CENTRE FOR CRIMINAL LAWS HIS HIGHNESS THE MAHARAJAS GOVERNMENT

LAW COLLEGE, ERNAKULAM NATIONAL TRIAL ADVOCACY COMPETITION-

2017

Before,

The Hon'ble Sessions Court, Dharmapuri

In the matter of

State of INDRAPRASTHA

Vs

Reghu and Kiran

Upon the submission to the HON'BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

Table of Contents
STATEMENT OF JURISDICTION...........................................................................................3
STATEMENT OF FACTS..........................................................................................................4
STATEMENT OF CHARGES...................................................................................................6
CENTRE FOR CRIMINAL LAWSHIS HIGHNESS THE MAHARAJAS GOVERNMENT
LAW COLLEGE, ERNAKULAMNATIONAL TRIAL ADVOCACY COMPETITION- 2017

SUMMARY OF ARGUMENTS................................................................................................7
ARGUMENTS ADVANCED....................................................................................................8
ISUE I: WHETHER ENOUGH EVIDENCE IS ADDUCED TO CONVICT THE
ACCUSED PERSONS?.........................................................................................................8
I.I TESTIMONY OF DEVIPRIYA.....................................................................................8
I.II DYING DECLARATION TO MR.SHEKHAR.........................................................10
I.III CHEMICAL AND FORENSIC EVIDENCE............................................................10
I.IV MEDICAL EVIDENCE(POST MORTEM).............................................................11
ISSUE II: WHETHER THE ACCUSED PERSONS ARE GUILTY OF OFFENCES
UNDER SECTION 452, 302 R/W SECTION 34 OF INDIAN PENAL CODE?...............13
II.I MENSREA PRESENT...............................................................................................13
II.III ACTUS REUS IN FURTHERANCE OF A COMMON INTENTION :.................13

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ABBREVIATIONS

TABLE OF CASES

BOOKS REFERED

1. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
2. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)
3. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
4. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
5. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)
6. Modis Medical Jurisprudence and Toxicology, (23rd Ed. 2010)
7. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
8. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
9. Ratanlal and Dhirajlal, TheCode of Criminal Procedure, 19th Ed. (2014)
10. Mulla, TheCode of Criminal Procedure, 14th Ed.
11. Sarkar, Law of Evidence, (13th Ed,1990)
12. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)
13. Phipson on evidence, 16th ed.
14. Monir. M, CJ, Law of Evidence, 15th ed.
15. Sarkar, The Code of Criminal Procedure, 10th Ed.

STATUTES:

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)

WEBSITES:

1. http://www.westlawindia.com
2. http://www.indiankanoon.com
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com

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STATEMENT OF JURISDICTION

THE COUNSELS REPRESENTING THE DEFENDANTS HAVE ENDORSED THEIR

PLEADINGS BEFORE THE HON`BLE SESSIONS COURT, DHARMAPURI
UNDERSECTION 177 R / W SECTION 184 AND SECTION 209 OF THE C ODE OF C
RIMINAL P ROCEDURE , 1973 T WHICH THIS H ON' BLE COURT HAS
JURISDICTION.

Section 177:

177. Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired into and
tried by a Court within whose local jurisdiction it was committed.

Read with Section 184:

"184. Place of trial for offences triable together. Where- (a) the offences committed by any
9person are such that he may be charged with and tried at one trial for, each such offence by
virtue of the provisions of section 219, section 220 or section 221, or (b) the offence of
offences committed by several persons are such that they may be charged with and tried
together by virtue of the provisions of section 223, the offences may be inquired into or tried
bbby any Court competent to inquire into or try any of the offences."

Read with Section 209:

209. Commitment of case to Court of Session when offence is triable exclusively by it-
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall- (a) commit the case to the Court of Session; (b) subject to the
provisions of this Code relating to bail, remand the accused to custody during, and until the
conclusion of, the trial; (c) send to that Court the record of the case and the documents and
articles, if any, which are to be produced in evidence;(d) notify the Public Prosecutor of the
commitment of the case to the Court of Session.

