In the Honble Court of the Learned Sessions Judge,

At Fairyland, Dreamland
Sessions Case No. 007/2015

State

Versus

Yashpal

(under Section 231 of the code of criminal procedure, 1973)

Memorial for Prosecution

Counsel For the Prosecution

CONTENTS
TABLE OF AUTHORITIES......................................................................................................2
STATEMENT OF FACTS..........................................................................................................3
STATEMENT OF JURISDICTION...........................................................................................4
ISSUES FOR CONSIDERATION.............................................................................................5
SUMMARY OF ARGUMENTS................................................................................................6
ARGUMENTS ADVANCED....................................................................................................7
The dying declarations by the deceased are admissible.........................................................7
The Dying Declaration by the deceased is relevant...............................................................8
The Dying Declaration by the deceased is admissible...........................................................8
Both Dying Declarations are admissible..............................................................................10
PRAYER FOR RELIEF...........................................................................................................12

TABLE OF AUTHORITIES
Cases
Abdul Sattar v. Mysore State AIR 1956 SC 168........................................................................7
Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468...................................................10
Govindappa & Ors. v. State of Karnataka (2010) 6 SCC 533....................................................9
Koli Chunilal Savji v. State of Gujarat AIR 1999 SC 3695.......................................................8
Kushal Rao v State of Bombay AIR 1958 SC 22.......................................................................8
Laxman v. State of Maharashtra AIR 2002 SC 2973.................................................................8
Moti Singh v State of UP AIR 1964 SC 900..............................................................................7
Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of A.P (2004) 10
SCC 769.................................................................................................................................9
State of Andhra Pradesh v. P. Khaja Hussain (2009) 15 SCC 120...........................................10
State of Haryana v Mange Ram, (2003) 1 SCC 637..................................................................8
Statutes
136, Indian Evidence Act, 1872...............................................................................................7
17, The Indian Evidence Act, 1872......................................................................................6, 7
32(1), Indian Evidence Act,1872.............................................................................................6
Bhajju Alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327................................8

STATEMENT OF FACTS

Yashpal had left his residence for the railway station at around 9 pm on December 16,
to board the 9.30 pm train to Newland, another city in Dreamland, but he missed the
train. As a result of which he came back to his home, but instead of ringing the call

bell, opened the door to enter the house using his key at around 9.50 pm.
Yashpal found Anandpal and Meeta in an objectionable state. He shouted at Anandpal:
I knew about all this for a while. I was looking for an opportunity to get rid of you.
Today, I got you. Thereafter, Yashpal picked up the kitchen knife lying on the dining
table and stabbed the deceased a multiple times in the abdomen, and then slit his
throat after which his neighbors hearing the cries called for an ambulance and the

police. The deceased underwent a surgery at 11 P.M. the same day.

After the surgery, he regained consciousness at around 8 am the next day when the
surgeon Dr. Nath (PW3) came to examine Anandpal. He was still critical. Anandpal
told PW3 that he wanted to make his statement before dying. The contents of the

same are:
I Anandpal came to the house of Meeta today at 9.20 pm after she came to my house
and told me to accompany her to her home. One thing led to the other and we were in
a passionate moment when the main door suddenly opened and we were shocked to
see Yashpal. Yashpal knew about our relations and was seeking to divorce Meeta. He
himself intended to remarry. Both Meeta and I apologized to him. But, he said that I
knew about all this for a while. I was looking for an opportunity to get rid of you.
Today, I got you. He further shouted, that he is going to kill me, and today was a
great opportunity to take revenge, which can be later shown to be all done in sudden
anger. I begged forgiveness. But, he did not relent, and picked up the kitchen knife
and stabbed me repeatedly, and thereafter slit my throat. I want him punished in

court.
On regaining conscious, the I.O requested the learned magistrate Mr. Lal to come to
record the Dying Declaration of Anandpal under Section 164 Cr.P.C. The same was
obtained by gestures due to the loss of voice. The deceased confirmed that the accused
was the one that had been responsible for the injuries that he had sustained and later
caused his death.

STATEMENT OF JURISDICTION
The state has approached this Honble Court of the Learned Sessions Judge at Fairyland,
Dreamland for the admission of its evidence in the present matter under the provisions of
Section 231 of the Code of Criminal Procedure, 1973 on the charge of Murder U/s 302,
Indian Penal Code, 1860.
It is humbly submitted that the court has the requisite appellate jurisdiction under the said
section of the Code of Criminal Procedure.

