraj v. State by Inspector of Police, 1994 CrLJ NOC 16 (Mad)
107. Veerendra v. State of M.P., AIR 2022 SC 2396
108. Vinod Kumar v. State (1990) 2 Chand Cri C 211
109. Virinder Kumar Yadav v. State (1995) 3 Chand Cri C 236
110. Vithal Tukaram More v. State of Maharashtra, (2002) 7 SCC 20
111. Western India Plywood Ltd. v. P. Ashokan, (1997) 7 SCC 638.
112. Yaqoob Shah v. The State PLD 1976 SC 53
Statutes:
1. The Constitution of India
2. The Indian Penal Code, 1860
3. The Indian Evidence Act, 1872
4. The Code of Criminal Procedure, 1973.
Books:
1. Batuk Lal, “Commentary on the Indian Penal Code, 1860”, Ed. R. P. Kataria and S. K.
A. Naqvi, Vol-I, (Section 1 to 300)
7
2. Dr. Hari Singh Gour, “The Penal Law of India”, Vol-I, (Section 1 to 120), (Law
Publishers (India) Pvt. Ltd., 11th Edn.) (2006).
3. Field's “Commentary on Law of Evidence”, Ed Gopal S. Chaturvedi, Vol-I & II, (Delhi
Law House, 12th Edn.) (2006).
4. Halsbury's Laws of India, Vol-32, “Criminal Procedure - I & II”, (Lexis Nexis
Butterworths, New Delhi) (2007).
5. Nelson R. A. Indian Penal Code, 10th Ed. (2008)
6. Kathuria, R. P. Supreme Court on Criminal Law, 1950-2002, (6th Ed. 2002)
7. Princep's Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)
8. Mitra, B. B., Code of Criminal Procedure, 1973 (20th ed. 2006)
9. K. D. Gaur, “Commentary on Indian Penal Code”, (Universal Law Publishing Co. Pvt.
Ltd., New Delhi) (2006).
10. Ratanlal and Dhirajlal, “Commentary on the Code of Criminal Procedure”, Vol I & II,
(Wadhwa and Company, 18th Edn., Nagpur)(2006).
Legal Dictionaries:
1. BLACKS LAW DICTIONARY, (WEST PUBLISHING GROUP 7TH EDN.) (1999)

2. P. RAMANATHA AIYAR'S, “ADVANCED LAW LEXICON”, VOL-I TO IV,
(WADHWA AND COMPANY, 3RD EDN., NAGPUR) (2005)
3. STROUD'S JUDICIAL DICTIONARY OF WORDS AND PHRASES, VOL-I TO III,
EDITOR DANIEL GREENBERG, (SWEET AND MAXWELL LTD., 7TH EDN., 2006,
REPRINT 2008) LONDON.
8
STATEMENT OF JURISDICTION
The Petitioners in the instant case, seek to invoke the jurisdiction of the Hon'ble Supreme Court
by virtue of Art. 136 r/w Art. 142 of the Constitution of India.
Art. 136 of the Constitution of India-
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
Art. 142 of the Constitution of India-
a. The Supreme Court in the exercise of its jurisdiction may pass such decree or make
such order as is necessary for doing complete justice in any cause or matter pending
before it, and any decree so passed or orders so made shall be enforceable throughout
the territory of India in such manner as may be prescribed by or under any law made
by Parliament and, until provision in that behalf is so made, in such manner as the
President may by order prescribe
b. Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power
to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any
contempt of itself
9
SUMMARY OF FACTS
[BACKGROUND]
Alok Kumar and Surabhi Singh met on a dating app. Kinder, and developed likeness towards
each other. They started dating each other and decided to be in live-in relationship. Alok was
a Chef by profession and Surabhi was employed in the Telecom department of a reputed Multi
National Company. Surabhi's parents were against her relationship with Alok and hence
Surabhi took a flat on rent in Delhi and started living with Alok.
[ALOK’S CONDUCT]
Alok was temperamental and during arguments and oral fights, he used to hit Surabhi. The
fights usually ensued due to expense sharing of the household and extravagant nature of Alok
Surabhi who was looking after the expenses often entered into oral arguments with Alok.
[FIGHTS BETWEEN JOHN AND HARRY AND PHYSICAL ABUSE]
Over the time the fights increased and the physical abuse turned violent at times. Surabhi had
on many occasions informed her mother about the physical abuse. The prosecution produced
14 witnesses to the court which included Surabhi's mother, her neighbour and an auto rickshaw
driver and all the three witnesses had witnessed fights between the couple and their sour
relationship.
[COMMISSION OF CRIME]
On April 10, 2022 at around 9.00 pm, the couple got into argument over some money issue the
fight escalated and Alok strangulated Surabhi. He stored the dead body of Surabhi in the
bathroom overnight. The next day he went to buy a knife and a fridge. He then cut the dead
body into 50 pieces, packed them in bags and stored them in the fridge. Thereafter, he kept
disposing the body parts in the nullah, nearby forest over the next ten days.
[POLICE INVESTIGATION AND DISCOVERY OF BODY]
Surabhi though estranged from the family was connected to her mother. She had on many
occassions informed her mother about the physical abuse. After a couple of weeks, the mother
got suspicious about hier well being and started calling her and eventually found her missing.
10
She lodged an FIR against Alok The police officer of the concerned police station arrested
Alok and interrogated him where Alok confessed to the commission of crime and narrated the
whole instance of murder to the investigating officer. During investigation, the officer found
net banking transaction from Surabhi's bank account on the day of murder. Alok confessed that
he was fed up of Surabhi's behaviour and was planning to kill her. He said that he watched web
series on crimes and developed a way of getting rid of Surabhi and disposing her body without
being caught. He revealed that being a chef, he knew the use of knife to cut meat. He used his
knowledge to preserve her body and dispose it off accordingly.
The police officer during investigation discovered some body parts of Surabhi along with the
weapon used for the commission of murder and sent it for DNA analysis to the forensic lab for
identification of the body and also to the serologist for their report.
[FORENSIC REPORT]
The discovered body parts of Surabhi along with the weapon used for the commission of
murder were sent it for DNA analysis to the forensic lab for identification of the body and also
to the serologist for their report. The forensic expert Dr. Dheeraj Shukla from Delhi FSL was
also examined by the court. He confirmed that the body parts were of Surabhi.
[JUDGEMENT OF COURTS]
The Police Report (Chargesheet) was filed in the Sessions Court where the Court framed
charges against Alok under sections 302 and 201 of Indian Penal Code, 1860 for murder and
disappearance of evidence. The whole prosecution case was based on circumstantial evidences
to prove the guilt of accused. The Sessions Judge appreciated the evidences adduced and passed
death penalty against the accused which was confirmed by the Hon'ble High Court of Delhi.
Alok challenged the death penalty in appeal. The High Court relied upon the decision passed
by the Session Judge upheld the death penalty.
[INCONSISTENT FACT]
• During investigation, the officer found net banking transaction from Surabhi's bank
account on the day of murder.
• Lack of Forensic report of the weapon used in the commission of the crime.
11
ISSUES RAISED
ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

APPLICABLE IN THIS CASE?

EVIDENCE IS JUSTIFIED?

CASE?
ISSUE V: WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS

UPON THE ACCUSED?
12
SUMMARY OF ARGUMENT

The Petitioners submit that this Hon'ble Court has the power to adjudicate the case under Art.
136 as a S.L.P. (Special Leave Petition) and hence is maintainable. “The petitioner submit that
Article 136 confers a wide discretionary power on the Supreme Court to interfere in suitable
cases.
ISSUE II: WHETHER THE DOCTRINE OF ‘RAREST OF RARE CASE’ IS APPLICABLE

IN THIS CASE?
It is Humbly submitted before the Hon’ble Court is that the act of accused doesn’t fall under
the doctrine of ‘rarest of rare case’ as the factors persistent to mitigating and aggravating
circumstances is sought to be examined and was found to be in favour of accused in the
subsequent arguments. Further, the counsel contends that the accused exhibits a substantial
potential for reform, as no evidence presented by the Prosecution has impeded this possibility.

It is humbly submitted before the Hon’ble Court that the punishment based on the
circumstantial evidence is unjustified because the circumstantial evidence in the fact is
unreliable. Rather the conviction was solely based on the confession which were made under
Policy Custody and were inadmissible u/s 25 and 26 of Indian Evidence Act, 1872. In the case
where it is relied upon circumstantial evidence, the punishment of Death Penalty is excessive
in nature as circumstantial evidence should not be consider as foolproof conclusion.
13

CASE?
It is humbly submitted before the Hon’ble Court that the confession were recorded in the
presence of investigation officer are considered to be inadmissible as the confession made to
police can’t be proved against him and therefore inadmissible in the eyes of law.
The framing of charge against the present Appellant who is alleged to be an accused, is hit by
Sec. 25, 26 and 27 of the Evidence Act.
ISSUE IV: WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS

UPON THE ACCUSED?
It is humbly submitted before the Hon’ble Court that the expert opinion fall under the ambit of
corroborative nature not treated as the substantive evidence. It is important that Section 45 of
the Evidence Act does not say anything as to the weight to be attached to the expert evidence.
This Section only says that expert’s evidence is admissible. The expert-evidence is not
substantive evidence. The evidence of an expert only aids and helps the Court as advisory
material.
14
ARGUMENT ADVANCED