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STATEMENT OF FACTS
Deepak Lal and Devipriya were students of the same National College and were involved in
the same student political organisation which was affiliated to the Peoples Progressive
Party(PPP). they couldn't successfully complete their graduation and there after go married.
Due to their poor financial conditions they were forced to do construction work as daily
labours.

They were the residents of Santipuram, in Dharmapuri District. Both were respectable and
acceptable members of the society. And they were very active in the youth movement of PPP.
The main rival party of PPP was Democratic Party of Indraprastha(DPI) which was also
active in Santipuram. There were a lot of political clashes between both the parties which led
confrontation and were settled by the police. Kiran and Raghu are active members of this
party and involved extensively in the activities.

On 01/09/2016 there was a hartal declared by DPI, a lot of people participated including
Raghu and Kiran. Deepak Lal and few other party members also went to attend a meeting
after the Hartal but this ended into a tussle between them and DPI members. Deepak Lal was
a very brave man. He got himself involved in the tussle to resolve the dispute but ended up
being targeted as he was threatened by DPI party members of dire consequences.

On 09/09/2016, Deepak Lal and Devipriya(CW2) both left for their work at 8:30 am but
Deepak Lal returned home at about 1:00 pm as he was not feeling well. Devipriya returned
home from the construction site at around 5 pm after her shift. As she reached near her house
she heard some screams and shouting. As she rushed toward her house she heard Raghu and
and Kiran running out of her house and Raghu was carrying a blood bathed knife which he
threw in the next compound, which belong to Mr.Shekhar(CW 1). As both the accused passed
Devipriya the told her that they have executed their warning and she is next.

Devipriya hurried inside her house and found her husband lying on the floor in a pool of
blood, she panicked and screamed and then fell unconscious. Mr. Shekhar(CW 1) who lived
in the next compound heard Devipriyas scream and rushed to the house where he saw Deepak
lying on the floor unable to breath properly in a pool of blood and Devipriya lying on the
floor unconscious.

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CW 1 called for help and immediately a vehicle was arranged and he took both of them to the
hospital. Deepak died before they reached the hospital but before his death he gave a dying
declaration accusing Raghu and Kiran for brutally stabbing him.

Hence, Raghu and Kiran are charged for offences under 452, 302 r/w 34.

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STATEMENT OF CHARGES
Both the accused persons have been jointly charged under section 452 and 302 read with 34
of the Indian penal code,1860 for the crime of house trespass with Murder.

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SUMMARY OF ARGUMENTS

ISUE I: Whether enough evidence is adduced to convict the accused persons?

It is humbly submitted to the court that side prosecution has provided sufficient evidences to
prove the guilt of the accused persons beyond reasonable doubt. The forensic and chemical
evidence and also the post mortem report corroborate the testimony of CW2 and the dying
declaration of the deceased to CW1.

ISSUE 2: WHETHER THE ACCUSED PERSONS ARE GUILTY OF OFFENCES UNDER

SECTION 452, 302 R/W SECTION 34 OF INDIAN PENAL CODE?

It is humbly submitted that the accused persons are guilty of offences of murder under section
300 of IPC and house trespass under section 452 of IPC in furtherance of a common intention
by both the parties as specified under section 34 of IPC. Sufficient motive existed for the
accused persons to kill the deceased in the present case. There was a pre-existing political
enmity between the accused persons and the deceased. The evidences proved that they acted
in furtherance of their common intention.

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ARGUMENTS ADVANCED

ISUE I: WHETHER ENOUGH EVIDENCE IS ADDUCED TO CONVICT THE ACCUSED

PERSONS?

I.I TESTIMONY OF DEVIPRIYA

It is humbly submitted that Mrs. Devipriya is an accepted personality and engaged in social
services. The conduct of the sole eye-witness and simplicity of her testimony are relevant
factors on which reliance can be said for conviction1. Even though the statement of Mrs.
Devipriya was recorded on 13.9.2016, it will not have an adverse impact on its probative
value. There could be no rule of universal application that if there is any delay in examination
of a particular witness the prosecution version is suspected 2. When the delay is properly
explained, it may not have any adverse impact upon the probative value of a particular eye-
witness3.

