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MEMORIAL ON BEHALF OF APPELLANT

TABLE OF CONTENTS

LIST OF ABBREVATIONS………………………………………………

INDEX OF AUTHORITIES………………………………………………

I.BOOKS AND COMMENTARIES

REFERRED…………………………………………………………………

II.STATUTES REFERRED…………………………………………

III.TABLE OF CASES……………………………………………………………

STATEMENT OF JURISDICTION………………………………………………

STATEMENT OF FACTS …………………………………………………………

ISSUES RAISED…………………………………………………………

SUMMARY OF ARGUMENTS……………………………………………………

ARGUMENTS ADVANCED………………………………………………………………

I.WHETHER THE APPEAL IS MAINTAINABLE?

II.WHETHER THE DOCTRINE OF ‘RAREST OF RARE CASE’ IS APPLICABLE IN THIS

CASE?

III.WHETHER THE PUNISHMENT BASED ON CIRCUMSTANTIAL EVIDENCE IS

JUSTIFIED?

IV.WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS A

SUBSTANTIVE EVIDENCE;

AND IS SUFFICIENT TO INFLICT DEATH PENALTY UPON THE ACCUSED?

PRAYER………………………………………………………………

OF AUTHORITIES

I.BOOKS AND COMMENTARIES REFFERED:

1. THE LAW OF EVIDENCE

2. INDIAN PENAL CODE

3. CODE OF CRIMINAL PROCEDURE

4. THE CONSTITUTION OF INDIA

II.STATUTES REFERRED:

1.THE INDIAN EVIDENCE ACT, 1973

2.CRIMINAL PROCEDURE CODE,

3. INDIAN PENAL CODE,

4. THE CONSTITUTION OF INDIA

III.TABLE OF CASES REFERRED:

o Laxman Naik v. State of Orissa, (1995) 3 SCC 381: Relevant for considering the principle of provocation and its impact on the degree of culpability. o V. Sriharan v. Union of India, (2016) 7 SCC 1: Pertinent for assessing the issue of death penalty in cases of life imprisonment without remission. o State of Maharashtra v. Nisar Ramzan Khan, (2019) 20 SCC 112: Applicable for considering the admissibility of extra-judicial confessions. o Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158: Relevant for the importance of witnesses and their testimonies in criminal cases. o Anjit Singh v. State of Punjab, (2007) 15 SCC 419: Pertinent for evaluating the defence of insanity and diminished responsibility. o Bali Alias Baliram v. State of Rajasthan, (2017) 5 SCC 670: Applicable for considering the effects of sudden and grave provocation on the offender’s mindset. o Rattiram v. Stat of M.P., (1973) 3 SCC 465: Relevant for the necessity of proving the chain of circumstances beyond reasonable doubt in circumstantial evidence cases.

o Mohan v. State, 2010 SCC Online Del 4856: Pertinent for the principle of proportionality in sentencing and its impact on death penalty. o Rameshbhai Chandubhai Rathod v. State of Gujarat, (2011)9SCC618: Applicable for the consideration of the accused’s psychological state in determining culpability. o Rajendra Pralhardo Wanik v. State of Maharashtra, (2012) 8 SCC 699: Relevant for evaluating the gravity of the crime and its impact on sentencing. o Bapu v. State of Maharashtra, (2013)3 SCC 56: Relevant for evaluating the concept of mens rea and criminal intent. o Hardevinder Singh v. State of Punjab, (2004)11 SCC 399: Relevant for assessing the role of provocation in mitigating criminal liability. o Mohammed Ajmal Mohammed Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1: Pertinent for evaluating the impact of evidence obtained during police custody on admissibility. o Nish Kant v. State of Bihar, (1977)3 SCC 698: Applicable for the considering the concept of grave and sudden provocation as a mitigating factor. o Om Prakash v. State of U.P., (2000) 5 SCC 745: Relevant for assessing the credibility of eyewitness testimonies and their weight. o Bhagwan Singh v. State of Madhya Pradesh, (2002) 6 SCC 1: Pertinent for the evaluation of admissibility and reliability of confessions made topolice officers. o Koli Alias Tamru v. State of A.P., (2010) 12 SCC 206: Applicable for considering the impact of mental illness on criminal responsibility. o State of Rajasthan v. Damodar, (2010) 9 SCC 724: Relevant for evaluating the concept of "last seen together" in circumstantial evidence.

