UPES NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION 2014

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE (CBI) GHAZIABAD

SPECIAL CASE NO: 01/2012

COMPLAINANT: - THE STATE OF UTTAR PRADESH THROUGH CBI

V. ACCUSED: DR.SUMMET VAID AND DR.MYTHILI VAID, R/OL-32, VIDYA VIHAR SECTOR-9, UTTARPRADESH

ON SUBMISSION TO COURT OF SPECIAL JUDICIAL MAGISTRATE (CBI)

WRITTEN SUBMISSION ON BEHALF OF THE DEFENSE

MOST RESPECTFULLY SUBMITTED COUNSEL ON BEHALF OF THE DEFENSE

-MEMORIAL FOR DEFENSE

TABLE OF CONTENTS
INDEX OF AUTHORITIES................................................................................................................... 2 A. B. C. LIST OF CASES......................................................................................................................... 2 BOOKS AND DICTIONARY.................................................................................................... 4 STATUTES REFERRED ........................................................................................................... 4

LIST OF ABBREVIATIONS ................................................................................................................. 5 STATEMENT OF JURISDICTION ....................................................................................................... 6 STATEMENT OF FACTS ..................................................................................................................... 7 ISSUES FOR CONSIDERATION ......................................................................................................... 9 SUMMARY OF ARGUMENTS .......................................................................................................... 10 ARGUMENT ADVANCED DEFENSE .............................................................................................. 11 1. THE ACCUSED SUMEET VAID MYTHILI VAID ARE NOT GUILTY FOR THE TWIN

MURDERS OF Ms. ARTI AND HIS SERVANT VIJAY. .............................................................. 11 1.1. CIRCUMSTANCES IN THE INSTANT CASE DOES NOT PRIMA FACIE PROVES THE GUILT OF ACCUSED. ....................................................................................................... 11 1.2. ESTABLISHMENT OF MOTIVE IS A SINE QUA NON FOR PROVING THE PROSECUTION CASE ................................................................................................................ 15 1.3. CIRCUMSTANTIAL EVIDENCE DOES NOT PROVE THE GUILT OF ACCUSED BEYOND ALL REASONABLE DOUBTS ................................................................................. 17 1.4. 2. THE OPINION OF EXPERT IS INSUFFICIENT TO PROVE GUILT .......................... 20

THE ACCUSED IS NOT GULTY FOR TAMPERING AND DESTROYING THE

EVIDENCE OF THE CRIME SCENE ............................................................................................ 23 PRAYER ............................................................................................................................................... 25

