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IN THE COURT OF SESSIONS

At Fairyland, Dreamland

UNDER SECTIONS 9 AND 28 OF CODE OF CRIMINAL PROCEDURE, 1973

Case No. xxxx/2015

In this Court
Between
Union of Dreamland... Prosecution
Vs.
Naresh Defence

-MEMORIAL SUBMITTED ON BEHALF OF THE DEFENCE-

TABLE OF CONTENTS

INDEX OF AUTHORITIES..........................................................................................................iii
STATEMENT OF JURISDICTION...............................................................................................iv
STATEMENT OF FACTS...............................................................................................................v
ISSUES FOR CONSIDERATION................................................................................................vii
SUMMARY OF ARGUMENTS..................................................................................................viii
ARGUMENTS ADVANCED..........................................................................................................1
I.

Confession to PW3 , Mr. Mahavir Prasad is inadmissible...................................................1

II. Confession to PW4, Mr. Shiv Prasad is inadmissible...........................................................1

III.

Confession to Investigating Police is inadmissible...........................................................2

A. Confession of crime is an inadmissible evidence as it does not fall within the scope of
Section 27 of the Evidence Act................................................................................................3
B. Statements in the confession leading to the discovery of body/weapons are not reliable.
4
PRAYER..........................................................................................................................................6

INDEX OF AUTHORITIES
Cases
Shankaria v. State of Rajasthan AIR 1978 SC 1248.......................................................................7
Bakshish Singh v. State of Punjab AIR 1971 SC 2016..................................................................10
Ibrahim v. R. (1914) AC 599,609.....................................................................................................7
In Re Athappa Goundan (1937) 2 MLJ 60....................................................................................10
Kuruma v. The Queen (1955) AC 197.............................................................................................7
Mohd. Aman v. State of Rajasthan AIR 1997 SC 2960.................................................................10
Prabhu v. State of U.P. AIR 1963 SC 1113...................................................................................10
Pullukuri Kottaya v. King Emperor AIR 1947 PC 67.....................................................................9
Sita ram v. UP 1979 AIR 745..........................................................................................................7
State of Haryana v. Jagbir Singh, 2003 (4) RCR (Criminal) SC 555.............................................8
State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125................................................................8
Books
Ratanlal and Dheerajlal, The Law of Evidence, 3rd edition 2010...................................................10

STATEMENT OF JURISDICTION
The Council for the prosecution has approached the Learned Sessions Court under Section 9 and
28 of the Code of Criminal Procedure 1973.
The counsel for the Defence humbly submits to the jurisdiction of the Learned Sessions Court.

STATEMENT OF FACTS
The defendant mst humbly showeth that
1. Naresh and Suresh were both neighbours living alone in their respective houses.
Prosecutions case is, that Naresh entered into the house of Suresh from the main door of
the latters house which was ajar and killed him with a knife at around 9 pm, due to
animosity caused by a land dispute between them, in which the said deceased had
recently instituted a suit against the accused.
2. Nobody in the village heard any cries around the time of the murder, but the other houses
in that village are around 500 meters away from the houses of the accused and the
deceased.
3. The accused telephonically called from his mobile phone on the landline at the residence
of the village headman Shiv Prasad at 11 pm, and his son Mahavir Prasad (PW3), who is
a Police Sub Inspector (S.I.) picked up the phone. PW3 deposes, that the accused told
after confirming his identity that: I have committed a gruesome crime today evening. I
4.

killed Suresh in a fit of anger, as Suresh had hurled most abhorrent abuses at him.
After that call, the accused received a call from the said Shiv Prasad (PW4), who
testifies, that he told the accused that he should tell him truth and then he will try to see
that the accused receives less punishment. In response, the accused told him on

telephone: Sir, I have killed Suresh today. Forgive me.

5. On being interrogated in the police custody, the accused gave the following statement
(Ext. P-1) to the Investigating Officer, S.I. of the concerned Police Station, and signed at
the foot of it: I Naresh, R/o Mayday village, was having animosity with Suresh due a
land dispute between us. Today at around 8.30 pm Suresh started to loudly utter most
nasty abuses from his house. I was washing utensils at that time. I heard them and
became very angry. I went to his house and found his main door ajar, and so I entered. I
shouted at him and warned him not to utter these abuses. He laughed at me, and
continued uttering them. As a result, my blood boiled, and I saw a kitchen knife lying
outside his kitchen, picked it up and stabbed Suresh a multiple times as a result of which
he fell and died. I ran away from his household to my house, picked up some clothes in a
bag and ran way on foot. On my way I changed my clothes, and threw the knife with
which I killed Suresh and my blood stained clothes on my way on the kutcha road (dirt
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track) connecting my village to the main metal road; and will show these items to you if
you come.
6. The next day at around 8 am the Police with three witnesses (PWs 7 to 9) went down the
said kutcha road, used by the villagers, and found the said items entangled in the roadside
shrubs, leading to their seizure and preparation of a seizure memo. The blood group
matches that of the deceased, but no finger prints could be lifted from the items seized
due to the heavy rains on the morning of Jan. 11, 2015.