Surabhi and disposing her body without being caught. He revealed that being a chef, he knew the use of knife to cut meat. He used his knowledge to preserve her body and dispose it off accordingly. o The police officer during investigation discovered some body parts of Surabhi along with the weapon used for the commission of murder and sent it for DNA analysis to the forensic lab for identification of the body and also to the serologist for their report. o The Police Report (Chargesheet) was filed in the Sessions Court where the Court framed charges against Alok under sections 302 and 201 of Indian Penal Code, 1860 for murder and disappearance of evidence. The prosecution produced 14 witnesses to the court which included Surabhi's mother, her neighbour and an auto rickshaw driver and all the three witnesses had witnessed fights between the couple and their sour relationship. The forensic expert Dr. Dheeraj Shukla from Delhi FSL was also examined by the court. He confirmed that the body parts were of Surabhi. The whole prosecution case was based on circumstantial evidences to prove the guilt of accused. o The Sessions Judge appreciated the evidences adduced and passed death penalty against the accused which was confirmed by the Hon'ble High Court of Delhi. Alok challenged the death penalty in appeal. The High Court relied upon the decision passed by the Session Judge upheld the death penalty

STATEMENT OF JURISDICTION

The appellant has filed the present appeal before the Hon' ble Supreme Court under the provisions of the Criminal Procedure Code (CrPC). Under Section 374, where an appeal to the supreme Court can be filed in cases where the high court has imposed death penalty or has withdrawn for trial before itself any case from any court subordinate to its authority.

SUMMARY OF ARGUMENTS

I. WHETHER THE APPEAL IS MAINTAINABLE?

Yes, the appeal against the death penalty is maintainable. Under section 379 of the Code of Criminal Procedure, 1973, the accused can appeal against conviction by high court in certain cases. – Where the High Court has, on appeal reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years, he may appeal to the Supreme Court. II. WHETHER THE DOCTRINE OF ‘RAREST OF RARE CASE’ IS APPLICABLE IN THIS CASE? No, the doctrine of Rarest of Rare Case is not applicable in this case. This concept is primarily governed by Section 354(3) of the Code of Criminal Procedure, 1973, and its interpretation by the Supreme Court. In recent times, the court while confirming death penalty specifically shows that the case falls within the domain of the rarest of rare cases. Under Section 302 and 201 of Penal Code 1860, there is no fixed criteria or indices can be laid down for determining the rarest of the rare case. III. WHETHER THE PUNISHMENT BASED ON CIRCUMSTANTIAL EVIDENCE IS JUSTIFIED? No, the punishment solely based on circumstantial evidence is not justified. Under the Indian Evidence Act, 1872 the word circumstantial evidence’ has not been used directly but in Section 3 the definition of the word ‘Proved’ mentions that if the existence of any fact is so probable that the prudent man will believe it to exist then that fact is considered to be proved. It has been a fundamental point in numerous studies in the field of death penalty jurisprudence that cases, where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones

which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder IV. WHETHER THE CONFESSSION GIVEN BY ALOK IS ADMISSIBLE IN THE CASE? No, The Indian Evidence Act, 1872, does not justify punishment solely based on circumstantial evidence. It states that if a fact is so probable that a prudent person would believe it to exist, it is considered proved. This approach increases the likelihood of wrongful convictions in death penalty cases. Circumstantial evidence is an indirect method of proof, drawing inference from facts closely connected to the issue. The standard of proof required for conviction on circumstantial evidence is established by Supreme Court decisions, and the circumstances relied upon must be fully established. V. WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS A SUBSTANTIVE EVIDENCE, AND IS SUFFICIENT TO INFLICT DEATH PENALTY UPON THE ACCUSED? No, here; the forensic expert testimony alone should not be considered sufficient for imposing the death penalty. Relying solely on forensic evidence may lead to an incomplete understanding of the case. The case law of , State of Maharashtra v. Suresh (2000), State of U.P. v. Satish (2005), and Raja v. State of Karnataka (2011) support this argument. The other references the Supreme Court's rulings in Raja vs State of Karnataka (2011) can also be referred.

without unnecessary delay and subject to the provisions herein contained as to bail, take, or send the person arrested before a magistrate having jurisdiction in this case, or before the officer in charge of a police station. The appellant was not brought out to a magistrate and it is right of the accused that he is brought before a Magistrate within 24 hours of arrest and under Article 22(2) of Constitution of India,1949--Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.^3 The concept of bring in custody for enquiry cannot be equated with concept of actual arrest.^4 And under section 57 no police officer shall detail in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Under section 164 of the CrPC, Recording of confession and statement –

1. Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.
2. The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily^5. (^3) The Constitution of India, 1949 (^4) Munsamy Shunmugam v. Collector of Customs, 1995 Cr LJ 1740(Bom). (^5) The Code of Criminal Procedure, 1973

Under section 24 of the Indian Evidence Act --A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat for promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. His Lordship Lord Atkin in Pakal Narin Swami v. Emperor,^6 said that “A confession must either admit in terms of offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused the death with no explanation of any other than the man’s possession. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime.” A statement which might, at all most, be described as suggesting an inference that the accused committed the crime does not amount to confession. Section 25 of the same act also says that no confession made to a police officer shall be proved as against a person accused at any offence. The board ground for not admitting confession made to a police officer is to avoid the danger of a false confession^7. The law says that confession should be absolutely excluded from evidence, because the person to whom it was made is not to be relied on for proving such confession and he is moreover suspected of employing for obtaining confession. As confession is the answer made to the police, the law says that such confession shall be absolutely excluded from evidence, the person to whom it was made is not be relied on for providing such as per sec. 26 -- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. (^6) AIR 1939 PC 47. (^7) Karishma Singh v. State of M.P. AIR 1952 SC 159: Bandhu Kechei v. State. 1976 Cr LJ 325

In this case, the "rarest of rare" principle will not be applicable due to several factors: o Absence of Exceptional Circumstances: According to the "rarest of rare" criterion, the case must involve extraordinary and exceptional circumstances that distinguish it from other cases. The facts of the case are tragic, without a doubt, but they might not reach the standard of extraordinary brutality or heinousness that normally justifies the application of the concept. o Domestic Violence and Provocation: The victim, Surabhi, and the accused, Alok, have engaged in fights and altercations throughout the course of the case. These elements can imply that provocation and underlying tensions contributed to the sad incident. The "rarest of rare" rule typically applies in situations when there are no mitigating circumstances and the accused's actions shock the conscience. o Potential for Reform and Rehabilitation: The "rarest of rare" doctrine takes into account the accused's potential for change and rehabilitation. The circumstances leading up to the crime and Alok's confession in this case could point to underlying problems including rage, psychological suffering, and a potential lack of criminal intent. The appeals court could contend that applying the death penalty might prevent Alok from receiving any chance for reform and rehabilitation. o o Balancing Aggravating and Mitigating Circumstances: The "rarest of rare" principle involves a careful weighing of aggravating and mitigating circumstances before imposing the death penalty. There are several mitigating factors, such as Alok's confession, his psychological state, and the history of violence in the relationship, need to be taken into account when determining the appropriateness of the death penalty.^9 III.WHETHER THE PUNISHMENT BASED ON CIRCUMSTANTIAL EVIDENCE IS JUSTIFIED? No, the punishment solely based on circumstantial evidence is not justified. Under the Indian Evidence Act, 1872 the word ‘circumstantial evidence’ has not been used directly but in Section 3 the definition of the word ‘Proved’ mentions that if the existence of any fact is so probable that the prudent man will believe it to exist then that fact is considered to be proved. (^9) Rattiram v. State of M.P., (1977) 3 SCC 465

It has been a fundamental point in numerous studies in the field of death penalty jurisprudence that cases, where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any^10 characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.^11 Circumstantial evidence is an indirect mode of proof by drawing interference from facts closely connected to fact and issue. The standard of proof required to convict the person on circumstantial evidence is well established by a series of decisions of supreme court according to that standard the circumstances relied upon in support of the conviction must be fully established (Govinda Reddy v. state of Mysore, AIR 1960 SE 29, 1960 cr LJ) and the chain of evidence. Lets have a look the ways in which the use of circumstantial evidence is not justifiable under law; o Potential for Alternative Explanations: Circumstantial evidence can often be explained by multiple interpretations, and there might be alternative explanations for the observed facts. In this case, while there were arguments and altercations between the couple, Alok and Surabhi these could also be attributed to the strained nature of their relationship. The mere existence of disputes might not necessarily indicate a motive for murder o Reliability of Witness Testimonies: The credibility of witness testimony is frequently based on observations made of or interactions had with the accused. The validity and credibility of witness testimony, however, can be contested. Witnesses could be biased, have constrained viewpoints, or be swayed by outside forces. In this instance, the witnesses' statements of altercations and fights may have been impacted by their own perceptions and feelings (^10) Rameshbhai Chandubhai Rathod v. State of Gujarat, (2011) 9 SCC 618 (^11) Mohan v. State, 2010 SCC Online Del 4856:

