Moot Resp 19blb1003

TEAM CODE:
BEFORE THE HON’BLE

HIGH COURT OF TAHOMA
IN THE MATTER OF
STATE OF TAHOMA
(APPELLANT)
V.
SIMON & ANR
(RESPONDENT)
THE APPEAL FILED UNDER SECTION 378 OF Cr.P.C 1973

UNDER CRIMINAL APPEAL NO. ____ / 2021
MEMORANDUM ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENT
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MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT
TABLE OF CONTENTS
TABLE OF CONTENTS...................................................................................................................................1
ABBREVIATIONS..........................................................................................................................................2
INDEX OF AUTHORITIES..............................................................................................................................3
STATEMENT OF JURISDICTION...................................................................................................................4
STATEMENT OF FACTS................................................................................................................................5
ISSUES RAISED.............................................................................................................................................8
SUMMARY OF ARGUMENTS.......................................................................................................................9
ARGUMENTS ADVANCED..........................................................................................................................10
PRAYER......................................................................................................................................................17
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ABBREVIATIONS
1. & - And
2.AIR - All India Reporter
3.Anr - Another
4.HC - High Court
5.No. - Number
6.r/w - Read With
7.S/d - Signed
8.SC - Supreme Court
9.v. - Versus
10.SCC - Supreme Court Cases
11.Crl - Criminal Appeal
12.Crl. Lj - Criminal Law Journal
13.Hon’ble - Honorable
14.U/s - Under Section
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INDEX OF AUTHORITIES
Statutes:
Ordana Penal Code, 1860
Code of Criminal Procedure, 1973 of Republic of Ordana
Indian Evidence Act, 1872
Case Laws:
1. Baij Nath Sah vs State of Bihar 2010 AIR SCW 3900
2. Siva vs. State by Inspector of Police, Criminal Appeal No.642 of 2018 S.C.No.90 of 2017.
3. Kashmira Singh vs State of Madhya Pradesh AIR 1952 SC 159
4. Bhuboni Sahu v. The King (1949)51BOMLR955
5. Indra Dalal v. State of Haryana, (2015) 11 SCC 31
6. Mahabir Singh v. State of Haryana 2001 AIR SCW 2757
7. Satish Kumar v State of Himachal Pradesh AIR 2020 SUPREME COURT 1766,
8. Sheo Raj vs. State AIR1964ALL290
9. Makhan Singh V State of Punjab AIR 1988 SC 1705
10. Munna Kumar Upadhyay v. State of Andhra Pradesh AIR 2012 SC 2470
11. Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259:
12. Kavita v. State of T.N. [(1998) 6 SCC 108
13. State of Rajasthan v. Raja Ram [(2003) 8 SCC 180
14. Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604
15. Prakash v. State of Karnataka (2014) 12 SCC 133
16. Debapriya Pal v. State of W.B., (2017) 3 SCC
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STATEMENT OF JURISDICTION
The appellant herein has approached the Hon’ble High Court under section 378 Cr.P.C of
Republic of Ordana.
Section 378 – Appeal in case of acquittal

(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections
(3) and (5),
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to
the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable
and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of acquittal passed by any Court other than a
High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of
Session in revision
The respondent has appeared to the Hon’ble High Court of Tahoma in response to the petitions
filed by the appellant.
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STATEMENT OF FACTS
1. On 05.01.2021, Mr. Joe Cornell residing at Montawa, Tahoma left his house at around 9 a.m.
to go to his office just like any other day. At around 1 p.m. his wife, Mrs. Osaka Cornell received
a call from the police station informing her that her husband had been killed.
2. Mrs. Osaka Cornell submitted a complaint, and the Montawa Police Station's Station House
Officer filed a First Information Report (F.I.R. No. 13/2021), which was filed in accordance with
Sections 302 and 201 of the Ordana Penal Code, 1860. She told the police that her husband was
dressed in black pants, a blue sweater, and a white shirt. She further claimed that when Mr.
Cornel left the house, he had his laptop with him.
3. At the time of finding Mr. Cornell’s deceased body he was found wearing a white shirt and
black trousers, and the seizure memo prepared by Inspector Michael Watson revealed that no
laptop was recovered from the area where the body was found.
4. An inquest report was prepared by Sub-Inspector Hilary Duck, under the instruction of
Inspector Michael Watson. It was found that the death of the deceased was a result of ante-
mortem injuries. The injuries were three gunshot wounds and two incised wounds, based on the
autopsy conducted by Dr. Larry John.
5. Sub-Inspector Hilary Duck apprehended a vehicle on 06.03.2021 that was presumed to be