ISSUES FOR CONSIDERATION

I.

WHETHER CONFESSION TO PW3 , MR. MAHAVIR PRASAD IS ADMISSIBLE?

II.

WHETHER CONFESSION TO PW4, MR. SHIV PRASAD IS ADMISSIBLE?

III.

WHETHER CONFESSION TO INVESTIGATING POLICE IS ADMISSIBLE?

SUMMARY OF ARGUMENTS
I

CONFESSION TO PW3 , MR. MAHAVIR PRASAD IS INADMISSIBLE

No confession made to a police officer shall be proved as against a person accused of
any offence. Confession to a police officer is within the ban of S. 25, though it was
not made in his presence.

IV.

CONFESSION TO PW4, MR. SHIV PRASAD IS INADMISSIBLE

A confession can be admitted only if its voluntary; and one obtained by inducement,
threat or promise held out by a person in authority is not to be admitted. the village
headman (PW4) has testified that he told the defendant that he should tell him truth
and then he will try to see that the accused receives less punishment. In response with
such inducement and promise to give the accused person the temporal advantage of
receiving lesser punishment, the defendant made the confession.

V.

CONFESSION TO INVESTIGATING POLICE IS INADMISSIBLE

Statements of the accused persons to the police admitting the commission of the
crime cannot be allowed to go in evidence against them under the guise of admissible
evidence falling within the scope of section 27. 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.
Information as to past user, or the past history, of the object produced is not related to
its discovery in the setting in which it is discovered.

ARGUMENTS ADVANCED
I

CONFESSION TO PW3 , MR. MAHAVIR PRASAD IS INADMISSIBLE.

"No confession made to a police officer shall be proved as against a person accused of any
offence.1 Confession to a police officer is within the ban of S. 25, though it was not made in his
presence.2 A confession can be made to a police officer by an oral message to him over the
telephone.3 In the present case, the accused telephonically called at the residence of the witness
and made the said confession.
Thus a confession made through a telephone will be considered as an inadmissible evidence
under Section 25 of the Evidence Act.
VI.

CONFESSION TO PW4, MR. SHIV PRASAD IS INADMISSIBLE.

No statement by an accused is admissible in evidence against him unless it is shown by the

prosecution to have been a voluntary statement in the sense that it has not been obtained from
him either by fear of prejudice or hope of advantage exercised or held out by a person in
authority 4or by oppression.5
The Supreme Court in Shankaria v. State of Rajasthan6 observed two tests that are required to be
applied. First, whether the confession was perfectly voluntary. Second, if so whether it was true
and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence. If
1 Sita ram v. UP 1979 AIR 745
2 Ibid.
3 Ibid.
4 Ibrahim v. R. (1914) AC 599,609
5 Ratanlal and Dheerajlal, The Law of Evidence, 3rd edition 2010, 414
6 AIR 1978 SC 1248.
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the confession appears to the court to have been caused by any inducement, threat or promise,
such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu.7
A confession can be admitted only if its voluntary; and one obtained by inducement, threat or
promise held out by a person in authority is not to be admitted. 8 It has been held by the Supreme
Court that in order to make an extra-judicial confession reliable it must be shown that it was
voluntary made.9 An extra-judicial confession can be accepted as evidence when the Court is
satisfied that it is both voluntary and true and is not a result of inducement threat or promise as
envisaged under Section 24 of the Evidence Act, or was brought about in suspicious
circumstances to circumvent section 25 and 26 to the Act.
In the present case, the village headman (PW4) has testified that he told the defendant that he
should tell him truth and then he will try to see that the accused receives less punishment. In
response with such inducement and promise to give the accused person the temporal advantage
of receiving lesser punishment, the defendant made the confession. Thus such confession is
inadmissible as it was not voluntary made.
VII.

CONFESSION TO INVESTIGATING POLICE IS INADMISSIBLE.