indicating involvement, could also be interpreted as coerced or unreliable under certain circumstances. In this case, the reliance on circumstantial evidence might not fully justify a definitive conclusion of Alok's guilt. Instead, a^14 more comprehensive evaluation of the case, taking into account psychological and emotional dynamics, is necessary before arriving at a conclusive verdict based solely on circumstantial evidence. 15 IV.WHETHER THE CONFESSSION GIVEN BY ALOK IS ADMISSIBLE IN THE CASE? Under Section 17 of the Indian Evidence Act, Admission is a statement, oral or documentary or contained electronic form which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and under few given circumstances. Admission plays a very important role in judicial proceedings. If one party to a suit or any other proceeding proves that the other party, the work of the court becomes easier. The appellant asserts that Alok's confession may not be admissible due to concerns surrounding its voluntariness, potential coercion, and the lack of independent corroboration. The confession's credibility and reliability are in question, raising doubts about its admissibility. Section 24 of the Indian Evidence Act—Confession caused by inducement, threat or promise when irrelevant in criminal proceeding. The Privy Council has defined Confession as, “No statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a 16 confession. In this case, Alok has revealed that being a chef, he knew the use of knife to cut meat. Therefore, this alone cannot summarize the fact that he has done it. The case of Selvi v. State of Karnataka (2010) is relevant, wherein the Supreme Court established that confessions must be voluntary and free from psychological or physical coercion. The appellant maintains that Alok's confession could have been influenced by the circumstances of his interrogation^17 Extra judicial confessions; under section 24 of the Indian Evidence Act, extra judicial confessions are those which are made by the accused elsewhere that before a magistrate or in court. An extra judicial confession can be made to any person or to a body of persons. It is not necessary that the statements should have been addressed to any definite individual. (^14) Laxman Naik v. State of Orissa, (1995) 3 SCC 381 (^15) V. Sriharan v. Union of India, (2016) 7 SCC 1 (^16) State of Maharashtra v. Nisar Ramzan Khan, (2019) 20 SCC 112 (^17) Ramkishan Mithan Lal Sharma v. State of Maharashtra, (1970) 1 SCC 471

In this case, Alok has made an extra judicial confession the Investigating officer, it is unsafe to base conviction on extra judicial conviction since extra judicial confession alone cannot be relied it needs support of other supporting evidence. The evidence of extra judicial evidence is a weak piece of evidence. It can relied upon only when it is clear, consistent and convincing.^18 Thus, extra judicial confession is open to danger of mistake due to misapprehension of the witness before whom the confession was made, to the misuse of words^19. Due to those reasons, it is very dangerous for the courts to base conviction on the sole basis of extra judicial confessions. Palvinder Kaur v. State of Punjab (1952): This case highlighted the principle that a confession must be free and voluntary, without any inducement or threat. The appellant could cite this case to emphasize the importance of ensuring that Alok's confession was made voluntarily and without coercion. Nand Kumar v. State of Rajasthan (2008): The Supreme Court in this case emphasized that confessions obtained under police custody, especially when they are not made before a magistrate must be approached with caution. The appellant might use this case to raise concerns about the circumstances under which Alok's confession was obtained. V.WHETHER THE TESTIMONY OF FORENSIC EXPERT IS ADMISSIBLE AS A SUBSTANTIVE EVIDENCE, AND IS SUFFICIENT TO INFLICT DEATH PENALTY UPON THE ACCUSED? The appellant contends that the testimony of the forensic expert alone should not be treated as substantive evidence sufficient for imposing the death penalty. Given that the case relies heavily on circumstantial evidence, the appellant asserts that a more comprehensive evaluation of the evidence is necessary. The case of State of Maharashtra v. Suresh (2000) is pertinent, as the Supreme Court emphasized that forensic evidence should be corroborated with other evidence to establish guilt beyond a reasonable doubt. The appellant maintains that reliance solely on forensic evidence may lead to an incomplete understanding of the case. (^18) Sections 24 and 25 of the Indian Evidence Act, 1872 by Batuk Lal (^19) State of Punjab vs Bhagwan Singh1975, Cr.L.J.282:AIR 1975, SC 258