INDEX OF AUTHORITIES A. LIST OF CASES 1. Anant Chintaman Lagu v. State of Bombay AIR 1960 SC 500 2. Anant Chintaman Lagu v. State of Bombay; AIR 1960 SC 500, 3. Arun Kumar Banarjee v state ,AIR 1962 SC 504, 4. Ashraf Ali v. Emperor, (43) Indian Cases 241 (para 14) 5. Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501 6. Babu v. State Of Kerela (SC) 2010 (3) UC 1464. 7. Barikanoo v. State of U.P., (1997) 1 Crimes 500 (All) 8. Batapa Bada Seth v. State 1987 Cr LJ 1976 (Ori ) 9. Brijpal Singh v. State of U.P., AIR 1994 SC 1624; 10. Chacko Mathai v, State; AIR 1964 Ker 222, 11. Dauji v. State of U.P. (All) 2007 (59) ACC 12. Dilip Kumar Sharma v. State of M.P., AIR 1976 SC 133. 13. Eknath Ganpat Aher v State of Maharshtra (SC) 2010 CRI 767 14. Girja Shankar Mishra v. State of U.P., AIR 1993 SC 2618; 15. Hanumant v. State of M.P., AIR 1952 SC 343; 16. Harindra Nath Bhattacharya v. Kaliram Das, AIR 1972 SC 246; 17. I.Ravindra Reddy v. Shaik Khader Masthan (SC) 2008 (2) J.Cr.C. 1295. 18. Jamnadas Parashram v. State of M.P., AIR 1963 MP 16 19. Kali Ram Vs. State of H.P 1973) 2 SCC 808 20. Kuldip Sham v. State of Punjab1980 Cr.L.J. 71 21. Kusum Ankama Rao v. State of A.P., 2008 SC 2819. 22. M.G. Agarwal Vs. State of Maharashtra AIR 1963 SC 200: (1963) 23. Mahandra Pal Singh v state of U.P, (All)2010 (68) ACC76; 24. Mani ram v. State of Rajasthan; 1993 Cr.L.J 2530 25. Masauddin Ahmed v The State Of Assam, (SC) V(2009) SLT 700 26. Mehrban v. State of M.P., 1996 (10) SCC 615; 27. Mohd. Faizan Ahmad Vs. State of Bihar (2013) 2 SCC 131 28. Munish Mubar v. State of Haryana2012) 10 SCC 464 (para 30)
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29. Nagendra Bhakta v. Emperor AIR 1934 Cal 30. Narendra Kumar Vs. State (N.C.T. of Delhi) (2012) 7 SCC 171 31. Oma Vs. State of T.N (2013) 3 SCC 440 32. Pandurang Kalu Paul Vs. State of Maharashtra 2002 Indlaw SC 38 33. Pannayar v. State of T.N. by Inspector of Police SC) VII (2009) SLT 34 34. Paramjeet Singh v. State of Uttarakhand AIR 2011 SC 200 35. Ram Swaroop v. State of U.P., AIR 2000 SC 715 36. Ramesh Bhai & Anr. V. State of Rajasthan (SC) CRIMINAL APPEAL NOs. 868-869 OF 2004 37. S.N. Vyas v. State of Rajasthan, AIR 1966 Raj 164 38. Sanjay Kumar Jain v. State of Delhi (SC) 2011 (1) UC 298 39. Sate v. Kamla, AIR 1991 SC 967 40. Senevirante v. king; AIR 1936 PC 289, 41. Shankar Prasad v. State of A.P., (2004) 3 SCC 753, 761 (para 14); 42. Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ; 43. Shivappa v. State of Mysore, AIR 1971 SC 196; 44. State of U.P v Ashok Kuamr Shrivastava AIR 1992 SC 840 45. State of U.P v Ashok Kumar Shrivastava AIR 1992 SC 840 46. State of U.P. v. Ashok Kumar Srivastava 1992 Crl.LJ 1104 1992 Indlaw SC 107) 47. State of U.P. v. Udai Veer Singh, (ALL) 2009 (1) ACR 190. 48. State of U.P. v. Vasudev Rao, (2004) 9 SCC 319, 328 (para 19). 49. State V. Kapil Deo, AIR 1991 SC 2257 50. Sukha Ram v. State of Maharashtra AIR 2007 SC 3050 51. Suresh Budharmal Kalani v. State of Maharashtra, AIR 1998 SC 3258 (para 5); 52. Suresh v. State of Karnataka, (2002) Cr.L.J. 3273 (Kant) (DB) 53. Syed Hakkim & Anr. V. State rep. By DSP, Kaur, District T.N. SLP (Crl.) No. 522 of 2008 decided on 23 February, 2009 54. Veera Reddy v. State of A.P. and Ors, AIR 1990 SC 79 , 55. Waqar v. State of U.P., (2011) 3 SCC 306

B. BOOKS AND DICTIONARY 1. NELSONS, R.A., INDIAN PENAL CODE BY SK SAVARIA, 10TH EDITION LEXIX NEXIS BUUTERWORTHS WADHWA NAGPUR 2. RATANLAL AND DHIRAJ LAL, THE CODE OF CRIMINAL PROCEDURE, , 18TH EDITION 2006, WADHWA NAGPUR 3. MONIR, M., LAW OF EVIDENCE, 17TH EDITION, UNIVERSAL LAW PUBLISHING 4. MISHRA, S.N., THE CODE OF CRIMINAL PROCEDURE, 1973 5. TANDONS CRIMINAL PROCEDURE CODE, 16TH EDITION, ALLAHABAD AGENCY 6. MISHRA S.N, INDIAN PENAL CODE 17TH EDITION, CENTRAL LAW PUBLICATION 7. LAL,BATUK, LAW OF EVIDENCE, 19TH EDITION, CENTRAL LAW AGENCY

C. STATUTES REFERRED

1. INDIAN PENAL CODE, 1860 2. CRIMINAL PROCEDURE CODE, 1973 3. INDIAN EVIDENCE ACT, 1872

LIST OF ABBREVIATIONS & A.I.R. All. Bom CCSC Chh CriLJ CrPC Dist. Edn. Honble HOD IPC IEA Ors. Ori. Pat. Para. MPLJ H.P. S.C. S.C.C. SCR --------------------------------------------------------------------------------------------And All India Reporters Allahabad Bombay Criminal Cases Supreme Court Chattishgarh Criminal Law journal Criminal Procedure Code District Edition Honourable Head of the Department Indian Penal Code Indian Evidence act Others Orissa Patna Paragraph Madhya Pradesh Law Journal Himachal Pradesh Supreme Court Supreme Court Cases Supreme Court Reporter

STATEMENT OF JURISDICTION The defense hereby most humbly submits before the Honble Special Judicial Magistrate (CBI) Ghaziabad, U.P.M under section 177 of the Cr.P.C, 1973, the memorandum for the defense in reply to the complaint filed by the complainant in the Special Case No. 01/2012.

