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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 ii TABLE OF CONTENTS
Table of Contents ii
List of Abbreviations iii
Index of Authorities iv Table of Cases iv Books v Lexicons vi Websites vii Statutes vii
Statement of Jurisdiction viii
Statement of Facts ix
Statement of Charges x
Summary of Arguments xi
Arguments Advanced 1 Issue-I 1 Whether Maj Rana is guilty of Dacoity? 1 Issue-II 6 Whether Maj Rana is guilty of Murder? 6
Prayer 16
INDEX OF AUTHORITIES
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 v INDEX OF AUTHORITIES
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 vii INDEX OF AUTHORITIES
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 viii STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section 209 of the Code of Criminal Procedure, 1973.
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 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.‟
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 x STATEMENT OF CHARGES
Maj. (Retd) J. S. Rana has been charged under Section 396 read with Section 302 the Indian Penal Code, 1860 for the crime of Dacoity with Murder.
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 xi SUMMARY OF ARGUMENTS
It is humbly submitted before this Hon’ble Court that the accused Maj. (Retd) J. S. Rana is not guilty of the offence of dacoity as he was not a party to the dacoity that had taken place on the 1st^ of January 2013, nor is there any direct evidence to link him to the crime. The accused had not in any way participated in the crime as he was in charge of the security over the Montecito, furthermore he had neither intention nor motive to commit such a crime and thus, this crime cannot stand.
It is humbly submitted before this Hon’ble Court that the accused is not guilty of murder as the alleged crime which he had committed was done in exercise of his right to private defence under section 103 of the IPC read with sections 80 and 81 of the IPC and thus he lacks 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 has several infirmaries and inconsistencies. Hence the crime of murder cannot stand against the accused.
SURANA AND SURANA NATIONAL T ARIALRGUMENTS ADVOCACY ADVANCED MOOT COURT COMPETITION, 2013 2
1.1 THE ACCUSED DID NOT COMMIT OR ATTEMPT TO COMMIT ROBBERY It is contended that the accused did not have independent control over the security of the Octavious floor. The statement made by accused clearly makes out that Mr. Michael Barbosa ( hereinafter to be referred as DW-4 ) and Ms. Shonali Gujral ( hereinafter to be referred as PW-1 ) could monitor the Octavious vault at all times even though they may not have been tasked with the security of the Octavious floor.^4
The same can be inferred from the witness statements made by PW-1, “We had taken the best possible precautionary measures to avoid any incident and I had special men on guard.”^5 Thus, it is evident that there was more than one person privy to the security layout of the vault.
Furthermore, it has been alleged that the accused participated by securing entrance of the other perpetrators. It is to be noted that the accused did not have the authority to prepare the guest list, the only authority given to him is merely to scrutinize the names given to him by PW-1. Hence, the accused is not the authorized person, nor does he have the power to put in names, he is merely to secure that the persons mentioned by PW-1 are of a proper background.
It is submitted before this Hon’ble court that in such circumstances one cannot pin point the crime of dacoity on the accused, there is still a room full of doubt with respect to who aided the co-accused and other persons in the crime of dacoity.
(^4) Case Details , Annexure 7 , P. 15 (^5) Ibid, P.. 14
SURANA AND SURANA NATIONAL T ARIALRGUMENTS ADVOCACY ADVANCED MOOT COURT COMPETITION, 2013 3
The word conjointly refers to united or concerted action of five or more persons participating in the act of committing an offence^6. From the aforementioned arguments, it is evident that the accused did not assist the other accused persons in any form nor help them to commit the offence. Therefore, it is humbly submitted that the threshold of acting conjointly does not fulfilled.
1.3 THERE IS A DISCREPANCY IN THE TIME OF OFFENCE It has alleged that the accused participated in the crime of dacoity. However, the prosecution heavily relies on PW-2’s statement, without proper corroboration by way of evidence, to incriminate the accused. It is already a well settled principle of law that an accused cannot be convicted, if there are inherent improbabilities in the prosecution evidence regarding participation in crime,^7 given that an accomplice’s statement is of a weak evidentiary value^8 .Therefore, it is the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff.^9 The statement made by PW-2 suffers from several discrepancies with certain statements of witnesses, with respect to the timeline of the offence:
i. Witness statement of the DW-4 being Chief Security Officer of Monteceito states that security took notice of the accused near the vault at 10:55 p.m.; just a few minutes later they came out running with bags making an escape.^10
(^6) Niranjan Das and Ors.v. Giridhari Das and Anr., 68(1989)CLT (^7) Lakshman Prasad v. State of Bihar , 1981 CrLR 478 (^8) BhobhoniSahu v. King ,AIR 1949 PC 257; Kashmira Singh v. State Of Madhya Pradesh, AIR 1952 SC 159 (^9) Ugar Ahir v State of Bihar , AIR 1965 SC 277 (^10) Case Details ,Annexure 7, P. 15
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1.4 CIRCUMSTANTIAL EVIDENCE IS UNRELIABLE It is a well settled principle that where the case is mainly based on circumstantial evidence, the court must satisfy itself that various circumstanced in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused^16.