In Mohd. Islam v. State of Uttar Pradesh, P.W 3 Mohd. Juber was the real brother of the
deceased. He has stated that he was in the gali when he heard the slam and sound of gunfire.
When he reached near the door of his house, his wife was coming out in a disturbed condition
and said that the appellant had shot her aunt. The testimony of this witness was truthful and
reliable. The fact that he did not claim to be the eyewitness of the shooting done by the
appellant lent assurance to his testimony. In case he wanted to depose falsely, he could have
easily deposed about the main part of the incident as the same happened in his own house and
there would have been no reason to doubt his presence. However, he had given an honest
statement to the effect that he was outside the house and had only deposed about the fact that
the appellant was threatening everyone with a pistol in his hand and was saying that everyone
should get away otherwise he would kill as he had done to other persons. This evidence, as to
what the accused was saying, was admissible under section 6 of the Evidence Act4.

1Bachhittar Singh vs The state of Punjab, 1963 AIR 395

2Bodhraj v. State of J&K, AIR 2002 SC 3164.

3Jodha Khoda Rabari v. State of Gujarat, 1992 Cr LJ 3298 (Guj).

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Similarly, in this case, the wife of the deceased is a witness to the act of the accused persons
running away from her house after committing murder of the deceased with a knife bathed in
the blood of the deceased. This part of her statement would be admissible under Section 6 of
the Evidence Act.5 She has also been witness of the act of the throwing of the knife by the
accused persons, the knife was recovered from the exact location where she stated it to be and
has been identified as the murder weapon. Creditworthy testimony of eye-witnesses cannot
be rejected merely on the ground that there was enmity between prosecution and accused
party6.

The act of Mr. Deepak being murdered and the accused persons seen running with the blood
bathed murder weapon and subsequently throwing in the next compound form the part of the
same transaction and satisfy the chain of events. Thus, it is an admissible evidence under
section 6 of the evidence act7.

It was held in the case of Ravi Kumar Vs State 8 that, in a murder case the court should insist
upon plurality of witness, is much too broadly stated. What is important is not how many

4 1993 Cr LJ 1736(All), Monir M, CJ, Law of Evidence, Vol I, Universal Publishing Co. P 137, Para
3.

5 6. Relevancy of facts forming part of same transaction.Facts which, though not in issue, are so connected
with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time
and place or at different times and places. Illustrations(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form
part of the transaction, is a relevant fact.
(b) A is accused of waging war against the [Government of India] by taking part in an armed insurrection in
which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is
relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties
relating to the subject out of which the libel arose, and forming part of the correspondence in which it is
contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to
several intermediate persons successively. Each delivery is a relevant fact.

6Rama Shish Rai v. Jagdish Singh, AIR 2005 SC 335.

7Sarkar, Law of Evidence, 18th edn. Lexis Nexis.

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witnesses have been examined by the prosecution but what is the nature and quality of
evidence in which it relies. The evidence of single witness may sustain a sentence of death
whereas a host of vulnerable witnesses may fail to support a simple charge of hurt9.

And so mere fact of her being a sole interested eye witness could not make her testimony non
trustworthy10.

I.II DYING DECLARATION TO MR.SHEKHAR.

Testimony of Mr.Shekhar forms a material piece of evidence as it carries the last words of the
deceased. It is well settled by catena of cases that a dying declaration is admissible in
evidence on the principle of necessity and can form the basis for conviction if it is found
reliable11, provided the court is fully satisfied that the dying declaration made by the deceased
was voluntary and reliable and the author recorded the dying declaration as stated by the
deceased. To attract the provisions of section 32 to me to the purpose of admissibility of the
statement of a deceased, it has to be proved that

a) The statement sought to be admitted was made be a person who is dead or cannot be
found.
b) Such statement should have been made under any of the circumstances specified in
sub section 1-8 of section 32 of Indian Evidence Act12.

Mr. Shekhar had arrived at the crime scene when the deceased was struggling for his life with
fatal injuries on his body, while on the way to the hospital the deceased narrated the names of
the accused to Mr. Shekhar as he was the only conscious person around.

Mr. Shekhar is a neutral party in this case as he was not associated with any of the political
agenda and had tried to save the deceased of which the neighbours were a witness. Thus his
testimony can be accorded as trustworthy, holding an account of word that came out of a

8AIR 2009 SC 214.

