Download Indian Penal Code- Murder moot memorial and more Study Guides, Projects, Research Criminal Law in PDF only on Docsity!
Moot Court Exercise and Internship
BEFORE THE HON’BLE HIGH COURT OF JUDICATURE
AT AHMEDABAD
CRIMINAL APPEAL NO…/
--IN THE MATTER OF--
STATE OF GUJARAT……………………………………………………….APPELLANT
VERSUS
GAURI SINGHAL………………………………………………………...RESPONDENT 1
MAHESH SINHGAL……………………..…………………………….....RESPONDENT
RAMU……………………………………………………………………RESPONDENT 3
BEFORE SUBMISSION TO THE HON`BLE CHIEF JUSTICE AND
COMPANION JUSTICES OF THE HON`BLE HIGH COURT
BY THE COUNSEL FOR THE RESPONDENT
Akriti Mishra 1 | P a g e
Moot Court Exercise and Internship Roll No. 20
TABLE OF CONTENTS
TABLE OF CONTENTS…………………………………….……………………………..
INDEX OF ABBREVIATIONS…………………………………………………………….
INDEX OF AUTHORITIES……………………………………………………...……..…. 4
CASES CITED
BOOKS REFERRED
WEBSITES
STATUTES
JURISDICTION…………………………………………………….………………..…… 6
STATEMENT OF FACTS……………………………….……………..…………..………
STATEMENT OF ISSUES………………………………………………..……………….. 9
SUMMARY OF ARGUMENTS………………………………………………………...…
ARGUMENTS ADVANCED…………………………………………………………....…
PRAYER…………………………………………………….………………………………
2 | P a g e
Moot Court Exercise and Internship
INDEX OF AUTHORITIES
TABLE OF CASES
- Kishanchand Narsingh Bhati vs. State Transport Appellate Authority, AIR 1968 SC 1468 (3) SCR 605
- Concord of India v. Nirmala Devi, AIR 1979 SC 1666: (1979) 4 SCC 365
- Associated Cement Cos. V. Cement Workers Kamgar Union, AIR 1972 SC 1552: (1972) 4 SCC 23
- Tripati Balaji Developers Pvt. Ltd. V. State of Bihar, AIR 2004 SC 2351.
- Shivannad Gaurishankar Baswati v, Laxmi Vishnu Textile Mills (2008) 13 S.C.C. 323
- Rajendra Kumar Chaturvedi v. State of Maharashtra, (1974) 4 S.C.C. 327
- Gian Singh v. State of Punjab A.I.R. 1974 S.C. 1024
- SDS Shipping (P) Ltd. V. Jay Container Services Co. (P.) Ltd. (2003) 9 S.C.C. 439
- Ezhil v. State of Tamil Nadu A.I.R. 2002 S.C. 2017
- P.S.R. Sadhanantham v. Arunachalam, AIR 1980 SC 865: (1960) 3 SCC 141.
- T.K. Gopal v. State of Karnataka (2000) 6 SCC 168: AIR 2000 SC 1669
- Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: AIR 1952 SC 159
- Karupasamy v. State, 2004 CrLJ 2935,2936, para 7 (Mad): 2004 (2) CTC 507
- Queen Empress v. Khandiabin Pandu, ILR (1890) 15 Bom 66;
- A. Manuswami v. R. Sethuraman, AIR 1995 Mad 375 (para 10)
- Ramakant Rai v. Madan Rai Cr. LJ 2004 Sc 36
- Hari Charan Kurmi v. State of Bihar (A.I.R. 1964 S.C. 1184)
- Pancho v. State of Haryana
- Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: AIR 1952 SC 159
- Karupasamy v. State, 2004 CrLJ 2935,2936, para 7 (Mad): 2004 (2) CTC 507
- Queen Empress v. Khandiabin Pandu, ILR (1890) 15 Bom 66; BOOKS:
- Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
- I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008) 4 | P a g e
Moot Court Exercise and Internship
- Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
- Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
- Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
- Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006) **WEBSITES
- https://www.casemine.com
- https://www.indiankanoon.com
- https://www.scconline.com
- https://www.livelaw.com STATUTES**
- The Code of Criminal Procedure, 1973 (Act 2 of 1973)
- The Indian Evidence Act, 1872 (Act 18 of 1872)
- The Indian Penal Code, 1860 (Act 45 of 1860) 5 | P a g e
Moot Court Exercise and Internship
STATEMENT OF FACTS
A. THE BACKGROUND
Ananya Deshmukh (deceased) was an advocate who had married Mr. Monty Deshmukh, a leading entrepreneur. Everybody adored Ananya and she was known for her delicate and calm nature. Gauri Singhal (Respondent No. 1) was Ananya’s cousin. She was wedded to Mahesh Singhal (Respondent 2) a Fashion Designer. Gauri and Ananya shared cordial relations as they had both grown up together. B. MONEY TRANSACTION The sisterly relationship developed into a fiduciary relationship. On 22 June 2019 Ananya loaned Rs. 45 Lakhs to her sister to help her in her clothing business, 'GM Garments'. Gauri, while promising to return the amount in 5 months. In spite of giving numerous reminders, the loan remained unpaid. The business was somewhat low because of the COVID-19 pandemic all over