Symbiosis Law School - Prosecution Memo

Team Code: RECEPTIVITY

ND

AURO U NIVERSITY 2 NATIONAL MOOT COURT COMPETITION, 2016 BEFORE THE COURT OF SESSIONS AT NEW DELHI

S.C. NO. ____ NO. ____ OF OF 2016

FOR THE OFFENCES CHARGED UNDER : SECTION 302,SECTION 364,SECTION 313, SECTION 201,SECTION 120B,SECTION 34 OF THE INDIAN PENAL CODE, 1860

STATE OF DELHI (NCT) (PROSECUTION)

V/S

REKHA DAS, SUHAS KUMAR AND KUMAR AND SHYAM SAHU (DEFENCE)

BEFORE SUBMISSION TO HON‟BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

T AB L E OF CON T EN TS ........................................... ................................................................. ............................................ .......................................... ....................i L i st of Abbr A bbr evi evi ati ons on s .......................................... ................................................................ ............................................ ............................................. ......................... .. i i i TA BL E OF AU TH ORI TI ES ............ ................. .......... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... .......... .......... .......... .......... ......... ........ .... vi

[A] INDIAN CASE LAWS ............................... ..................................................... ............................................. ............................................ .....................vi [B] LEGISLATIONS .................................... .......................................................... ............................................ ............................................. ....................... viii [C] LAW DICTIONARIES / LEXICONS........................................... .................................................................. .......................... ... viii [D] BOOKS ..................................... ........................................................... ............................................. .............................................. ..................................... .............. viii [E] DATABASES AND WEBSITES ............................................ ................................................................... .................................. ........... viii STAT EM EN T OF JU RI SDI CTI ON ......... ............. ......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .....x SUM M A RY OF F ACTS AC TS ........................................... .................................................................. ............................................. ........................................ ..................xi I SSU SSU E S I N VOL VO L VE D ......................................... ............................................................... ............................................ ............................................. ....................... xi i i SUM M ARY OF ARGUM AR GUM EN TS .............. ................... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... ......... .... xv ARGUM AR GUM EN TS AD VA N CED CE D .......... ............... .......... ......... ......... .......... .......... .......... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... .......... ....... 1

ISSUE 1: WHETHER CONFESSION WHETHER CONFESSION OF ACCUSED NO. 3, ADDUCED AS EVIDENCE, IS RELIABLE

…………………………………………………………

………Error! ……… Error!

Bookmark not defined.

[1.1] Evidentiary value of the confession on the basis of corroboration. ................. ................. Error! Bookmark not defined.

[1.2] The confession is admissible against the maker as well as the other accused persons…………………………………………………………………………………… persons ……………………………………………………………………………………3 3 [1.3] Narco [1.3] Narco analysis findings corroborated with A-3‟s A- 3‟s confession………………………3 [1.4] Evidence from Hostile witness must not be rejected in toto……………………….4 toto ……………………….4

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M EMORIAL EMORIAL ON B EHALF EHALF OF T HE HE P ROSECUTION ROSECUTION


ISSUE 2: WHETHER THE ACCUSED ACTED IN FURTHERANCE OF A COMMON INTENTION TO COMMIT THE CRIME ............................................ ................................................... ....... 5

[2.1] A Common Intention was shared by b y all accused persons ......................................... ......................................... 5 [2.2 There was participation pa rticipation by all the accused persons ............................................. .................................................... ....... 6 ISSUE 3: WHETHER THE THREE ACCUSED PERSONS ARE GUILTY OF CRIMINAL CONSPIRACY UNDER SECTION 120-B OF THE INDIAN PENAL CODE, 1860 ............................................ .................................................................. ............................................ ............................................. .................................. ...........6 ISSUE 4: WHETHER THE WHETHER THE THREE ACCUSED PESONS ARE GUILTY OF THE OFFENCE OF MURDER PUNISHABLE MURDER PUNISHABLE UNDER SECTION UNDER SECTION 302, INDIAN PENAL CODE, 1860 ............................................ .................................................................. ............................................ ............................................. .................................. ........... 9

[4.1] The three accused persons had the intention to murder ........................................... ........................................... 9 .................................................................. ............................................. ............................. ....... 9 [4.1.1] Rekha Mukherjee ........................................... [4.1.2] Suhas Kumar ......................................... ............................................................... ............................................ ...................................... ................ 9

Sahu………………………………………………………………….10 [4.1.3] Shyam Sahu………………………………………………………………….10 [4.2.] Actus reus is established .......................................... ................................................................. ............................................. ........................ .. 10 [4.3] The fact of the „Last Seen Together‟ Theory Together‟ Theory shifts the burden on the accused…12 accused …12 [4.4] Absence of Motive Motiv e is irrelevant…………………………………………………..12 irrelevant…………………………………………………..12 ISSUE 5: WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING THE OFFENCE OF ABDUCTING IN ORDER TO COMMIT MURDER UNDER SECTION 364 OF THE INDIAN PENAL CODE, 1860 Error! Bookmark not defined. 3

[5.1.] The accused persons committed the offense of Abduction under Section 362, I.P.C ........................................... ................................................................. ............................................ ........................ Error! Bookmark not defined. 4 [5.2.] The three accused persons had the intention to t o commit the Murder ...............Error! Bookmark not defined. 4

