TC-15

BEFORE THE LEARNED SESSIONS JUDGE

AT CHANDPUR, RAJAKHAND

IN THE MATTER OF

STATE OF RAJAKHAND

(Represented by public prosecutor)

PROSECUTION

v.

MR. ANIL AND MR. SANJAY

(Represented by themselves)

DEFENCE

FOR THE OFFENCES CHARGED UNDER:

SECTION 302 READ WITH SECTION 34, SECTION 120B AND SECTION 201 OF THE INDIAN PENAL

CODE, 1860.

UPON SUBMISSIONS TO HONOURABLE SESSIONS JUDGE

[UNDER SECTION 177 OF THE CODE OF CRIMINAL PROCEDURE, 1973]

MEMORIAL ON BEHALF OF THE DEFENCE

 TABLE OF CONTENTS

INDEX OF AUTHORITIES..........................................................................................................iv

STATEMENT OF JURISDICTION..............................................................................................vi

STATEMENT OF FACTS............................................................................................................vii

STATEMENT OF CHARGES....................................................................................................viii

ISSUES FOR CONSIDERATION.................................................................................................ix

SUMMARY OF ARGUMENTS.....................................................................................................x

ARGUMENTS ADVANCED.........................................................................................................1

1. The deceased has committed suicide....................................................................................1

A. The post mortem report suggests hanging as the cause of her death............................1

B. Circumstantial evidence indicates that she had committed suicide..............................2

2. Accused 1 & 2 are not liable for criminal conspiracy under section 120B of IPC...............3

A. Agreement to commit an illegal act needs to be established.........................................4

B. The circumstantial evidence are not sufficient to establish an agreement of criminal

conspiracy................................................................................................................................5

3. Accused 1 & 2 are not liable under section 302 read with section 34 of IPC......................5

A. The liability under section 302 cannot be attracted as the essentials under section 300

are not fulfilled........................................................................................................................6

B. The guilt of the accused cannot be established beyond reasonable doubt through

circumstantial evidence...........................................................................................................7

ii
 4. The accused are not guilty under section 201 of IPC...........................................................8

A. Liability under section 201 is attracted when the essentials of section 201 are

satisfied....................................................................................................................................9

B. The conduct of the accused fails to fulfil the essentials of section 201 of IPC.............9

PRAYER........................................................................................................................................11

iii
 INDEX OF AUTHORITIES

Cases

Dadasaheb Bapusaheb Naik v. State of Maharashtra, 1982 Cr LJ 856 (Bom)................................5

Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596.....................................................4

Hanuman v. State of Rajasthan 1994 Supp (2) SCC 39..................................................................9

Hanumant Govind Nargundkar v. State of M.P , AIR 1952 SC 343...............................................7

Jai Karan v. State of U.P, (2003) 12 SCC 655................................................................................7

Mir Nagvi Askari v. CBI, (2009) 15 SCC 643................................................................................4

Natwarlal Sakarlal Mody v. State of Bombay, (1963) 65 Bom LR 660.........................................4

Nazir khan v. State of Delhi, (2003) 8 SCC 461.............................................................................4

Padala Veera Reddy v. State of A.P., AIR 1990 SC 79..................................................................7

Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116..........................................5

Sou. Vijaya v. State of Maharashtra (2003) 8 SCC 296..................................................................9

State (NCT) of Delhi v. Navjot Sandhu (2005) 11 SCC 600..........................................................4

State of Maharashtra, AIR 1962 SC 605.........................................................................................5

State of U.P v. Sanjay Singh, 1994 SCC (Cri) 1701.......................................................................4

State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840.........................................................7

Virsa Singh v. The State of Punjab, AIR 1958 SC 465...................................................................6

Statutes

Indian Evidence Act, 1872..............................................................................................................1

Indian Penal Code, 1860..........................................................................................................4, 5, 6

iv
Treatises

Cassandra Wich, The Little Black Pill: Dressing Unlikely Murderers for Defense Success, 48 J.