The present memorandum sets forth the facts, contentions and arguments in the present case.

STATEMENT OF FACTS 1. That, Ms. Aarti daughter of Dr. Sumeet Vaid and Dr. Mythili Vaid, R/o L-32 Vidya Vihar, Sec-9, Noida was found murdered in the morning of 16.05.2012 in her room. On 16.05.2012, Aartis father viz. Dr. Sumeet Vaid made a written complaint to the police and alleged that his servant had killed his daughter in the night of

15/16.05.2012. However, the body of Vijay, who was alleged to have killed Aarti, was recovered on 17.05.2012 from the terrace of the residence of Dr. Sumeet Vaid. 2. That on the basis of written complaint received from Dr. Sumit Vaid, a case under crime no. 695/12 was registerd u/s 302 IPC at Polic Station, Sect-10 Noida on 16.05.2012. Govt. Of Uttar Pradesh issued a notification no 1937-VI- P-3-201215(48) P/2012, Lucknow dated 29.05.2012 giving consent for transfer of investigation of this case to CBI. 3. That the post mortem of deceased Aarti was conducted by Dr. Shushil Kumar on 16.05.2012. 4. That, the scene of the crime was inspected by the Investigating officer on 16.05.2012. During inspection of the scene of crime, U.P. Police observed that the flat of Dr. Sumeet Vaid was secure from all sides and there were no signs of forcible entry from outside. The police personnel after investigation, after inspecting the scene of crime, took photographs of the scene of crime and also took various items in their possession. There included the blood soaked clothing and bedding of the victim Aarti, few bottles of cold drinks and a Ballantine Scotch whisky bottle which was seized from the dining table of Dr. Summet Vaid. 5. That Dr. Sumeet Vaid was arrested on 23.05.2012 and produced in the court at Gaziabad on 24.05.2012 the court granted three days police custody which was extended till 30.05.2012. Thereafter, Dr. Sumeet Vaid was sent to judicial custody on 30.05.2012. 6. That the CBI court had convicted Dr. Sumeet Vaid for committing both the murders and destroying evidence. He was sentenced for life imprisonment by the court. Subsequently, Dr. Sumeet Vaid has obtained an order for trial from the High Court and was remitted for trial. 7. Hence, the present case is before the Court of Special Judicial Magistrate(CBI), Gaziabad, for re-trial.
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STATEMENT OF CHARGES

The accused has been charged under the following section of Indian Penal Code: 1. Section 302 r/w 34 of the Indian Penal Code, 1860 2. Section 201 of the Indian Penal Code, 1860 3. Section 203 of the Indian Penal Code, 1860

ISSUES FOR CONSIDERATION

1. WHETHER THE ACCUSED SUMEET VAID IS GUILTY FOR THE MURDERS OF Ms. AARTI AND HIS SERVANT UNDER SECTION 302 OF INDIAN PENAL CODE 1860?

2. WHETHER THE ACCUSED IS GULTY FOR TAMPERING AND DESTROYING THE EVIDENCE OF THE CRIME SCENE UNDER SECTION 201/203 OF INDIAN PENAL CODE, 1860?

SUMMARY OF ARGUMENTS 1. THAT THE ACCUSED SUMEET VAID MYTHILI VAID ARE NOT GUILTY FOR THE TWIN MURDERS OF Ms. ARTI AND HIS SERVANT VIJAY. It is most humbly submitted that, Dr. Sumeed Vaid (hereinafter will be referred to as accused no. 1) and Dr. Mythili Vaid (hereinafter will be referred to as accused no. 2) are not guilty for the alleged twin murders of their daughter Ms. Aarti and their servant Mr. Vijay under Section 302 of the Indian Penal Code, 1860. It is further submitted that, the case is based upon the circumstantial evidence, as there are no direct evidence as to prove the guilt of the accused no. 1 and accused no.2. Furthermore, circumstantial evidence collected during investigation has critical and substantial gaps and there is absence of clear cut motive and an incomplete understanding of sequence of events. 2. THAT THE ACCUSED IS NOT GULTY FOR TAMPERING AND DESTROYING THE EVIDENCE OF THE CRIME SCENE It is most humbly submitted that, the accused no. 1 and accused no.2 were not involved in the instances of tampering and destroying of evidences related to the said crime, for the purpose to shield themselves from the punishment under section 302 of Indian Penal Code, as well as misleading the Court by creating misconceptions about the murders. Therefore, the accused no. 1 and accused no. 2 are not guilty under section 201 and 203 of the Indian Penal Code, for causing disappearance of evidence of offence and for giving false information with respect to the offence committed.