ISSUE 6: WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING DISAPPEARNCE OF OFFENCE OR GIVING FALSE INFORMATION TO SCREEN OFFENDER PUNISHABLE UNDER SECTION 201 OF THE INDIAN PENAL CODE, 1860………………………………………………………………………………………... 1860………………………………………………………………………………………... .Err or! Bookmark not defined. 4

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ISSUE 7: WHETHER A-1 IS GUILTY OF THE OFFENCE OF CAUSING MISCARRIAGE UNDER SECTION 313 OF THE INDIAN PENAL CODE, 1860…………………………………………………………………………………………..16 1860…………………………………………………………………………………………..16 PRAYER ……………………………………………………………………………………. ……………………………………………………………………………………. 18

8

LIST OF ABBREVIATIONS

A.I.R. All India Report

ALLMR

All Maharashtra Law Reporter

ALT Andhra Law Times

Anr. Another

Art. Article

Bom. Bombay

Cal. Calcutta

Co. Company

Coch. Cochin

Corpn. Corporation

Cri. LJ Criminal Law Journal

iii | Page



CrPC Code of Criminal Procedure,1973

Del. Delhi

DRJ Delhi Reported Judgments

Ed. Edition

Id. Ibid

ILR Indian Law Reporter

IPC Indian Penal Code, 1860

Kart.

Karnataka

Ker. Kerala

L.R. Law Reports

Ltd. Limited

Nag Nagpur

NCT National Capital Territory

Ors. Others

p. Page

iv | Page



Para.

Paragraph

Pat. Patna

PLR Punjab Law Reporter

Raj. Rajasthan

Rang. Rangoon

Sec. Section

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.L.P. Special Leave Petition

Supp. Supplementary

u/s. Under Section

v. Versus

Vol. Volume

W.L. West Law

v | Page



TABLE OF AUTHORITIES

[A] INDIAN CASE LAWS

¶ 1. A H Desai v. State of Mysore AIR 1956 Mys 46,47 ¶ 2. Aizaz v. State of U.P., (2008) 12 SCC 198 ¶ 3. Ammini & Ors v State of Kerala 1998 Cr LJ 481(SC) ¶ 4. Badri v. State of U.P., AIR 19953 All 189

(2008) 3 SCC 681: 681: 2008 Cr LJ 1950: (2008) 3 All LJ LJ 524 ¶ 5. Badshah v. State of U.P., (2008) ¶ 6. Bakshish Singh v State of Punjab, AIR 1971 SC 2016 ¶ 7. Barenda A-2 Ghosh v King Emperor, AIR 1935 PC 1 ¶ 8. Bhagwan Swarup Lal Bishan Lal v State of Maharashtra AIR 1965 SC 682,687 ¶ 9. Bodh Raj v. State of J&K, AIR 2002 SC 3164 ¶ 10. Dibia v. State of U.P., AIR 1953 All 373 ¶ 11. Dinesh Bulakhi Harijan v. State, 209 CrLJ 4664 ¶ 12. Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 ¶ 13. Geejaganda Somaiah v. State of Karnataka, 2007 CrLJ 1792 : AIR 2007 SC 1355 ¶ 14. Hari Om v. State of U.P, AIR 1993 SCW 666 : 1993 Cr LJ 1383 ¶ 15. James v. State of Kerala, (1995) 1 Cr LJ 55 (Ker.); ¶ 16. Jyotish Das and Anr. Vs. State of Tripura, 2010 (1) ALT (Cri) 23 ¶ 17. K. Hasheem v. State of Tamil Nadu, (2005) 1 SCC 237 ¶ 18. Kalawati v. State, 1953 SCR 546 ¶ 19. Kehar Singh v. State AIR 1988 SC 1883 ¶ 20. Krishnan v State of Kerala, AIR 1997 SC 383 ¶ 21. Laxman v. State of Maharashtra, AIR 1974 SC 1803 ¶ 22. Maharashtra State Electricity Distribution Co. Ltd. V. Datar Switchgerar Ltd., (2010)

10 SCC 479 ¶ 23. Mahommad Usman Mohammad Hussain Maniyaar v. State of Maharashtra AIR 1981

SC 1062 2004 (3) ACR 2688 (SC) ¶ 24. Malleshi Vs. State of Karnataka, 2004 ¶ 25. Maqsoodan v. State of U.P., 1983 CrLJ 218 : AIR 1983 SC 126 ¶ 26. Md. Idrish v. State, 2004 Cr LJ 1724 (Raj) ¶ 27. Md. Sharif And Anr. v. Rex, AIR 1950 All 380