stolen based on an information provided by an Informer, the person driving the car told the
police that his name was Rambo Scott and the police recovered a .32 caliber pistol with four live
cartridges in a seven shot magazine from the pocket of his trousers upon being searched, and
arrested him.
6. The car was identified as the one her husband was driving on the day he was killed, by Mrs.
Osaka Cornell on 08.03.2021. An aluminum stick that her husband kept underneath his seat for
self-defense, as described by Mrs. Osaka Cornell was recovered, and a copy of the registration
certificate of the car was also produced by Mrs. Osaka. the police got the chassis number from
the car using a tracing paper. They matched with the number provided in the Registration
Certificate.
7. On 10.03.2021 in the confession statement from Rambo Scott recorded by the police, he said
that at around 3 p.m. on 05.01.2021 his friend Austin Baker and Austin’s brother Simon Baker
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came to meet him at his house and they told him that the car belonged to Simon and was in an
accident. Austin and Simon requested that Rambo keep the car with him for a few days.
8. Simon then used Rambo’s toilet and after that Austin took a laptop from the car and they left.
Rambo’s wife found a blue sweater in the toilet and when Rambo called Simon to ask if he had
left behind his sweater; Simon acknowledged it and asked him to keep it with him.
9. Austin told Rambo that the car belonged to Mr. Cornell whom he and Simon had murdered
when Rambo visited them around 7-8 days later. Looking deep into Rambo’s eyes Austin
laughed and after this conversation even though Rambo was paranoid he smiled.
10. Rambo gave the cops the blue sweater from his almirah, Mrs. Osaka confirmed that the
sweater was of the same size and colour that Mr. Osaka wore the day he was killed. On
22.03.2021, Rambo was produced before the Judicial Magistrate Mary Bishop and his judicial
confession was recorded under Section 164 CrPc.
11. Inspector Michael Watson along with his team went to Austin’s house to arrest him on
16.03.2021, but Austin was not there. Austin’s next-door neighbor Mr, Robin Gardner told the
police that he saw Ms. Lily Baker, Austin’s sister burning a laptop in the outdoor fireplace
established in the garden of Austin’s house. Charred remains of what were perceived to be some
electronic components from the spot indicated by Mr. Robin Gardner were found by Inspector
Michael Watson.
12. Austin and Simon were arrested a day later; both were interrogated separately. Simon stated
that he had neither committed any murder nor did he give any car to Rambo, in the statement
recorded by the police. On the other hand, Austin took the police to his house and showed a
finger in the direction of his cupboard, stating, “The pistol my brother owns is in that cupboard.
Yes, we killed Joe Cornell and took his money. He had a lot of money!” Inspector Michael
Watson prepared the recovery memo of the .32 calibre pistol recovered from the house of Austin.
13. Austin’s school principal also handed over the attendance register of his class to the police on
the day of his arrest, Austin was marked absent in the register on 05.01.2021.
14. In a report dated March 17, 2021, renowned forensic scientist Dr. Malcolm Hunt of the
Central Forensic Science Laboratory speculated that the burnt remnants may have been a laptop.
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One of the parts that was discovered burned was a battery cell, which is utilized in power banks
as well as laptop batteries.
15. charge-sheet against Simon and Austin under Sections 302, 397, 201 r/w 34, Ordana Penal
Code, 1860 & against Rambo under Section 201, 202, 404 and 411, Ordana Penal Code, 1860
and Lily under Sections 201 and 202, Ordana Penal Code, 1860, were filed by the police.
16. Austin was declared a juvenile, and his trial is still going on in the juvenile court of
Montawa. Only Simon, Rambo and Lily were tried by the Sessions Judge at Montawa. Mr.
Gardner was declared a hostile witness as he stated that he had never told the police about the
laptop and that the police had made him sign on a blank paper during the examination of
witnesses.
17. In their statement recorded under Section 313 CrPC, 1973 Simon and Rambo said, “I don’t
know”, in reply to all the questions put to them. In her statement recorded under Section 313
CrPC, 1973 Lily stated that Mr. Gardner lied to the police as he used to pass lewd remarks and
did not respond to advances and that she had not burned any laptop.
18. Rambo was convicted and sentenced to rigorous imprisonment for three years and Rs. 2000
as fine and in default, one month of simple imprisonment under Section 201 OPC, 1860, six
months of rigorous imprisonment under Section 202 OPC, 1860, one year of rigorous
imprisonment and Rs. 1000 fine and in default, one month of simple imprisonment under Section
404 OPC,1860 and one year of rigorous imprisonment under Section 411 OPC,1860, by the
sessions judge.
19. Simon and Lily were acquitted by the session judge for lack of evidence on the ground that
the murder weapon was recovered from the possession of a juvenile accused who was still being
tried, and the judicial confession of a co-accused cannot be relied upon for convicting Simon
Baker. Similarly, the court held that since Mr. Gardner turned hostile, sufficient evidence was
not available to convict Lily Baker.
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ISSUES RAISED
ISSUE 1. Can Rambo's confession under sec.164 of Cr.P.C be considered admissible as