Marshall L. Rev. 931, 960 (2015)................................................................................................3

Shaikh Mohd MM, Chotaliya HJ, Modi AD, Parmar AP, Kalele SD, A Study of Gross

Postmortem Findings in Cases of Hanging and Ligature Strangulation (J Indian Acad

Forensic Med. Jan-March 2013, Vol. 35, No. 1).........................................................................1

Shields, Eloise A. “Depression, Then Suicide.” The American Journal of Nursing, vol. 46, no.

10, 1946, pp. 677–679. JSTOR....................................................................................................2

Book

K. S. Narayan Reddy, O. P. Murty - The Essentials of Forensic Medicine and Toxicology (2015,

Jaypee Brothers)......................................................................................................................1, 2

Modi’s Medical Jurisprudence and Toxicology 23rd ed...............................................................1, 2

Ratanlal & Dhirajlal, The Indian Penal Code, 34th ed. (2016).........................................................7

v
 STATEMENT OF JURISDICTION

The prosecution has approached this learned Court as it has the requisite territorial and subject

matter jurisdiction to try and adjudicate the instant matter under section 177 of Code of Criminal

Procedure, 1973.

The defence most humbly submits to the jurisdiction of the court under the abovementioned

sections.

vi
 STATEMENT OF FACTS

Mira Raghuwanshi w/o Anil Raghuwanshi r/o house no. 101, Tower E, Galaxy Apartments,

Prem Vihar, Chandpur, 248007; was a famous journalist and news anchor. Sanjay Kumar was a

good friend and colleague of Anil and used to live in the same housing society. Anil and Mira

had no children and Mira used to be upset with Anil because Anil was not ready for having

children.

Incident:

On 8th September, 2018, Mira Raguwanshi was found dead in her apartment. Her body was

discovered when her maid Sushila Kumari entered the apartment and thereby the police was

informed. The police reached the spot at 7:15 a.m. to find the deceased hanging with red linen

dupatta from the ceiling fan. The room was immaculately arranged and poised and a stool was

found lying adjacent to the bed. A cushion was also recovered from underneath the bed. The

Police thereafter searched the place and seized the relevant things. The body was sent for

medical examination. On the basis of the reports, the police suspected it to be a murder and

lodged an FIR against the unknown. Later, on the basis of personal diary of the deceased,

WhatsApp chats between Anil and Sanjay, witness statements and other evidence, police arrested

Anil and Sanjay suspecting conspiracy and subsequently murder of Mira and which was

executed in pretense of suicide. The court has framed the charges against Anil and Sanjay.

vii
 STATEMENT OF CHARGES

After complying with the statutory requirements under Section 184 read with Section 220 and

223 of Code of Criminal Procedure, 1973, the Court of Sessions framed charges against both the

accused under the following provisions:

Anil (A1): The accused 1 has been charged with Section 120B ( “Criminal Conspiracy”),

Section 302 (“Murder”) r/w Section 34 (“acts done by several persons in furtherance of common

intention”)and Section 201 (“Causing disappearance of evidence or giving false information

with the intention of screening the offender”) of the Indian Penal Code, 1860 [Hereinafter

“IPC”].

Sanjay (A2): The accused 2 has been charged with Section 120B ( “Criminal Conspiracy”),

Section 302 (“Murder”) r/w Section 34 (“acts done by several persons in furtherance of common

intention”)and Section 201 (“Causing disappearance of evidence or giving false information

with the intention of screening the offender”) of the IPC.

viii
 ISSUES FOR CONSIDERATION

1) WHETHER THE DECEASED HAD COMMITTED SUICIDE?

2) WHETHER THE ACCUSED 1 & 2 ARE LIABLE UNDER SECTION 120B OF IPC?

3) WHETHER ACCUSED 1 & 2 ARE LIABLE UNDER SECTION 302 R/W SECTION

34 OF IPC?

4) WHETHER THE ACCUSED 1 & 2 ARE LIABLE UNDER SECTION 201 OF IPC?

ix
 SUMMARY OF ARGUMENTS

1. THE DECEASED HAD COMMITTED SUICIDE.

The deceased was suffering from depression from a long period of time. She had been taking

higher than recommended doses of antidepressants which mostly causes suicidal behaviour as a

side effect. The forensic evidence suggests that the cause of her death was hanging which mostly

is in the cases of a suicide. The circumstantial evidence also suggests that she has committed

suicide.