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¶ 28. MO Shamshuddin v. State of Kerala, (1995) 3 SCC 351 ¶ 29. Mohmed Inayatullah v. State of Maharashtra, AIR 1976 SC 483 ¶ 30. Mulakh Raj v. Satish A-2, AIR 1992 SC 1175 ¶ 31. Nitin Jairam Gadkari vs State Of Maharashtra, 2004 (4) Mh LJ 419 ¶ 32. Nitya Sen v. State of West Bengal, 1978 1978 Cr LJ 481 ¶ 33. Omanakuttan Alias Biju and Binu T...vs. State of Kerala, 2000 CriLJ 4893 ¶ 34. Paramjit Singh v State of Punjab, (2007) 13 SCC 530 ¶ 35. Prabhu @ Kulandaivelu vs State Rep , CRLMP Nos. 10666/2015 ¶ 36. Pradumansinh Kalubha v. State of Gujarat, (1992) Cr LJ 1111 ¶ 37. Ram Prakash Vs. The State of Punjab, AIR 1959 SC 1 ¶ 38. Ram Tahal v. State of U.P., 1972 Cr LJ 227 ¶ 39. Rameshbhai Mohanbhai Koli and ors. v. State of Gujarat, AIR 2011 SC (Cri.) 120 ¶ 40. Ramchander, 1970 Cr LJ 653. ¶ 41. Rameshwar v. State of Rajasthan, AIR 1952 SC 54 ¶ 42. Ramkrushna v. State of Maharashtra, 2007 CrLJ 3431 (3433) : 2007 AIR SCW 3134 ¶ 43. Razak Khizar v. State, 1967 CriLJ 484 ¶ 44. Sathya Narayanan v. State Tr. Insp. Of Police , 2013 (1) ALD (Cri) 458 ¶ 45. Selvi v. State of Karnataka (2010) Karnataka (2010) 7 SCC 263 ¶ 46. Sharda Bux Singh Vs. State of U.P., 1995(19)ACR25 ¶ 47. Sharif Ahmad Alias Acchan, (1956) 2 All 188 ¶ 48. SR Jain v State of Uttar Pradesh (1984) 1 Crimes 233(All) ¶ 49. State & etc v. Siddhartha Vashishta alias Manu Sharma 2001 Cr LJ 2404(Del) ¶ 50. State of Kerala v. Thomas, (1986) 2 SCC 411 ¶ 51. State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC) ¶ 52. State of Maharashtra v Meyer Hans George, AIR 1965 SC 722 ¶ 53. State of Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609 ¶ 54. State of Punjab v Sucha Singh, Si ngh, AIR 2003 SC 1471 ¶ 55. State of U.P. v Ramesh Prasad Misra, AIR 1996 SC 2766 ¶ 56. State of UP v Ashok A-2 Srivastava, AIR 1992 SC 840 ¶ 57. State of Uttar Pradesh v. Sukhbansi AIR 1985 SC 1224 ¶ 58. State v. Abdul Rashid, 2002 Cr LJ 3118 J&K ¶ 59. Sukhram v. State of Rajasthan (1995) 1 Cr LJ 257 (Raj) ¶ 60. Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681

b y Sub-Inspector of Police, (2009)14SCC436 ¶ 61. Velayuda Pulava Vs. State by vii | Page



¶ 62. Vinod vs. State of Haryana, Har yana, AIR 2008 SC 1142

[B] LEGISLATIONS ¶ 1. Constitution Of India ¶ 2. Code of Criminal Procedure, 1973 ¶ 3. Indian Penal Code, 1860 ¶ 4. Indian Evidence Act , 1872

[C] LAW DICTIONARIES / LEXICONS ¶ 1. Black‟s Law Dictionary ¶ 2. JOWITT‟S Dictionary of English Law

[D] BOOKS

Law : ¶ 1. Jain, MahabirPrashad, Samaraditya Pal, and Ruma Pal, Indian Constitutional Law: Lexis Nexis Butterworths Wadhwa W adhwa Nagpur, 2010. ¶ 2. Gaur, K.D., Commentary On The Indian Penal Code. New Delhi: Universal Law Pub.

Co., 2013 ¶ 3. Stephens, Commentaries on the Laws of England ,21st ,21st Edition, volume IV,

Nelson, Indian Penal Code, Code, (9th ed., 2003), volume I ¶ 4. R A Nelson, Indian Code . ¶ 5. Ratanlal Ranchhoddas., et al. Ratanlal And Dhirajlal's The Indian Penal Code. Nagpur: Wadhwa and Co. Law Law Publishers, 1992. th

Sarkar, Law of Evidence, Evidence, Volume II, 18 Edition, 2013, Page 2764-75 ¶ 6. S. C. Sarkar, Law

[E] DATABASES AND WEBSITES

¶ 1. LexisNexis [www.lexisnexis.com] ¶ 2. Westlaw [www.westlaw.com]

viii | Page



¶ 3. Jstor [www.jstor.com] ¶ 4. Manupatra[www.manupatra.com] ¶ 5. SCC Online [www.scconline.co.in] ¶ 6. Hein Online [www.home.heinonline.org] ¶ 7. Westlaw [www.westlaw.com]

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STATEMENT OF JURISDICTION

The Hon‟ble Hon‟ble Court Court has jurisdiction to try the instant matter under Section 177 read with Section 209 of the Code of Criminal Procedure, P rocedure, 1973.

Section 177: ‘ 177. 177. Ordinary place of inquiry and trial Every offence shall ordinarily be inquired into and tried t ried by a court within whose local jurisdiction jurisdiction it was committed.’

Read with section 209: ‘ 209. Commitment of case to court of session when offence is triable exclusively by itWhen 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.’