The Petitioners submit that this Hon'ble Court has the power to adjudicate the case under Art.
136 as a S.L.P. (Special Leave Petition) and hence is maintainable. “The petitioner submit that
Article 136 confers a wide discretionary power on the Supreme Court to interfere in suitable
cases. Article 136 is a special jurisdiction and can be described as “a residuary power,
extraordinary in its amplitude, its limits when it chases injustice, is the sky itself”. Article 136
is a corrective jurisdiction that vest a discretion in the Supreme Court to settle the law clear. It
makes the law operational to make it a binding precedent for the future instead of keeping it
vague.”1
The Petitioners submit that the exercise of power under Art. 136 can be taken Suo moto, where
glaring injustices are found.2 The Scope of this extraordinary appellate jurisdiction of the
Supreme Court is very flexible. The matter lies within the complete discretion of the Supreme
Court and the only limit upon it is the “wisdom and good sense of the Judges” of the Court.3
Art. 136 empowers this Hon'ble Court to grant in discretion special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.4 The extraordinary power conferred by Art. 136
cannot be taken away by any legislative conclusiveness or finality given by a statute to any
decision of a Court or tribunal and cannot deter this Hon'ble Court from exercising its
jurisdiction under Art 136.5
The Petitioners submit that where justice, equity and good conscious require intervention in the
case, this Hon'ble Court has the power to exercise jurisdiction under Art. 136.6
1
State of Punjab vs. Rafiq Masih (White Washer), AIR 2015 SC 1267.
2
State of A.P. v. S. Viswanatha Raju, (1995) 3 SCC 327; C.M. Beena v. P.N. Ramachandra Rao, (2004) 3 SCC
595; A. Subash Babu v. State of A.P., (2011) 7 SCC 616.
3
Balakrishna Iyer v. Ramaswamy Iyer, A.I.R. 1965 S.C. 19.
4
INDIA CONST. art. 136.
5
Dhakeshwari Cotton Mills Ltd. v. C.I.T., A.I.R. 1955 S.C. 65; Rajkrushna v. Bindo, A.I.R. 1954 S.C. 202 (204),
Lalitheswar v. Betester, A.I.R. 1966 S.C. 580 (595); Raigarh Jute Mills v. Eastern Railway, A.I.R. 1958 S.C. 525
(528); Sangram Singh v. Election Tribunal, A.I.R. 1955 S.C. 425; Durgashankar Mehta v. Raghuraj Singh, A.I.R.
1954 S.C. 520.
6
A.V. Papayya Sastri v. Govt. of A.P., (2007) 4 SCC 221 : A.I.R. 2007 S.C. 1546
15
The plenitude of power under Art. 136 of the Constitution has been authoritatively stated by
the Constitution Bench in Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors 7 and the
exercise of the said power by the Hon'ble Court cannot be curtailed by the original
constitutional provision or by any statutory provision. If this Hon'ble Court does not intervene,
it will result in gross miscarriage of justice due to the erring judgment of the Trial Court and
the High Court in the instant case. The Petitioners submit that the instant case is maintainable
as,
A. The matter involves question of law of general public importance and violation of
Principles of Natural Justice
B. The matter involves substantial question of law
C. The matter deals with exceptional and special circumstances exist
D. There exists no alternative remedy
E. The Hon'ble Court must intervene to ensure “Complete Justice”
[A] The matter involves question of law of general public importance and violation of
Principles of Natural Justice.
Art. 136 is the residuary power of this Hon'ble Court to do justice where the Hon'ble Court is
satisfied that there is injustice.8 The Petitioners submit before this Hon'ble Court that the
jurisdiction conferred under Art. 136 on the Hon'ble Court is corrective one and not a restrictive
one9 and can be invoked when a question of law of general public importance arises or a
decision shocks the conscience of this Hon'ble Court.10 It is well-settled that illegality must not
be allowed to be perpetrated and failure by the Hon'ble Court to interfere in the instant case
would amount to allowing the illegality to be perpetuated.11
Therefore a duty is enjoined upon this Hon'ble Court to exercise its power by setting right the
illegality in the judgments. Illegality should not be allowed to be perpetrated merely for the
sake of upholding technicalities.12 The Petitioners submit that in the instant case there is a
7
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors, 1954 AIR 520, 1955 SCR 287.
8
C.C.E. v. Standard Motor Products, (1989) 2 SCC 303 : A.I.R. 1989 S.C. 1298; N. Suriyakala v. A. Mohan Doss
and Ors., (2007) 9 SCC 196; Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666 : A.I.R. 2002 S.C.
2036.
9
Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359
10
Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and Mfg. Co. Ltd., A.I.R. 1962 S.C. 1314 (hereinafter
Chunilal, A.I.R. 1962 S.C. 1314); Sanwant Singh v. State of Rajasthan, A.I.R. 1961 S.C. 715 : (1961) 3 S.C.R.
120.
11
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241; 1 H.M. SEERVAI, CONSTITUTIONAL LAW OF
INDIA, 832 (4 ed., Universal Law Publishing, 2010); 35 HALSBURY'S LAWS OF INDIA, 564 (2 ed., Lexis-
Nexis Butterworth Wadhwa, 2007).
12
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214
16
violation of nemo judex in causa sua which is a principle of natural justice. 13 The question
regarding legal personality of Artificially Intelligent Machines substantially affects rights of
human beings and the consequences will be felt on a regular basis. Hence, it is matter of general
public importance and therefore, the Petition is maintainable under Art. 136 of the Constitution
of India.
The Petitioners submit that in instances where findings are entered without considering relevant
materials and without following proper legal procedure, the interference by this Hon'ble Court
is called for.14 The expression “substantial question of law” is not defined in any legislation.
Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
A Constitution Bench of the Apex Court, while explaining the import of the said expression,
observed that: “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or whether it
directly and substantially affects the rights of the parties and if so whether it is either an open
question in the sense that it is not finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion of alternative views. 15”
The Petitioners submit that the instant case involves substantial questions of law, as it involves
a question of general public importance which is the interpretation of the law regarding the the
doctrine of ‘rarest of rare case’, circumstantial evidence and the admissibility of confession
under police custody. Leave is granted, when a question of law of general public importance
arises16 and where there is a serious question of law affecting the foundation of the conviction.17
The Petitioners also submit that the legal personality being conferred to the reliability on
circumstantial evidence plays a very important role in conclusively making a decision in
relation to conviction. The Petitioners submit that this Hon'ble Court as the guardian of the
Constitution has the power to deal with the instant case.
The Petitioners submit that special leave would be granted when there is uncertainty in law so
far as the Hon'ble High Courts and lower courts are concerned. Where the question raised was
a pure question of law, leave is granted.18 The Hon'ble Court has also held that to be a pure
13
Balachandra R. Jarkiholi v. B.S. Yeddyurappa, (2011) 7 SCC 1; D Sudhakar and Ors. v. D.N. Jeevan Raju and
Ors., (2012) 2 SCC 708.
14
Dale and Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212
15
Chunilal, A.I.R. 1962 S.C. 1314.
16
5 DR. DURGA DAS BASU, COMMENTARY ON CONSTITUTION OF INDIA 5798 (8 ed., Lexis Nexis
Butterworths Wadhwa, Nagpur 2008).
17
Id., at 5799.
18
State of U.P. v. Indian Hume Pipe Co. Ltd., (1977) 2 SCC 724 : A.I.R. 1977 S.C. 1132; Western India Plywood
Ltd. v. P. Ashokan, (1997) 7 SCC 638.
17
question of law, there must be no need for investigation of any facts.19 The Petitioners submit
that the instant case involves a pure question of Law. Hence the instant case is maintainable
under Art. 136 of the Constitution of India. The Petitioners submit that the question of law in
the instant case is not purely academic, the answer to which has bearing on any actual rights
and liabilities of the Petitioner and the answer would dispose of the real questions in issue
between the parties.20
In Arguendo, even if we assume that the case doesn't involves substantial question of law, this
Hon'ble Court in the exercise of its power conferred under Art. 136 can entertain the present
appeal, even on the question of fact, wrong question leads to a wrong answer. In such cases,
even errors of fact can be the subject matter of judicial review under Art. 136.21 This Hon'ble
Court is not precluded from going into the question of facts under Art. 136, if it considers it
necessary to do so.22 Art. 136 uses the wording ‘in any cause or matter’. This gives widest
power to this Hon'ble Court to deal with any cause or matter.23 It is, plain that when this Hon'ble
Court reaches the conclusion that a person has been dealt with arbitrarily then no technical
hurdles of any kind can stand in the way of the exercise of this power.24
[B] There exists no alternative remedy.
he doctrine of exhaustion of alternative remedies guides the practice and procedure of this
Hon'ble Court in the exercise of its power conferred under Art. 136. As per the principle, all
the statutory remedies would have to be exhausted before approaching this Hon'ble Court under
its special jurisdiction, unless special circumstances can be shown to convince the court that it
must allow the appeal.25 In the instant matter, the Petitioners did not have any alternate remedy
as questions of constitutional interpretation and of substantial public importance have been
raised and his Hon'ble Court is the guardian of the Constitution of India. Hence, the case
directly and substantially affects the rights of the Petitioners, the Petitioners submit that the
19
Badri Prasad v. Nagarmal, 1959 S.C.R. Supl. (1) 709
20
C.I.T. v. Anusuya Devi, 1968 S.C.R. (2) 466
21
Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241 : A.I.R. 2005 S.C. 270.
22
Kathi Ranning Rawat v. The State of Saurashtra, A.I.R. 1952 S.C. 123; Achyut Adhicary v. State of West
Bengal, A.I.R. 1963 S.C. 1039.
23
Pritam Singh v. The State, A.I.R. 1950 S.C. 169.
24
Sripur Paper Mills v. Commr. of Wealth Tax, (1970) 1 SCC 795 : A.I.R. 1970 S.C. 1520; Om Prakash Sood v.
Union of India, (2003) 7 SCC 473.
25
British India Steam Navigation Co. Ltd. v. Jasjit Singh Additional Commissioner of Customs, A.I.R. 1964 S.C.
1451.
18
case in question presents features of sufficient gravity to warrant a review of the decision
appealed against under the purview of Art. 136 of the Constitution of India.26
[C]. The Hon'ble Court must intervene to ensure “Complete Justice”.
The Petitioners submit that the power vested upon the Hon'ble Court under Art. 142 can be
invoked to ensure that complete justice to parties is meted out under Art. 136.27 The Petitioners
submit that power in the exercise of Art. 142 is circumscribed only by two conditions: (1) that
it can be exercised only when the Supreme Court otherwise exercises its jurisdiction, and (2)
that the order which the Supreme Court passes must be necessary for doing complete justice in
the cause or matter pending before it.28
“Complete Justice” would be justice according to law. While passing orders, one side of the
coin alone is not be considered. Both sides of the coin must be considered and the way open to
any court of law or justice is adhered to the law as laid down by the Constitution and not to
make direction which, at times, tender to water down Constitutional requirements.29 While
exercising power under Art. 142 to do “complete justice”, Court should consider all relevant
aspects and should have regard to recent trend of decisions.30