2. ACCUSED 1 & 2 ARE NOT LIABLE UNDER SECTION 120B FOR CRIMINAL

CONSPIRACY.

The essence of criminal conspiracy lies in agreement between two or more person to commit an

illegal act. There has to be some physical manifestation of the agreement for establishing the

offence of conspiracy. The agreement for conspiracy and meeting of mind can be proved either

by direct or circumstantial evidence. There is no direct or circumstantial evidence which

establishes any agreement between the two accused to kill the deceased. Therefore the accused 1

and 2 are not liable under section 120B of IPC.

3. ACCUSED 1 & 2 ARE NOT LIABLE UNDER SECTION 302 READ WITH SECTION 34 OF

IPC.

The essentials of murder are the presence of a bodily injury sufficient to cause death in ordinary

course of nature and intention to inflict that particular bodily injury. These essentials are not

fulfilled in the present case because even though the injury was present on the body of the

x
deceased, the prosecution has failed to prove that such injuries were caused by both the accused.

There was no intention or motive on the part of the accused to commit such an offence.

Therefore the chain of circumstances is not conclusive and the inconsistencies in the reports

create a doubt in favour of the accused. Hence, they should be given benefit of doubt and should

be acquitted from the charges framed against them under section 302 read with section 34 of the

IPC.

4. ACCUSED 1 AND 2 ARE NOT LIABLE UNDER SECTION 201 OF IPC.

The liability under section 201 of IPC arises for causing disappearance of an evidence or giving

false information about an offence in order to screen the offender from legal punishment. The

knowledge of the offence being committed is an essential for liability under this section. In the

present case, the two accused have deleted the WhatsApp messages one week prior to the

offence being committed. There was no knowledge of the offence to the accused at that time.

Additionally, both the accused were not there at the place of the incident where the incident took

place. Both the accused arrived at the place of incident after the police had come. Therefore, they

cannot be held liable for causing disappearance of any evidence or giving any false information.

Hence, the two accused should be acquitted from the charges framed against them under section

201 of IPC.

xi
 ARGUMENTS ADVANCED

1. THE DECEASED HAS COMMITTED SUICIDE.

The prosecution suspects this case to be a case of murder. However, the forensic evidence along

with the post mortem report suggests that [A] the death of the deceased was caused because of

hanging and [B] Circumstantial evidence indicates that she had committed suicide.

A. The post mortem report suggests hanging as the cause of her death.

The forensic evidence is admissible and is considered a relevant fact under section 45 of the

Indian Evidence Act, 1872.1 Forensic evidence lays down the basis to differentiate between

hanging and strangulation. In cases of strangulation, petechiae on the face is common 2; bleeding

of nose, mouth and ears is very common 3 and; larynx, trachea, and hyoid bone are found to be

fractured4.These traits are usually not present in the cases of hanging. 5 In cases of hanging, saliva

frequently6 but not always7 dribbles out of the mouth. Also the swelling features 8 and the

1
Section 45, Indian Evidence Act, 1872.
2
Modi’s Medical Jurisprudence and Toxicology 23rd ed. Chapter 18 Section 1, Pg 583-4.
3
ibid.
4
ibid.
5
ibid.
6
ibid.
7
Shaikh Mohd MM, Chotaliya HJ, Modi AD, Parmar AP, Kalele SD, A Study of Gross Postmortem Findings in
Cases of Hanging and Ligature Strangulation (J Indian Acad Forensic Med. Jan-March 2013, Vol. 35, No. 1).
8
K. S. Narayan Reddy, O. P. Murty - The Essentials of Forensic Medicine and Toxicology (2015, Jaypee
Brothers)pg 351, table (13-1).

1
congestion of nose and mouth9, which are more prominent in strangulation 10, can be present in

the cases of hanging also.11

In the present case, the post mortem report12 shows the traits of hanging as the cause of her death.