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ARGUMENT ADVANCED DEFENSE 1. THE ACCUSED SUMEET VAID MYTHILI VAID ARE NOT GUILTY FOR THE TWIN MURDERS OF Ms. ARTI AND HIS SERVANT VIJAY. It is most humbly submitted that, Dr. Sumeed Vaid (hereinafter will be referred to as accused no. 1) and Dr. Mythili Vaid (hereinafter will be referred to as accused no. 2) are not guilty for the alleged twin murders of their daughter Ms. Aarti and their servant Mr. Vijay under Section 302 of the Indian Penal Code, 1860. It is further submitted that, the case is based upon the circumstantial evidence, as there are no direct evidence as to prove the guilt of the accused no. 1 and accused no.2. Furthermore, circumstantial evidence collected during investigation has critical and substantial gaps and there is absence of clear cut motive and an incomplete understanding of sequence of events. 1.1. CIRCUMSTANCES IN THE INSTANT CASE DOES NOT PRIMA FACIE PROVES THE GUILT OF ACCUSED. It is most humbly contended that, the hypothesis laid down by the prosecution, on the basis of investigation lacks the consistency as to the occurrence of the events and also fall short in ascertaining the chain of events appropriately and accurately. Furthermore, the credibility of witness and evidence has to be tested on the touchstone of truthfulness and trustworthiness.1 In Ramesh Bhai & Anr. V. State of Rajasthan2, it was held that, there is no doubt that conviction can be based on circumstantial evidence but it should be tested by the touch stone of law. In cases where evidence of circumstantial nature, than the circumstances from which the conclusion of guilt is to be drawn should be the first instance be fully established.3

Girja Prasad v. State of M.P., AIR 2007 SC 3106 (SC) CRIMINAL APPEAL NOs. 868-869 OF 2004

Amitava Banerjee @ Amit @ Bappa Banerjee v. State of West Bengal, (SC) 2011 J.Cr.C 1385; Abubucker Siddiqui v. State represented by the D.S.P, CBI/SCB/Chennai, Tamil Nadu (SC)

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It is a case based on circumstantial evidence regarding which there are innumerable judicial pronouncements crystallizing law succinctly and lucidly and the trite law which now has emerged is that in cases based on circumstantial evidence, each ring of circumstance woven together must present a complete chain and it must be a pointer only to the guilt of the accused without admitting any other hypothesis or exception. Unless these two facets are established, in case rested on circumstantial evidence, guilt of the accused cannot be taken to be established.4 Prosecution miserably failed to prove the guilt of the accused.5 It is further contended that, in case of circumstantial evidence when chain of circumstance is incomplete in that case conviction based there upon is not and the accused are entitled for acquittal.6 The argument is further strengthened by the case of Sanjay Kumar Jain v. State of Delhi7, wherein, on the basis of material contradictions in the chain of events, it was held that in a circumstantial evidence the chain of circumstantial evidence must be complete, if there is a gap or irregularity, it inspires no confidence and such conviction under Section 302 I.P.C. is not sustainable. It is further stated that, there are various clues which signify the material contradictions in the sequence or chain of event, and evidently points towards the innocence of accused. The clues include non identification of the figure prints on scotch bottle8, the possibility of neck being cut by khukri cannot be ruled out9. Moreover, the investigation of CBI was also diverted into three possible angles, i.e., involvement of intruders other than servants, involvements of servants and involvement of

Cr.A. No. 7757 of 2009 Connected with Cr.A. No. 7825 of 2009 Connected with Cr.A. No. 7398 of 2009 Connected with Cr.A. No. 7895 of 2009
5

(1984) 4 Supreme Court Cases 116 1984 Indlaw SC 432, 2002 (8) SCC 45 2002 Indlaw SC 1786, 2002 (2) SCC 490 2002 Indlaw SC 38, (2008) 3 SCC (Cri) 39, (2008) 3 SCC 210 2008 Indlaw SC 42, 2013 S.A.R. (Criminal) 426 and 2013 SAR (Criminal) 731 in support of his contention.
6

Lala Ram & Others v. State of U.P. All (2009) ACR 1043 (SC) 2011 (1) UC 298 Paragraph no. 22 (iii)(v), Factsheet Paragraph no. 22 (iii)(vii), Factsheet

