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Respondent side of memorial for moot court.
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1. Mirza, brother of Alim, hearing some noise on 05.05.2005 around 9:30 P.M which was coming from the street near the house of Rahim, nephew of Alim, came out and saw that Basir and Sarwar had caught hold of Alim, while Imroj gave a blow with hasua (an instrument of harvesting) on the chest of Alim. 2. On such blow, Alim fell down. Mirza and Rahim, on observing such incident, raised an alarm which attracted many other persons on the spot. Therby, Alim was taken to the Civil Hospital, Haroa, where he was declared dead. 3. Information was sent to the Police Station regarding the receipt of the dead body of Alim. A. S. I Anwar Ali came to the hospital and recorded the statement of Mirza (PW- 2 ). A formal F.I.R was registered at the Police Station on the basis of the statement made by Mirza. 4. The Investigating officer started investigation and prepared an inquest report. The Police officer recorded the statement of Rahim (PW-3) on the following day of the incident. 5. On the basis of the recorded statements, A.S.I. Anwar Ali went to the place of occurrence and lifted the blood-stained earth and prepared a site plan. 6. On 10.05.2005, Imroj was arrested by the Investigating Officer and from then the case was taken over by S.I. M. Ali. S.I. M. Ali accompanied by A.S.I. Anwar Ali went to village Rainagar where they arrested Basir and Sarwar when produced by Rahim, Ex- Prodhan. 7. On 12.05.2005, Police recovered blood-stained hasua from the house of Sarwar and was taken into possession, pursuant to the disclosure statement made by Sarwar. 8. On completion of the investigation charge sheet was presented in the Court of Chief Judicial Magistrate, who then committed the same to the Court of Sessions. The learned Sessions Judge, Badarpur, charge-sheeted the accuseds under Section 302 IPC read with Section 34 of the IPC. The appellants pleaded not guilty and claimed to be tried. 9. The Trial Court, on hearing the appellants and on examining the witnesses and on appreciation of the evidence, held the appellants guilty, thus convicted and sentenced them under Section 302.
10. On Appeal made by the appellants under Section 374(2) of Cr.PC, the High Court confirmed the conviction and sentence passed by the Trial Court. 11. Dr. Lal Chand Biswas (PW-1) conducted the post-mortem on the dead body of Alim, on 06.05.2005 at 11.00 a.m. and found the following injuries on his body: I. A stab incised wound 2.5 cm X 1.5 cm present on the front of the chest on the left side 4.5 cm below, the overlying shirt and vest. II. The direction of wound was downwards medically and upwards. On dissection clotted blood was present in underlying tissues, 5th^ rib was cut. On further dissection the pericardium was out and left ventricle arterially was cut. There was about 700 CC of blood present on the left side of the chest cavity. Heart was empty. The injury was ante-mortem in nature. The cause of death of Alim was hemorrhage, shock and injury to heart which was sufficient to cause death in due course of events.
1. Has the prosecution failed to establish a case beyond reasonable doubt? No, the prosecution did not fail to establish a case beyond reasonable doubt as eye witnesses are the primary evidence and such evidence cannot be overlooked. Mirza and Rahim are the eye- witnesses in this case. The injury on Imroj was ignored by the prosecution because there were certain injuries which were caused by sharp-edged weapon which creates a reasonable doubt whether such injuries were caused by Alim as Alim according to Imroj’s statement, was using a stick. Thus the prosecution established a case beyond reasonable doubt. 2. Is right of private defence available to the accuseds? The right of private defence shall not be available to the accuseds as the defence Imroj had taken is beyond a private defence. He could have used other defences but he murdered Alim and claiming it as his right of private defence. According to accused’s statement Alim was beating him and his wife with stick. Defence must be taken in such a way and to such extent which is necessary. But here Imroj extended his right and killed Alim.
1. Has the prosecution failed to establish a case beyond reasonable doubt? No, the prosecution did not fail to establish a case beyond reasonable doubt as:- 3.1. The fact that the hasua was found hidden in Sarwar’s house upon confession made by Sarwar clearly shows that it was intentionally hidden to avoid the fact of murder and as per their statement if it was a self defence why would they escape from the spot and hide the weapon instead if it was a mere act of private defence which lead to the death of Alim then Imroj was supposed to be present there. 3.2. Eye witness: Eye witness is the primary evidence in this case. Mirza and Rahim both are eye witnesses here who witnessed the whole incident which took place near the house of Alim. 3.3. Injury caused by sharp weapon: According to the statement made by Imroj, Alim had a stick with him which is a blunt weapon. As per the examination conducted by Dr. Prithvi Raj Banerjee (DW-1), injury no.1 and 2 were caused by sharp-edged weapon. Thus there arises a clear and reasonable doubt that whether those injuries were caused by Alim. Furthermore those injuries were caused within 6 hours [i.e. between 4.45pm – 10. pm] before the examination was conducted. The examination was conducted at 10. p.m. whereas the incident took place at about 9.30 p.m.on 05. 05. 2005. Here, what the counsel is trying to argue is that those injuries on Imroj and his wife may have caused before the incident took place i.e. before 9.30 p.m. and they are merely trying to deflect the case on the basis of those injuries which were not even caused by Alim. In case of Bliaba Nanda Sarma v. The State of Assam^1 , it was held that the prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case become reasonably doubtful for its failure to explain the injuries on the accused. (^1) AIR 1977 SC 2252.
appellants also devoid of merit for it is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for its own acts. 2.3. Section 105 : When a person is accused of any offence, the burden of proving the existence of circumstances within the case any of the general exceptions in the Indian Penal Code (45 of 1860) or within any special exception or proviso contained in any other part of the same court, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstance. In case of Vishvas Aba Kurane vs State Of Maharashtra , it was also held that it is well settled that to claim a right of private defence extending to the voluntary causing death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.
On the other hand, the evidence from appellants’ side is not conclusive in nature. According to the expert’s opinion there are certain injuries which were caused by sharp-edged weapon but according to Imroj’s statement Alim used stick i.e. a blunt weapon, to beat them. This clearly creates a reasonable doubt that whether such injuries were caused by Alim. Moreover, I would like to present a case where importance of eye-witness was elaborated with respect to expert opinion. It was held in Dayal Singh v. State of Uttaanchal^3 , that the purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion. Such report is not binding upon the Court. If eye-witnesses’ and other prosecution evidence are trustworthy, have credence and are consistent with the eye version given by the eye-witnesses, the Court will be well within its jurisdiction to discard the expert opinion. In Dalbir Kaur & Ors v. State of Punjab^4 , the Court highlighted some of the principles governing interference by Supreme Court in a criminal appeal by special leave: I. That this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence; II. That the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; III. That the Court would not enter credibility of the evidence with a view to substitute its own opinion for that of the High Court; IV. That the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the accused; (^3) AIR 2012 SC 3046: (2012) 8 SCC 263: 2012 (7) JT 353: 2012 (7) SCALE 165: 2012 CrLJ 4323. (^4) 1977 AIR 472, 1977 SCR (1) 280.
In the last light of the facts of the case issues raised and argument advanced, reasons given and authorities cited, this Hon’ble Supreme Court be pleased
1. To hold The judgment of the High Court. 2. To Reject The special leave to appeal as the evidence is not considerable. And to grant any other relief/s that this Hon’ble Court may be pleased in the interest of justice, equity and good conscience. All of which is respectfully submitted. Counsels for the respondent.