APPLICABLE IN THIS CASE?
It is Humbly submitted before the Hon’ble Court is that the act of accused doesn’t fall under
the doctrine of ‘rarest of rare case’ as the factors persistent to mitigating and aggravating
circumstances is sought to be examined and was found to be in favour of accused in the
subsequent arguments. Further, the counsel contends that the accused exhibits a substantial
potential for reform, as no evidence presented by the Prosecution has impeded this possibility.
The death penalty and life imprisonment wherein life imprisonment is followed as a rule and
death penalty is to be given only in exceptional cases. This category of exceptional cases has
been defined as rarest of rare by the Honourable Supreme Court of India (hereinafter, 'the Apex
Court'). Thus, the death penalty for the offence of murder under the IPC can be granted only in
26
SCAORA, (1993) 4 SCC 441
27
Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622; Chandra Singh v. State
of Rajasthan, (2003) 6 SCC 545 : A.I.R. 2003 S.C. 2889.
28
Chandrakant Patil v. State, (1998) 3 SCC 38 : A.I.R. 1998 S.C. 1165; A. Jidenranath v. Jubilee Hills Co.-op.
House Building Society; (2006) 10 SCC 96.
29
State of Karnataka v. Umadevi, (2006) 4 SCC 1 : A.I.R. 2006 S.C. 1806.
30
Sandeep Subhash Parani v. State of Maharashtra, (2006) 7 SCC 501 : A.I.R. 2006 S.C. 3102.
19
very exceptional cases and not otherwise. The same is stated According to Article 6 of the
international Covenant on Civil & Political Rights, by the General Assembly Resolution,1966:
Every living being has an inalienable right to life and must not be awarded a death
penalty. Article 2131 of the Indian Constitution reinforces this commitment with
the statement, "Protection of Life and Personal Liberty: No person shall be
deprived of their life or personal liberty except in accordance with the established
legal procedure."
According to the Doctrine of Rarest of Rare Case, Life imprisonment is the rule and death
penalty should be an exception. Only in the most grave and heinous case, death penalty should
be awarded when there are no chances for the reformation of the accused and there are nothing
as such as mitigating factor.32
The SC in the judgement of Bachan Singh v. State of Punjab33 laid down following guidelines
and standards which needed to be followed while taking the decision of awarding the Death
Penalty;
“In cases of utmost gravity involving extreme culpability, the imposition of the death penalty
should be considered as an exception rather than the rule. Prior to pronouncing a death sentence,
the presiding judge is obligated to meticulously evaluate both the particulars of the offense and
the personal characteristics of the offender. The judicial bench has underscored that 'life
imprisonment should be the customary penalty, while the death penalty should remain an
extraordinary recourse.' Consequently, it is incumbent upon the court to reserve the death
penalty solely for those instances in which even a life imprisonment sentence appears
inadequate to address the severity of the circumstances. Prior to resorting to this ultimate
penalty, a comprehensive assessment that accounts for both aggravating and mitigating factors
must be conducted. Mitigating circumstances should be accorded substantial weight, and a
judicious equilibrium maintained between aggravating and mitigating factors.”
In his dissenting opinion, Bhagwati, J. stated that the imposition of the death penalty as an
alternative to life imprisonment in Section 30234 of the IPC is ultra vires and illegal because it
violates Articles 1435 and 2136 of the Constitution. He took this stance because he believes the
31
INDIA CONST. art. 21
32
Bachan Singh v. State of Punjab (1982) 3 SCC 24
33
Id.
34
Indian Penal Code, 1860, § 302, No. 45, Acts of Parliament, 1860 (India)
35
36
20
contested provision lacks legislative guidance on when an accused’s life can be taken by
imposing a death sentence.
The same perspective was reiterated by the Supreme Court in the Santosh Kumar Bariyar v.
State of Maharashtra37 case, emphasizing that the principle of "the rarest of rare" acts as a
guiding principle when applying Section 354(3)38 of CrPC, and it establishes the principle that
life imprisonment is the norm, while the death penalty should be reserved for exceptional cases.
Thus, In the present case the Appellant charged for the murder of the victim is showed by the
fact and evidences produced by the Prosecution as the accused had a clear intent and hatred
against the victim and his means of murder is shown in a way that is one of those circumstances
when the case could be considered as the rarest event which would affect the minds of the
society.
2.1 THAT THE ACCUSED HAVE LACK OF MENS REA AND INTENT
The accused of mens rea negatives the condition of crime. The underlying principle of doctrine
of mens rea is expressed in maxim- ‘actus non facit reum nisi mens sit rea’39- which means that
the act does not make one guilty unless the mind is also guilty.
In the Present case, Alok cannot be ascribed any mens rea, as the circumstances clearly indicate
that on April 10, 2022, the couple engaged in an argument over their expenses. As the argument
between Alok and Surabhi escalated, Alok, driven in the heat of the moment, strangled Surabhi.
The essential prerequisites for such a reduction are that the accused must be provoked to a point
of great anger or rage, such that the person loses his or her normal capacity for self-control; the
circumstances must be such that a reasonable person, faced with the same degree of
provocation, would react in a similar manner; and finally, there must not have been an
opportunity for the accused to have "cooled off" or regained self-control during the period
between the provocation and the killing.40 he expression “heat of passion” means that there is
no time for passion to cool down. The act must have been committed in a fit of anger.41
Therefore in the present case Alok is justified to be in the Heat of moment.
Another Instance to note that this altercation was not premeditated on Alok's part. This is
evident from the fact that he did not intend to do so. If it had been premeditated, he would not
37
Santosh Kumar Bariyar v. State of Maharashtra (2009) 6 SCC 498
38
The Code of Criminal Procedure, 1973, § 354(3), No. 2, Acts of Parliament, 1973 (India)
39
K. D. Gaur, “Commentary on Indian Penal Code”, (Universal Law Publishing Co. Pvt. Ltd., New Delhi) (2006).
40
Heat of Passion. (n.d.) West's Encyclopedia of American Law, edition 2. (2008).
41
Suchand Bouri v. State of W.B., (2009) 17 SCC 63: AIR 2009 SC 2319: 2009 Cri LJ 2840: (2009) 78 AIC 76.
21
have had to hide the deceased body in the bathroom overnight or purchase a knife and
refrigerator the following day to dispose of the body; he would have already made these
preparations in advance.
Thus, In Ravule Hariprasada Rao v. State42, Supreme Court ruled that unless a statute either
clearly or by necessary implication rules out mens rea as a constituent element of crime, a
person should not be held guilty of an offence unless he had a guilty mind at the time of
commission of the act.
Further, In the case of Sahara India Real Estate Corpn. Ltd. v. SEBI43, the meaning of intent
was explained. It ruled Intent as one commonly understands is something aimed at or wished
as a goal; it is something that one resolves to do; it is a will to achieve as an end; it is a direction
as one's course; it is planning towards something to be brought about; it is something that an
individual fixes the mind upon; it is a design for a particular purpose. What is “intended” is a
matter of the mind. Therefore, unless actions speak for themselves, no presumption can be
drawn on the “intent” of a party.
Recently in Nankaunoo v. State of U.P.44, Supreme Court reiterating the principles laid down
in Jai Prakash v. State (Delhi Administration)45, held that ‘intention’ requires something more
than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve
a particular end.
In this particular case, there is no evidence to suggest that Alok had any intention to take
Surabhi's life. Even if he had intentions of separating from her, it doesn't necessarily imply a
desire to cause her harm. Furthermore, among the three witnesses who testified in court,
comprising Surabhi's mother, a neighbour, and an auto-rickshaw driver who had observed the
strained relationship and arguments between Alok and Surabhi, none of them attested to Alok
actually wanting or having the intention to kill Surabhi.
The concept of "special reasons" in Section 354(3)46 of the Criminal Procedure Code (CrPC)
refers to a legal doctrine that requires a Judge to provide explicit justifications for imposing the
most severe penalties. Additionally, the elimination of Section 303 which stated “Whoever
being under sentence of imprisonment of life commits murder shall be punished with death.”
42
Ravule Hariprasada Rao v. State, AIR 1951 SC 204
43
Sahara India Real Estate Corpn. Ltd. v. SEBI, (2013) 1 SCC 1
44
Nankaunoo v. State of U.P.,X (2016) 3 SCC 317
45
Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32
46
The Code of Criminal Procedure, 1973, § 354(3), No. 2, Acts of Parliament, 1973 (India)
22
of the Indian Penal Code (IPC) by the Supreme Court in the case of Mithu v. State of Punjab47
underscores the legal trend towards significantly reducing the use of Capital Punishment within
the Indian Judiciary System. This principle is typically invoked under exceedingly rare
circumstances, particularly when the crime is entirely unprecedented in the eyes of the judiciary
and results in severe harm to the victim.
These ‘rare circumstances’ was laid down by the Apex Court in the Judicial Precedent of
Machhi Singh and Others v. the State of Punjab48, where the court tried to lay down following
grounds on the basis of which it can be determined that if such a case is falling under the
umbrella of Rarest of Rare Case or not;
1. Method of commissioning of the murder - If the homicide or murder is committed in an