9Chuhar Singh v. State, (1976) 1 SCC 879.

10 Leela Ram (Through Duli Chand) vs State Of Haryana, 1999 Supp(3) SCR 435

11Padma Ben Shamal Bhaipatel v. State of Gujarat, (1991) 1 SCC 744

12 Batuk Lal, Law of Evidence, 5th edn, Orient Publishing Company.

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dying man. The mind is changed by most powerful ethical and moral considerations to speak
truth and truth only. Great solemnity and sanctity, therefore is attached to the words of a
dying man13.

I.III CHEMICAL AND FORENSIC EVIDENCE

The chemical and forensic evidence in this case further corroborated the testimony of the eye
witness in this case. The murder weapon that was discovered from the place where the wife
of the deceased, described it to be, had the same blood group as that was found on the shirt of
the deceased14. Thus the knife discovered is established as the murder weapon and this fact
corroborates the testimony of the wife of the deceased to have seen the accused person throw
away the same knife. In view of the clear provisions of Section 510, Cr.P.C., which makes
such report admissible, it has been held by the supreme court that in ordinary circumstances
there would be nothing wrong in taking reports of the chemical examiner and imperial
serologist on record without examining these persons as witnesses, as permitted by the
criminal procedure code.15

Therefore, sufficient forensic evidence was taken to corroborate the testimony of prosecution
witness16.

I.IV MEDICAL EVIDENCE(POST MORTEM)

The medical evidence that is the post mortem report in this case suggests that the injury was
inflicted by a sharp edged weapon being sharp on one side and blunt on the other. It
corresponds with the injury found on the deceased.17 In the medical evidence, it is further
corroborated that the knife found is also the murder weapon.

Moreover, the injury is an incised wound caused by a total blow to the chest straight away
penetrating the pericardium and atrium of heart. The nature of injury is one caused with clear
Mens Rea of killing the deceased and that there are no signs of struggle which clearly implies
13Vikas v. State of Maharashtra, 2008 (1) Supreme 433.

14 See Post Mortem Report, Case Details, P 10

15See, M, CJ, Law of Evidence, Vol II, Universal Publishing Co. P 1143, Point number 35.

16 See, Case Details, P 8.

17 Refer Post Mortem Report, Case Details, Page 10

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that the deceased was taken by a surprise. Medical Jurisprudence states that haemorrhage,
injury of a vital organ and shock generally cause immediate death18.

i) Haemorrhage maybe of of two types-

i) Internal and ii) External.

Internal haemorrhage may occur in penetrating wounds. A small quantity of haemorrhage in

the pericardium may prove rapidly fatal by disturbing the functions of the heart from
mechanical pressure on them.

ii) Injury of vital organ- Sever injury of a vital organ, such as the heart, is, as a rule fatal.

iii) Shock- Due to considerable loss of blood, lack of blood oxygen develops, which causes
endothelial damage and increased capillary permeability resulting in changes in fluid balance
and various degrees of shock. Death may occur from primary or neurogenic shock (vaso-
vagal shock or reflex cardiac arrest). It is now generally recognised that sudden death may
occur in circumstances in which a victim is subjected to fear or real danger from an
assailant19. In this case, all these immediate causes of death are inevitable to follow, because
of the nature of the injury that was caused.

The post mortem report is an extremely relevant and important document in a trial for
murder, both for the prosecution and defence.20While it is true that the post-mortem report by
itself is not a substantive piece of evidence, but the evidence of the doctor conducting the
post mortem can by no means be ascribed to be insignificant. The significance of the
evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person
and likely use of the weapon thereof and it would then be the prosecutor's duty and obligation
to have the corroborative evidence available on record from the other prosecution witnesses.21

18 Modi's Medical Jurisprudence, Para 1, Page 752.

19 Modi's Jurisprudence, Para 3, Pg 754.

20Sheogovind Bin vs. The State of Bihar, 1985 BBCJ 632

21 M, CJ, Law of Evidence, Vol I, Universal Publishing Co.

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Minor variations between evidence of eye witness and medical evidence is of no consequence
no consequence as its credibility to be tested for its inherent consistency and probability and
it should not be adversely pre-judged on touch stone of other evidence including medical
evidence.22

22Krishnan vs. The State of Tamil Nadu, AIR 1996 SC 497( check citation)

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ISSUE II: WHETHER THE ACCUSED PERSONS ARE GUILTY OF OFFENCES

UNDER SECTION 452, 302 R/W SECTION 34 OF INDIAN PENAL CODE?
It is humbly submitted that the accused persons are guilty of offences of murder under section
30223 of IPC and house trespass under section 45224 of IPC in furtherance of a common
intention by both the parties as specified under section 3425 of IPC.