the world and Gauri was finding it hard to support her Garment business. On 10 th July 2020 , Gauri persuaded Ananya, against Monty’s wishes, into putting another Rs. 30 Lakhs into the business. Again, Gauri failed to repay the loan amount. C. FINAL ULTIMATUM Ananya was frustrated because of the money owed to her. On 11 th^ August 2020, a last final ultimatum was given to Gauri to pay the loan amount by the end of November as they needed it to rebuild their home. Gauri felt humiliated by the treatment meted out to her and wanted to avenge the humiliation. On 19 September 2020, Gauri called up Ananya and invited her to her home at City Pinnacles, Trench Street, Surat at 08:00 p.m. that day. Ananya promptly called Monty and informed him about the same. D. ANANYA MISSING On the evening of 19 th^ September 2020, Ananya finished her office work and left her office by 8:15 p.m. She called up Monty and let him know that she was headed toward Gauri`s home. This was the last call recorded by the telephone company that was made using Ananya's number. At half-past 12 AM, Monty began to get anxious as Ananya had not yet gotten back. He called up Gauri to which she answered that Ananya had never made it to her home at the decided time so she felt that their meeting had been canceled. As the whereabouts of Ananya 7 | P a g e
Moot Court Exercise and Internship were yet to be found. Thus, it was concluded that a missing complaint was to be filed. That Gauri started persuading everybody against filing a missing complaint as Ananya might have been busy with some important work. But after 36 hours after her disappearance, Monty alongside Unnati and Kishor recorded a missing complaint on 21 September 2020. E. POLICE INVESTIGATION The investigation began on 5 th^ September 2020. Monty was viewed as a suspect however he was later ruled out once he laid out his alibi. At the point when the police addressed Gauri and Mahesh in regard to their planned meeting with Ananya, they were extremely ambiguous and let the police know that Ananya never visited them that night. On 05 September 2020, the police found Ananya's missing vehicle, which had been left deserted close to the Purna Wildlife Sanctuary region. Based on this documentary evidence, the police laid out that Gauri was the only person with the most solid motive to dispose of Ananya. On 18 September 2020 to take custody of Gauri for questioning, they found that Gauri and Mahesh were both abscondings. The police then took their servant Ramu, into custody for questioning. It was found that Gauri and Mahesh had gone to Vadodara on 16 October 2020. F. CRIME On 19 October 2020, Ramu admitted to the police that he assisted Gauri and Mahesh in strangulating Ananya on 19 September 2020. He then assisted Mahesh with wrapping the body in a carpet and putting it in Ananya's car. They unloaded the body near Purna Wildlife Sanctuary. On 20 September 2020, Ramu showed the police at the forest where the body was asserted to have been unloaded. The investigation team recovered the highly decomposed body of a female. The body was sent to Civil Hospital, Surat for a post-mortem which stated that it was an unnatural death due to asphyxiation caused by the fracturing of the hyoid bone. The hair on the decomposed body was then sent for a DNA test. Upon examination with a sample taken from Ananya's hairbrush, it was concluded beyond any reasonable doubt that the body was that of Ananya. Taking into consideration the statement of Ramu, the forensic proof, and the circumstances encompassing the disappearance of Ananya an FIR was filed on 20 September 2020 against Gauri, Mahesh, and Ramu for the murder of Ananya Deshmukh. A team of cops went to Vadodara on 23rd^ October 2020 and arrested Gauri. A charge sheet was prepared on 18th^ December 2020. The Sessions Court depending upon the witnesses and the proof in the case acquitted and set free. Aggrieved by this judgment, the State has filed an appeal before the Hon'ble Gujarat High Court and the same is pending for hearing. 8 | P a g e
Moot Court Exercise and Internship
SUMMARY OF ARGUMENTS
I. THE PRESENT APPEAL FILED IS NOT MAINTAINABLE BEFORE
THE HONORABLE HIGH COURT.