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SUMMARY OF FACTS ¶ 1. Trisha Das was the daughter of Rekha Das who was an Indian HR consultant and

media executive ¶ 2. After splitting with Siddhart Das, Rekha left Trisha under the care of her parents

in Mumbai and moved to Delhi ¶ 3. Later, Rekha settled with Jacob Mukherjee and Trisha came to Delhi to live with

them. ¶ 4. In June, 2011, Trisha, assistant manager in Delhi Metro One cohabited with

Shobhit Mukherjee from 2009 to 2012 which was the result of their mutual romantic relationship ¶ 5. In 2011, Trisha got pregnant with Shobhit‟s child and she was allegedly forced by

Rekha to abort the child ¶ 6. On 24th April 2012, Trisha took leave of absence and while on leave, she “sent in

her written resignation” and a break up SMS to Shobhit. Her mother claimed that Trisha had gone to U.S for higher higher studies and hence no missing FIR was lodged th

¶ 7. On 30 April 2012, Shobhit went through two failed attempts to file a missing

complaint in Lajpat Nagar and Cannaught Place police station and also confronted Rekha about the passport used to send Trisha to U.S since he had the original one rd

¶ 8. On 23 May, 2012, police found a decomposed body at Kausani forest and the

skeletal remains were sent to JJ Hospital. However, Trisha‟s disappearance and the identification of skeletal remains were unreported and unlinked for 40 months ¶ 9. Rekha was kept under surveillance but arrests were made after Shyam Sahu,

Rekha‟s driver was arrested on August 21, 2015, in a case relat ed to illegal arms ¶ 10. As per the FIR lodged by Delhi Police, Sahu gave a statement to the Police that

the murder was planned by Rekha who had discussed the same with Suhas Kumar, her ex-boyfriend ¶ 11. Rekha had allegedly done a recce of the dumping ground the evening before the

murder th

¶ 12. On 24 April 2012, Suhas Kumar had flown to Delhi and checked into Hotel

Hilltop th

¶ 13. Rekha had earlier asked Trisha to her on 24 evening and consequently, rented an

Opel Corsa for abducting her. Later, on 24 th at 6 pm, she picked up Suhas from the

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hotel and went to Cannaught place to pick Trisha who was dropped there by Shobhit at 7pm ¶ 14. Further, Sahu drove the car to the by-lanes of Dwarka where Kumar allegedly

strangled her and after the murder, her body was taken to Rekha‟s residence in Lajpat Nagar where it was put in a bag and stuffed in the car‟s boot ¶ 15. The same night, the three accused drove to the village of Kotputli, Kausani forest

area. On the way, they propped the body between Rekha and Kumar to avoid police detection th

¶ 16. Further, on 25 April, at 4 am, the accused dragged the body out of the car in an

isolated spot in the forest, stuffed it in the bag, poured petrol over the bag (the driver brought petrol from Shri Ram Petrol pump situated on the highway) and set it ablaze ¶ 17. After the body was burnt, all the three accused returned to Delhi and Kumar later,

left Delhi.

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ISSUES INVOLVED

ISSUE I

W H E T H E R T H E CONFESSION OF ACCUSED OF ACCUSED N O. 3, ADDUCED A S EVIDENCE, I S RELIABLE

[I.1.] Evidentiary value of the confession on the basis of corroboration. [I.2.] The confession is admissible against the maker as well as the other accused persons [I.3.] Narco analysis findings corroborated with A-3’s A-3’s confession [I.4.] Evidence from Hostile witness must not be rejected in toto

ISSUE II

W H E T H E R TH E ACCUSED ACTED I N FURTHERANCE OF A OF A COMMON INTENTION T O C O M M I T TH E CRIME

[II.1.] A Common Intention was shared shared by all accused persons [II.2.] There was participation by all the accused persons

ISSUE III

WHETHER TH E THREE ACCUSED PERSONS A RE GUILTY OF CRIMINAL OF CRIMINAL CONSPIRACY UNDER SECTION 120-B OF T OF T H E I N D I A N PENAL CODE , 1860

ISSUE IV

W H E T H E R T H E THREE ACCUSED PESONS A RE GUILTY OF T OF T H E OFFENCE OF MURDER PUNISHABLE UNDER SECTION 302, I N D I A N PENAL CODE, 1860

[IV.1.] The three accused persons had the intention to murder

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[IV.1.1] Rekha Mukherjee [IV.1.2] Suhas Kumar [IV.1.3] Shyam Sahu [IV.2] Actus reus is established [IV.3.] The fact of the ‘Last Seen Together’Theory shifts the burden on the accused [IV.4.] Absence of motive is irrelevant

ISSUE V WH ETH ER THE ACCUS ACCUSED ED PERSONS PERSONS ARE GUI GUI LT Y OF OF CAUSI CAUSI NG THE OFF ENCE OF ABDU CTIN G IN ORDER TO COMM COMM I T M URDER UNDER SECTION SECTION 364 364 OF TH E I NDI AN PENAL CODE, CODE, 1860 1860

[V.1.] The accused persons committed the offense of Abduction under Section 362, I.P.C [V.2.] The three accused persons had the intention to commit the Murder