evidence against Simon Baker?
ISSUE 2. Whether the trial court erred in dismissing Austin's confession under Section 24 of the
Indian Evidence Act and failing to consider it as corroborative evidence while evaluating the
guilt of the co-accused, Simon Baker.
ISSUE 3. Whether the trial court properly applied Section 154 of Indian Evidence Act, in
determining Mr. Robin Gardner's status as a hostile witness.
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SUMMARY OF ARGUMENTS

evidence against Simon Baker?
The counsel on behalf of the respondent humbly and respectfully states that statements recorded
under Section 164 of the Cr.P.C cannot be considered substantive evidence and cannot be relied
upon for conviction.
The confession of an accused cannot be used as a substantive piece of evidence against co-
accused, the confession of the co accused is a weak type of evidence, and cannot be made the
basis of conviction.
ISSUE 2. Whether the trial court erred in dismissing Austin's confession and failing to
consider it as corroborative evidence as per Section 27 of Indian Evidence Act. while
evaluating the guilt of the co-accused, Simon Baker.
The counsel on behalf of the respondent humbly and respectfully states that Extra judicial
confession is termed as “weak” without any other facts and evidences present to back up the
claim that was made in the confession under section 27 of the evidence act and statement made
in presence of the police cannot be admitted as evidence as per sec.161 of Cr.P.C
The counsel on behalf of the respondent would humbly and respectfully state that The Court
may, in its discretion, permit the person who calls a witness to put any questions to him which
might be put in cross examination by the adverse party." This Section refers to what is called, the
evidence of the 'hostile witness'.
But since Mr. Gardner's testimony changed from what he initially told the police, Section 155 of
Indian Evidence Act allows the party who calls a witness to impeach his credit by proving that
he has made at other times statements inconsistent with his present testimony.
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ARGUMENTS ADVANCED

evidence against Simon?
The counsel on behalf of the respondent humbly and respectfully states that in Baij Nath Sah vs
State of Bihar 12010 the SC held that the mere statement of the prosecutor recorded under the
section was not enough to convict the appellant.
in the case of Siva vs. State by Inspector of Police2, Criminal Appeal No.642 of 2018 A
division bench of the Madras High Court reiterated that statements recorded under Section 164
of the CrPC could not be considered as substantive evidence and relied upon for conviction.
The bench of justice’s S Vaidyanathan and AD Jagadish Chandira said: “The law is well settled
that a statement recorded under Section 164 of the Code of Criminal Procedure is not substantive
evidence ... it can be used to corroborate the statement of a witness and it can be used to
contradict a witness.”
1.1 Evidentiary Value of a Confession of Co-Accused