Her nose and mouth is congested; lips are red; the face, the tongue, and the whole body is

swollen.13 However no conclusion can be inferred from this because these traits can be common

in both hanging and strangulation.14 Also, it is not always necessary that saliva dribbles out in the

case of hanging.15 Moreover, there are some evidence which suggests that the death of the

deceased was due to hanging. There was no petechiae on the face of the deceased; no bleeding of

nose, mouth and ears and; Larynx, Trachea, and hyoid bone were not fractured. 16 These factors

indicate that, the cause of the death of the deceased is hanging and not strangulation.

B. Circumstantial evidence indicates that she had committed suicide.

The cases of hanging are mostly the cases of suicide. 17 When the depression extends into weeks

or months, suicidal thoughts become prominent.18 Levomilnacipran (Fetzima) is a common drug

9
ibid.
10
ibid.
11
ibid.
12
Exhibit- 4, Post Mortem report.
13
ibid.
14
supra note 8.
15
Exhibit- 4, Post Mortem report.
16
ibid.
17
supra note 2.
18
Shields, Eloise A. “Depression, Then Suicide.” The American Journal of Nursing, vol. 46, no. 10, 1946, pp. 677–
679. JSTOR.

2
used to treat major depressive disorders.19 Patients taking antidepressants are more prone to

suicidal thoughts.20 The side effects of Fetzima include suicidal thoughts and behaviour as a

common symptom.21 The recommended dosage of Fetzima is between 40 to 120 mg per day and

should not exceed 120 mg.22

In the present case, there is evidence which indicates that this was a case of suicide. First,

hanging as a cause of her death is suggestive of suicide. Moreover, she was also suffering from

depression for a long period of time. The deceased in her personal diary has mentioned about the

hardships of her life on 30/07/2018. 23 She had been taking antidepressants from last two months

i.e. since 03/07/2018.24 Also the daily dosage of 400 mg of Fetzima that was prescribed to her

was higher than the recommended dosage of 120 mg per day. 25 Hence, there is an increased

possibility of suicidal thoughts and behaviour of the deceased.

Therefore, it can be reasonably inferred that this is the case of suicide and not a murder. Hence

the charges framed against the accused are false and baseless.

2. ACCUSED 1 & 2 ARE NOT LIABLE FOR CRIMINAL CONSPIRACY UNDER SECTION

120B OF IPC.

19
Fetzima official website, see more at: https://www.fetzima.com/.
20
Cassandra Wich, The Little Black Pill: Dressing Unlikely Murderers for Defense Success, 48 J. Marshall L. Rev.
931, 960 (2015).
21
supra note 19.
22
Medication Guide, Fetzima; official website: https://www.allergan.com/assets/pdf/fetzima_pi#.
23
Exhibit- 12, Diary of the Deceased.
24
Exhibit-11, Medical Prescription.
25
ibid.

3
The accused are not liable for criminal conspiracy under section 120B 26 of IPC. For liability

under section 120B27, [A] An agreement to commit an illegal act needs to be established. [B] In

the present case, circumstantial evidence is not sufficient to establish an agreement of criminal

conspiracy.

A. Agreement to commit an illegal act needs to be established.

Section 120B provides the punishment for criminal conspiracy.28 For liability under section

120B29, the essential ingredient of criminal conspiracy defined in section 120A 30 must be

satisfied.31 The essence of criminal conspiracy lies in an agreement between two or more person

to commit an illegal act.32 There has to be some physical manifestation of the agreement 33, and

mere suspicion as to existence of this agreement is not enough. 34 Meeting of minds needs to be

established to hold accused liable of criminal conspiracy. 35 The act and the conduct of the parties

must be clear enough to prove their concurrence to the common design and its execution. 36 The

agreement for conspiracy and meeting of mind can be proved either by direct or circumstantial

26
Section 120B, Indian Penal Code, 1860.
27
ibid.
28
ibid.
29
ibid.
30
id. Section 120A.
31
Nazir khan v. State of Delhi, (2003) 8 SCC 461 ¶ 20.
32
Natwarlal Sakarlal Mody v. State of Bombay, (1963) 65 Bom LR 660 ¶ 7.
33
Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596 ¶ 275.
34
State of U.P v. Sanjay Singh, 1994 SCC (Cri) 1701 ¶ 19.
35
Mir Nagvi Askari v. CBI, (2009) 15 SCC 643 ¶ 61.
36
State (NCT) of Delhi v. Navjot Sandhu (2005) 11 SCC 600 ¶ 101.

