ISSUE 1:

1. Whether Samrat had committed an offence under section 302 r/w section 449 of
IPC. 1860?
 It is humbly submitted before this Hon’ble Supreme court that to constitute a criminal
offence, two essential elements are required i.e., actus reus and mens rea. In the
present case there has been a gross failure of justice on part of the Sessions courts.
There has been a grave error in convicting Samrat solely on the basis of his mere
presence at the site of the incident. The High court on appeal too does injustice with
the accused by stating that the decision passed by the sessions court is upheld.

1.1 Absence of Requisite of Actus Reus and Mens Rea

The Latin expression ‘actus non facit reum nisi mens sit rea’, loosely translated as “an
act does not render a man guilty of a crime unless his mind is equally guilty,”
expresses a foundational concept in criminal law. This means that proving criminal
culpability necessitates not only the presence of the actus reus and the mens rea, but
also the coincidence or concurrence of the mens rea with the conduct that creates the
actus reus.1

The Supreme Court of India while deciding on the case of C.K. Jaffer Sharief vs State
(Thr C.B.I.) (2012)2 had observed that an individual’s criminal culpability would be
attached if they broke the law. The norm, however, is not absolute, and it is subject to
the constraints set out in the Latin maxim actus non facit reum nisi mens sit rea. It
means that there can’t be a crime without a criminal mind. To hold someone
criminally responsible, it must be proven that their actions resulted in an illegal act
and that their actions were accompanied by a legally blameworthy mental attitude. As
a result, every crime has two components, a physical element and a mental aspect,
i.e., actus reus and mens rea respectively.

Evidence must be tested for its inherent consistency and inherent probability of the
story.3 In the instant case, the entire prosecution story is unreliable. It is a well
principle in common law that an offence is constituted by the presence of the actus
reus as well as mens rea.4 The requirement of mens rea can be dispensed with only if
the statute excludes mens rea explicitly or by necessary implication. 5 It imposes a
burden on the state to prove that the defendant “performed the relevant actus reus
with the requisite mens rea in the crime changes.”6 Hence, the prosecution needs to
prove that a prima facie case exists with regard to the mens rea as well. There is
nothing in the facts to give a slight hint that Samrat had murdered nupur and Gunjan
or had any intention to do so. He was in true love with Gunjan and could never think
of doing such an act.

1.1.1. ACTUS REUS

1
Actus non facit reum nisi mens sit rea - iPleaders
2
C.K. Jaffer Sharief vs State (Thr C.B.I.) on 9 November, 2012 (indiankanoon.org)
3
C. Magesh v State of Karnataka, AIR 2010 SC 2768, p 49; Suraj Singh v State of U.P., 2008 (11) SCR 286.
4
R v Tolson, (1889) 23 QBD 168
5
Brend v Wood, (1946) 62 TLR 462; Nathulal v State of M.P, air 1966 SC 43
6
Woolmington v D.P.P., 1935 AC 462; Smith and Hongan’s Criminal Law 29 (David Omerod ed., 13th edn., 2011)
 For the actus reus to be made out there must be a voluntary commission of an
unlawful act. All actions are presumed to be voluntary, but the defence can
argue that there was no actus reus because the defendant had no voluntary
control of his or her actions. This was the case in R v Parks,7 where the accused
presented evidence that he was sleepwalking at the time he killed his mother
and father in law. The Supreme court of Canada upheld Mr. Park’s acquittal on
the basis that he was not acting voluntarily.

Actus Reus is the physical aspect of a crime. The accused needs to have done
something or omitted to do something, resulting in injury to the plaintiff, or the
victim in civil cases. Without a guilty act, there can be no crime and no suit for
damages can arise. An act alone does not make a crime, however, and both the
intention of the person and the act itself, if such act is prohibited, combine to
form the crime. In certain cases, circumstances of the case are also taken into
consideration, and are often used to either conclusively prove guilt, or can be
used to prove reasonable doubt of intention. 8

Thus, for actus reus to be made out there must be a voluntary commission of an
unlawful act.

It is humbly submitted before the Hon’ble Court that the unlawful act of murder
was not committed by the Samrat and he was not seen by anyone doing such act
or holding the murder weapon in the hand, so there was no actus reus on his
part. Also, the act was unlawful, but was not done by Samrat and he has no
involvement in such act. He was also madly in love with the elder daughter
Gunjan and would never think of doing such a thing to her.