unimaginable manner with extreme cruelty and heinousness, such that the crime
becomes an exceptional crime in the society, creating an anger in the society.
2. The Crime deserving hatred in the Society- If the crime is of that nature whose
atrociousness and barbarity is of such a level which is socially reprehensible. Even if
the homicide is committed with a socially deprived class, then also that crime will fall
under the category of the rarest of rare case.
3. Intensity of the Crime - If the intensity of the crime is much bigger than it can be usually
expected to be, then also it can will be included within the ambit of this doctrine. One
such example of the intensity is, the commission of several homicides.
4. Character of the victim of such criminal activity - if the criminal activity (mainly
including homicide or murder, in the case of the doctrine of 'Rarest of Rare') is
committed against an innocent person, who cannot be blamed; or is against an
unprotected and unguarded lady; or any other person of such nature - then it will be
considered within the meaning of this doctrine.
In the present instance, Alok’s act of murdering his girlfriend with whom he was in a Live in
relationship. Alok was of extravagant nature and Surabhi who looked after the expenses was
the major factor escalating the fights and arguments between them. The Prosecution failed to
establish any mens rea or intent on Alok's part for the murder of Surabhi as substantial evidence.
The post-murder circumstances, where Alok stored the deceased body in the bathroom
overnight and subsequently acquired a knife and refrigerator to dismember and dispose of it,
may appear as inhumane and extreme. However, it is essential to acknowledge that the act of
47
Mithu v. State of Punjab, 1983 2 SCC 277
48
Machhi Singh and Others v. the State of Punjab, 1983 AIR 957
23
murder was not premeditated; it occurred in a fit of rage. After the commission of crime, the
accused recovered itself from the fit of rage and thereby disposed the body in a way to escape
from being caught from the police. In the case of Subhash Ramkumar Bina@ Vakil v. State of
Maharashtra49, it is held that
“Undoubtedly brutality is involved in every incidence of murder but that brutality

by itself will not bring it within the ambit of the rarest of rare cases for the purpose
of death penalty”
Henceforth, it can be deduced from the aforesaid case that the Alok should be out of the ambit
of conviction based on the brutality of the murder. Additionally, the Prosecution's entire case
relied solely on a confession made by Alok, which is inadmissible in court as per Section 2650
of IEA:
“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.”
Statement made in police custody are considered to be unreliable unless they have been
subjected to cross-examination or judicial scrutiny.51 The confession made while in custody is
not to be proved against the accused as the provisions of section 25 52 and 26 do not permit it
unless it is made before a magistrate.53
Here the confession made is not before the Magistrate. But this confession serves as a
mitigating factor for the accused, as it demonstrates his willing acknowledgment of the
wrongdoing in the heat of the moment.
Also, Alok had no prior criminal record and is not a habitual offender, his nature was
extravagant which was not supported by Surabhi and on 10th April 2022 the act of strangulating
Surabhi happened because the convict (Alok) believed that his outrageousness for committing
the offence was morally justified and thus this issue can’t be considered as the ‘Rarest of the
Rare’ circumstances. Though the murder by the accused is a relevant consideration but not a
49
AIR 2003 SC 269
50
Indian Evidence Act, 1872, § 26, No. 1, Acts of Parliament, 1872 (India)
51
Sehr v. State of Karnataka, AIR 2010 SC 1974: (2010) 7 SCC 263: JT 2010 (5) SC 11.
52
53
Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).
24
determinative factor according to the circumstances as stated in the case of Veerendra vs State
of Madhya Pradesh54.
A parallel ruling resembling this one was delivered in the case of Sunil Sharma v NCT of
Delhi55. In that case, the death sentence of an accused facing charges under Section 302 56 and
20157 was commuted to a life imprisonment term. This decision was influenced by the accused's
non-criminal background.
"The offender (in this case, Alok) merits punishment for the crime, but imposing the death
penalty would be unduly severe. Therefore, he should be sentenced to life imprisonment instead
as per Sec 302 IPC, as the circumstances in this case do not categorize it as a 'Rarest of Rare'
scenario.
As stated in the judgement of Pradeep Kumar Singh v. State of Bihar58, the Apex Court stated
that Capital Punishment can only be awarded "when a murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly so as to arouse intense and extreme
indignation of the community."
2.2 CONSIDERING THE MITIGATING AND AGGRAVATING FACTORS

In the case of Macchi Singh and Others v. the State of Punjab 59 the Apex Court explained the
necessity of considering the Mitigating and Aggravating factors while considering the case
under the circumstances of the “Rarest of Rare”. In this case, a feud between the families took
away seventeen lives. In the aggravating factor, murder should be preplanned with extreme
brutality or murdering a public servant on or off the duty. And in the mitigating factor, the court
considers the circumstances of the offender along with the circumstances of the crime.
Mitigating Circumstances - The legal term 'mitigating', applies to the defence council, who
presents the scenario of the case in favour of the accused, and pleads for not giving the
judgement of Capital Punishment. Here the council tries to reduce the heinousness of the crime,
and also uses the humanity factor in praying for the life of the accused, convicted for the
offence. The judge after considering all the factors, and by applying his judicial mindset tries
to not sentence Death Penalty to the accused.
54
Veerendra vs State of Madhya Pradesh, (2022) 8 SSC 668
55
Sunil Sharma v NCT of Delhi, (2014) 4 SCC 375
56
57
58
Pradeep Kumar Singh v. State of Bihar, AIR 2007 SC 3059
59
Machhi Singh and Others v. the State of Punjab, 1983 AIR 957
25
Aggravating Circumstances - The legal term 'aggravating' in the case of 'Rarest of Rare'
Doctrine accounts for the facts of the victim party, who presents to the judge the heinousness
and extreme cruelty of the crime and pleads for the justice of the victim while praying for the
Capital Punishment against the accused, convicted for that offence. On the basis of this
circumstances the Judge applies his judicial mindset to order the Capital Punishment as a mode
of justice towards the victim.
In accordance with the Doctrine of the Rarest of Rare case, the standard punishment is life
imprisonment, and the imposition of the death penalty should be infrequent. The death penalty
should only be administered in the most severe and heinous situations, when there are no
mitigating factors present in the circumstances of the case.
In this particular instance, the accused has already admitted to his wrongdoing when questioned
by the investigating officer, which can be regarded as a mitigating element. Each case is unique,
and the court must carefully consider all relevant factors when determining an appropriate
penalty.60 The objective of punishment is to penalize the offender and provide justice to the
victim. However, in the current situation, imposing the death penalty appears overly severe.
This is due to the presence of various mitigating factors, such as the absence of intent to kill,
the absence of premeditated efforts to conceal evidence after the murder, and the charges under
Section 201, which deals with "causing disappearance of evidence of an offense committed" or
providing false information, not being contested by the appellant. These actions appear to have
occurred as a result of circumstances that transformed the initial act, which was committed in
a fit of anger, into a response motivated by fear, with the appellant feeling morally justified in
disposing of the body.
Furthermore, Alok had no previous criminal record and acted solely out of a momentary fit of
anger. In the 2013 case of Sunil Sharma v. the NCT of Delhi 61, the death penalty imposed on
an accused charged with sections 302 and 201 was reduced to life imprisonment, primarily due
to the accused's clean criminal history being taken into consideration. These circumstances
should not be regarded as aggravating factors in this case.
60
https://www.scconline.com/blog/post/2023/04/07/sentencing-in-indian-penal-system-aggravating-and-
mitigating-factors/
61
Sunil Sharma v NCT of Delhi, (2014) 4 SCC 375
26
In the Bachan Singh v. State of Punjab62 case, the Court introduced the principle that the
punishment meted out for a crime should be commensurate with both the severity of the crime
itself and the individual circumstances of the offender. This ruling underscored the importance
of the sentencing judge taking into account various factors, including the nature of the offense,
the underlying motive, the method by which it was committed, the offender's prior behavior, as
well as the prevailing societal norms and public sentiment. The Court stressed that the sentence
should strike a balance, avoiding undue severity or excessive leniency.
Likewise, in the case of State of Maharashtra v. Sukhdev Singh63, the court ruled that although
the law sets a maximum penalty for a specific offense, it doesn't require that particular sentence
to be applied in every instance. The court stressed the importance of the sentencing judge using
their discretion to decide the suitable penalty, taking into account the specific details and
context of the case, which may involve both aggravating and mitigating factors.
Prior to making a choice, it is essential to achieve an equitable equilibrium between the factors
that exacerbate and those that alleviate the situation by creating a comprehensive assessment
of both. However, this aspect has not been addressed in this case. The court's entire decision
was based on Alok's confession of guilt. The Supreme Court reaffirmed in Mithu Singh v. State
of Punjab64 that the death penalty is not a required punishment and should only be used if the
Bench is confronted with a case involving the "rarest of the rare" circumstances where death
penalty is required to restore the collective conscience of society.
2.3 THAT THE ACCUSED EXHIBITS A SUBSTANTIAL POTENTIAL FOR REFORM