ISSUE VI

WH ETH ER TH E ACCUSED ACCUSED PERSONS PERSONS ARE GUI L TY OF OF CAU SI NG DI SAPPEARNCE OF OFF ENCE OR GIVI NG FAL SE I NFORMATI ON TO SCR SCREEN EEN OFF ENDER PUNISHABL E UND ER SECTION SECTION 201 OF TH E I NDI AN PENAL CODE, CODE, 186 1860 0

ISSUE VII

WHETH ER A-1 A-1 IS GUI GUI LTY OF TH E OFF ENCE OF OF CAUSI CAUSI NG M I SCARRIAGE CARRIAGE UNDER SECTI SECTI ON 313 313 OF OF TH E I NDI AN PENAL CODE, CODE, 186 1860 0

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SUMMARY OF ARGUMENTS

WHETHER T H E CONFESSION OF ACCUSED N O. 3, ADDUCED A S ISSUE I WHETHER T EVIDENCE, I S RELIABLE

It is humbly submitted that the confession given the co-accused, adduced as evidence, is reliable as it is well grounded and sufficiently corroborated by circumstantial evidence making it admissible in the Court and further, with the complete chain of circumstances, it is admissible against the other accused persons as well. Moreover, the corroboration with the Narco-analysis tests add weight to the confession followed by the accepted evidence given by the hostile witness. Hence, it is proven beyond doubt that the confession is reliable

E ACCUSED ACTED ACTED II N FURTHERANCE N FURTHERANCE OF A OF A COMMON ISSUE II WHETHER T H E ACCUSED INTENTION TO C O M M I T T H E CRIME

It is humbly submitted that all the three accused had committed the act in furtherance of common intention. The requisite intention was derived from the discussion of the plan by A-1 and A-2 as well as the additional acts assisted by A-3. Moreover, all of them participated in the act constituting the offence. Hence, it is proven beyond a reasonable doubt that all of them acted in furtherance of a common intention to commit the crime.

AR E GUILTY OF ISSUE III WHETHER T H E THREE ACCUSED PERSONS ARE C R I M I N A L CONSPIRACY UNDER SECTION 120-B OF 120-B OF T T H E I E I N D I A N PENAL CODE, 1860

It is humbly submitted that in matters similar to the present case, the accused persons conspired together to do an illegal act. The apex court in various other cases has held that corroborated circumstantial evidence is enough to find an accused guilty under this section. The actions and the circumstantial evidence present on record establishes the link which proves that the three accused persons acted in furtherance of a common intention and of a criminal conspiracy.

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WHETHER T H E THREE ACCUSED THREE ACCUSED PESONS PESONS AR ARE E GUILTY OF GUILTY OF T H E ISSUE IV WHETHER T OFFENCE OF OFFENCE OF MURDER PUNISHABLE MURDER PUNISHABLE UNDER UNDER SECTION SECTION 302, 302, I N D I A N PENAL PENAL CODE, 1860

It is humbly submitted that t hat the three accused persons had committed an act of murder at the Kausani Forest with a complete chain of evidence linking to the crime, the actus reus. The accused

persons

also

had

the

requisite

mens

rea

to

commit

said

crime.

Hence, it is proven beyond a reasonable doubt that the crime of Murder was indeed committed by the three accused in the case at hand.

ACCUSED PERSONS PERSONS ARE GUIL TY OF OF CAUSI CAUSI NG TH E ISSUE V WHE TH ER TH E ACCUSED OFFEN CE OF OF ABDUCTING I N ORDER ORDER TO COMM COMM I T M URDER UNDER SECTION SECTION 364 364 OF OF TH E I NDI AN PENAL CODE, CODE, 1860 1860

It is humbly submitted that t hat the accused persons had caused the t he offence of abduction as they, in furtherance of common intention, induced the victim to move from Cannaught Place to Dwarka, thus abducting her. Further, they also had the requisite intention to murder her. Hence, since all the evidences form a chain of events pointing pointi ng towards the commission of the crime, it is proven beyond a reasonable doubt that the crime of Abduction in order to Murder was indeed committed by the three accused in the case at hand.

ISSUE VI WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING DI SAPPEARNCE APPEARNCE OF OF OF F ENCE OR GIVI NG FAL SE I NF ORM ORM ATI ON TO SCREEN CREEN OFF ENDER PUNI SH ABL E UNDER SECTION SECTION 201 201 OF TH E I NDI AN PENAL CODE, 1860

It is humbly submitted that the three accused persons had caused the disappearance of evidence after committing the offence of murder as all of them, in furtherance of common intention, gave false information to the police as well as PW6 and and propped the victim’s body between A-1 and A-2 with the intention of screening the offender to avoid detection. Hence, it

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is proven beyond a reasonable doubt that the all the accused persons had caused the disappearance of evidences and gave false information to screen the offender.

ISSUE VII WHETHER A-1 IS GUILTY OF THE OFFENCE OF CAUSING M I SCARRIAGE CARRIAGE U NDER SECTION SECTION 313 OF TH E I NDI AN PENAL CODE, CODE, 186 1860 0

It is humbly submitted that A-1 A- 1 is guilty of causing miscarriage without the victim’s consent punishable under Section 313, I.P.C as she forced the victim to abort the child and had the primary motive to do so. Hence, it is proven beyond a reasonable doubt that the crime of Miscarriage without the woman’s consent was indeed indeed committed by A-1 A-1 in the case at hand.