4
evidence.37 If the prosecution relies solely on circumstantial evidence then the the circumstances

from which the conclusion of guilt is to be drawn should be conclusive and fully established.38

B. The circumstantial evidence are not sufficient to establish an agreement of criminal

conspiracy.

In the present case, there is no concrete evidence to establish an agreement between the two

accused to kill the deceased. The fear of being exposed only establishes that a secretive

relationship existed between the two accused,39 which is not sufficient to hold them liable for

criminal conspiracy. Accused 2 coming up with only way out does not establish that it was for

murdering the deceased it could have been some other alternative like breaking the relationship

between accused 1 and accused 2. The fact that accused 1 was not sure of the plan points towards

the uncertainty of the agreement.40 There is no conclusive evidence to establish meeting of the

minds between the two accused. The evidence on record are not sufficient to establish the guilt

of the accused.

Since the agreement to commit any illegal act and the meeting of mind of the two accused could

not be proved, the two accused cannot be held liable under section 120B41 of IPC.

3. ACCUSED 1 & 2 ARE NOT LIABLE UNDER SECTION 302 READ WITH SECTION 34 OF

IPC.

37
Dadasaheb Bapusaheb Naik v. State of Maharashtra, 1982 Cr LJ 856 (Bom) ¶ 29; K.M Nanavati v. State of
Maharashtra, AIR 1962 SC 605 ¶ 19.
38
Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 ¶ 153.
39
Exhibit 10, WhatsApp messages between Anil and Sanjay
40
ibid.
41
Section 120B, Indian Penal Code, 1860.

5
The accused 1 & 2 are not liable for murder under section 302 42 read with section 3443 of IPC

because [A] essentials under section 30044 are not fulfilled and hence the liability under section

30245 cannot be attracted in the present case. Additionally, [B] the guilt of the accused cannot be

established beyond reasonable doubt through circumstantial evidence.

A. The liability under section 302 cannot be attracted as the essentials under section

300 are not fulfilled.

The essentials for liability under section 30246 are mentioned in section 30047. To prove a murder,

the presence of a bodily injury sufficient to cause death in ordinary course of nature and the

intention to inflict that particular bodily injury must be proved.48

In the present case, although there is presence of bodily injury sufficient to cause death in

ordinary course of nature, there is no evidence to the show that it was caused by the accused.

There is a fair possibility of it being a suicide 49 as many observations made in the medical report

are common to both suicide and hanging. Hence, it cannot be inferred merely from the injury

marks that the accused has caused that particular injury. Therefore, this cannot be established as

a case of murder under section 30050 of IPC.

42
id. Section 302.
43
id. Section 34.
44
id. Section 300.
45
id. Section 302.
46
id. Section 302.
47
id. Section 300.
48
Virsa Singh v. The State of Punjab, AIR 1958 SC 465 ¶ 15-19.
49
Argument 1
50
Section 300, Indian Penal Code, 1860.

6
B. The guilt of the accused cannot be established beyond reasonable doubt through

circumstantial evidence.

In cases of circumstantial evidence, the facts alleged must be proven beyond reasonable doubt 51

and the cumulative chain of circumstances should conclusively prove that the crime was

committed by the accused.52 The inconsistencies in the evidence given by prosecution create a

major lacuna in the case.53 If, while evaluating circumstantial evidence, two inferences can be

drawn, one in favour of the accused must be accepted54 and he is entitled to get the benefit of any

reasonable doubt.55

In the present case, the chain of circumstances fails to conclusively prove that the murder was

committed by both the accused. Accused 1 was not present at the site of commission of the

crime56 and there is no evidence regarding presence of Accused 2 when the murder was

committed. The room was immaculately arranged and poised and there are no signs of breaking

in the house.57 The clothes of the deceased were neat and clean 58 and there were no signs of

violence or struggle59 which would have happened if there was entry of any intruder in the house.