The Oxford Dictionary provides a definition of capital punishment as the authorized execution
of an individual as a form of punishment for a crime. According to the Doctrine of the Rarest
of Rare cases and the precedent set in the 1980 case of Bachan Singh v. State of Punjab65, it
was established that the death penalty should only be applied in the most severe and heinous
instances, where there is no possibility of rehabilitating the offender.
The dictum provided by Justice Krishna Iyer that “Every saint has a past, and every sinner has
a future” in the case of Mohd. Giasuddin v. State of A.P. 66, In this current situation, Alok had
a clean record in terms of criminal activity. He embarked on a new chapter in his life by entering
62
63
State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700
64
Mithu Singh v. State of Punjab, 1983 2 SCC 277
65
66
Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287
27
into a live-in relationship with Surabhi, despite her parents' lack of support for this choice. The
conflicts between the couple arose due to the circumstances they found themselves in. One day,
driven by a fit of anger triggered by certain events that led him to believe he was morally
justified (as mentioned earlier), Alok committed the act of strangling Surabhi and
dismembering her body for disposal. However, it's crucial to consider mitigating factors such
as the absence of criminal intent, Alok's confession, and his clean criminal record. These factors
strongly support the notion of rehabilitation, which should be taken into account and provided
to Alok.
A similar concept was expressed in the Mohd. Giasuddin case67, which advocated for a
reformative or restorative approach to punishment. According to this perspective, the primary
goal of a state's criminal justice system should be to reform the offender rather than merely
punishing them. In the Santosh Kumar Satish Bhushan Bariyar v. State of Maharashtra case68,
the Supreme Court reaffirmed the "Rarest of Rare" doctrine and affirmed that the appropriate
penalty should be determined individually for each case. The death penalty should only be
imposed in extremely exceptional situations where rehabilitation is deemed impossible.
In this particular instance, the High Court affirmed the Sessions Court's decision to impose the
death penalty, without duly considering the mitigating factors in the case that clearly suggest
the potential for the convict's (Alok) rehabilitation. It was the responsibility of the prosecution
to establish significant evidence regarding Alok's intent, rather than relying solely on his
confession and submitting a sequence of circumstantial evidence as the foundation of their case.
In Rajendra Pralhadrao Wasnik v. State of Maharashtra69, the Apex Court stated the
significance of factoring in the possibility of reforming and rehabilitating a convicted individual
before imposing the death penalty was reaffirmed. To fulfill this requirement, it is the
prosecution's responsibility to demonstrate to the court, with the use of evidence, that there is
a high likelihood that the convict cannot be reformed or rehabilitated.
Further, In the remarkable Santosh Kumar Singh v. State Through Cbi70, (Mattoo Murder case),
even though Santosh Kumar Singh was charged with raping the victim and causing severe
injuries to her body, his actions were still not deemed brutal enough to classify the case as the
"rarest of rare.” After being acquitted by the Lower Court, he resumed a regular life and
67
Id
68
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498
69
Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
70
Santosh Kumar Singh v. State Through Cbi, (2010) 9 SCC 747
28
established a family. When the case was later reopened, these prospects were regarded as
mitigating factors against categorizing it as a "rarest of rare" case. Instead, the opportunity for
the convict to undergo rehabilitation should be considered. In the current situation,
Alok exhibits a substantial potential for reform, as no evidence presented by the Prosecution
has impeded this possibility. Therefore, he should not be sentenced to death and should be
given an opportunity to rehabilitate. Every case is unique, and the Court must consider the
specific circumstances and the individual offender before imposing the death penalty. In cases
where factors such as the absence of intent, potential for rehabilitation, the youthfulness of the
accused, no threat to society, and a clean prior record are in favor of the accused, the "criminal
test" may lean in their favor, potentially leading to the avoidance of the death penalty.
The significant ruling in the State v. T. Makwanyane71 case underscores the significance of
taking into account the unique circumstances of each case when deciding on a sentence. In this
instance, the Constitutional Court of South Africa declared the death penalty as
unconstitutional, citing violations of the right to life, dignity, and the prohibition against cruel,
inhuman, and degrading punishment. The court stressed the need for punishment to be
customized to fit both the individual offender and the specific nature of the crime, rather than
being an obligatory sentence dictated by law.

It is humbly submitted before the Hon’ble Court that the punishment based on the
circumstantial evidence is unjustified because the circumstantial evidence in the fact is
unreliable. Rather the conviction was solely based on the confession which were made under
Policy Custody and were inadmissible u/s 25 and 26 of Indian Evidence Act, 1872. In the case
where it is relied upon circumstantial evidence, the punishment of Death Penalty is excessive
in nature as circumstantial evidence should not be consider as foolproof conclusion.
3.1 THAT THE CIRCUMSTANTIAL EVIDENCE IS UNRELIABLE

Circumstantial evidence is unreliable, it gives rise to reasonable doubt. The circumstantial
evidence in a case where there is a link of causation, if established, proves that the act was
committed by the person so accused.72
71
(1955) 3 SA 391
72
Naseem Ahmed v. Delhi Administration, (1974) 3 SCC 668 : AIR 1974 SC 691; Sharad Birdhich and Sarda v.
State of Maharashtra, (1984) 4 SCC 116 : AIR 1984 SC 1622.
29
The Supreme Court, in Bodh Raj v. State of J&K73 said that,
“There must be a chain of evidence so complete as not to leave any reasonable

ground for the conclusion consistent with the innocence of the accused and must
show that in all human probability the act must have been done by the accused.”74
In the present case there was no chain of evidence as the whole prosecution case was based on
circumstantial evidences and the fact stated were also based on prosecution’s assumption as in
the actual scenario there was net banking transaction from Surabhi’s account on the day of
murder which was not justified either in favour of prosecution or defence which creates
reasonable doubt. In the present one being a case dependant on circumstantial evidence,
awarding of extreme punishment is not warranted.
It is a well settled principle that where the case is mainly based on circumstantial evidence, the
court must satisfy itself that various circumstanced in the chain of evidence should be
established clearly and that the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused.75
Another point to be consider are the facts stated by the Accused and as the confession were in
the police custody and the confession were leading to no discovering of fact rather were self-
incriminating in nature. The case of Aghnoo Nagesia76 has been cited to submit that the
incriminating portions of custodial disclosure are inadmissible and therefore, the appellant’s
alleged admission of disposing the dead body would not be admissible.
J. Hidayatullah observed “Circumstantial evidence in this context means a combination of facts

creating a net-work through which there is no escape for the accused, because the facts taken
as a whole do not admit of any inference but of his guilt.”77 Before a case against an accused
vesting on circumstantial evidence can be said to be fully established the following conditions
must be fulfilled as laid down in Hanumat's v. State of M.P.78
1. The circumstances from which the conclusion of guilt is to be drawn should be fully
established;
73
Bodh Raj v. State of J&K, (2002) 8 SCC 45.
74
Ibid.
75
Mohan Lal v. State of Uttar Pradesh, (1974) 4 SCC 607 : AIR 1974 SC 1144.
76
Agnoo Nagesia v. State of Bihar (1966) 1 SCR 134
77
Anant v. State of Bombay, AIR 1960 SC 500 at page 523. See also Laxman Naik v. State of Orissa, 1995 CrLJ
2692 (para 11).
78
Hanumat's v. State of M.P. [1953] SCR 1091.
30
2. The facts so established should be consistent with the hypothesis of guilt and the
accused, that is to say, they should not be explainable on any other hypothesis except
that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in
all human probability the act must have been done by the accused.
These five golden principles constitute the panchsheel of the proof of a case based on
circumstantial evidence and in the absence of a corpus deliciti.
The statement of law as to proof of the same was laid down by Gresson, J. (and concurred by
3 more Judges) in King v. Horry79 thus:
“Before he can be convicted, the fact of death should be proved by such circumstances
as render the commission of the crime morally certain and leave no ground for
reasonable doubt: the circumstantial evidence should be so cogent and compelling as
to convince a jury that upon no rational hypothesis other than murder can the facts be
accounted for.”
The Points to be considered are:

1. The charges and punishment for Murder of Surabhi by Alok could not be established
because the circumstantial evidence is incomplete in nature as the discovery of body
parts doesn’t indicates anywhere that the body found is executed by Alok, and
2. There were no examination related to the weapon discovered; only the body was known
to be of Surabhi which could even give the slightest of the doubt that Alok might not
be indulged in the Murder.
3. That there is no evidence on record to show that how the deceased was murdered.
The Supreme Court has observed consistently that in a criminal case based on the circumstantial
evidence, chain of circumstances must be complete and on completion of such chain, only one
conclusion can be drawn, that it is only the convict who had committed the crime.80
79
King v. Horry [1952 NZLR 111]
80
State of U.P. v. Dr. R.P. Mittal, (1992) 3 SCC 300 : AIR 1992 SC 2045, applied in Vithal Tukaram More v. State
of Maharashtra, (2002) 7 SCC 20, (para 11). Also see Kartik Sahu v. State, 1994 CrLJ 102 (para 6) (Ori); State of
Maharashtra v. Vilas Pandurang Patil, 1999 CrLJ 1062, 1065 (Bom); Thangaraj v. State by Inspector of Police,
31
The Court in case of placed Gulam Rashul v. State of UP81, reliance on Suraj Singh v. State of
U.P.82, wherein it was held that “the evidence must be tested for its inherent consistency and
probability of the story; consistency with the account of other witnesses held to be creditworthy;
consistency with the undisputed facts, the credit of the witnesses; their performance in the
witness box; their power of observation etc. Then the probative value of such evidence becomes
eligible to be put into the scales for a cumulative evaluation.”
Based on the aforesaid contentions, the Counsel on behalf of accused submitted that the
conviction founded on circumstantial evidence is unsustainable on account of such glaring
discrepancies, lacuna and the stated lapses on the part of the prosecution.
3.2 THAT THE CONVICTION SOLELY BASED ON CIRCUMSTANTIAL

