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NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION (NTAMCC)- 2020
MEMORANDUM FOR THE PROSECUTION
MOST RESPECTFULLY SUBMITTED BEFORE THE HONOURABLE TRIAL
COURT
IN THE PROCEEDINGS BETWEEN:-
STATE OF RAJASTHAN...........................................................................PROSECUTION
VERSUS
MAHESH.....................................................................................................DEFENDANT
MOST RESPECTFULLY SUBMITTED BEFORE THE HONOURABLE
APPELLATE COURT
IN THE PROCEEDINGS BETWEEN:-
MAHESH............................................................................................................APPELLANT
VERSUS
STATE OF RAJASTHAN.............................................................................RESPONDENT
MEMORANDUM FOR THE PROSECUTION
DRAWN AND FILED BY THE COUNSELS ON BEHALF OF THE PROSECUTION
JSL- 14
TABLE OF CONTENTS
- Index of Authorities S. No. PARTICULARS PAGE NO.
- Statement of Jurisdiction
- Statement of Facts
- Statement of Issues
- Summary of Pleadings
- Arguments Advanced
- The Prayer
- Surajpal Singh v. State (1952) SCR 20
- Ajmer Singh v. State of Punjab (1953) SCR 418
- P.V. Narayana V. State of Andhra Pradesh (1997) 2 Crimes 307 (AP)
- Mani Kumar Thapa V. State of Sikkim AIR 2002 SC 2920
- Badam Singh V. State of Madhya Pradesh (2003) 12 SCC 792
- Narayan Nathu Naik V. State of Maharashtra AIR 1971 SC 1656
- Yunis Alias Kariya V. State of Madhya Pradesh AIR 2003 SC 539
- Virsa Singh v. The State Of Punjab (1958) AIR 465
- Jai Prakash v. State (Delhi Administration)(1991) (1991) SCC (2) 32
- Harjinder Singh Alias Jinda v. Delhi Administration
(1968) SCR (2) 246
- Morcha v. The State Of Rajasthan 1979 SCR (1) 744
- Saleem Khan And Anr. v. State Of J&K (1997)CrL.J 2518
- Sardul Singh V. State of Haryana AIR 2002 SC 3462
- Suresh Chandra Bahri V. State of Bihar AIR 1994 SC 2420
- Bipin Kumar Mondal V. State of West Bengal AIR 2010 SC 3638
- Munish Mubar V. State of Haryana AIR 2013 SC 912
- Raja V. State (1972) 2 Crimes 175
- Swaroop Singh V. State of Punjab 2005 SC 4345
- Barikanoo V. State of Uttar Pradesh (1972) 2 Crimes 175
- P.V. Narayana V. State of Andhra Pradesh (1997) 2 Crimes 307 (AP)
- Mani Kumar Thapa V. State of Sikkim AIR 2002 SC 2920
- Badam Singh V. State of Madhya Pradesh (2003) 12 SCC 792
- Narayan Nathu Naik V. State of Maharashtra AIR 1971 SC 1656
- Yunis Alias Kariya V. State of Madhya Pradesh AIR 2003 SC 539
- Krishan Kumar Malik V. State of Haryana AIR 2011 SC 2877
- Raghav Prapanna V. State of U.P. AIR 1963 SC 74
- Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
- Janar Lal Das v. State of Orissa 1991 (3) SCC 27
- A. Jayaram and Anr. v. State of AP AIR 1995 SC 2128
- Mahmood v. State of UP AIR 1976 SC 69
- Aruna Chadha v. State of Nct Delhi Cri. Rev. No. 305/
- Palvinder Kaur v. State of Punjab 1953 Cr.LJ 154
- Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415
- Sarbir Singh v. State of Punjab [1993(1) Crimes 616 (SC) 1993(1) Crimes 616 SC
- Nirmal Singh Kahlon v. State of Punjab & Ors (2009) 1 SCC 441
- Ramakant Rai v. Madan Rai (2004) Cr. LJ 36 SC
- P. Vijayan v. State of Kerala AIR 2010 SC 663 II. SECONDARY SOURCES BOOKS REFERRED
- Law of Crimes, Ratan Lal and Dheeraj Lal (34th edition, Lexis Nexis, 2014)
- Law of Crimes, K.D. Gaur (5th edition, Universals Law Publication, 2014)
- KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009)
DICTIONARIES REFERRED
- Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990).