II.I MENSREA PRESENT

Sufficient motive existed for the accused persons to kill the deceased in the present case.
There was a pre-existing political enmity between the accused persons and the deceased. It is
pertinent to note that if there is motive in doing an act then the adequacy of that motive is not
in all cases necessary. Heinous offences have been committed for a very trivial motive.26

Intention: Intention to kill a person must be determined having regard to the factual scenario
involved in each case. Any fact is relevant which shows or constitutes a motive or preparation
for any relevant fact. The following is the chain of events that has lead to an intention to kill:

a) The deceased was threatened by the accused persons of dire consequences on the day
of hartal which was witnessed by Tej Singh a PPP member.
b) Such threats continued even after the hartal day. The deceased had complained his
grievances regarding the same to his wife and uncle27.

23 Punishment for murder.Whoever commits murder shall be punished with death, or

1[imprisonment for life], and shall also be liable to fine.

24 452. House-trespass after preparation for hurt, assault or wrongful restraint.Whoever commits
house-trespass, having made preparation for causing hurt to any person or for assaulting any person,
or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of
wrongful restraint, shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.

25 37 [34. Acts done by several persons in furtherance of common intention.When a criminal act is
done by several persons in furtherance of the common intention of all, each of such persons is liable
for that act in the same manner as if it were done by him alone.]

26State v. DinkarBandhu (1969) 72 LR 905.

27 See, Witness statement of CW1 to IO, Case Details, P. 15.

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c) The deceased had stated in his dying declaration that accused persons attacked him by
saying that the accused had been warned by the deceased many a times and now it's
time to accept his destiny.

These facts in the chain of causation 28 leads to an influence or point out the specific intent of
the accused persons.

II.III ACTUS REUS IN FURTHERANCE OF A COMMON INTENTION :

The intent to commit the offences followed by the act, in the present case the two accused
persons have shared the common enmity with the deceased by means of political differences
with the deceased.

The accused persons had kept warning the deceased even after the hartal day and thus is
presumable that they planned the murder of the deceased in furtherance of a common
intention, when two or more persons join actively in an assault on a third person they are
directly responsible for the injuries caused to the extent to which they had a common
intention to cause those injuries, and what their common intention was must be gathered from
the circumstances29, In the case of S.34 it is well established that a common intention
presupposes prior concert. It requires a pre-arranged plan because before a man can be
vicariously convicted for the criminal act of another, the act must have been done in
furtherance of the common intention of them all30. And as under, the dying declaration on the
act of the Raghu stabbing the deceased while Kiran held him constitutes the necessary
actusreus in the case. In a Supreme Court Case the accused appellants one of whom died
during the pendency of suit, had attacked and killed the deceased while she was returning
home from her work place along with her brother. The evidence proved that they acted in
concert in furtherance of their common intention. Their conviction under 302/34 was upheld
on the basis of evidence of eye witness as it was cogent, reliable and trustworthy31.

28 Hri Singh Gaur, Dr., Indian Penal Code, VolI, Law Publishers Ltd.

29 In re, Fakzulla, AIR 1921 cal 241

30Pandurang v. State of Hyderabad, AIR 1955 SC 216

31Ibid.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Honble Court be pleased to:

To Hold:

That Mr. Raghu and Kiran are guilty of committing murder.

That Mr. Raghu and Kiran are guilty of house tress pass.

To pass:

Conviction order of Mr. Raghu and Mr. Kiran for all the charges.

AND

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted

Place: Durg S/d_____________

Date: / /2015 COUNSELS FOR THE DEFENSE

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