1.1.2 Mens Rea

Courts presume that criminal offences require soe form of subjective mens rea
intent, knowledge, recklessness, or wilful blindness-in relation to all aspects of
the actus reus unless parliament clearly indicates otherwise. 9

Mens rea is an essential part of deciding whether an act is culpable or not. Mens
rea displays specific intent by the accused for the commission of the crime for
which he is charged. The accused must be proven to have knowingly committed
the crime, and had full knowledge of their actions and must have malafide intent
towards the victim. Mens rea is also used in some civil suits, requiring the
defendant to have been aware of the repercussions of their actions for a civil
liability to arise, but usually, the Actus Reus takes precedence in cases of civil
liability. Further, an Act may be voluntary or involuntary, and the guilt is
determined by the facts of the case.

Mens rea is a technical term, generally taken to mean some blameworthy mental
condition, whether constituted by intention or knowledge or otherwise, the

7
(1992) 2 S.C.R 871
8
Mens Rea And Actus Reus - Essentials Of A Crime - iPleaders
9
Source https://certificate.queenslaw.ca/blog/the-brains-and-brawn-of-criminal-law-mens-rea-and-actus-reus
 absence of which on any particular occasion negatives the intention of a crime.
The act becomes criminal when the actor does it with a guilty mind.

As held in the case on Brend v Wood10 Lord Goddand, C.J., said:

“It is of utmost importance for the protection of the liberty of the subject that a
court should always bear in mind that, unless a statue either clearly or by
necessary implication rules out mens rea as a constituent part of a crime, the
court should not find a man guilty of an offence against the criminal law unless
he has a guilty mind.”

The evidence of motive is relevant since it throws a light on the question of

intention and gives a clue to a crime, and through the prosecution is not bound
to prove motive for a crime, absence of motive may be factor in consideration
of the guilt of the accused. As stated by the Supreme Court in Basdev v State of
Pepsu,11 motive is something which prompts a man to form an intention.

1.2 As per Section 302 Murder

Section 302 of the Indian Penal Code, 1860 which talks about the punishment for
murder.

Section 300 of the Indian Penal Code 1860 talks about the offence of murder.
However, the offender is punished under Section 302 of the Code. This Section states
that a person committing a murder shall be punished with a death sentence or life
imprisonment, and also be liable to pay a fine. This Section extends to everyone
irrespective of their sex. It even applies to a public servant who due to selfish
intentions kills someone. The IPC does not exempt anyone from the offence of
murder. Section 302 clearly states, “Whoever commits murder.”

1.2.1 Essential ingredients of murder12

Section 302 of the IPC doesn’t clarify when these three above-mentioned
punishments shall be imposed. However, Section 300 of the IPC mentions three
instances if fulfilled, shall be termed as murder. They are:
 The act must be done with the intention to kill someone and cause death. An
intentional omission is also included here. For example, A stabs B with a knife,
with an intention to kill him. B dies, A has committed murder.

 The act is done with the intention to cause bodily injury and such bodily injury
is likely to result in death.

 If the act is done having proper knowledge that it will cause death, such an act
shall be termed as murder.

1.2.2 Circumstantial evidence

the circumstances (that the accused persons were seen in the vicinity of the
neighbour of the crime little before the same was committed), if coupled with
10
1946
11
AIR 1956 SC 488
12
All you need to know about Section 302 IPC - iPleaders
 the recovery of the ornaments of the deceased from the possession of the
accused, at best, create a highly suspicious situation, but beyond a strong
suspicion nothing else would follow in the absence of any other circumstances
which could suggest the involvement of the accused in the offence alleged. 13

Punishment under Section 302 of the IPC shall not apply if any of the
conditions mentioned above are not fulfilled. This means that if the accused has
not intentionally killed someone then murder cannot be proved.

It is humbly submitted before the Hon’ble court that Samrat act cannot be said
as voluntarily and he has no intention to cause harm to both the victim because
of the love he carries for the victim named Gunjan. Also, he as no mens rea
which is one of the most important elements to be presented in the ingredients
of murder so he cannot be convicted under charges of murder of both the
victims.

1.3 As per Section 449 House trespass in order to commit offence punishable
with death
Whoever commits house-trespass in order to the committing of any offence
punishable with death, shall be punished with imprisonment for life, or with rigorous
imprisonment for a term not exceeding ten years, and shall also be liable to fine.

An act can be said to be committed "in order to the committing of an offence" even
though the offence may not be completed. Thus, if a person commits a house trespass
with the purpose of the committing of theft but has failed to accomplish the purpose,
it will be proper to say that he has committed the house trespass in order to the
committing of theft. there can be no doubt that the words "in order to" have been
used to mean "with the purpose of". If the purpose in committing the house trespass
is the commission of an offence punishable with death the house trespass becomes
punishable under s. 449 of the Indian Penal Code.14

1.3.1 Essential of Criminal trespass

1. Entry into or upon property in the possession of another;
2. If this entry is lawful, then unlawfully remaining upon such property;
3. Such entry or unlawful remaining must be with intent to commit an offence;
or
4. to intimidate, insult or annoy the person in possession of the property.