It is humbly submitted before the Honble High court that the present appeal is not maintainable. The trial court has rightly acquitted the respondents considering the evidence presented by the appellants. It is submitted that the remedy under the section need not be exercised in cases where substantial justice is already done. The Apex court has already reiterated in many of its judgments that the circumstances must induce the court to interfere with the decision under challenge only if extraordinary flaws or grave injustice or other recognized grounds are made out. In the instant case, no miscarriage of justice is done on the part of the judiciary. **II. THE ACCUSED 1, 2 & 3 ARE NOT GUILTY UNDER SECTION 302 AND HAS NO COMMON INTENTION** It is humbly submitted before the honble court that Gauri Singhal, Mahesh Singhal, and Ramu cannot be held guilty of the murder of Ananya Deshmukh (deceased). The counsel submits that the confession by the co-accused is not reliable, the deficiency in finding by police, and the documentary evidence is not conclusive to attribute criminal liability. Further, there is no common intention between the respondents. III. WHETHER THE CONFESSION MADE BY THE CO-ACCUSSED IS ADMISSIBLE? It is humbly submitted that Respondent 3 confession is inadmissible and conviction cannot be made on the basis of this statement. The session court has passed the appropriate remedy and delivered justice to the respondents. 10 | P a g e
Moot Court Exercise and Internship
ARGUMENT IN DETAIL
I. THE PRESENT APPEAL FILED IS NOT MAINTAINABLE BEFORE
THE HONORABLE COURT.
It is contended before the hon`ble High Court that the present appeal is not maintainable because the session court has passed the appropriate and justified judgment. The principle settled by way of practice and the procedure is that the High court would not disturb the decision of specially constituted authorities or tribunals, as an appeal court, and would not review findings of facts except where they are perverse or shocking to the judicial conscience.^1 The power of the High court is of the widest amplitude and the court would only interfere in exceptional cases e.g. violation of the principles of natural justice or because the appeal raises an important principle of law that requires the interference of a constitutional court.^2 A. The appeal lacks a valid question of law The right to appeal is also not a natural or inherent right. In the absence of substantial question of law, allowing an appeal would rather damage the original plaintiff and lead to miscarriage of justice by unnecessary delaying in the justice delivery process of dispute.^3 The Apex court has already reiterated in many of its judgments that the circumstances must induce the court to interfere with the decision under challenge only if extraordinary flaws or grave injustice or other recognized grounds are made out.^4 It is only when some glaring error leading to a grave failure of justice is made out, that the supreme court would allow its jurisdiction to be invoked.^5 In the instant case, the appellant has failed to show that there exist special grounds to appeal against acquittal. The session court has passed the appropriate acquittal as the respondents are (^1) Kishanchand Narsingh Bhati vs. State Transport Appellate Authority, AIR 1968 SC 1468 (3) SCR 605; Concord of India v. Nirmala Devi, AIR 1979 SC 1666: (1979) 4 SCC 365 (^2) Associated Cement Cos. V. Cement Workers Kamgar Union, AIR 1972 SC 1552: (1972) 4 SCC 23 (^3) Tripati Balaji Developers Pvt. Ltd. V. State of Bihar, AIR 2004 SC 2351. (^4) Shivannad Gaurishankar Baswati v, Laxmi Vishnu Textile Mills (2008) 13 S.C.C. 323 (^5) Rajendra Kumar Chaturvedi v. State of Maharashtra, (1974) 4 S.C.C. 327; Gian Singh v. State of Punjab A.I.R. 1974 S.C. 1024 11 | P a g e
Moot Court Exercise and Internship II. THE RESPONDENT 1, 2 & 3 ARE NOT GUILTY UNDER SECTION 302 AND HAS NO COMMON INTENTION It is humbly submitted before the hon`ble court that Gauri Singhal, Mahesh Singhal, and Ramu (Hereinafter referred to as Respondent 1, Respondent 2, and Respondent 3 respectively) cannot be held guilty of the murder of Ananya Deshmukh (deceased). A crime is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual.^8 In other words ‘Crime’ can be defined as an act or commission of an act specifically forbidden by law, it may be an offense against morality or social order.^9 The counsel submits that the confession by the co-accused is not reliable, the deficiency in finding by police, and the documentary evidence is not conclusive to attribute criminal liability. A. The extra-judicial confession of co-accused are unreliable and weak evidence The confession of Ramu is unreliable and weak because his confession is inadmissible and he is himself a co-accused and hence an interested witness. The confession of an accused person is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Such confession can however be used to lend assurance to other evidence against a co-accused. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration, and see whether if it is believed, a conviction could safely be based on it. It it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing that without the aid of the confession he would not be prepared to accept.^10 An accused of an offense cannot be convicted merely on the basis of a confessional statement of the co-accused in absence of any other sufficient evidence.^11 The confession of persons, jointly tried for the same offense as the accused, is not according to the Bombay High Court, technically is not even evidence.^12 (^8) P.S.R. Sadhanantham v. Arunachalam, AIR 1980 SC 865: (1960) 3 SCC 141. (^9) T.K. Gopal v. State of Karnataka (2000) 6 SCC 168: AIR 2000 SC 1669 (^10) Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: AIR 1952 SC 159 (^11) Karupasamy v. State, 2004 CrLJ 2935,2936, para 7 (Mad): 2004 (2) CTC 507 (^12) Queen Empress v. Khandiabin Pandu, ILR (1890) 15 Bom 66; 13 | P a g e
Moot Court Exercise and Internship Thus, it is humbly submitted that Ramu`s (referred to as respondent 3) confession is inadmissible and conviction cannot be made on the basis of this statement. The session court has passed the appropriate remedy and delivered justice to the respondents. B. Failure on the part of the Police It is significant to highlight the failure on the part of the police to gather the connecting links allegedly obtained from the confessional statement of the Ramu would not only expose the falsity of such a confessional statement of Ramu but would even otherwise lead to an inescapable conclusion that the so-called extra-judicial confession of the Respondent 3 before the police apart from inadmissible in evidence had also remained wholly uncorroborated. In other words, since the prosecution has not sought to bring on record anything by way of corroborating evidence to prove that in support of whatever was allegedly confessed by respondent 3 the alleged confessional statement at best had to remain confined only to recovery of the dead body of deceased and nothing more. C. There is no common intention or criminal conspiracy on the part of Respondents It is humbly submitted that ‘Common intention’ implies a pre-planned and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the pr-planned plan. Common intention comes into being prior to the commission of the act in point of time, which need not be a long-time gap. 13 Respondent no. 1 and respondent no. 2 were themselves ambiguous and worried about the Ananya missing news. They themselves informed the police regarding that night when Ananya (now deceased) planned to meet at the Respondent’s residence. It is humbly submitted before the Honourable High Court there is nothing to suggest there was pre-arranged plan and prior concert between the accused persons for the commission of the offense apart from the confession of respondent 3 which is in itself inadmissible. D. Documentary evidence is not conclusive to attribute criminal liability Peter Murphy defines documentary evidence as “Evidence afforded by any document produced for the inspection of court, whether as direct or hearsay evidence of its contents.”^14 The words “intended” to be used or which may be used in the definition of the word (^13) Sharif Ahmad Alias Achhan (1956) 2 All 188 (^14) A practical Approach to Evidence, 1985, 2nd (^) edn, Page 7 14 | P a g e
Moot Court Exercise and Internship Respondent`s home. This creates reasonable doubt since the post-mortem report is inconclusive and ambiguous. b. DNA analysis Report The result of the DNA analysis concluded that no doubt in concluding that the two hair samples obtained belonged to the same individual. However, no documentary evidence presented has proved beyond a reasonable doubt that the accused were involved in the murder of the deceased in furtherance of common intention. It is humbly submitted before the Honourable High Court there is nothing to suggest there was pre-arranged plan and prior concert between the accused persons for the commission of the offense apart from the confession of respondent 3 which is in itself inadmissible. A reasonable doubt must not be imaginary, trivial, or merely possible doubt; but a fair doubt based upon common sense arising out of the evidence of the case.^18 The appellant’s arguments are leaning towards the facts that the crime “may have been committed by the accused”, however, they have failed to make the link between ‘may have committed the crime’ and ‘must have committed the crime and that gap must be filled by the prosecution by legal, reliable and unimpeachable evidence before a conviction can be sustained.^19 III. THE CONFESSION MADE BY THE RESPONDENT 3 IS NOT ADMISSIBLE. (^18) Ramakant Rai v. Madan Rai Cr. LJ 2004 Sc 36 (^19) Nelson R.A. Indian Penal Code,p,2905, (10th (^) Ed.2008) 16 | P a g e