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ARGUMENTS ADVANCED

[1]. WHETHER THE WHETHER THE CONFESSION OF ACCUSED NO. 3, ADDUCED AS EVIDENCE, IS RELIABLE

It is humbly contended before the Hon‟ble Court that the confession given by Accused No. 3, Shyam Sahu (hereinafter referred to as A-3) is reliable as it is well grounded and sufficiently corroborated by circumstantial evidence thereby making it admissible in the Court [ 1.1] against the co-accused as well as the other accused persons [1.2]. Moreover, the Narcoanalysis tests add weight to the confession [ 1.3] followed by the accepted evidence given by the hostile witness [1.4]

1.1 Evidentiary value of the confession on the basis of corrobor corroboration ation

Being an accomplice i.e. a guilty partner or associate in crime1, the evidence given by A-3 is subject to the combined reading of Sec 114 and Sec 133, Indian Evidence Act ,1872 and requires some independent corroboration in material particulars for acceptance. 2 The corroboration need not be direct evidence, it is sufficient if it is merely circumstantial evidence.3 Section 27 of the Evidence Act, 1872 that talks about the proof of information received from the accused shall further assist the Court in determining the admissibility of the confession. Section 27 reads as follows: H ow much of in for mation r ece ceii ve ved d fr om accuse accused d may be prove proved. d. —

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to t o a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 4 It is contended that a statement even by way of confession made in the police custody which distinctly relates to the fact discovered is admissible in evidence against the accused.5 If a fact 1

MO Shamshuddin v. State of Kerala, Kerala , (1995) 3 SCC 351 State of Kerala v. Thomas, Thomas, (1986) 2 SCC 411 3 Rameshwar v. State of Rajasthan, Rajasthan , AIR 1952 SC 54 4 Section 27, Evidence Act, 1872 5 Bodh Raj v. State of J&K , AIR 2002 SC 3164; Dinesh Bulakhi Harijan v. State v. State,, 209 CrLJ 4664 2

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M EMORANDUM EMORANDUM ON B EHALF EHALF OF T HE HE P ROSECUTION ROSECUTION


is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.6 Here, the discovery must be of such a fact which the police had not previously learnt from other sources 7 and this discovery includes, within its ambit, not only the physical object produced but also the place from which it was produced as per the knowledge of the accused.8 Further, each and every piece of information mentioned in the extra-judicial confession need not be corroborated by independent evidence. It was held that conviction can be recorded solely on the basis of the extra judicial confession if it is found to be credible and worthy of acceptance.9 In the present matter, as per the evidences produced before the Court, the DNA of the body recovered from the Kausani forest matched the DNA of the main accused, Rekha Mukherjee10 affirming the victim‟s death. This was the discovery of a new fact not falling within the knowledge of of the police, thus, falling within the ambit of this Section. Section. In addition to that, this body found in the forest also confirmed with the location of the crime as stated in the statement, the discovery of which was an immediate consequence of the confession. Similarly, the evidence also stated that A-2‟s A-2‟s and the victim‟s phone location was traced to be located at the Kausani forest on 25 th April11 i.e., on the day of the murder. This particular information regarding the location matched the contentions of the statement given by A-3. It is further contended that even if the accused retracts from his statement which had led to a discovery of a new material fact such as the crime weapon, the statement still remains valid for use as evidence.12 Hence, it is humbly submitted that that since the substantial portion of A-3‟s A- 3‟s confession distinctly relates to the facts discovered, the entire confession is reliable as legal evidence, even though he denied his confession before the Court because the confession along with the evidences produced before the court form a continuous chain of events.

6

Geejaganda Somaiah v. State of Karnataka, Karnataka , 2007 CrLJ 1792 : AIR 2007 SC 1355 Pradumansinh Kalubha v. State of Gujarat, (1992) Cr LJ 1111 8 Mohmed Inayatullah v. State of Maharashtra, AIR Maharashtra, AIR 1976 SC 483 9 Velayuda Pulava Vs. Vs. State by Sub-Inspector of Police , (2009)14SCC436 10 Moot Problem, page 2, Evidence 1. 11 Moot problem, page 2, Evidence 7 12 State v. Abdul Rashid, 2002 Cr LJ 3118 J&K 7

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1.2 The confession is admissible against the maker as well as the other accused persons

Section 133 of the Indian Evidence Act, 1872 when read in consonance with Section 114 Illustration (b) of the Indian Evidence Act, 1872, asserts that the statement of an accomplice is worthy and competent when corroborated by material particulars. 13 Conviction based on such accomplice evidence sustains under Indian Law. 14 It is further contended that the confession given by A-3 can be used against other accused persons too, by the virtue of Section 30 of the Evidence Act, 1872 which states that where more persons than one are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of his co-accused can be taken can be taken into consideration by the court not only against the maker of the confession but also against his co-accused.15 The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particulars case and although a retracted confession of the co-accused is ordinarily not acted upon to convict the other accused persons, it is taken into consideration if the confession corroborates with the evidence produced before the court.16 This principle of corroboration of material particulars was reiterated by the Allahabad High Court 17. Further, in the case of Sukhram v. State of Rajasthan18, the High Court held that when the circumstantial chain is complete, the coaccused‟s accused‟s confession is usable against the other accused persons. In the present case, A-3‟s A-3‟s confession corroborated with the evidences produced before the Court making it admissible against him as well as other accused persons.