Section 30 of Indian Evidence Act does not mean that that the confession of one accused will be
considered as evidence against the co-accused. It only says that the court may take into
consideration such confession. The accused cannot be convicted on the basis of only
confessional statement of co-accused as it is not substantive piece of evidence.
In Kashmira Singh vs State of Madhya Pradesh 3(1952): The Supreme Court held that the
confession of an accused cannot be used as a substantive piece of evidence against co-accused.
The principle is that where there is evidence against the co-accused which is sufficient and if the
court believes to support his conviction, then confession of co-accused described under Section
30 of IEA may be used as an additional reason for believing that evidence.
In Bhuboni Sahu v. The King 4(1949): The Bombay High Court in this case held that the
confession of the co accused is a weak type of evidence. It is not recorded on oath, nor it is tested
by cross examination. It is a much weaker type of evidence than the evidence of an approver as
approver gives the testimony under oath and is subjected to cross examination. Therefore, the
confession of co-accused cannot be made the basis of conviction. A conviction cannot solely be
based on the confession of the co-accused
1
Baij Nath Sah vs State of Bihar 2010 AIR SCW 3900
2
Siva vs. State by Inspector of Police, Criminal Appeal No.642 of 2018 S.C.No.90 of 2017.
3
Kashmira Singh vs State of Madhya Pradesh AIR 1952 SC 159
4
Bhuboni Sahu v. The King (1949)51BOMLR955
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On the question of relying on the confessional statement of the co-accused, the Court took note
of the ruling in Indra Dalal v. State of Haryana5, wherein it was explained that, "The
philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are
extorted by the police officers by practicing oppression and torture or even inducement and,
therefore, they are unworthy of any credence. The provision absolutely excludes from evidence
against the accused a confession made by him to a police officer. This provision applies even to
those confessions which are made to a police officer who may not otherwise be acting as such. If
he is a police officer and confession was made in his presence, in whatever capacity, the same
becomes inadmissible in evidence. This is the substantive rule of law enshrined under this
provision and this strict rule has been reiterated countlessly by this Court as well as the High
Courts" The Court held that the findings recorded by the Trial Court in convicting the appellant
mainly on the ground that he was one of the conspirators for the crime in question, is erroneous
and illegal. The High Court also, did not considered the evidence on record in proper perspective
and erroneously confirmed the conviction and sentence imposed on the appellant.
1.2 Admissibility of confession