EVIDENCE
The conviction of Alok is based only upon circumstantial evidence. Hence, in order to sustain
a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent.
This court has consistently held in a long line of cases83 that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the accused 84 and
the chain of evidence furnished by those circumstances must be so far complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of the accused 85 and
further it must be such as to show that within all human probability the act must have been done
by the accused.86
In the present case, the conviction of Alok could not just be upheld solely on the ground that
the prosecution has established a motive via the confession. However, we hold that not only is
1994 CrLJ NOC 16 (Mad); Prithviraj v. State of Rajasthan, 2004 CrLJ 2190, 2196 (paras 25 & 26) (Raj) : 2004
CrLR 598 (Raj) : 2004 (2) Raj CrC 552.
81
Gulam Rashul v. State of UP 2022 SCC OnLine All 901
82
Suraj Singh v. State of U.P., (2008) 16 SCC 686
83
Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC
316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors.
(AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar
Chatterjee v. State of M.P. 4 (AIR 1989 SC 1890)
84
Govinda Reddy v. State of Mysore, AIR 1960 SC 29.
85
Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570.
86
Bakshish Singh v. State of Punjab, (1971) 3 SCC 182 : AIR 1971 SC 2016. See also Reddy Sampath Kumar v.
State of A.P., (2005).
32
such conviction not possible on the present scattered and incoherent pieces of evidence, but
that the prosecution has not even established the motive of the crime beyond reasonable doubt.
The Counsel submitted that the brutality of the crime and relationship with the victim was not
ground enough to inflict death sentence. Furthermore, the opinion of this Court that the
petitioner would be a menace to society and could not be reformed had no basis. The Appellant
also submits that the petitioner had been convicted on circumstantial evidence, based on
insufficient investigation.
Court in Palvinder Kaur v. The State of Punjab87 has pointed out that in cases dening on
circumstantial evidence courts should safeguard themselves against the danger of basing their
conclusions on suspicions how so ever strong.
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of

Maharashtra88. Therein, while dealing with circumstantial evidence, it has been held that onus
was on the prosecution to prove that the chain is complete and the infirmity of lacuna in
prosecution cannot be cured by false defence or plea.
The effort of the criminal court should not be to prowl for imaginative doubts. 89 The
circumstances must be complete and conclusive to be read as an integrated whole and not
separately and must indicate guilt of the accused with certainty.90
In this case, the conviction of the petitioner is based on circumstantial evidence and the alleged
extra judicial confession made by the petitioner to the police in course of investigation, on the
basis of which certain discoveries of facts were made. There is no forensic evidence against the
petitioner. It would, in our view, be unsafe to uphold the imposition of death sentence on the
petitioner.
According to that standard the circumstances relied upon in support of the conviction must be
fully established91 and the chain of evidence furnished by those circumstances must be so far
complete as not to leave any reasonable ground for a conclusion consistent with the innocence
87
1952 AIR 354
88
AIR 1984 SC 1622
89
State of Rajasthan v. Tej Ram, (1999) 3 SCC 507
90
Kartik Sahu v State of Orissa, 1994 Cri.L.J. 102 (Ori)
91
Govinda Reddy v. State of Mysore, AIR 1960 SC 29.
33
of the accused92 and further it must be such as to show that within all human probability the act
must have been done by the accused.93
Relying to the judgement of Veerendra v. State of M.P.94 that

“At any rate, the circumstances relied on would not establish continuity in the links
of the chain of circumstances to lead to an irresistible conclusion regarding the
guilt of the appellant. The nub of the contentions is that appellant is entitled to get
the benefit of doubt in view of such circumstances and as such, the conviction and
sentence awarded are liable to be set aside and he is entitled to be acquitted.”
Hence in the present case, the conviction is solely based on circumstantial evidence and the
circumstantial evidence have missing links which were raised in the prior sub-issue and that
can lead to benefit of doubt. The counsel has submitted that, there are several inconsistencies
and shortcomings in the prosecution case; and with reference to the contentions urged in
assailing the conviction, the learned counsel would submit that the present one is clearly a case
of lingering residual doubts, which should act as another mitigating factor in favour of the
appellant.
3.3 UNJUSTIFIABLE PUNISHMENT BASED ON CIRCUMSTANTIAL EVIDENCE
As a mitigating circumstance, the appellant would submit that the present one being a case
dependant on circumstantial evidence, awarding of extreme punishment is not warranted.
The counsel also contends with reference to the decision in Shatrughna Baban Meshram v.
State of Maharashtra95 that while considering the imposition of death penalty in a case of
circumstantial evidence, the circumstantial evidence must be of ‘unimpeachable character’, or
lead to an ‘exceptional case’, or be so strong as to convince the Court that the option of a
sentence lesser than the death penalty is foreclosed. Even where sentence of death is to be
imposed on the basis of circumstantial evidence, the circumstantial evidence must be such
which leads to an exceptional case.” 96
92
Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570.
93
Bakshish Singh v. State of Punjab, (1971) 3 SCC 182 : AIR 1971 SC 2016. See also Reddy Sampath Kumar v.
State of A.P., (2005).
94
Veerendra v. State of M.P., AIR 2022 SC 2396
95
Shatrughna Baban Meshram v. State of Maharashtra (2021) 1 SCC 596
96
Swamy. Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767
34
With reference to the aforesaid and while seeking to draw strength even from the decisions
cited on behalf of the appellant, the counsel is arguing that in the present case, the death
sentence awarded to the appellant deserves to be disapproved.
The counsel has reiterated the inconsistencies in chain of circumstances proved against the
appellant. Further, the courts have failed to appreciate the medical and other evidence regarding
weapons placed on record in its correct perspective. There are serious contradictions in the
medical and ocular evidence, as regards the time of the death of the deceased. Once, the time
of death of deceased is not established, the whole story of the prosecution falls to the ground.
There being no direct evidence of involvement of the appellants in the commission of the crime,
the theory of last seen together could not be of any assistance to the case of the prosecution.
In Ram deo prasad vs State of Bihar97 it is clearly stated that the quality of evidence was also a
relevant factor in considering the question of death sentence.
In the aforesaid case, this Court felt it unsafe to confirm the death sentence awarded for rape
and murder of a four year old child.
The Court, thus, has in a guided manner referred to the quality of evidence and has sounded a
note of caution that in a case where the reliance is on circumstantial evidence, that factor has
to be taken into consideration while awarding the death sentence. 98 This is also a case purely
on the circumstantial evidence.
Further, it has been contended, with reference to the decision in Ravishankar Alias Baba
Vishwakarma v. State of Madhya Pradesh99, that therein a 3-Judge Bench of this Court has
invoked ‘residual doubt’, which means that in spite of being convinced of the guilt of the
accused beyond reasonable doubt, there might be lingering or residual doubts regarding such
guilt and, therefore, the Court would not consider it safe to impose the death sentence.
Though this Court made it clear that even in the case where conviction is based on
circumstantial evidence, capital punishment could indeed be awarded but then, proceeded to
observe that this Court had been increasingly applying the theory of ‘residual doubt’, which
effectively create a higher standard of proof over and above the “beyond reasonable doubt”
97
(2013) 7 SCC 725
98
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498
99
(2019) 9 SCC 689
35
standard used at the stage of conviction, as a safeguard against routine capital sentencing,
keeping in mind the irreversibility of death. Applying this theory and indicating certain
‘residual doubts’, it was held that the said case fell short of ‘rarest of rare’ case. In that case
too, the Court commuted the death sentence into one of life for the remainder of the natural
life.
ISSUE IV: WHETHER THE CONFESSION CASE BY ALOK IS ADMISSIABLE IN

THE CASE?
It is humbly submitted before the Hon’ble Court that the confession were recorded in the
presence of investigation officer are considered to be inadmissible as the confession made to
police can’t be proved against him and therefore inadmissible in the eyes of law.
The framing of charge against the present Appellant who is alleged to be an accused, is hit by
Sec. 25, 26 and 27 of the Evidence Act.
4.1 INADMISSIBILITY OF CONFESSION UNDER SECTION 25 AND 26 of IEA.
A “confession” made to a “police officer”, by a person (presently or subsequently) accused of