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parents. It is therefore evident that, none of the possibilities were neither fully proved nor completely discarded. The argument gains strength from the fact that the grill gate was latched form outside, and therefore, the possibility of intruders cannot be completely neglected. Also no biological fluid or DNA could be recovered from the golf stick handed over by accused no.1.10 In support of the above argument, In State of U.P. v. Ashok Kumar Srivastava11, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two or more inferences; the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Moreover, mere recovery of golf stick, specifically without any blood stains or figure prints on it, does not ensure the guilt of the accused no. 1 and accused no.2. in support of the abover argument, in the case of Pandurang Kalu Paul Vs. State of Maharashtra12 the Hon'ble Supreme Court also discussed the law relating to discovery of fact as laid down u/s 27 of the Evidence Act, 1872 and held that recovery or even production of object by itself need not necessarily result in discovery of a fact. In Paramjeet Singh v. State of Uttarakhand,13 it has been held by the apex court as under:"14. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ;1984 Indlaw SC 432, this Court observed that it is well settled that the

10

Paragraph no. 16(vii), Factsheet (1992 Crl.LJ 1104 1992 Indlaw SC 107) 2002 Indlaw SC 38

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12

13

AIR 2011 SC 200 see also Veera Reddy v. State of A.P. and Ors, AIR 1990 SC 79 ,1989 Indlaw SC 31; Hanumant v. State of M.P., AIR 1952 SC 343; Kusum Ankama Rao v. State of A.P., 2008 SC 2819.

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prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests

on circumstantial evidence alone and held as under: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." Once again in Syed Hakkim & Anr. V. State rep. By DSP, Kaur, District T.N. 14, Conviction can only be based on circumstantial evidence unless complete chain of circumstances established and proved.15 State of U.P v Ashok Kuamr Shrivastava16, Supreme Court has, time out of number, observed that, while appreciating circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the links in chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being

14

SLP (Crl.) No. 522 of 2008 decided on 23 February, 2009 (SC) 2008 (5) AJW 601 AIR 1992 SC 840

15

16

14

negatived on evidence. Great effort must be taken in evaluating circumstantial evidence, and if the evidence realised on it is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effects of all the facts so established must be consistent only with the hypothesis of guilt but this is not to say that the prosecution must meet any end every hypothesis put forward by the accused, however, far faced and fanciful it might me. On a sum total of the aforesaid decisions, it is clear that in a case where the prosecution was not able to produce any eye-witness it was the duty of the prosecution to prove that the evidence so came up at the trial makes a complete chain of circumstance which would raise the pointer to the accused and the accused only. It would also suggest that no one else could be involved in such incident. If the test is positive, the conviction is a matter of course.17 It is well settled and trite that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.18 Therefore, in light of the abovementioned authorities and the arguments put forward, the hypothesis on facts along with the chain of circumstances is inappropriate to prove the guilt of the accused no. 1 and accused no. 2. Hence, the accused shall not be convicted merely on the basis of circumstantial evidence. 1.2. ESTABLISHMENT OF MOTIVE IS A SINE QUA NON FOR PROVING THE PROSECUTION CASE It is most humbly submitted that, motive plays an important role and becomes a compelling force to commit a crime, and, therefore, motive behind the crime becomes a relevant factor.19 Normally there is a motive behind every criminal case.20 In a case which

17

2014 Indlaw CAL 54; C.R.A. 302/2012, 28 January 2014

18

Cr.A. No. 804 of 2013 Kerala High Court 11 October 2013; Sharad Birdhichand Sardar Vs. State of Maharashtra, AIR 1984 SC 1622 19 Suresh Chandra Bahri v. Sate of Bihar, AIR 1994 SC 2420; see also State of Bengal v. Mohd. Khalid, AIR 1995 SC 785; Mehrban v. State of M.P., 1996 (10) SCC 615; Girja Shankar Mishra v. State of U.P., AIR 1993 SC 2618; Brijpal Singh v. State of U.P., AIR 1994 SC 1624; Dilip Kumar Sharma v. State of M.P., AIR 1976 SC 133.