In the case of Mahabir Singh v. State of Haryana6, the court emphasized that when a
Magistrate fails to adequately explain to the accused that they are under no obligation to make a
confession and that any such confession may be used as evidence against them, the resulting
confession cannot be considered valid or admissible in court.
In the case of Satish Kumar v State of Himachal Pradesh7, The Himachal Pradesh High Court
held that per Section 162 of the Criminal Procedure Code, 1973 (CrPC) statements made by co-
accused during police investigations cannot be used as evidence against any other accused. The
Court granted bail to an individual indicted under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act). The Court noted that the police relied on the statement of the
co-accused as well as a discovery. However, the Court emphasized merely identifying the source
of an item possessed by the accused does not constitute the discovery of a new fact relevant to
the investigation.
The Bench of Justice Rakesh Kainthla observed, “A statement made by co-accused during the
investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. Further,
the confession made by the coaccused will be inadmissible because of Section 25 of the Indian
Evidence Act”. The Court observed that co-accused confessions lack substantive evidence value
and are admissible only to bolster other evidence. It highlighted the constraints imposed by
Section 25 of the Indian Evidence Act, 1872 (IEA) on confessions made to police officers during
investigations. Consequently, the Bench noted that the detention of the Petitioner based on a co-
accused's statement and call details lacked legal admissibility. Furthermore, the Bench
emphasized that showing the location of the alleged transaction did not adhere to Section 27 of
5
Indra Dalal v. State of Haryana, (2015) 11 SCC 31
6
Mahabir Singh v. State of Haryana 2001 AIR SCW 2757
7
Satish Kumar v State of Himachal Pradesh AIR 2020 SUPREME COURT 1766,
11 | P a g e
the IEA, emphasizing that pointing out the place of purchase does not constitute the discovery of
a relevant fact.
1.3 Presumption of statement u/s 164 of Cr.P.C as evidence
The question as to whether such presumption is applicable to the statement recorded by a
Magistrate under Section 164 Cr.P.C. has been elaborately dealt with by a Three Judges Bench in
Sheo Raj vs. State 8and held that a statement made under Section 164, Cr. P. C. is not 'evidence',
as it is not made in a 'judicial proceeding' and is not given under oath.
It has been held therein as under: -
" it is open to any person to make a statement or confession before a Magistrate (of a certain
class) in to course of an investigation, or at any time thereafter, but before the commencement of
an enquiry or trial and the statement or confession will be recorded by the Magistrate under
Sec.164 and is not subject to the bar imposed by Sec. 162. Such a statement, being a previous
statement, may be used only to contradict the person when he appears as a witness at the enquiry
or trial of the offence or to corroborate him. A statement made by a person before a Magistrate of
the required class holding an identification proceeding and recorded by him is a statement
governed by Sec.164; there is no dispute on this point. It is to be noted that Sec. 164 simply
mentions “any statement or confession made to him in the course of an investigation” and not
“any statement or confession made to him in the course of an investigation by any witness or
accused person.” It does not state whose statement of confession is to be recorded by him
Actually at this stage, when the offence is still under investigation, there are no witnesses and no
accused persons (except in the sense of persons against whom a charge of having committed the
offence is levelled and is under investigation). It is only after the investigation has been
completed that the police can decide who is to be the accused of the offence before a Magistrate
and who are to be the witnesses in the case. Till then there can be no decision about the status of
a person as an accused person or as a witness and all persons examined by the police during the
investigation are mere interrogatories or informants or statement-makers.
A Magistrate recording a statement under Sec. 164 is not authorized by law to take
evidence for the simple reason that he is not charged with the "duty" of deciding any case
and there is no matter to be proved or disproved before him. The other alternative is that the
evidence must have been given in a judicial proceeding. When a Magistrate records a statement