1.3.2 Intention forms an important ingredient of criminal trespass

That means, if intention referred in Section 441 is not proved then no offence of
criminal trespass has taken place. The intention has to be gathered from the
facts and circumstances of the case.
In the case of Mathuri and Ors. vs. State of Punjab,15The Supreme Court held
that in order to establish that the entry on the property was with the intent to
13
Raj Kumar v State (NCT of Delhi), AIR 2017 SC 614 : (2017)237 DLT 173
14
Matiullah Sheikh v. The State of West Bengal, AIR 1965 SC 132.

15
AIR 1963 SC 986.
 annoy, intimidate or insult, it is necessary for the Court to be satisfied that
causing such annoyance, intimidation or insult was the aim of the entry; that it
is not sufficient for that purpose to show merely that the natural consequence of
the entry was likely to be annoyance, intimidation or insult, and that this likely
consequence was known to the persons entering; that in deciding whether the
aim of the entry was the causing of such annoyance, intimidation or insult, the
Court has to consider all the relevant circumstances including the presence of
knowledge that its natural consequences would be such annoyance, intimidation
or insult and including also the probability of something else than the causing of
such intimidation, insult or annoyance, being the dominant intention which
promoted the entry.

There is a distinction between the phrases with intent and with knowledge; it
must be proved by the prosecution that the accused had the intention to
intimidate, insult or annoy when he made the entry, and it is not enough that the
prosecution should ask the court to infer that the entry is bound to cause
intimidation, insult or annoyance. A mere knowledge that the trespass is likely
to cause insult or annoyance does not amount to an intent to insult or annoy
within section 441 of the Indian Penal Code.16

It is submitted before the hon’ble supreme court that in the instant whole case
there is missing of one of the most important elements which is intention and
even in case of missing of intention no offence is made under section 449 of
Indian Penal code, 1860.

1.4 Circumstantial evidence –Chain of circumstances not established

Peter Murphy defines it as “evidence from which the desired conclusion may be
drawn but which requires the tribunal of fact not only to accept the evidence
presented but also draw an inference from it.”17 Circumstantial Evidence is also
known as indirect evidence. There’s always a myth lying behind circumstantial
evidence that it’s evident enough to prove someone guilty of his act as the evidence is
based upon the circumstances rather than direct evidence which has the upper hand in
this. However, when there is an absence of direct evidence the case solely depends on
the circumstantial evidence. Now, it’s the work of the jury to critically analyse the
validity of circumstantial evidence as it’s a string connecting the facts to recreate the
crime scene in a court room.

1.4.1 Essentials of Circumstantial Evidence

Evidence plays a vital role in delivering justice to the innocent. However,
one should take care of any evidence which is going to be produced before
the court. As it must fulfil the essential elements of being admissible in
court. A case can be solely adjudged by circumstantial evidence if the
following essentials are fulfilled18 –
 The circumstance from which the guilt is established should be proven;

16
Baldewa vs Emperor, AIR 1933 All 816, 147 Ind Cas 119.
17
S.R. Myeni, The Law of Evidence, (Hyderabad: Asia Law House 2007), 20
18
State of UP vs. Ravindra Prakash Mittal, AIR 1992 SC 2045
  That each one the facts should be according to the hypothesis of the guilt
of the accused;
 That the circumstances should be conclusive in nature and tendency;
 That the circumstances ought to, to an ethical certainty, truly exclude
each hypothesis except the one projected to be evidenced.
 The evidence should prove the guilt of the culprit beyond a reasonable
doubt.

Similarly in the case of Bodh Raj vs. State of Jammu and Kashmir19 –
 The circumstances from where conclusion of guilt is to be drawn ought to
be established. The circumstances involved ‘must’ or ‘should’ and not
‘may be’ established.
 The facts, therefore, established ought to be as per the hypothesis of the
guilt of the accused.
 Circumstances ought to be conclusive in nature and tendency.
 They ought to exclude each attainable hypothesis except the one to be
tested.
 There should be a complete sequence of proof so as to not leave
any affordable ground for the conclusion in line with the innocence of
the defendant and should show that the act must have been done by
the defendant.

Hence it is clearly established that In the case of Padala Veera Redely v.