ISSUES FOR CONSIDERATION

ISSUE 1: Whether the Dying Statements given by the deceased admissible?

SUMMARY OF ARGUMENTS
The Executive Magistrate, while recording the dying declaration did not get any certificate
from the medical officer regarding the condition of the deceased.. Certification by a doctor
regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration,
is essentially a rule of caution and therefore, the voluntary and truthful nature of such a
declaration, may also be established otherwise. Such a dying declaration must be recorded on
the basis that normally, a person on the verge of death would not implicate somebody falsely.
Thus, a dying declaration must be given due weight in evidence.
During the earlier statement, the deceased had gained consciousness for a greater period of
time and was able to give a more detailed testimony as compared to the second. In both the
declarations, the deceased had pointed to the accused as the person responsible for his
injuries.

ARGUMENTS ADVANCED
ISSUE1: Whether the Dying Statements given by the deceased admissible?

The dying declarations by the deceased are admissible.

An admission is defined as, A statement, oral or documentary [ or contained in electronic
form], which suggests any interference as to any fact in issue or relevant fact, and which
suggests any interference as to any fact in issue or relevant fact, and which is made by any of
the persons, and under the circumstances, hereinafter mentioned1 One such circumstance
mentioned under 32 of the Indian Evidence Act (Act hereinafter) is the statement made
regarding the cause of his death by the deceased.
The relevant proviso of the section reads as Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be found, or who has become incapable of
giving evidence, or whose attendance cannot be procured without an amount of delay or
expense which, under the circumstances of the case, appears to the Court unreasonable, are
themselves relevant facts in the following cases:
When it relates to cause of death.When the statement is made by a person as to the cause of
his death, or as to any of the circumstances of the transaction which resulted in his death, in
cases in which the cause of that person's death comes into question. Such statements are
relevant whether the person who made them was or was not, at the time when they were
made, under expectation of death, and whatever may be the nature of the proceeding in which
the cause of his death comes into question.2

1 17, The Indian Evidence Act, 1872

2 32(1), Indian Evidence Act,1872

Thus, such a testimony is admissible albeit its made under the expectation of death and is
regarding the cause of his death.
Thus, in light of the aforementioned law, (A) Dying Declaration by the deceased is relevant,
(B) The Dying Declaration by the deceased is admissible and the (C) Both Dying
Declarations are admissible.
The Dying Declaration by the deceased is relevant.
A dying declaration is relevant when it deals with the cause of death which is the question in
issue and the statement is complete by the deceased in a manner that answers the question
comprehensively.
In Moti Singh v State of UP,3 the Supreme Court held that Clause (1) of Section 32 of the
Evidence Act makes a statement of a person who has died relevant only when the statement is
made by a person as to the cause of that persons death comes into question.
in Abdul Sattar v. Mysore State,4 where the dying declaration was incomplete but was quite
categorical in character and definitely indicated that it was the accused in that case who had
shot the deceased. The dying declaration was, therefore, acted upon.
In the present factual matrix, the statement is relevant to the question in issue as the statement
is complete and explicit in the nature of the death and the cause of the death of the deceased.
The Dying Declaration by the deceased is admissible.
Since all relevant facts are not admissible under the 136 of the Indian Evidence Act, 5 the
question of admissibility of the dying declaration can be dealt with the fact that expectation

3 Moti Singh v State of UP AIR 1964 SC 900

4 Abdul Sattar v. Mysore State AIR 1956 SC 168
5 136, Indian Evidence Act, 1872

of immediate death or the mode of such statement has no effect on the admissibility of the
statement.
In the case of Bhajju Alias Karan Singh v. State of Madhya Pradesh, 6 while dealing with
admissibility of dying declaration, the Honble Supreme Court held as follows: The law is
well settled that a dying declaration is admissible in evidence and the admissibility is founded
on the principle of necessity.
In the case of State of Haryana v Mange Ram, 7 it was held that the expectation of immediate
death is not the requirement of law for the admissibility of a dying declaration in evidence.
In the case of Kushal Rao v State of Bombay8, the Honble Supreme Court of India in the
rules it laid down has held that , (3) Each case must be determined on its own facts keeping
in view the circumstances in which the dying declarations was made.
In Laxman v. State of Maharashtra,9 the Honble Supeme Court held, that a dying declaration
can either be oral or in writing, and that any adequate method of communication, whether the
use of words, signs or otherwise will suffice, provided that the indication is positive and
definite. There is no requirement of law stating that a dying declaration must necessarily be
made before a Magistrate, when such statement is recorded by a Magistrate, there is no
specified statutory form for such recording.