1.3 Narco analysis findings corroborated with A- 3’s confession

It is humbly submitted that the evidentiary value of narco tests was laid down in the landmark case of Selvi v. State of Karnataka 19. The apex court court held that that information “subsequently discovered ” from the result of a voluntary a voluntary test can be admitted as evidence.

13

S. C. Sarkar, Law Sarkar, Law of Evidence, Evidence, Volume II, 18 th Edition, 2013, Page 2764-75 K. Hasheem v. State of Tamil Nadu, Nadu , (2005) 1 SCC 237 15 Section 30, Evidence Act, 1872 16 Ram Prakash Vs. Vs. The State of Punjab, Punjab , AIR 1959 SC 1 17 Sharda Bux Singh Vs. Vs. State of U.P ., ., 1995(19)ACR25 18 (1995) 1 Cr LJ 257 (Raj) 19 (2010) 7 SCC 263 14

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In the present case, narco tests of the accused persons corroborated with the contentions of the FIR.20Hence, the discovery of new facts-DNA result of the body and phone location of the victim and A-2 on the night of 24 th April, not only confirmed information derived from the narco analysis tests but also gave affirmation to the statement given by A-3. Therefore, it is humbly submitted that these tests add more weight to A- 3‟s confession.

1.4 Evidence from Hostile witness must not be rejected in toto

It is contended before this Court that with regard to appreciation of evidence of hostile witnesses, it was held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but it can be subjected to closed scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.21 Thus, the evidence of a hostile witness cannot be rejected in toto.22 In background of the facts of the current case, the petrol pump attendant, Rambahadur (hereinafter referred to as „PW2‟) had identified A-3 A-3 before the police but later turned hostile before the court.23 With regard to the above stated principles, the evidence of hostile witness can be relied upon up to the extent to which it supported the case of the prosecution. It is clear that even in the absence of any eyewitness, if various circumstances relied on by the prosecution relating to the guilt (of the accused) are fully established beyond doubt, the court is free to award conviction.24 It is humbly submitted that the evidence provided by the PW2 must be relied upon as it corroborates with the confession of A-3 and proves that A-3 bought petrol from Shri Ram petrol pump from the highway connecting to Kotputli forest. This proves that the accused were in the circumscribing area of the crime scene. As per A-3‟s A-3‟s confession, this petrol was later used by A-1 A- 1 to set fire to the victim‟s body. Hence, it is humbly submitted that the confession given by A-3 before the police is completely admissibly in the Court.

20

Moot problem, Page no. 2, Point no. 2 State of U.P. v Ramesh Prasad Misra, AIR 1996 SC 2766 22 Rameshbhai Mohanbhai Koli and ors. v. State of Gujarat , AIR 2011 SC (Cri.) 120 23 Moot problem, page 2, Evidence 6 24 Sathya Narayanan v. State Tr. Insp. Of Police, 2013 (1) ALD (Cri) 458 21

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2. WHETHER THE ACCUSED ACTED IN FURTHERANCE OF A COMMON INTENTION TO COMMIT THE CRIME

It is humbly contended that all the three accused acted conjointly in furtherance of a common intention to commit the offences for which they are charged. Section 34 of the Indian Penal Code, that criminalizes the acts done in furtherance of a common intention, is only a rule of evidence and does not create a substantive offence. 25 The essence of this issue is to prove that since all the three accused intentionally acted jointly, it is just the same as if each of them had done it individually.26 To invoke an aid under this Section successfully, two ingredients must be fulfilled: i.

Common intention to commit the crime

ii.

Participation by all accused in the act or acts in furtherance of the common intention.27

The pre-requisite of common intention will be proved in the first sub-issue [ 2.1] while the participation by all the accused in the act of crime will be discussed in the second subissue [2.2]

2.1 A Common Intention was shared by all accused persons

Before convicting a person for any offence read with Section 34, common intention should be established by proving that the criminal act was done in concert pursuant to the pre-arranged plan. 28 However, this common intention can also be formed in the course of occurrence without prior conspiracy.29 In fact, in most cases, the intention is inferred from the act(s) or the conduct of the accused or any other relevant circumstances of the case. 30 In the current case, as per A-3‟s A-3 ‟s confession, A-1 A-1 had planned the victim‟s murder and had further discussed it with A-2. This definitely concludes that A-1 had a prior concert with A-2, for committing the offence. As far as A-3 is concerned, his common intention with the other two accused persons can be inferred from the manner in which he arrived on the