State of Andhra Pradesh20 the Apex Court laid down that when a case rests
upon circumstantial evidence, such evidence must satisfy the following tests:
1. The circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established; 2. Those circumstances
should be of a definite tendency unerringly pointing towards guilt of the
accused; 3. The circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that with in all
human probability the crime was committed by the accused and none
else; and. 4. The circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis than that
of the guilt of the accused and such evidence should not only be consistent
with the guilt of the accused but should be inconsistent with his innocence.

It is submitted before the Hon’ble Supreme court that there is no

circumstantial evidence which established the cogent and firm guilt and there
is no chain of circumstances formed to prove the accused guilty.

ISSUE 2:
2. Whether Samrat can took the plea of alibi?
 It is humbly submitted towards the Hon’ble Supreme Court that the accused Samrat is
liable to take the plea of Alibi. Hence in the present case there has been failure of

19
AIR 2002 SC 316
20
1991 SCC (Crl.) 407
 justice on part of the Session and High Court and the decision by the Session and
High court is justified by considering the Samrat as an accused and rejected the plea
of alibi taken by him.

2.1. Facts not otherwise relevant become relevant:

According to Section 11 of the Indian Evidence Act, the following facts may not be
otherwise relevant but will be considered relevant if:
1. they are inconsistent with any relevant fact or fact in issue, or
2. by themselves or in connection with other facts they make the existence or non-
existence of any relevant fact or fact in issue highly probable or improbable.

2.1.1 Facts inconsistent with any fact in issue or relevant facts

One fact is said to be inconsistent with the other when it cannot co-exist with
the other. Section 11 facts are relevant only because they cannot co-exist with
the relevant facts in issue. If their existence is proved the existence of fact in
issue or relevant facts are negatived.

2.2 Plea of alibi – when can be raised

If the plea of alibi is raised by the accused, the burden to prove it lies on him which
he could do by leading evidence in the trial. Where the alleged offence has been
committed and the prosecution accuses a person of having committed the same, it
would be a complete answer to the accusation for that person to plead that he was at
that time elsewhere; this has of course no reference to offence in which time or
place are not material factors; and if that person succeeds in establishing that plea
technically, he will be entitled to an acquittal.

The observations of West. J, in Reg. v. Prabhudas,21on S. 11 of the Act are:

“S. 11 of the Evidence Act is, no doubt, expressed in terms so extensive, that any
fact which can, by a chain of ratiocination, be brought into connection with another,
so as to have a bearing upon a point in issue, may possibly be held to be relevant
within its meaning. But the connetions of human affairs are so infinitely various and
far- reaching, that thus to take the section in its widest admissible sense, would be to
complicate every trial with a mass of collateral inquiries limited only by the
patience and the means of the parties.”
The words “highly probable or improbable” indicate that the connection between
the facts in issue the collateral facts sought to be proved must be immediate so as to
render the co-existence of the two highly probable. The relevant facts under this
section either (i) exclude, or (ii) imply, more or less distinctly, the existence of the
fact sought to be proved.22

Hence if Samrat wants to raise the plea of alibi, the burden of prove lies on him, and
here in this instance case, Samrat have produced the railway ticket during
investigation stating that during the offence committed he was in Ambala at his
uncle’s house.

21
(1874 11 B.H.C. 90)
22
(Jhabwala v. Emporer ., A.I.R. 1933 All. 690)
 2.2.1 Essentials of Plea of Alibi23: Precisely, to essential components involves
the disclosure of an alibi – adequateness, and timeliness. In general, some other
factors have to adhere as well:
1. There must be an alleged offence punishable by the law
2. The person making the plea of alibi must be an accused in that offence.
3. Alibi is a plea of defence by which the accused suggests to the court that he
was somewhere else at the time of the commission of the alleged offence.
4. The plea must prove beyond any reasonable doubt that it was impossible for
the accused to be physically present at the scene of the offence.
5. The plea must be backed by evidence supporting the claim of the accused.

Here in the given case, the plea of alibi was made by the accused in the case of
double murder namely Gunjan and Nupoor. Here the production of ticket and
the distance between the place of occurrence of offence and place where the
Samrat claiming to be present at is reasonable enough to create the doubt in the
mind of the court that at the time of occurrence offence accused was somewhere
else. Hence all the essential elements are presented in the support of plea of
alibi.

The claim of plea of alibi by accused is not baseless because it is backed by the
evidence in the form of railway tickets.