6 Bhajju Alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327
7 State of Haryana v Mange Ram, (2003) 1 SCC 637
8 Kushal Rao v State of Bombay AIR 1958 SC 22
9 Laxman v. State of Maharashtra AIR 2002 SC 2973

In Koli Chunilal Savji v. State of Gujarat, 10the Supreme Court held, that the ultimate test is
whether a dying declaration can be held to be truthfully and voluntarily given, and if before
recording such dying declaration, the officer concerned has ensured that the declarant was in
fact, in a fit condition to make the statement in question, then if both these aforementioned
conditions are satisfactorily met, the declaration should be relied upon.
In Govindappa & Ors. v. State of Karnataka,11 it was argued that the Executive Magistrate,
while recording the dying declaration did not get any certificate from the medical officer
regarding the condition of the deceased. The Court then held that such a circumstance itself is
not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state
of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of
caution and therefore, the voluntary and truthful nature of such a declaration, may also be
established otherwise. Such a dying declaration must be recorded on the basis that normally, a
person on the verge of death would not implicate somebody falsely. Thus, a dying declaration
must be given due weight in evidence.
Thus, in light of the aforementioned judgments and the facts stated, it is clear that the
deceased was under a perception of death being upon him and asked the doctor to record his
statement. The said request shows the mental fitness of the deceased in the sense that he knew
what he was giving. He also did not have an opportunity to interact with any outsider or any
other person except the magistrate and the doctor and thus, could not have prejudiced his
statement. Lastly, the absence of a fitness certificate by a doctor has no effect in the present
case due to the true and voluntary nature of the statement made by the deceased.

10 Koli Chunilal Savji v. State of Gujarat AIR 1999 SC 3695

11Govindappa & Ors. v. State of Karnataka (2010) 6 SCC 533

Both Dying Declarations are admissible.

The issue of there being two dying declarations, making them both inadmissible cannot be
raised in light of the legal jurisprudence on the same being that each of the declaration shall
be studied independently and cannot be disregarded in the absence of any inconsistencies.
In the case of Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of
A.P.,12 the Honble Supreme Court, while declining to except the findings of the Trial Court,
held that the Trial Court had erred because in the case of multiple dying declarations, each
dying declaration has to be considered independently on its own merit so as to appreciate its
evidentiary value and one cannot be rejected because of the contents of the other. In cases
where there is more than one dying declaration, it is the duty of the court to consider each one
of them in its correct perspective and satisfy itself which one of them reflects the true state of
affairs.
In the case of State of Andhra Pradesh v. P. Khaja Hussain,13 the court rejected the appeal
filed against the acquittal holding that it was not a case where the variation between the two
dying declarations was trivial in nature.
In Amol Singh v. State of Madhya Pradesh,14 this Court interfered with the order of sentence
noticing inconsistencies between the multiple dying declarations. It is not the plurality of the
dying declarations but the reliability thereof that adds weight to the prosecution case. If a
dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be
relied upon without any corroboration but the statement should be consistent throughout.

12 Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of A.P (2004) 10
SCC 769
13State of Andhra Pradesh v. P. Khaja Hussain (2009) 15 SCC 120
14 Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468

Thus, in light of the aforementioned, it is clear from the present fact that both the dying
declarations are admissible as they are consistent and similar. During the earlier statement,
the deceased had gained consciousness for a greater period of time and was able to give a
more detailed testimony as compared to the second. In both the declarations, the deceased
had pointed to the accused as the person responsible for his injuries.

PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, issues raised and equity and good conscience, it is
most humbly prayed before this Honourable Court:
1. Admit the dying declaration as evidence in the present trial.
And pass any other order that it may deem fit.

Date: 4.4.2016
Place: Fairyland

Counsel Code: 1245

Counsel for the Prosecution