under Sec. 164 there are only two proceedings in which it can possibly be said to have been
recorded, (1) the investigation by the police and (2) the proceeding of recording the statement
itself. The investigation by the police is not a judicial proceeding.
“Judicial proceeding” is not defined in the Evidence Act, but since we are concerned with a
statement recorded under the Code of Criminal Procedure the question whether it was recorded
in a judicial proceeding or not, must be decided in the light of the definition given in the code.
“Judicial proceeding” is defined in Sec. 4(1)(m) of IEA to mean “any proceeding in the course
of which evidence is or may be legally taken on oath.” If evidence may be legally taken on oath,
8
Sheo Raj vs. State AIR1964ALL290
12 | P a g e
it is enough even though evidence is actually not taken on oath. An investigation is a judicial
proceeding only if it can be predicated that in the course of it evidence may be legally taken on
oath. “In the course of which” means “in the carrying out of which” or “in the conducting of
which” and not “during the pendency of which.” Anything that is done while a proceeding is
pending is not necessarily done in the course of it; if it is not a part of it or is done by one not
connected with it, it is not done in the course of it even though it is done during its pendency.
In the course of an investigation no evidence can be legally taken on oath by anybody concerned
in the investigation. The police have no power to administer oath. As I explained earlier, there is
no question of evidence being taken in the course of an investigation. If a Magistrate does
something while an investigation is pending it is not done in the course of it. An investigation
which would not be a judicial proceeding if a Magistrate did not do something during its
pendency does not become one simply because he does something, such as recording a statement
under Sec. 164. Since an investigation is to be done solely by the police nothing that he does
during its pendency becomes a part of it and can be said to have been done in the course of it.
Consequently, even if a Magistrate can legally administer oath to a person before recording his
statement under Sec. 164 the investigation does not become a judicial proceeding.
Thus I find that the statement made by a person under Sec. 164 cannot be said to be made in a
judicial proceeding cannot be drawn to rely upon the Statements of witnesses recorded under
Section 164 Cr.P.C during investigation to render a conviction.
Therefore, the counsel on behalf of the respondent would like to state that the Rambo’s statement
recorded under sec. 164 of Cr.P.C and later Rambo retracting his confession stating “I don’t
know” while recording his statement under sec.313 of Cr.P.C cannot suffice as evidence against
Simon Baker.
ISSUE 2. Whether the trial court erred in dismissing Austin's confession and failing to
consider it as corroborative evidence as per Section 27 of Indian Evidence Act. while
evaluating the guilt of the co-accused, Simon Baker.
The counsel on behalf of the respondent humbly and respectfully states that in the case of
Makhan Singh V State of 9Punjab - Extra judicial confession was termed as “weak” without
any other facts and evidences present to back up the claim that was made in the confession
under section 27 of the evidence act.
The law with regard to extra-judicial confession has been succinctly discussed in the case of
Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh 10through
Public Prosecutor, Hyderabad, Andhra Pradesh, wherein this Court has also referred to its earlier
judgments, which read thus:
9
Makhan Singh V State of Punjab AIR 1988 SC 1705-
10
Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh AIR 2012 SUPREME COURT
2470
13 | P a g e
This Court has had the occasion to discuss the effect of extra-judicial confessions in a number of
decisions. In Balwinder Singh v. State of Punjab 11this Court stated the principle that: (SCC p.
265, para 10) “10. An extra-judicial confession by its very nature is rather a weak type of
evidence and requires appreciation with a great deal of care and caution. Where an extra-
judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful
and it loses its importance.”
in Kavita v. State of T.N. 12the Court stated the dictum that There is no doubt that convictions
can be based on extra-judicial confession but it is well settled that in the very nature of things, it
is a weak piece of evidence. It is to be proved just like any other fact and the value thereof
depends upon the veracity of the witness to whom it is made.”
2.1 Evidentiary value of an extra-judicial confession