In Vijay Pal v State (GNCT) Delhi,24 the deceased had died of burn injuries. She
stated to her brother that her husband had poured kerosene and set her ablaze.
The trial court held her husband guilty under section 302 and the High Court
confirmed the same. In appeal to the Supreme court, the amicus curiae,
seriously criticized the judgment of the High court in not accepting the plea of
alibi, advanced by the accused which had a solid foundation, for the fateful day
was “Bhaiya Dooj” and, therefore, the accused had gone to his sister’s place as
per tradition. The Supreme court held –

There is no warrant to dislodge the concurrent finding of fact when the Trial
Court as well as the High court disbelieved the plea of alibi. The evidence
produced by the accused is not of such a quality to prove with absolute certainty
so as to exclude the possibility of his presence at the place of occurrence. It is
not also of such a quality that the court may entertain a reasonable doubt. The
burden on the accused is rather heavy and he is required to establish the plea of
alibi with certitude. The plea can succeed only if it is shown that the accused
was so far away at the relevant time that he could no be present at the place
where the crime was committed.

Here in the instant case, the High court and Session court also does not take into
consideration the plea of alibi, they des not consider that whether it is physically
and geographically possible for the accused to be present at the same time when

23
Plea of Alibi : Detailed Analysis - Indian Legal Solution
24
AIR 2015 SC 1495
 the offence occurred. Even the inspector Chirag Shirke who brought the accused
from Ambala was not even examined by the Trial Court and even High court
also didn’t pay much attention about the same.

2.2.2 Quantum of Proof is different in each case: The quantum or the level of
confirmation required to demonstrate a plea of alibi is different from case to
case. Sometimes the accused taking the plea of alibi need not to strictly prove
his plea, as the creation of doubt in the mind of the court is sufficient. But in
most of the cases where the accused is taking the defence of alibi, it needs to be
strictly proved.25

Here the case involves two murders of girls named Gunjan and Nupoor and it
was alleged the Samrat was eye witnessed by the Neeraj Shergill jumping from
the compound, just after the incident, hence the quantum of proof here is high
i.e., it should be strictly proved. But if the accused was travelling from
Chandigarh to Ambala as the railway ticket produced it is impossible for the
Samrat to be presented at Surat because the distance between the same is more
than 1350 km.

2.2.3 Correct Time to Raise the Plea: There is no particular time as such
prescribed in the Act for taking such plea but in order to make it more effective
one should take this plea at the earliest possible time (in the initial stage of
proceedings) i.e., at the stage of charge framing or during inquiry proceeding
which means before the trial begins. Taking such plea at later stage may create
suspicion in the mind of a judge. However, there is no such rule provided as
such.26 If the plea of alibi is made by the accused in initial proceedings, then
only, there are chances of acquittal or discharge of accused, if due to some the
reasons if it is made after the charges are framed then the plea will not be given
a proper acknowledgement and will create a less impact on the judges. 27

Here in the given case, the accused mentioned or produced the railways ticket at
the time of arrest which clearly raise the plea of alibi.

2.3 Physically impossible to present at the place of occurrence of offence:

Explaining the essence of a plea of alibi, it was observed in the case of Dudh Nath
Pandey v. State of U. P 28.that:
“The plea of alibi comes under the physical impossibility of the accused that accused
was present at the place of crime by the reason to believe that his presence at another
place. The plea of alibi can only be entitled that it is clearly shown that the accused
was a presence so foe the place of crime at the relevant time and he was not present
at the place where the offence was committed.”

Alibi is an inherently good defence and should not be rejected when the identity of the
accused is sufficiently and positively established by the defendant; for alibi to
25
Section 11 of the Indian Evidence Act, 1872 (shareyouressays.com)
26
https://lawcorner.in/alibi-defence-or-escape/#What_if_Accused_is_able_to_prove_the_Alibi
27
https://legalreadings.com/plea-of-alibi/#f_Burden_of_Proof_lies_on_the_accused
28
(1981) 2 SCC 166
 overcome the prosecution’s evidence, the defence must successfully prove the element
of physical impossibility of the presence of the accused at the crime scene at the time
the offense was committed; physical impossibility in relation to alibi takes into
consideration not only the geographical distance between the scene of the crime and
the place where the accused maintains he was, but more importantly, the accessibility
between these points.29

For a defence of alibi to prosper, the accused-appellant must prove not only that he
was somewhere else when the crime was committed but he must also satisfactorily
establish that it was physically impossible for him to be at the crime scene at the time
of its commission.30

For alibi to prosper, the accused must prove that he was somewhere else when the
crime was committed and that it was physically impossible for him to have been at the
scene of the crime; physical impossibility refers to the distance between the place
where the appellant was when the crime transpired and the place where it was
committed, as well as the facility of access between the two places. 31

Here it is clearly mentioned that physical impossibility in relation to the alibi does not
only takes into consideration the geographical distance but more importantly the
accessibility between the scene of crime and the place where the accused maintains he
was. Here in the given case the accused is claiming that he is in Ambala at the time of
occurrence of offence which is almost 1350 km away from Surat geographically and
physically it is impossible to present at both the place at the same time. The accused
also produced the ticket in evidence that he was travelling from Chandigarh to Ambala
on the date of occurrence of offence.