- P Ramanatha Aiyar, The Law Lexicon, (2nd Ed. Lexis Nexis, 2006) LEGAL PORTALS REFERRED OTHER REFERENCES
- KD Gaur, The Indian Penal Code, (15th Ed. , Law Publishers India Pvt. Ltd., 2016)
- Woodroffe and Amir Ali Law of Evidence (20th Ed.,Lexis Nexis,2016)
- Ratanlal & Dheerajlal, The Code of Criminal Procedure(20th Ed., Lexis Nexis 2016)
- R.V. Kelkar, Criminal Procedure, (5th Ed. 2011)
- MCGRAW^ HILL,^ CRIMINAL^ INVESTIGATION^ (4TH^ ED.^ 2004).
- Justice UL Bhatt, Lectures on Indian Evidence Act,(Universal LawPublication,2015)
- Ram Jethmalani & DS Chopra, The Law of Evidence(Second Ed., Thomson Reuters)
- Ratanlal & Dheerajlal, Law of Evidence (25th Ed., Lexis Nexis, 2013)
Prof. Arthur Best, Wigmore on Evidence,(Aspen Publishers; 13-Volume Ed. December 31, 1995)
- B.B. MITRA, CODE OF CRIMINAL PROCEDURE, 1973 (20TH ED. 2006 )
- Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)
- SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency, 2014 )
- Halsbury's Laws of England (Vol.13, 4th Edition)
- www.manupatrafast.in
- www.scconline.com
- www.supremecourtofindia.nic.in
- www.westlawindia.com
- (William R Tumble, 21 September, 2007)
- 24 American Jurisprudence 2nd Edn.
- 69th Report of the Fifth Law Commission India
- Weight of Oral Evidence^ in^ Criminal^ Proceedings.”^ Singapore Journal of Legal Studies , National University of Singapore, 2000, pp. 443–482. JSTOR
- Rationale of Judicial evidence, 1955 reprint
- Egyptian Journal of Forensic Sciences Ghormade et al. Egyptian Journal of Forensic Sciences (2018) 8:
By the exercising the power conferred u/s 401, the High court remanded the case for trial (by virtue of section 386, Code of Criminal Procedure, 1973) in the concerned Trial Court to be tried on amended charges – 498A, 304B alternatively 302, Indian Penal Code, 1860.
386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same Therefore, the prosecution humbly contends before this learned trial court to commence the trial on amended charges as directed by the Honorable High Court.
STATEMENT OF FACTS
STATEMENT OF VIJAY
Vijay, native of Sikar; presently a resident of Mansarovar, Jaipur had filed an FIR on 25/05/2016. In his complaint, Vijay stated that his daughter got married to Mr. Mahesh on 5/4/2013 who resides in Mahesh Nagar, Ajmer with his family. Soon after their marriage, the husband Mahesh and his family members started harassing, beating and demanding money as Dowry from Rekha on regular basis. In his complaint he also stated that in the morning of 25/05/2016, he had received a call from the neighbor of his daughter’s marital home that his daughter had died and thereafter dismissed the call. FIR LODGED BY POLICE Police lodged the FIR u/s 304-B at Police Station Mahesh Nagar, FIR No.183/17.After investigation Police submitted the charge sheet u/s 498-A, 306 of IPC on 15/8/2016 in which police had attached the letter of the deceased received from Narayan. LETTER OF DECEASED “Sorry Papa, I don’t want to give you any sorrows in life. I always tried my best to not let a patch to be put in your reputation because of me. I neither remember that lady anymore nor do I want to bring her near me. I don’t know why I had such stupid thoughts that time but Papa I didn’t talk unnecessarily to any boy but because of my single mistake, my reputation is falling down in everyone’s eye. I didn’t think about it again when they stopped me but still things are not same as before, everything is finished. I cannot live anymore.” MEDICAL REPORT As per medical report after Postmortem cause of death is Asphyxia due to ante-mortem hanging. Ligature mark was ante mortem and C2 – C3 bone was fractured. Result of viscera report is that portions of Viscera and blood sample from three packets received were marked Nil and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides.