Whether a person is in custody or outside, a confession made by him to a Police Officer, or the
making of which is procured by inducement, threat or promise, having reference to the charge
against him and proceeding from a person in authority, is not provable against him in any
proceeding in which he is charged with the commission of an offence. 10 Sections 25 and 26 were
enacted not because the law presumed the statements to be untrue, but having regard to the
tainted nature of the source of the evidence, prohibited them from being received in evidence 11.

7 Supra Note 5 at 416

8 Kuruma v. The Queen (1955) AC 197.
9 State of Haryana v. Jagbir Singh, 2003 (4) RCR (Criminal) SC 555.
10 State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125.
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In the present matter the confession was made to and in the custody of investigating police and it
thus comes within the ban provided in Section 25 and Section 26 of the Evidence Act.

11 Ibid.
3

A. Confession of crime is an inadmissible evidence as it does not fall within the scope of
Section 27 of the Evidence Act.
Statements of the accused persons to the police admitting the commission of the crime
cannot be allowed to go in evidence against them under the guise of admissible evidence
falling within the scope of section 27.
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. Information as to past user, or the past history, of the object produced is not
related to its discovery in the setting in which it is discovered.12

12 Pullukuri Kottaya v. King Emperor AIR 1947 PC 67

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In case of Pullukuri Kottaya v. King Emperor13, the court had observed that the
information supplied by a person in custody that "I will produce a knife concealed in the
roof of my house leads to the discovery of the fact that a knife is concealed in the house
of the informant to his knowledge; and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant. However in the present
case, no finger prints could be lifted from the items seized. It is not proved that the knife
was used in the commission of the offence, hence the fact discovered cannot be said to be
relevant in the present matter. Moreover, it was further observed in the Pullukuri Kottaya
case that if to the statement the words be added "with which I stabbed A", these words are
inadmissible since they do not relate to the discovery of the knife in the house of the
informant.
In the confession made to the investigating officer by the accused, the statement .with
which I killed Suresh. is inadmissible as the statement that the knife was one with
which the murder had been committed was not a statement which led to any discovery
within the meaning of s.27 of the Evidence Act.
In Prabhoo v. State of U.P.14 the accused gave out, when interrogated by a police officer,
that the axe with which the murder had been committed and his blood stained shirt and
dhoti were in the house. The Supreme Court observed that: They were incriminating
statements made to a police officer and were hit by ss.25 and 26 of the Indian Evidence
Act. The statement that the axe was one with which the murder had been committed was
not a statement which led to any discovery within the meaning of s.27 of the Evidence
Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti
belonged to him was a statement which led to any discovery within the meaning of s.27.

13 Ibid.
14 Prabhu v. State of U.P. AIR 1963 SC 1113
5

If therefore an accused person were to state to a police officer that he killed A with a
knife and concealed the dead body at a particular place, all that is admissible, is that the
information that he had concealed the dead body in that place but the further information
that he himself had killed A is not admissible under Section 27.15
B. Statements in the confession leading to the discovery of body/weapons are not
reliable.
The recovery of the fact is not an act of investigator but is attributable to the accused and
therefore it is required to be proved by the prosecution by leading cogent evidence. 16
Recovery of the dead body on the information given by the accused, only raised strong
suspicion against the accused.17 Mere recovery of a blood stained Knife pursuant to the
statement of the accused after 15 days of the incident and a few simple injuries found
would only raise a strong suspicion and not a conclusive inference of the guilt of the
accused.18 Thus when no finger prints of the accused were found, the said confession
cannot be relied upon unless such conclusive proof is provided by the prosecution.
Thus the statements made by the defendant are inadmissible and the remaining evidence are
not sufficient to bring home the guilt to the defendant.

15 In Re Athappa Goundan (1937) 2 MLJ 60

16 Ratanlal and Dheerajlal, The Law of Evidence, 3rd edition 2010, 456.
17 Bakshish Singh v. State of Punjab AIR 1971 SC 2016
18 Mohd. Aman v. State of Rajasthan AIR 1997 SC 2960.
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PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced
it is most humbly and respectfully submitted before this Learned Sessions Court of Fairyland:
1. To declare the confession made by the accused as an inadmissible evidence.
2. To acquit the accused Naresh for the murder of Suresh.
3. And further pass any other order which the Learned Court may deem fit in the light of
equity, justice and good conscious.
-All of which is most humbly prayed for-

Date: 3rd September 2015

Counsel for the Defence

Place: Fairyland, Dreamland

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