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is based upon circumstantial evidence, motive for committing the crime on the part of the accused assumes importance.21 Evidently, if a motive is absent an important source of corroboration is blocked.22 In Pannayar v. State of T.N. by Inspector of Police23, it was held that, absence of motive in circumstantial evidence is more favourable to defence. Also in Munish Mubar v. State of Haryana24, it was held that, in case of circumstantial evidence motive assumes great significance and importance absence of motive would put the Court on its guard and cause to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not make place of proof. Again in Babu v. State Of Kerela25, it was held that, in a murder trial absence of motive in a case depending on circumstantial evidence is a factor that weights in favour of accused. Furthermore, in the case of Kuldip Sham v. State of Punjab26, conduct of an accused prior to the incident contemporaneous with it or subsequent to it is relevant under Section 8 of Evidence Act, 1872. In the instant case, the accused no. 1 assisted in every activity and at every step of investigation. The idea gains more strength by the fact that, a written complaint was registered by the accused no. 1 on 16/05/2012. Moreover, the accused no. 1 also handed over the second golf stick to the investigating agency, voluntarily. Another argument in favour of existence of motive as sine qua non in criminal cases, appeared in the case of Sukha Ram v. State of Maharashtra27, wherein it was held

20 Barikanoo v. State of U.P., (1997) 1 Crimes 500 (All) 21 Waqar v. State of U.P., (2011) 3 SCC 306
22

Dauji v. State of U.P. (All) 2007 (59) ACC (SC) VII (2009) SLT 34 (2012) 10 SCC 464 (para 30) (SC) 2010 (3) UC 1464. 1980 Cr.L.J. 71 AIR 2007 SC 3050

23

24

25

26

27

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that, question of motive is of great importance in the case of circumstantial evidence, and where there is absence of such motive, the Court should carefully examine the absence of motive as a circumstance in favour of accused. In the instant case, the prosecutions chain of events and facts produced in its hypothesis does not make any significant effort towards the existence of a strong motive of the accused no. 1 and accused no. 2 for committing the crime. Therefore, in light of the above cited arguments and authorities, it is submitted that, the absence of motive shall be considered as vital for deciding the case. Moreover, the absence of motive is adequate to hold the innocence of the accused no. 1 and 2. 1.3. CIRCUMSTANTIAL EVIDENCE DOES NOT PROVE THE GUILT OF ACCUSED BEYOND ALL REASONABLE DOUBTS It is most humbly submitted that, proof beyond all reasonable doubt is a sine qua non for establishing the guilt of the accused in the criminal justice system. Conviction in serious offences must be drawn on true and possible assessment of evidence and cannot be based on conjecture and surmises.28 In I.Ravindra Reddy v. Shaik Khader Masthan,29 it was held that, circumstances from which an inference as to guilt of accused is drawn have to be proved beyond reasonable doubt and have to shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Narendra Kumar Vs. State (N.C.T. of Delhi)30 it has been held that the prosecution has to prove its own case beyond the reasonable doubts and cannot take support from the weakness of the case of defence and hence there must be proper and legal evidence to record the conviction of the accused. In the instant case, circumstantial

28

State of U.P. v. Udai Veer Singh, (ALL) 2009 (1) ACR 190. (SC) 2008 (2) J.Cr.C. 1295. (2012) 7 SCC 171

29

30

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evidence collected during investigation has critical and substantial gaps and there is absence of clear cut motive and an incomplete understanding of sequence of events. Material doubts involvement of intruders other than servants, involvements of servants and involvement of parents are jumbled. It is therefore evident that, none of the possibilities were neither fully proved nor completely discarded. The argument gains strength from the fact that the grill gate was latched form outside, and therefore, the possibility of intruders cannot be completely neglected. Also no biological fluid or DNA could be recovered from the golf stick handed over by accused no.1. 31 Moreover, The clues include non identification of the figure prints on scotch bottle 32, the possibility of neck being cut by khukri cannot be ruled out33. Lately, in Mohd. Faizan Ahmad Vs. State of Bihar34, the Honble Apex Court has again cautioned by making observation that suspicion however grave cannot take the place of proof. Grave violence to basic tenets of criminal jurisprudence would occur if in absence of any credible evidence, criminal courts are swayed by gravity of offence and proceed to hand out punishment on that basis. The observations made by the Honble Supreme Court in Oma Vs. State of T.N.35 that a judge trying a criminal case has a sacred duty to appreciate the evidence in a seemly manner and is not to be governed by any kind of individual philosophy, abstract concepts, conjectures and surmises and should never be influenced by some observations or speeches made in certain quarter of the society but not in binding judicial precedents have also to be kept in mind.