STATEMENT OF ISSUES
I. WHETHER THE ACCUSED IS LIABLE UNDER:
A) SECTION 498A OF THE INDIAN PENAL CODE AMOUNTING TO CRUELTY.
B) SECTION 304B OF THE INDIAN PENAL CODE AMOUNTING TO DOWRY
DEATH.
II. WHETHER THE ACCUSED IS LIABLE UNDER SECTION 302 OF THE INDIAN
PENAL CODE FOR THE MURDER OF REKHA.
SUMMARY OF PLEADINGS
I. THAT THE ACCUSED IS LIABLE UNDER SECTION 304B AND 498A OF THE
INDIAN PENAL CODE.
The council pleads that the defendant is guilty under S498 IPC for “cruelty” as all the elements of cruelty are fulfilled. The statement given by the deceased’s father again contributes to verify the charge of cruelty. The credibility of the dying declaration is challenged. Further, the defendant is guilty under section 304 B of the IPC for dowry death since along with all the elements being fulfilled; the presumption under section 113 B of the Indian Evidence Act is also applied. II. THAT THE ACCUSED IS LIABLE UNDER SECTION 302 OF THE INDIAN PENAL CODE It is humbly submitted before this Hon’ble Court that the accused is guilty of murder as the death has been caused is because of continuous demand for dowry from her and the cruel behaviour inflicted against her. Thus the accused does not lack the requisite mens rea to commit such a crime. Furthermore the issue as to whether or not he had committed the actus reus must be put into question as the direct evidence and complaint of the father clearly proves that they were the one who had tortured her and killed her. Hence the crime of murder stands against the accused.
- Elements of cruelty under S. 498 IPC fulfilled The Shorter Oxford Dictionary^1 defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard- heartedness'. The term "mental cruelty" has been defined in the Black's Law Dictionary^2 as under: "Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse." In American Jurisprudence^3 , the term "mental cruelty" has been defined as under: "Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse." The deceased was subject to endangerment of her physical and mental health, she faced cruelty by Mahesh who made her life unsafe by harassing and torturing her. The concept of cruelty has been summarized in Halsbury's Laws of England^4 as under: "The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of (^1) (William R Tumble, 21 September, 2007) (^2) Black's Law Dictionary [8th Edition, 2004] (^3) 24 American Jurisprudence 2nd Edn (^4) Halsbury's Laws of England [Vol.13, 4th Edition Para 1269]
fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits." Thus, the conduct or cruelty can be deduced from the effect it had on the deceased in the present case. In the case of Shobha Rani v. Madhukar Reddi^5 , court had an occasion to examine the concept of cruelty. “The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.” The actions of harassing, beating and demanding money as Dowry on a regular basis themselves are enough to prove cruelty exercised against the deceased. (^5) Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105
admissions. The court cited a statement from Wigmore on Evidence to the effect that an admission need not be contrary to the maker’s interest. Thus the witness cannot be blamed for being prejudicial or biased while giving a direct oral evidence and it must be considered with gave attention. In Bexy Michael and anrs. vs A.J. Michael^10 , the Kerala High court observed that; “It would be a traversity of truth, justice and reasonableness to throw over board the entire evidence and reject the claim lock, stock and barrel for the only reason that still better evidence has not been placed before the court. Absolute certainty is not the requirement under Sec.3 of the Evidence Act. Sometime Oral Evidence can be the sole ground for conviction or acquittal .We cannot deny the merit of oral evidence. In such types of cases, Burden of proof may not be beyond reasonable doubt due to lack of substantial evidences. It is totally based on the rational and prudential approach of the court.”