When even a link breaks away, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts.^17 When attempting to convict on circumstantial evidence alone the Court must be firmly satisfied of the following three things:^18
i. The circumstances from which the inference of guilt is to be drawn, must have fully been established by unimpeachable evidence beyond a shadow of doubt ii. The circumstances are of determinative tendency, unerringly pointing towards the guilt of the accused iii. The circumstances taken collectively, are incapable of explanation on any reasonable hypothesis except that of the guilt sought to be proved against him The prosecution fails to pinpoint how the accused is solely responsible for securing entrance to the accused or instigating the commission of the crime, notwithstanding that the entire case rests solely upon uncorroborated circumstantial evidence. Therefore, it is humbly submitted before this Hon’ble Court that the charge of dacoity against the accused cannot be made in the present matter.
(^16) Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144 (^17) Janar Lal Das v. State of Orissa, 1991 (3) SCC 27; A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128. (^18) Mahmood v. State of UP AIR 1976 SC 69
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It is humbly contended before this Hon’ble Cour that the accused is not guilty for committing the offence of murder under Sec 302 read with Sec 300, IPC, considering that the accused was acting in private-defence [2.1], accident [2.2] and necessity [2.3]. Furthermore, the Prosecution’s case must be dismissed because of heavy reliance on uncorroborated confession [2.4], improper ballistic evidence [2.5] and faulty investigation [2.6], all creating the existence of a reasonable doubt [2.7].
2.1. The Accused was acting in Private Defence
The Defence humbly submits that the circumstance under Sec 103, IPC is fulfilled [A] , private defence was warranted [B] and reasonable force was used [C] in the instant matter.
A. Circumstance under Sec 103 is made out
Section 103 of the IPC enumerates that the right to private defence of property can extend to causing death to causing in circumstances which have been listed in the provisions of section 10319 and robbery is clearly mentioned in said provision of the act^20 and dacoity is robbery committed by 5 or more people at once^21 would enable this defence. In the case at hand the crime that took place cannot be misconstrued as theft as there was harm caused to Mr. Shekar Subramaniam ( DW 3) and in such circumstances wherein the thief is carrying away the
(^19) Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530 (^20) Sec 103, IPC (^21) Ratanlal & Dhirajlal, Indian Penal Code , p. 835 ( 33rd (^) Ed. 2012)
SURANA AND SURANA NATIONAL T ARIALRGUMENTS ADVOCACY ADVANCED MOOT COURT COMPETITION, 2013 8 It cannot be discredited that the accused could have had a reasonable apprehension of the fact that further harm could be inflicted to another person, had exercised his right of self defence in the heat of the moment resulting in Brij Gopal’s death. C. Reasonable use of force
An act of self defence cannot be weighed on golden scales^29 as a person who’s property is in immediate peril of harm cannot be expected to use precise force to repel the assailant, and going slightly further than what is necessary when exercising self defence would be allowed by the law^30. The right of self defence is not dependent on the actual criminality of the person resisted; rather it depends solely on the wrongful or apparently wrongful character of the act attempted by the accused^31 , and this right extends till such time that the offender has retreated, the property is retrieved, or until the assistance of the public authorities is obtained^32.
In the facts at hand , the accused could not be expected to measure his use of force on golden scales as the situation was one which required urgency in thought and action, as there was a person being held hostage, and a dacoit who was going to either make good with the money that he had stolen, or help his fellow dacoit, therefore the accused’s use of force in the heat of the moment while not necessarily completely proportionate to the force required, was still reasonable considering the circumstances at hand, and not excessive in any manner.
(^29) I, Nelson R. A. Indian Penal Code , p. 837 (10th (^) Ed. 2008) (^30) Mohd Remzani v. State of Delhi AIR 1980 SC 1341 (^31) Rai Singh Mohima v. State AIR 1962 Guj 203 (^32) Supra , n. 29, p. 841
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2.2. THE ACCUSED’S ACTIONS WERE AN ACCIDENT
Under Sec 80, IPC, a criminal act which is an accident is not punishable as it is excuses the accused from punishment due to a lack of mens rea, and it for the prosecution to prove requisite intention or knowledge in cases of murder^33. The word ‘accident’ is something that happens unexpectedly or happens unintentionally^34. The purely accidental result of a man’s voluntary conduct will not be imputed to him if^35 -
i. He had no criminal intention or knowledge ii. His conduct was lawful iii. His consequences were purely lawful
The amount of caution that is to be followed under this section is not that which is of the highest order, but that which is a reasonable precaution when seeing the facts of each case^36. In the case at hand it could be seen that-
While exercising his private defence it can be argued that Accused had accidently ended Brij Gopal’s death unintentionally^37. It can be inferred from the statements of Accused that his alleged criminal actions were an accidental one and he had no mens rea to commit such a crime^38 , and without intent a conviction cannot be made against the accused.
(^33) Chakru Sattiah v. State of AP AIR 1960 AP 153 (^34) Supra , n. 32, p. 528 (^35) Mohan Singh v. State of Punjab AIR 1965 Punj 291 (^36) Supra , n. 34, p. 533 (^37) Case Details, Annexure 7, p. 15 (^38) Ibid