31

Paragraph no. 16(vii), Factsheet Paragraph no. 22 (iii)(v), Factsheet Paragraph no. 22 (iii)(vii), Factsheet (2013) 2 SCC 131 (2013) 3 SCC 440

32

33

34

35

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It is further submitted that, when in a criminal case, there is a conflict between presumption of innocence and any other presumption, the former must prevail. 36 It is further submitted that, a presumption can be drawn only form the facts and not from other presumptions by a process of probable and logical reasoning.37 A presumption of fact must be such as would naturally arise. Regard must be had to all the material circumstances before determining whether presumption could justifiably be drawn.38 The presumption is stronger when the discovery of the fruits of the crime is made immediately after the crime is committed.39 Therefore, upon drawing the analogy beyond reasonable doubt, benefit of doubt shall go the accused. In M.G. Agarwal Vs. State of Maharashtra40, it was observed by the, Constitution Bench of the Honble Supreme Court as It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. The same reasoning was applied in Eknath Ganpat Aher v State of

36

Ashraf Ali v. Emperor, (43) Indian Cases 241 (para 14)

37

Suresh Budharmal Kalani v. State of Maharashtra, AIR 1998 SC 3258 (para 5); Shankar Prasad v. State of A.P., (2004) 3 SCC 753, 761 (para 14); State of U.P. v. Vasudev Rao, (2004) 9 SCC 319, 328 (para 19).
38

Jamnadas Parashram v. State of M.P., AIR 1963 MP 16

39

Shivappa v. State of Mysore, AIR 1971 SC 196; Harindra Nath Bhattacharya v. Kaliram Das, AIR 1972 SC 246; Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501
40

AIR 1963 SC 200: (1963)

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Maharashtra41, wherein it was held that, unless until a specific role of accused in incident is not proved then the accused is entitle to benefit of doubt. Kali Ram Vs. State of H.P.42 that if reasonable doubt arises regarding the guilt of accused, the benefit of that cannot be withheld from him. If crime is to be punished gossamer web niceties must yield to realistic appraisals. The test that the accused must be guilty and not may be guilty should not be confused with exclusion of every contrary possibility. Therefore, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.43 In the instant case, the chain of circumstance is insufficient to prove the guilt of accused no. 1 and 2 beyond reasonable doubt, and, has also failed to establish a clear motive of committing the crime. Hence, in the light of the above cited authorities and arguments advanced, the accused no. 1 and 2 are entitled for the benefit of doubt, as their guilt is not proved beyond all reasonable doubts. 1.4. THE OPINION OF EXPERT IS INSUFFICIENT TO PROVE GUILT An expert witness is one who has devoted time and study to special branch of learning, and is especially skilled on those points on which he is asked to state his opinion. In Savita Devi and Others v. State of U.P and others44 During trial the opinion of doctor is considered only as an opinion evidence under Section 45 of Evidence Act which is relevant but not conclusive and the court is free to judicially estimate value of the

41

(SC) 2010 CRI 767 see also Mahandra Pal Singh v state of U.P, (All)2010 (68) ACC76; Masauddin Ahmed v The State Of Assam, (SC) V(2009) SLT 700
42

(1973) 2 SCC 808 Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, (AIR 1952 SC 343 1952 Indlaw SC 89) (All)2009 (2) ACR2036

43

44

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doctor opinion evidence by examining how well it can explain and clarity the facts in issue. The opinion of the expert is only opinion evidence. It does not help the court in interpretation.45 The Court is not bound to follow it blindly. The expert cannot acts as a judge and the final decision is made by the judge.46 Medical evidence is hardly conclusive and decisive, because it is primarily an evidence of opinion and not a fact. To reply upon the findings of the medical person who conducted the post-mortem and the chemical analyst as decisive of the matter is to render the other evidence entirely fruitless. The court has to consider not merely medical evidence but also the other evidence and circumstances appearing on the point.47 The doctors evidence can never be absolutely certain on the point of time, so far as duration of injuries are concerned.48 Anant Chintaman Lagu v. State of Bombay49, in their Lordships of the SC observed to rely upon the finding of the medical man who conducted the post mortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless. While the circumstance often speaks with unerring certainty, the autopsy and chemical analysis taken by them may be most misleading. No doubt, due weight must be given at such examinations. But, bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be

45

Forest Range Oficcer v. P. Mohammed Ali, AIR 1994 SC 120 (para 8) Law Society of India v. Fertilizers & Chemical Travencore Ltd., AIR 1994 Ker 308 (paras 185 & 186)

46

47

Arun Kumar Banarjee v state ,AIR 1962 SC 504, relying on Stephen Senevirante v. king; AIR 1936 PC 289, Anant Chintaman Lagu v. State of Bombay; AIR 1960 SC 500, Chacko Mathai v, State; AIR 1964 Ker 222, Mani ram v. State of Rajasthan; 1993 Cr.L.J 2530
48