- Credibility of Dying declaration. The counsel humbly pleads that the dying declaration found in the investigation cannot be blindly accepted as the truth. Hence, it’s credibility is questioned. In Section 32 (1) of the Evidence Act, the only statement that is given just before the death is dying declaration. Also, the statement that is given before and which explains the cause of death is also dying declaration. A person who is conscious and knows that death is about to happen can make a statement about the reason of his/her death will be admissible in the court. As per Section 32 (1); Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. —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:— (^10) Bexy Michael and anrs. vs A.J. Michael 6 October, 2010. The Kerala High court
- 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. In State of West Bengal Vs. Orilal Jaiswal and another^11 , the Hon'ble Supreme Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. In the case of M. Mohan vs State^12 , a constitution Bench of the Supreme Court consisting of 7 judges held - The Hon'ble Judges after crystallizing the law relating to suicide and its abetment has observed that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Thus, we have to find out whether there was any positive act on the part of the accused-appellant to instigate or aid in committing suicide by the deceased and for this purpose the oral evidence led by the prosecution would be required to be analyzed. B. The defendant is guilty under Section 304 B of “Dowry death” It is most humbly submitted before this Honourable court that the accused is guilty of the offence of dowry death. As per section 304B IPC, Dowry death is defined. Now according to section 2 of the Dowry Prohibition Act, 1961^13 ; Definition of ‘dowry'. In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly— (a) by one party to a marriage to the other party to the marriage; or (^11) State of West Bengal Vs. Orilal Jaiswal and another (1994) 1 SCC 73 (^12) M. Mohan vs State represented by Dy. Supdt. of Police (2011) 3 SCC 626 (^13) Dowry Prohibition Act, 1961
Further, The Hon’ble Supreme Court in Satbir Singh v. State of Haryana^16 held that “once the prosecution is able to establish the ingredient of dowry death under 304B Of IPC the burden of proof of innocence shifts of defence” and the same was also held in a case before, Hon’ble Supreme Court in Hanshraj v State of Punjab^17 held that “in case of a death of the women caused and satisfy the essentials of 304B the husband and the husbands relatives will be presumed to have caused dowry death, and are liable for the offence, unless it is proved otherwise. That is to say, the burden of proof shifts on the part of the accused to prove his innocence unlike other offences wherein the accused is presumed innocent” and this judgment were followed by Himachal Pradesh High Court in Sarwan Kumar v State of Himachal Pradesh^18_._ And as the prosecution has clearly established all the ingredients of dowry death as per section 304B, the burden that accused persons are innocent lies on accused persons
- The presumption under Section 113 B of the Evidence Act is applied. The counsel humbly pleads that section 113 B of the Indian Evidence act a presumption in the said case of dowry death. In Hira Lal And Ors vs State (Govt. Of Nct) Delhi^19 court observed that; “A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the (^16) AIR 2005 SC 3546 (^172000) (3) RI 556 (^18) AIR 2000 HP 239 (^19) Hira Lal And Ors vs State (Govt. Of Nct) Delhi on 25 July, 2003
importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined”. In The State Of Andhra Pradesh vs Raj Gopal Asawa And Anr^20 it was observed that; “The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 - B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304-B IPC and the wording in the presumptive Section 113 - B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113 - B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death”. The court has in Kans Raj vs State Of Punjab & Ors^21 also mentioned that ; “No presumption under Section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter. Mere lapse of sometime by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman.” Thus, while no defence is available to the defendant, there is still a presumptuous advantage granted to the prosecution. (^20) State Of Andhra Pradesh vs Raj Gopal Asawa And Anr on 17 March, 2004 (^21) Kans Raj vs State Of Punjab & Ors on 26 April, 2000