ISSUE 3:
3. Whether the absence of eye witness will affect the conviction of jignesh?
 It is humbly submitted before this Hon’ble Court that there is no eye credible witness
in the instant case.
3.1 Eye witness testimony here is not wholly reliable:
The identification of an eyewitness shapes the testimony for the evidence in
criminal offences. For a person to qualify as an eye witness, the following five
factors known as the Telfair Instructions shall be satisfied:
1. The quality of an eye witness because of the accused of the offence.
2. The eyewitness’s confidence with regards to the accuracy of such
identification.
3. The eye witness’s accuracy concerning the description of the accused.
4. The amount of attention the eyewitness paid during the occurrence of the
offence.
5. The time between the occurrence of the offence and the identification
procedure.

29
(People vs. Banayat, G.R. No. 215749, March 14, 2018)
30
(People vs. Clemeno, G.R. No. 215202, March 14, 2018)
31
(People vs. Bongos, G.R. No. 227698, Jan. 31, 2018)
 Here in the given case the quality of the eye witness is questionable because
whether the eye witness watched the accused committing a crime…no, whether
the eye witness watched the accused with the weapon used in the offence…no,
whether the eye witness watched the blood stains in the clothes of the accused
Samrat…again a no.

Even though eyewitness testimonies play a vital role in the justice delivery
system; in numerous cases, the same is affected by several factors resulting in
the reduction of their accuracy.

In the landmark case of Vikas Kumar Roorkewal v. State of Uttarakhand &

Ors32., the Supreme Court observed that close care and caution should be made
to check if:33
1. The witness is under an extremely stressful situation or condition at the
scene where the offence was taken place or during the process of
identification.
2. The witness is under any kind of undue influence, coercion, or force while
giving the trial court evidence.
3. The witness is having anxiety, fear or stress because of the presence of
weapons at the scene of the crime.
4. The offender was using a mask, wig or any disguise.
5. There was any sort of racial disparity between the witness and the suspect.
6. The witness had a short viewing time during the commission of a crime or
identification process.
7. Absence of observance of witness.
8. Absence of a specific or particular characteristic of the suspect, e.g., tattoos,
marks etc.
9. There was any form of threats to the eye-witnesses.
Notwithstanding, the guidelines set by the Supreme Court shall be
compulsorily followed by the trial courts and the High courts to avoid any
sort of disturbances while examining the witnesses. There shall not be any
kind of denial or dispute while doing it.

Hon’ble Supreme Court in the case of Bhogin Bhat Kirji vs State of

Gujarat34 has laid down certain presumptions regarding witness:
1. A witness cannot be expected to possess a photographic memory to recall the
details of an incident. It is not as if a videotape is replayed on the mental
screen.
2. Ordinary, a witness is overtaken by events. The witness may not have
anticipated the occurrence. Therefore, mental faculties cannot be expected to
be attuned to absorb all the possible details.
3. The powers of observation differ from person to person. What one person
may notice, another may not. An object or movement might imprint its
image on one person’s mind whereas it might go unnoticed by the other
person.
32
Vikas Kumar Roorkewal vs State Of Uttarkhand & Ors on 11 January, 2011 (indiankanoon.org)
33
EVIDENTIARY VALUE OF EYEWITNESS TESTIMONY | Law column
34
1983 Cri LJ 1096 SC
 4. People cannot accurately recall a conversation and reproduce the very words
used by them or heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a human tape-
recorder.
5. Concerning exact time of an incident, or the time duration of an occurrence,
people usually make their estimates by guesswork on the spur of moment at
the time of interrogation. One cannot expect people to make very precise or
reliable estimates in such matters.
6. Ordinary, a witness cannot be expected to recall accurately the sequence of
events, which take place in rapid succession or in a very short span of time.
A witness is liable to be confused when interrogated later on.

The conventional wisdom, particularly among non-lawyers, is that

circumstantial evidence is generally less reliable than eyewitness testimony.
People sometimes say that a case is "only circumstantial" to mean that the
evidence is weak. A strong case, according to this view, includes the
testimony of an eyewitness.35

At the same time, numerous psychological studies have shown that human
beings are not very good at identifying people they saw only once for a
relatively short period of time. The studies reveal error rates of as high as
fifty percent — a frightening statistic given that many convictions may be
based largely or solely on such testimony.