an offence cannot be proved against him and is, therefore, inadmissible in evidence before a
Court of law in view of Section 25100 of the Indian Evidence Act, 1872. Section 25 makes
confessional statement of accused before police officers inadmissible is evidence which cannot
be brought on record by prosecution to obtain conviction.101 Similarly, a confession by a person
accused of an offence and made while he is in the custody of a police officer, is also excluded
from being proved against him by virtue of Section 26102 of the Evidence Act. The distinction
between Sections 25 and 26 is that while in the case of Section 25 what is inadmissible is a
confession directly made to a “police officer”, in the case of Section 26 what is inadmissible is
a confession made, while in the custody of a police officer, to a third person other than the
police officer, unless it is made in the immediate presence of a Magistrate.103
In the prominent case of Agnoo Nagesia v. State of Bihar104, the Court held:
“Section 25 provides: “No confession made to a police officer, shall be proved as against a
person accused of an offence”. The terms of Section 25 are imperative. A confession made to
a police officer under any circumstances is not admissible in evidence against the accused. It
100
101
Ram Singh v. Central Bureau of Narcotics, AIR 2011 SC 2490
102
103
Kamal Kapoor v. State Through Delhi Administration 1997 Cri LJ 2106
104
(1966) 1 SCR 134
36
covers a confession made when he was free and not in police custody, as also a confession
made before any investigation has begun. The expression “accused of any offence” covers a
person accused of an offence at the trial whether or not he was accused of the offence when he
made the confession.”………………….“These provisions seem to proceed upon the view that
confessions made by an accused to a police officer or made by him while he is in the custody
of a police officer are not to be trusted, and should not be used in evidence against him. They
are based upon grounds of public policy, and the fullest effect should be given to them.”
Similarly it was stated in State of U.P. v. Deoman Upadhyaya105, If an admission of an accused
is to be used against him, the whole of it should be tendered in evidence, and if part of the
admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence
the inculpatory part only.
In the present case, the confession was made to a “police officer”, which is thereby inadmissible
in evidence before a Court of law in view of the case referred above. Also, Statements made in
police custody are considered to be unreliable unless they have been subjected to cross-
examination or judicial scrutiny.106 The confession made while in custody is not to be proved
against the accused as the provisions of sections 25 and 26 do not permit it unless it is made
before a magistrate.107
The other evidence referred by the High Court as corroborating the latter part of Alok’s alleged
confession in the view of the case that we have taken does not require any discussion because
in case of Palvinder Kaur108 it was said that “if the confession is inadmissible, no question of
corroborating it arises.”
4.2 NO FACTS WERE DISCOVERED THROUGH THE CONFESSION UNDER THE
PROVISO OF SECTION 27 of IEA.
Before dealing with the above question, it is relevant to refer to the proviso of Sec. 25, 26 that
is Sec. 27109, which are reproduced as under :-
105
AIR 1960 SC 1125
106
Sehr v. State of Karnataka, AIR 2010 SC 1974
107
Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).
108
Palvinder Kaur v. The State of Punjab 1952 AIR 354
109
Indian Evidence Act, 1872, § 27, No. 1, Acts of Parliament, 1872 (India)– “How much of information received
from accused may be proved -Provided that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be
proved.”
37
Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 110 and a statement
even by way of confession made in police custody which distinctly relates to the fact discovered
is admissible in evidence against the accused. This position was succinctly dealt with by this
Court in Delhi Admn. V. Balakrishan111 and Md. Inayatullah v. State of Maharashtra112. Sec.
27 of the Evidence Act only that part of the statement of accused made to the police could be
admissible in evidence which had led to discovery of a particular fact. 113 The words "so much
of such information" as relates distinctly to the fact thereby discovered, are very important and
the whole force of the section concentrates on them.114
Even though s. 27 is in the form of a proviso to s. 26, the two sections do not necessarily deal
with the evidence of the same character. The ban imposed by s. 26 is against the proof of
confessional statements. Section 27 is concerned with the proof of information whether it
amounts to a confession or not, which leads to discovery of facts.115
The question arising in the present case has been considered in many cases already decided,
some of which are as under the following cases :-
In Ram Kishore v. State116, That is why this proviso has to be strictly construed and any
relaxation must be sparingly allowed. The Courts have to take care that the purpose and object
of Ss. 25 and 26 are not rendered nugatory by any lax interpretation.
It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is
not the object recovered but the fact embraces the place from which the object is recovered and
the knowledge of the accused as to it, but the information given must relate distinctly to that
effect.117 The said ratio has received unreserved approval of this Court in successive
decisions.118
The counsel put forwards the following arguments while impugning the judgment of High
Court under appeal :-
110
Agnoo Nagesia v. State of Bihar (1966) 1 SCR 134
111
AIR 1972 SC 3
112
AIR 1976 SC 483
113
Vinod Kumar v. State (1990) 2 Chand Cri C 211
114
Bodh Raj v. State of Jammu and Kashmir AIR 2002 SC 3164
115
State Of U.P. vs Deoman Upadhyaya, AIR 1960 SC 1125
116
(1990 NOC 118)
117
Pulukuri Kottaya vs. Emperor AIR 1947 PC 67
118
Jaffar Hussain Dastagir vs. State of Maharashtra (1969 2 SCC 872), K.Chinnaswamy Reddy vs State of Andhra
Pradesh (AIR 1962 SC 1788), Earabhadrappa @ Krishnappa vs. State of Karnataka (1983 2 SCC 330), Shamshul
Kanwar vs. State of U.P. (1995 4 SCC 430), State of Rajasthan vs. Bhup Singh 1997 10 SCC 675.
38
i) The confession made by accused doesn’t fall under the exception of section 27 as all the
confession were self-incriminating/inculpatory in nature and in the present case, disclosure
statement did not lead to the recovery of new facts. The place of the occurrence was already
known to the police before recording of the disclosure statement and thus the pointing out of
the place of occurrence by accused Alok and the confession in that respect was not admissible
in evidence. In Jaiveer v. State119, it is laid down that the disclosure statement of the accused is
not at all admissible in evidence where it has not led to any discovery of any fact which was
not known to the I.O. also, under S. 27 of the Evidence Act.
ii) The Confession were not proved by the Prosecution as ‘what is admissible being the
information, the same has to be proved and not the opinion formed on it by the police officer.’120
Thus by virtue of law, it has to be proved but were not established by the prosecution.
iii) The recoveries were not been made in furtherance to the confessional statements of the
accused but were produced during the investigation and, in any case, the objects recovered have
no link with the commission of the crime as there was lack of forensic reports regarding
weapons used and as such, it would be impermissible in law to use these recoveries against the
accused for sustaining their conviction. In this context, we think it appropriate to quote the
celebrated words of Sir John Beaumont in Pulukuri Kottaya vs. Emperor121: "Their Lordships'
view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object
produced; the fact discovered embraces the place from which the object is produced and the
knowledge of the accused as to this and the information given must relate distinctly to this fact."
As in the present case, the recoveries were not been made in furtherance to the confessional
statements of the accused but were produced during the investigation
iv) The case of the prosecution is based upon the custodial confession, which is neither reliable
nor has any usage for discovery of new facts. This confession cannot form the basis of
conviction of the appellants since it has no point of corroboration. In the present case, there is
neither any eye-witness nor the prosecution has proved the complete chain of circumstances. It
is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of
evidence.
119
(1995) 2 Chand Cri C 422
120
State of Karnataka v. David Rozario (2002) 7 SCC 728
121
AIR 1947 PC 67
39
Henceforth, the custodial confession is inadmissible form of evidence, is also a very weak piece
of evidence and in a case of circumstantial evidence like the present, one cannot form a valid
basis for returning the finding of guilt against the accused.
In Mangal Singh v. State122, this Court was of the view that where the information does not
relate distinctly to the fact thereby discovered the admissibility of the disclosure statement of
the appellant is not legally tenable under S. 27 of the Evidence Act.
Similarly, in Virinder Kumar Yadav v. State123, it has been held that the confessional statement
of accused which has not led to any discovery and any material fact was totally inadmissible in
evidence under S. 27 of the Evidence Act, and it has depreciated the tendency of lower Courts
to exhibit the confessional statement made by the accused to the police, during the trial which
are not in accordance with the law.
As an additional safeguard the Hon’ble court may note that reliance on certain observations
made in certain precedents of this court without understanding the background of the case may
not be sustainable. There is no gainsaying that it is only the ratio which has the precedential
value and the same may not be extended to an obiter. As this Court being the final forum for
appeal, we need to be cognizant of the fact that this Court generally considers only legal aspects
relevant to the facts and circumstances of that case, without elaborately discussing the minute
hyper-technicalities and factual intricacies involved in the trial.
Coming back to factual aspects of this case, on the basis of the above confession of Alok, there
was no recovery which was made, or any weapon which was used in committing the offence.
Further, we may note that, there is no investigation linked with the confession of Accused with
the crime. Therefore, the major condition for application of Section 27 of the Evidence Act is
not fulfilled. Accordingly, we cannot append any value to the confession of Accused.
ISSUE V: WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE

AS A SUBSTANTIVE EVIDENCE; AND IS SUFFICIENT TO INFLICT DEATH
PENALTY UPON THE ACCUSED?
It is humbly submitted before the Hon’ble Court that the expert opinion fall under the ambit of
corroborative nature not treated as the substantive evidence. It is important that Sec. 45124 of
122
(1995) 1 Chand Cri C 45
123
(1995) 3 Chand Cri C 236
124
Indian Evidence Act, 1872, § 45, No. 1, Acts of Parliament, 1872 (India) “Opinions of experts - When the
Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or
finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art,
or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts.”
40
the Evidence Act does not say anything as to the weight to be attached to the expert evidence.
This Section only says that expert’s evidence is admissible. The expert-evidence is not
substantive evidence. The evidence of an expert only aids and helps the Court as advisory
material.
In Solanki Chimanbhai Ukabhai v. State of Gujarat125, It was held as under:
“13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries
could have been caused in the manner alleged and nothing more. The use which the defence
can make of the medical evidence is to prove that the injuries could not possibly have been
caused in the manner alleged….”
Similarly, In the case of Prem Sagar Manocha vs State (Nct Of Delhi), observation was made
for the dictum laid down in Yaqoob Shah v. The State126,
“It is well-settled by now that Expert's evidence is confirmatory or explanatory of direct or