The SC in State of Rajasthan v. Raja Ram 13An extra-judicial confession, if voluntary and true
and made in a fit state of mind, can be relied upon by the court. The confession will have to be
proved like any other fact. The value of the evidence as to confession, like any other evidence,
depends upon the veracity of the witness to whom it has been made.”
2.2 Admissibility of the extrajudicial confession
the Court in Sansar Chand v. State of Rajasthan 14There is no absolute rule that an extra-
judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial
confession should be corroborated by some other material.
30 Section 30 of IEA provides an exception to the general rule of the confession as a piece of
evidence that it can be used against only the person making it and not the others. It provides that
where more persons than one is tried jointly for the same offence, the confession made by one of
them is admissible against all of them.
Essential Requirements
- The person confessing and others are being tried jointly.
- They are tried for the same offence.
- The confession must be affecting all.
In the present scenario the counsel on behalf of the respondent would like to state that
Austin’s statement cannot be used as evidence against Simon Baker as they are not
fulfilling the essential requirements as per sec. 30 as Austin Baker is tried as a Juvenile
separately and not jointly with Simon Baker
11
Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259: 1996 SCC (Cri) 59]
12
Kavita v. State of T.N. (1998) 6 SCC 108
13
State of Rajasthan v. Raja Ram (2003) 8 SCC 180
14
Sansar Chand v. State of Rajasthan (2010) 10 SCC 604
14 | P a g e
Admitting Austin Baker’s confession would also be in violation of Section 25 of the Indian
Evidence Act, 1872; as confessional statement given by an accused before a Police officer is
inadmissible as evidence.
The counsel would also like to point out the fact the Austin Baker’s statement is in violation of
S.161 (2) of the Code of Criminal Procedure states that every person is bound to answer
truthfully all questions, put to him by [a police] officer, other than questions the answers to
which would have a tendency to expose that person to a criminal charge, penalty or forfeiture,
this is in direct violation of an individual’s right against self-incrimination.
The counsel on behalf of the respondent humbly and respectfully states that Sec. 154 of Indian
Evidence Act states that
[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question
to him which might be put in cross-examination by the adverse party.
2[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely
on any part of the evidence of such witness.]
But such statement from witness cannot be admitted as Mr. Gardner later states that the he had
never told the police about the laptop and that the police had made him sign on a blank paper.
The credit of a witness may be impeached as per sec. 155 of IEA in the following ways by the
adverse party, or with the consent of the Court, by the party who calls him—
1. By the evidence of persons who testify that they, from their knowledge of the witness
believe him to be unworthy of credit;
2. By proof that the witness has been bribed, or has accepted the offer of a bribe, or has
received any other corrupt inducement to give his evidence;
3. By proof of former statements inconsistent with any part of his evidence which is liable
to be contradicted
And admitting such a statement would violate sec. 155 of Indian Evidence Act as Mr. Gardner
retracts his statement.
The Counsel would like to bring to the court’s notice that Lily Baker said Mr. Gardner used to
pass lewd remarks towards her, and since she did not respond to his advances, he lied to the
police, and therefore humbly request the court to declare Mr. Gardener as a hostile witness
15 | P a g e
3.1 Admission of hostile witness
In the case of Siva vs. State by Inspector of Police 15, Criminal Appeal No.642 of 2018 The
bench noted that the trial court (additional district court, Vellore) held in its 2018 order that
though the eyewitnesses to the incident turned hostile, their statements recorded under Section
164 of the CrPC corroborated the medical evidence viz., the wounds found on the body as
revealed in the postmortem certificate. It, thus, found the appellant guilty Strangely, however,
the trial court ignored the fact that there was a long delay in recording the statements of the
witnesses. Such a long delay speaks much, they said. In this case, as stated above, the
eyewitnesses (including a close relative of the deceased) and the recovery witnesses had not
supported the case of the prosecution ... though there is medical evidence to the effect that the
bloodstains on the shirt of the appellant and the blood group of the deceased were matching, it
has not been specifically mentioned as to whether the blood group was ‘B’ positive or ‘B’
negative. “Even assuming that it matches completely, that alone cannot lead to a conclusion of
the culpability of the appellant/accused in the absence of a detailed serological comparison and it
cannot be used as an incriminating piece of evidence as against the appellant, when especially,