Hence the Supreme court by issuing guidelines agreed that the reliability of
the eye witness in the case depend upon cases to cases. But the Supreme
court do agree that the eye witness is not fully reliable. Here in the given
case also the eye witness does not witness the murder neither watch any
other related transaction, he merely watch someone jumping off from the
wall of compound and it is possible that the eye witness has misidentified
someone as the accused and by witnessing someone jumping off the wall is
not the credible evidence to prove that the accused was the one who has
committed the crime.
3.2 Misidentification by witness can led to wrongful conviction:
Eyewitness misidentifications can happen because the human memory does not work
like a video recorder. Most people can't recall every detail of a particular moment in
time so the accuracy of eyewitness testimony is not always trustworthy.
Events can become even harder to recall when they involve witnessing an event:
 Quickly
 Far away
 In poor lighting
 In outdoor or bad weather conditions
 Under stress
 In traumatic conditions

35
How Reliable Is Eyewitness Testimony? | FindLaw
 It is important to ask an eyewitness, if he gave a description of the person he accused
and, if so, whether he pointed out certain obvious characteristics of the defendant. If
the defendant has a pronounced nose, moustache, or any other outstanding
characteristic that the witness failed to give in his original description, such facts
should be revealed in order to diminish the value of the identification. Similarly, the
manner of dress of the person accused in the original description is extremely
important.36

For various reasons, eyewitness memory and witness misidentification are real human
errors. A mistaken eyewitness caused 69% of wrongful convictions that were later
overturned using DNA evidence, according to the Innocence Project.

Here it is submitted before the Hon’ble Court that the event witness by the eye witness
was quick which may led to the misidentification. Rather than this the forensic
evidence is far more credible than the eye witness.

3.2 Conviction on sole testimony is unsustainable:

The appellants Dalip Kumar, Ram Parvesh and Shambhu Dassare appealled against
common judgment, and order on sentence, dated 14th December, 2001, passed by the
learned Additional Sessions Judge whereby each of them has been convicted, under
Section 302, read with Section 34 of the Indian Penal Code, 1860 for having
committed the murder of Barun Singh, and consequently, sentenced to suffer rigorous
imprisonment for life.

The Court proceeded to evaluate the evidence of the material eye-witness, Umesh
Singh. The bench however, found the testimony to be replete with inconsistencies,
both within itself as well as vis-a-vis his deposition under Section 161 of Code of
Criminal Procedure, as opposed to the testimony of the Police witnesses.

Demonstrating these inconsistencies under nine heads, the Bench held that it is unsafe
to base conviction on the sole testimony of an eye-witness on a charge of murder,
especially when the eyewitness was related to the deceased. In conclusion, the High
Court of Delhi set aside the conviction order of 3 convicts in a murder case dating
back to 1988, while holding that the testimony of the sole eye-witness was not
reliable. Previously, the trail court had convicted them based on the testimony of the
material eye-witness.37

Hence it is submitted before the Hon’ble Supreme court that the conviction wholly
upon the sole testimony is not sustainable in case of not having sufficient other
circumstantial evidence against the accused.

ISSUE 4:
4. Whether the disclosure statement given by the accused under section 27 of the
Evidence act is admissible?

36
Cross-examination of eyewitness - LawPage
37
CRL.A.45/2002 & Crl. M.A.10587/2019
  It is humbly submitted before this Hon’ble court that the disclosure statement under
section 27 of the evidence act is not admissible against the accused. The session court
and High court did injustice with the victim. There is gross failure on the part of
Session court and High court to convict Samrat as an accused.

4.1. The requirements under the section:

Section 27: How much information received from the 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.

The conditions necessary for the application of section 27 are: (1) The fact must have
been discovered in the consequence of the information received from the accused. (2)
The person giving the information must be accused of an offence. (3) he must be in
custody of a public officer. (4) That portion only of the information which related
distinctly to the fact discovered can be proved. The rest is inadmissible. (5) Before the
statement is proved, somebody must depose that some articles were discovered in
consequences of the information received from the accused. (6) The fact discovered
must be a relevant fact, that is, to say it must relate to the commission of the crime in
question. 38

In State of Maharashtra v Bharat Ehagan Lal Raghani,39 it was held by Supreme court
that, the fact that seized weapons were displayed by police in press conference was not
a ground to disbelieve the factum of recovery.