51
Hanumant Govind Nargundkar v. State of M.P , AIR 1952 SC 343 ¶ 10.
52
Padala Veera Reddy v. State of A.P., AIR 1990 SC 79 ¶ 10.
53
Jai Karan v. State of U.P, (2003) 12 SCC 655 ¶ 9.
54
State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 ¶ 9.
55
Ratanlal & Dhirajlal, The Indian Penal Code, 34th ed. (2016), pg 635.
56
Exhibit-3, Witness Statement.
57
Exhibit-5, Spot Panchnama.
58
Exhibit-6, Inquest Report.
59
ibid.

7
There are several inconsistencies in the prosecution reports. The post mortem report 60 and the

inquest report61 contradict the facts of presence of saliva near deceased’s mouth and the ligature

marks on her neck. There is ambiguity regarding height of the deceased in the post mortem

report where two different measurements are given.62 The post mortem report63 confirms the

presence of birthmark and a mole but in the inquest report 64, any such presence is denied. In the

investigation report65, the date of discovery of diary is stated as 10/09/2018 whereas in the spot

panchnama66, it is mentioned as 08/09/2018.

Therefore, the accused is entitled to benefit of doubt in the present case as the chain of

circumstances is incomplete and the inconsistencies in the reports create a reasonable doubt

regarding the story of the prosecution.

4. THE ACCUSED ARE NOT GUILTY UNDER SECTION 201 OF IPC.

The accused have been wrongly charged under section 201 of IPC. For liability under section

201, [A] the knowledge of the offence and the intention of screening the offender from the legal

punishment is essential and [B] the conduct of the accused does not fulfil the essentials of section

201 of IPC.

60
Exhibit-4, Post mortem Report.
61
Exhibit-6, Inquest Report.
62
Exhibit-4, Post mortem report.
63
ibid.
64
Exhibit-6, Inquest report.
65
Exhibit-2, Investigation report.
66
Exhibit-5, Spot Panchnama.

8
A. Liability under section 201 is attracted when the essentials of section 201 are

satisfied.

When a person knowingly causes the disappearance of an evidence or gives false information of

that offence, he can be held liable under section 201 of IPC. 67 The knowledge of commission of

an offence68, and the intention of the accused to screen the offender from legal punishment 69 are

essential for liability under section 201 of IPC.70 When relying on the circumstantial evidence,

the guilt of the accused should be proven beyond reasonable doubt.71 It has to be established that

the accused had knowledge that the offence has been committed.72

B. The conduct of the accused fails to fulfil the essentials of section 201 of IPC.

The time limit to delete the messages for both the ends on WhatsApp is about one hour. 73 The

offence was committed on 7 September 2018 whereas the WhatsApp chats among the two

accused and that between the deceased and her friend dates back to last week of August. 74

Therefore, at the time when the messages were deleted, the offence was not committed at all and

hence the accused could not have any knowledge of the offence.

Additionally, accused 1 was not present in his house at the time when the incident took place. 75

There is no conclusive evidence which proves that any of the accused had any knowledge of the

67
Sou. Vijaya v. State of Maharashtra (2003) 8 SCC 296 ¶ 9
68
ibid.
69
ibid.
70
ibid.
71
Hanuman v. State of Rajasthan 1994 Supp (2) SCC 39. ¶ 6
72
id. ¶ 10.
73
FAQs/Guidelines by WhatsApp, https://faq.whatsapp.com/en/26000069/?category=5245251
74
Clarifications on Trial Proposition, Q. 25
75
Exhibit 3, Witness statement

9
offence being committed. Both the accused reached the house of the deceased only after the

police had arrived. Therefore, there is no proof which states that the accused have caused

disappearance of any evidence or if they gave any false information. Also, the intention of the

accused to screen any offender from legal punishment has not been established.

Therefore, the prosecution has failed to establish the guilt of the accused. The essentials of the

liability under section 201 are not fulfilled and hence, the charges framed against the accused are

baseless and should be set aside.

10
 PRAYER

In the light of the facts stated, issues raised, authorities cited and arguments advanced, it is most

humbly and respectfully prayed before this learned sessions court to:

 Acquit both the accused of all the charges.

And pass any such order which this learned court may deem fit in the ends of justice and good

conscience.

All of which is most humbly and respectfully submitted.

S/d__________

Place: Chandpur, Rajakhand (Counsel for defence)

11