Moot Court Exercise and Internship The counsel submitted that the confession made by the co-accused is not admissible enough to convict the other accused at the session court. Hence the respondents can`t be charged with murdering and causing hurt to the deceased Ananya in the present case. While deciding the reliability which can be placed on by the court in the confessions of the co-accused, the Supreme Court has held^20 that the confession of a co-accused cannot be treated as substantive evidence, and can be pressed upon only when the Court is inclined to accept other evidence, and feels the necessity of seeking assurance in support of its conclusion’s deductible from other evidence. In criminal cases, where evidence is adduced insufficiently to prove a person guilty, such a person cannot be held guilty relying on the confession of a co-accused. The presumption of innocence comes to his rescue and compels the court to render the verdict that the charge is not proven and the accused is not guilty. The word “may” in section 30 of the Evidence Act is very important to interpret. The presence of this term indicates that such a confession cannot be said to be “evidence” in its technical sense and thus can only support a conviction. Rather, the section gives discretion to the Court either to use it against a co-accused or not to do so. The same was reiterated by Jackson, J. in the case of R. v. Chandra. A. No evidentiary value of confession The Supreme Court in the case held that confessions of a co-accused aren’t the substantive piece of evidence and that they can only be used to confirm the conclusion drawn from other evidence in a criminal trial.^21 The court further stated that the trial court cannot begin on the basis of the confession of the co-accused to form its opinion in a case. Rather, the courts must analyze all the evidence which are being adduced, and on being satisfied with the guilt of the accused, might turn to the confession in order to receive assurance to the conclusion of guilt which the court has reached on the said evidence. Referring to previous apex court verdicts, the court said it is not obligatory to take the confession into account and that it is the discretion of the court. Hence the session court has not erroneous in acquitting all respondents. B. Respondent 3 statements is not reliable (^20) Hari Charan Kurmi v. State of Bihar (A.I.R. 1964 S.C. 1184) (^21) Pancho v. State of Haryana, 17 | P a g e
Moot Court Exercise and Internship It is significant to highlight the failure on the part of the police to gather the connecting links allegedly obtained from the confessional statement of the Respondent would not only expose the falsity of such a confessional statement of Respondent 3 but would even otherwise lead to an inescapable conclusion that the so-called extra-judicial confession of the Respondent 3 before the police apart from inadmissible in evidence had also remained wholly uncorroborated. In other words, since the prosecution has not sought to bring on record anything by way of corroborating evidence to prove that in support of whatever was allegedly confessed by respondent 3 the alleged confessional statement of the Ramu at best had to remain confined only to recovery of the dead body of deceased and nothing more. The police officer has failed to conduct the proper investigation and find the true culprit of the whole crime incident. Therefore, it is humbly submitted that conviction and corroboration cannot be made solely on the basis of Respondents statements. Although the statements of the Ramu were limited to the recovery of Ananyas Dead body and nothing more. However, in this regard, the lower court has rightly concluded that even though the last-seen theory was proved but no clinching or cogent evidence has been brought on record regarding the conviction of all the accused. It is humbly submitted that the chain of events is not complete and conviction cannot be made on such ground. 19 | P a g e
Moot Court Exercise and Internship
PRAYER
WHEREFORE IN THE
LIGHT OF THE ISSUES
RAISED, ARGUMENTS
ADVANCED
AND AUTHORITIES
CITED, IT IS HUMBLY
REQUESTED THAT THIS
HON’BLE
COURT MAY BE PLEASED
TO ADJUDGE AND
DECLARE:
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED
AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE
COURT MAY BE PLEASED TO ADJUDGE AND DECLARE:
o The appeal filed before the Honourable High Court of Gujarat is not maintainable. o That there is no common intent on the part of the respondents. o That Respondents cannot be held guilty of the murder of Ananya Deshmukh. 20 | P a g e