the recovery of the shirt of the appellant is unbelievable in view of the fact that the witness to the
recovery had also turned hostile,” the judges held.
In the case of Prakash v. State of Karnataka 16(2014) 12 SCC 133, paras 41 and 45 and
Debapriya Pal v. State of W.B17., (2017) 3 SCC, para 8 the Court while deciding cases based
on circumstantial evidence had held that mere matching of the blood group cannot lead to the
conclusion of the culpability of the accused, in the absence of a detailed serological comparison,
since millions of people would have the same blood group.
In the present case, the prosecution has not proved that the room from where the bloodstained
knife and bloodstained shirt were allegedly recovered, was in the exclusive possession of the
appellant. The prosecution case is that the said room was in the house owned by one Teja
Chaudhary. The prosecution did not examine the said Teja Chaudhary to prove that the said
room was rented to Sonvir alias Somvir and/or was in the exclusive custody of the appellant.
Therefore, the recovery of the bloodstained shirt from Sonvir alias Somvir (Appellant-Accused
2) cannot be used as an incriminating piece of evidence."
in this case, as stated above, the eyewitnesses (including the close relative of the deceased) and
the recovery witnesses have not supported the case of the prosecution. Such being fatal to the
prosecution case, though there is medical evidence to the effect that the bloodstains on the shirt
of the appellant was found to belong "B" group and it matched with the blood group of the
deceased, PW17, Scientific Officer, during his cross examination, had admitted that in Ex.P20
serology report, it has not been specifically mentioned as to whether the blood group is 'B'
positive or 'B' negative. Even assuming that it matches completely, that alone cannot lead to a
conclusion of the culpability of the appellant/accused in the absence of a detailed serological
15
16
Prakash v. State of Karnataka (2014) 12 SCC 133
17
Debapriya Pal v. State of W.B., (2017) 3 SCC
16 | P a g e
comparison and it cannot be used as an incriminating piece of evidence as against the appellant,
when especially, the recovery of the shirt of the appellant is unbelievable in view of the fact that
the witness to the recovery had also turned hostile.
Therefore, this court is of the view that the prosecution has not proved its case beyond all
reasonable doubt and in such circumstances, it may not be proper to convict the
appellant/accused on the materials available on record. However, the Trial court, having misled
itself into a specious reasoning that there is corroboration between the statements of the
witnesses recorded under Section 164 Cr.P.C and the medical evidence, had proceeded to render
a conviction against the appellant, which, we cannot endorse, in view of the law laid down in the
decisions cited supra.
The counsel would like to state that in light of the judgment passed in Siva vs. State by
Inspector of Police18, where the statement of Mr. Gardener read along with the statement of
Forensic science expert Dr. Malcolm Hunt who stated that “the burnt remains might be that of a
laptop but the same may also be found in power banks” in his forensic report and even assuming
that it matches completely, that alone cannot lead to a conclusion of the culpability of the
accused Lily Baker, it cannot be used as an incriminating piece of evidence as it cannot be
proved beyond reasonable doubt that the burnt remains are that of a laptop and that Lily Baker
must be given the benefit of the doubt
18
17 | P a g e
PRAYER
WHEREFORE, In the lights of the issues raised, arguments advanced, and authorities cited, it is
most humbly prayed before this Hon’ble High court that it may be pleased:
1. To declare that Rambo’s confession u/s 164 of Cr.P.C cannot be admitted as
evidence against Simon Baker
2. To declare that Austin Baker’s statement cannot be used as corroborative evidence
u/s 27 of Indian Evidence Act.
3. To declare Mr. Robin Gardner as a Hostile witness
4. To declare that the expert opinion along with circumstantial evidence do not form a
chain of events and therefore are not sufficient to prove Lily Baker’s participation
in the crime.
AND/OR
Pass any other order, than this Hon’ble Court may deem fit in the light of justice, equity and
good conscience.
All of which is most humbly and respectfully submitted
COUNSEL FOR RESPONDENT RESPONDENT
18 | P a g e

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BEFORE THE HON’BLE

THE APPEAL FILED UNDER SECTION 378 OF Cr.P.C 1973

MEMORANDUM ON BEHALF OF THE RESPONDENT

Section 378 – Appeal in case of acquittal

5. Sub-Inspector Hilary Duck apprehended a vehicle on 06.03.2021 that was presumed to be

ISSUE 1. Can Rambo's confession under sec.164 of Cr.P.C be considered admissible as

ISSUE 1. Can Rambo's confession under sec.164 of Cr.P.C be considered admissible as

ISSUE 1. Can Rambo's confession under sec.164 of Cr.P.C be considered admissible as

1.1 Evidentiary Value of a Confession of Co-Accused

1.2 Admissibility of confession

2.1 Evidentiary value of an extra-judicial confession

COUNSEL FOR RESPONDENT RESPONDENT

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