The quintessential requirements of Section 27 of the Indian Evidence Act, 1872 have
been succinctly summed up in the matter of: Anter Singh V/s State of Rajasthan40, in
the following words:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It
must be borne in mind that the provision has nothing to do with the question of
relevancy. The relevancy of the fact discovered must be established according to the
prescriptions relating to relevancy of other evidence connecting it with the crime in
order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from
the accused and not by the own act of the accused.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused
in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly
to the fact discovered can be proved. The rest is inadmissible…”

38
Md. Inayatullah v State of Maharashtra, AIR 1976 SC 483; See also Earabha Drappa v State of Karnataka, AIR 1983 SC 446.
39
AIR 1994 SC 2420
40
(2004) 10 SCC 657
 4.1.1 Discovery is guarantee for reliability:
The section seems to be based on the view that if a fact is actually discovered in
consequence of information given by the accused some guarantee is afforded
thereby that the information was true and accordingly can be safely allowed to
be given in evidence.41 But clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to which such information is
required to relate.42

In State of Maharashtra v Damu Gopinath Shinde,43 the Supreme court held that
the basic idea embodied in section 27 of evidence act was the doctrine of
confirmation by subsequent events. The doctrine is favoured on the principle
that if any fact is discovered in search made on the strength of any information
obtained from the prisoner. Such discovery is guarantee that the information
supplied by the prisoner is true. The information might be confessional or non-
inculpatory in nature but if it results as discovery of fact, it becomes reliable
information. Hence, the legislature permits such information to be used as
evidence by restricting the admissible portion to the minimum.

Here in the given case, the offence weapon and blood stained clothes were
discovered before the statement was made by the accused, therefore the
discovery was not made on the basis of the information given by the accused
thus they are not admissible under section 27 of the Evidence act, but it is still
taken into admission by the High court and Session court which is clear
misinterpretation of the section 27 of the evidence act.

4.1.2 Discovery on the information of the accused:

The discovery to be admissible under section 27 must be based on the
information given by the accused. Discovery of incriminating articles alleged to
have been recovered by the accused is not admissible in evidence, if the police
already knew where they are hidden. The accused was tired for murder. It was
in evidence that he was bearing a false beard and a mask at the time of murder.
The false beard and mask were found buried in the grounds of Dewayat’s house
and the appellant is said to have recovered them in the presence of Panchas.
Dewayat said that appellant confessed the murder to him and told him that he
had gone there wearing a false beard and a mask and that he had buried these
articles under the Shammi tree. Dewayat said, “Next the police called me to go
to kalawad. At that time Raja (accused) has been arrested. I was interrogated. I
spoke about the beard at that time. Then the police came to my field with Raja.”
It was held that the discoveries were inadmissible in evidence because the
police already knew where they were hidden.44

The bench of H.L. Dattu, CJ and Arun Mishra, J further explained that for
application of section 27 of Evidence Act, admissible portion of confessional
statement has to be found as to a fact which were the immediate cause of the
41
Ram Kishan v Bombay State, AIR 1955 SC 104.
42
Pulukuri Kottayya v King Emperor, AIR 1947 PC 67; See also State of Maharashtra v Damu Gopinath Shinde, AIR 2000 SC 1691
43
AIR 2000 SC 1691
44
Raja Khime v State of Saurashra, AIR 1956 SC 217; Jaffar Hussain Dastager v State of Maharashtra, AIR 1970 sc 1934
 discovery and only that would be part of legal evidence and not the rest. In a
statement, if something new is discovered or recovered from the accused which
was not in the knowledge of the Police before disclosure statement of the
accused is recorded, is admissible in the evidence.45

Here in the instant case, the discovery made was not because of the information
given by the accused, the police already knew about the blood-stained clothes
and murder weapon before the accused made the statement, hence it is not
admissible.

4.1.3 Accused in custody:

Before the decision in State of U.P. v Deoman Upadhyay,46 for the application of
section 27, it was necessary: (1) that the person giving information must be an
accused at the time of giving of information, and (2) he must be in police custody.
Consequently, if the person was in custody but not the accused or he was an accused
but not in custody or neither an accused nor in custody, section 27 was not
applicable.47
But now since he decision of supreme court in Deomans case the only necessary
factor for application of section 27 is that the person giving the information must be
in custody.

Here in the given case the accused was not in the custody when the police recover the
weapon and other evidence related to murder hence they are not admissible against
the accused.

45
Extent of admissibility of confessional statement under S. 27 of the Evidence Act, 1872 explained | SCC Blog (scconline.com)
46
AIR 1960 SC 1125; A. Nagesia v State of Bihar, AIR 1966 SC 119.
47
Queen-Empress v Babul, ILR 6 All 509