Ram Swaroop v. State of U.P., AIR 2000 SC 715 AIR 1960 SC 500

49

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taken as the end of the case, for on good and probative circumstances, an irresistible inference guilt can be drawn. Medical witnesses called as experts opinions cannot be always be in a position to form definite opinions as to the precise sufficiency of specific injuries cause to death. Keeping in view the present knowledge of human physiology and medical sciences, Judges on various occasions did not approve of dogmatic expression of opinions.50 State of U.P v Ashok Kumar Shrivastava51, Supreme Court has, time out of number, observed that, while appreciating circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the links in chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great effort must be taken in evaluating circumstantial evidence, and if the evidence realised on it is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effects of all the facts so established must be consistent only with the hypothesis of guilt but this is not to say that the prosecution must meet any end every hypothesis put forward by the accused, however, far faced and fanciful it might me. In the instant case, the medical opinion does not conclusively identify the figure prints on the scotch bottle. Moreover, the FSIs opinion that, the murder was committed by someone very close to Aarti is in itself vague and misleading. The dual characteristic of the medical opinion, with regard to the use of khukri or medical surgical knife also creates doubt. Therefore, amongst the possibility of error and with such jumbled instances, especially in such cases of circumstantial evidences, the opinion of expert cannot be called as trustworthy to decide the guilt of the accused. Therefore, in light of the above cited case precedents, it is submitted that, teh due process of law must remain sacrosanct, as must be the principle that wrongly convicting a

50

S.N. Vyas v. State of Rajasthan, AIR 1966 Raj 164 AIR 1992 SC 840

51

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person is much worse than allowing some of the guilty to escape, merely on the basis of weak and misleading medical opinions.

2. THE ACCUSED IS NOT GULTY FOR TAMPERING AND DESTROYING THE EVIDENCE OF THE CRIME SCENE It is most humbly submitted that, the accused no. 1 and accused no.2 were not involved in the instances of tampering and destroying of evidences related to the said crime, for the purpose to shield themselves from the punishment under section 302 of Indian Penal Code, as well as misleading the Court by creating misconceptions about the murders. Therefore, the accused no. 1 and accused no. 2 are not guilty under section 201 and 203 of the Indian Penal Code, for causing disappearance of evidence of offence and for giving false information with respect to the offence committed. In the case of Sate v. Kamla,52 the Supreme Court refused to convict the accused under section 201 because of the lack of unambiguous proof, even though the body of the deceased had been exhumed on the basis of information provided by him which would not in itself establish that he himself had buried the body there. Furthermore, in the case of Batapa Bada Seth v. State53, it has been held that allegation for removing a dead body from one place to another does not necessarily mean causing disappearance of evidence. For a conviction under this section it is essential to prove all the requirements of the offences as given by the section. Prior to this case, the said rule was also laid down in the case of Nagendra Bhakta v. Emperor54 In the instant case the prosecution could not prove beyond doubt a case of murder and disappearance of evidence, even though the body of the deceased Aarti

52

AIR 1991 SC 967 1987 Cr LJ 1976 (Ori ) AIR 1934 Cal 144 also relied upon in Upendra Chandra Poddar v. Emperor, AIR 1941 Cal 456

53

54

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and servant Vijay was found in the house of accused. Therefore this section would not apply. It strongly contended the fact that, since the accused no. 1 and 2 are not proved guilty beyond reasonable doubt under the charges of Section 302 of IPC, 1860, recording of guilt under section 201/34 of the IPC, which are the ancillary charges, are not of much consequence. So the accused person are entitled to be acquitted on the charges under section 201/34 of IPC, 1860 as well. The similar situation was clarified in the cases of Ambika Singh v. State of Bihar55 and Chandrakant Jha v. State of Bihar56. The charge under section 201 IPC, 1860, namely the destruction of evidence relating to the commission of and offence is intrinsically interlinked with the first head of charge under Section 302, IPC, 1860 and it is submitted that, if the first charge fails, automatically the conviction under the second head would also have to go.57 Further, section 201 of IPC would not apply where the prosecution could not prove beyond doubt a case of murder and disappearance of evidence, even though the dead body was found in the house of the accused.58

55

(2003) CR.L.J. 4051 (Pat) (2000) (1) PLJR 375 Suresh v. State of Karnataka, (2002) Cr.L.J. 3273 (Kant) (DB) State V. Kapil Deo, AIR 1991 SC 2257

56

57

58

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PRAYER

Wherefore, in the light of above, it is most humbly prayed that this Honble Court may be pleased to allow the appeal and adjudge and declare that:

1. The accused shall not be punished under section 302 read with section 34 of Indian Penal Code, 1860. 2. The accused shall not be punished under section 201 and 203 read with section 34 of Indian Penal Code, 1860.

The court may also be pleased to pass any order which the court may deem fit in light of justice, equity and good conscience.

All of which is respectfully submitted.

Place: GHAZIABAD Date: February 18, 2014 Counsel for Defense

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