circumstantial evidence and the confirmatory evidence cannot be given preference where
confidence-inspiring and worthy of credence evidence is available.”
The opinion given by a medical witness need not be the last word on the subject. Such opinion
shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged
to go by that opinion.127 It is not safe to rely upon this type of evidence without seeking
independent and reliable corroboration.128
It is submitted before the Court that the expert is also considered as witness even if he does not
know the facts of the case. In State of Maharashtra v. Damu Gopinath Shinde129, the Supreme
Court has held that without examining the expert as a witness in the court, no reliance can be
placed on expert evidence.
In case of Prem Sagar Manocha vs State (Nct Of Delhi)130 it is opined that, “It hardly needs any
elaboration that expert opinion must always be received with great caution. An expert witness,
however, impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the
side which calls him. The mere fact of opposition on the part of the other side is apt to create a
125
(1983) 2 SCC 174
126
PLD 1976 SC 53
127
State of Haryana v. Bhagirath, (1999) 5 SCC 96
128
S.Gopal Reddy v. State of A.P. AIR 1996 SC 2184
129
AIR 2000 SC 1691
130
AIR 2016 SC 290
41
spirit of partisanship and rivalry, so that an Expert witness is unconsciously impelled to support
the view taken by his own side. Besides it must be remembered that an Expert is often called
by one side simply and solely because it has been ascertained that he holds views favourable to
its interest. Although such evidence has to be received with "great caution", yet such
evidence, and reasons on which it is based, are entitled to careful examination before
rejection and non-acceptance by Court of Expert's evidence does not mean that the Expert
has committed perjury.”
Thereby it is needful to know that the duty of an expert is to furnish the court his opinion and
the reasons for his opinion along with all the materials. It is for the court thereafter to see
whether the basis of the opinion is correct and proper and then form its own conclusion. But,
that is not the case in respect of a witness of facts. Facts are facts and they remain and have to
remain as such forever. However, the expert gives an opinion on what he has tested or on what
has been subjected to any process of scrutiny. The inference drawn thereafter is still an opinion
based on his knowledge.
Henceforth, The expert Dr. Dheeraj, being not a witness of fact, his opinion is to be analysed
objectively by the court. The decision-making process is never delegated to the expert; the
expert only helps and assists the Court to decide. Courts always give due importance to the
opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.
Another major contention is that there is always a possibility regarding corrupt report of DNA
sampling as with the development of science inventions like Assisted reproductive technology
(ART), bone marrow transplantation (BMT), and stem cell transplantation, blood transfusion
as it creates variation in the concerned person DNA profile, i.e., blood will possesses the
complete profile of the donor while the nail and buccal fluids are will contain a mixed DNA
profile and hair will show an unmixed profile of the receiver.131 Aforesaid points are of
paramount importance for DNA profiling and must be put into consideration from a legal
viewpoint. Misuse of ART has created serious challenges in the identification of an individual
for forensic purposes.132 Another concern with DNA profiling is the procedure itself. Although
very accurate, it is not 100% fool proof. The miscarriages of justice can happen even moisture
131
Pope S, Chapman H (2006) The effect of bone marrow transplantation on DNA profiles: a case example. Sci
Justice 46(4):231–237
132
Motluk A (2011) Canadian court bans anonymous sperm and egg donation. Nature.
https://doi.org/10.1038/news.2011.329; Goswami GK (2015) The genetic truth of surrogate parentage. Med Leg
J 83(4):188-93; Goswami GK (2016a) Assisted reproduction and conflicts in rights. Satyam Law International,
New Delhi
42
or extreme heat or cold can damage a DNA sample. Also, the passage of time can corrupt a
DNA sample. A partial DNA profile (one that is not complete), for example, may match with
multiple people and should not serve as conclusive evidence.133 In the case of State of Texas
vs Josiah Sutton, accussed were held liable for rape charges and he further appealed that also
get rejected due to conclusive DNA Report. After conviction, Independent experts later found
significant issues with the lab's procedures, including the distortion of statistics and failure to
follow proper scientific protocols. Further analysis by expert William Thompson revealed
problems with the DNA evidence. Thompson's findings showed that the DNA analysis
presented at Sutton's trial contained errors and inaccuracies that cast doubt on his involvement
in the crime. The Houston Police Department retested the DNA evidence, excluding Sutton as
the contributor. On March 11, 2003, Sutton was released from prison on personal bail.
Therefore, DNA reports and examination of these reports by experts are based on merely
probability and not at all hold even nearly significance like Substantive Evidence.
Further case decision has changed the concept of law on ‘conclusive presumption’ on expert
evidence, that is the case of Binder Munda v. State134, the instances shows that “the blood group
on the dress of the accused and the dress of the deceased matched. It corroborates the
prosecution story. However that by itself is not conclusive proof of the culpability of the
accused.”
In Mahmood v. State of U.P.135, the court held that it is highly unsafe to convict a person on
the sole testimony of an expert. Substantial corroboration is required 136. Thereby, it is very
evident that conviction cannot be granted only on the basis of forensic report of an expert. Thus,
it is well established that the testimony by Dr. Dheeraj Shukla is not sufficient to inflict death
penalty upon the accused.
133
Srivastava, A., Harshey, A., Das, T. et al. Impact of DNA evidence in criminal justice system: Indian legislative
perspectives. Egypt J Forensic Sci 12, 51 (2022). https://doi.org/10.1186/s41935-022-00309-y
134
1992 Cr.L.J. 3508
135
AIR 1976 SC 69
136
Mohd. Isa Khan vs State Of U.P., 1992 CriLJ 3987
43
PRAYER OF RELIEF
In the light of the issues raised, arguments advanced and Authorities cited, the Appellant
respectfully requests and pray before Hon’ble Supreme Court to adjudge, hold and declare that:
-
1. The appeal is maintainable.
2. The doctrine of ‘rarest of rare case’ shall not be applied in the present case
3. The punishment based on circumstantial evidence is not justified.
4. The confession made by Alok is inadmissible in the case.
5. The testimony of forensic expert is not admissible as substantive evidence; and
is not sufficient to inflict death penalty upon the accused.
AND/OR PASS ANY ORDER THAT THE HON’BLE SUPREME COURT MAY DEEM FIT
IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
Respectfully Submitted;
Sd-
On Behalf of the Appellant
44

Appellant Format

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Appellant Format

Uploaded by

Copyright:

Available Formats

MEMORANDUM for APPELANT

AIR All India Reporter

CrPC Code of Criminal Procedure

u/s Under Section

IPC Indian Penal Code

SCC Supreme Court Cases

r/w Read with

1. A.V. Papayya Sastri v. Govt. of A.P., (2007) 4 SCC 221

58. Om Prakash Sood v. Union of India, (2003) 7 SCC 473.

89. State of A.P. v. S. Viswanatha Raju, (1995) 3 SCC 327

1. BLACKS LAW DICTIONARY, (WEST PUBLISHING GROUP 7TH EDN.) (1999)

Art. 136 of the Constitution of India-

Art. 142 of the Constitution of India-

[FIGHTS BETWEEN JOHN AND HARRY AND PHYSICAL ABUSE]

[POLICE INVESTIGATION AND DISCOVERY OF BODY]

ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

ISSUE II: WHETHER THE DOCTRINE OF ‘RAREST OF RARE CASE’ IS

ISSUE III: WHETHER THE PUNISHMENT BASED ON CIRCUMSTANTIAL

ISSUE IV: WHETHER THE CONFESSION CASE BY ALOK IS ADMISSIABLE IN THE

ISSUE V: WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS

ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

ISSUE II: WHETHER THE DOCTRINE OF ‘RAREST OF RARE CASE’ IS APPLICABLE

ISSUE III: WHETHER THE PUNISHMENT BASED ON CIRCUMSTANTIAL

ISSUE IV: WHETHER THE CONFESSION CASE BY ALOK IS ADMISSIABLE IN THE

ISSUE IV: WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS

ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

[B] There exists no alternative remedy.

[C]. The Hon'ble Court must intervene to ensure “Complete Justice”.

ISSUE II: WHETHER THE DOCTRINE OF ‘RAREST OF RARE CASE’ IS

1. Method of commissioning of the murder - If the homicide or murder is committed in an

“Undoubtedly brutality is involved in every incidence of murder but that brutality

2.2 CONSIDERING THE MITIGATING AND AGGRAVATING FACTORS

2.3 THAT THE ACCUSED EXHIBITS A SUBSTANTIAL POTENTIAL FOR REFORM

ISSUE III: WHETHER THE PUNISHMENT BASED ON CIRCUMSTANTIAL

3.1 THAT THE CIRCUMSTANTIAL EVIDENCE IS UNRELIABLE

The Supreme Court, in Bodh Raj v. State of J&K73 said that,

“There must be a chain of evidence so complete as not to leave any reasonable

J. Hidayatullah observed “Circumstantial evidence in this context means a combination of facts

The Points to be considered are:

3.2 THAT THE CONVICTION SOLELY BASED ON CIRCUMSTANTIAL

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of

Relying to the judgement of Veerendra v. State of M.P.94 that

3.3 UNJUSTIFIABLE PUNISHMENT BASED ON CIRCUMSTANTIAL EVIDENCE

ISSUE IV: WHETHER THE CONFESSION CASE BY ALOK IS ADMISSIABLE IN

4.1 INADMISSIBILITY OF CONFESSION UNDER SECTION 25 AND 26 of IEA.

A “confession” made to a “police officer”, by a person (presently or subsequently) accused of

ISSUE V: WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE

In Solanki Chimanbhai Ukabhai v. State of Gujarat125, It was held as under:

“It is well-settled by now that Expert's evidence is confirmatory or explanatory of direct or

On Behalf of the Appellant

You might also like