25

Section 34, Indian Penal Code, 1860 Ratanlal, Dhirajlal, The Indian The Indian Penal Code, p. Code, p. 502 (34 th Ed. 2014) 27 Maharashtra State Electricity Distribution Co. Ltd. V. Datar Switchgerar Ltd., (2010) Ltd., (2010) 10 SCC 479 28 Sharif Ahmad Alias Acchan, Acchan , (1956) 2 All 188, Ramchander 188, Ramchander , 1970 Cr LJ 653. 29 Hari Om v. State of U.P , AIR 1993 SCW 666 : 1993 Cr LJ 1383 30 Maqsoodan v. State of U.P ., ., 1983 CrLJ 218 : AIR 1983 SC 126 ; Aizaz v. State of U.P ., ., (2008) 12 SCC 198 26

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scene, the acts done by him to assist the co-accused persons and the concerted conduct subsequent to the commission of the offence. 31

2.2 There was participation by all the accused persons

For bringing a conviction r/w this section, it is not necessary that all the co-accused persons committed an overt act for for the achievement of the object. 32 It is not necessar y that each and every companion should have caused fatal injury by his overt act. All that is necessary is that the act was done in furtherance of common intention though done by any one of them. 33 As per A-3‟s A-3‟s confession, the rented car that was used to abduct Trisha was driven by A -3. He further drove to Dwarka where A-2 strangled her. After the murder, all of them left the scene of incident together in the same car. A-3 drove the co-accused persons and the dead body to A-1‟s A- 1‟s residence where the body was put in the bag and stuffed in the boot. A-3‟s A-3‟s intention was intention was further affirmed by his act of sleeping in the car with the body in the boot. The same night, the three accused drove to the village of Kotputli, Kausani forest area. To avoid the police and checks on the highway, they propped the body between A-1 and A-2, to make it appear that Trisha was sleeping. After reaching the isolated spot in Kausani forest, at 4 am in the morning, A-1 dragged the body out of the car, stuffed it into the bag, poured petrol over the bag and set it ablaze. Hence, the totality of circumstances should be taken into consideration in arriving at the conclusion that all the accused acted in furtherance of the common intention to commit the offence.

3. WHETHER THE WHETHER THE THREE ACCUSED PERSONS ARE GUILTY OF CRIMINAL CONSPIRACY UNDER SECTION UNDER SECTION 120-B OF THE INDIAN PENAL CODE

It is humbly contended that the three accused persons are guilty of criminal conspiracy as they conspired conjointly to commit the crime. Section 120 B of the I.P.C states as follows

31

Ram Tahal v. State of U.P ., ., 1972 Cr LJ 227, Nitya 227, Nitya Sen v. State v. State of West Bengal , 1978 Cr LJ 481 Krishnan v State of Kerala, Kerala , AIR 1997 SC 383 33 Paramjit Singh v State of Punjab, Punjab , (2007) 13 SCC 530 32

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— . — Puni shment hment of cr imi nal conspir conspir acy acy (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as as if he had abetted such offence. (2)Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. both. Hence,

to

substantiate

a

charge

of

conspiracy

the

prosecution

must

prove:

(i) the accused conspired with another or others; (ii) that he did so to do, or cause to be done, an illegal act or an act which is not illegal, by illegal means.34

The aforesaid can be established by either direct evidence or circumstantial evidence35, or by necessary implications.36 For the conviction under this Section, the prosecution has to place on record some connecting link or connecting evidence of the meeting of minds of the conspirators for achieving a particular object. 37

However, direct evidence evidence in proof of

conspiracy that is generally treated in the stealth of darkness is seldom available, and even when available it is tainted, being that of an accomplice, requires corroboration. 38 Hence, this, along with the fact that conspiracies are hatched in secrecy; they are usually proved by circumstantial evidence alone.39 In the present matter, the prime evidence evi dence is A3‟s confession which has been corroborated with the subsequent findings of the police. As stated above, though it is not possible to prove the actual meeting of minds, it must be inferred from their acts. According to A3‟s confession, the rented car that was used to abduct Trisha was driven by A-3. He further drove to Dwarka where A-2 strangled her. After the murder, all of them left the scene of incident together in the same car. A-3 drove the co-accused persons and the dead body to A-1‟s A- 1‟s residence where the body was put in the bag and stuffed in the boot. A- 3‟s intention was further affirmed by his act of sleeping in the car with the body in the boot. The same night, the three accused drove to the village of Kotputli, Kausani forest area. To avoid the police and checks on the highway, they propped the body between A-1 and A-2, to make it appear 34

R A Nelson, Indian Penal Code, (9th ed., 2003) Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra AIR 1965 SC 682,687;SR 682,687; SR Jain v State of Uttar Pradesh (1984) 1 Crimes 233(All) 36 Mahommad Usman Mohammad Hussain Maniyaar v. State of Maharashtra AIR 1981 SC 1062 37 State & etc v. Siddhartha Vashishta a lias Manu Sharma 2001 Cr LJ 2404(Del) 38 A H Desai v. State of Mysore AIR Mysore AIR 1956 Mys 46,47; State of Uttar Pradesh v. Sukhbansi AIR 1985 SC 1224 39 State & etc v. Siddhartha Vashishta alias Manu Shar ma 2001 Cr LJ 2404 35

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that Trisha was sleeping. After reaching the isolated spot in Kausani forest, at 4 am in the morning, A-1 dragged the body out of the car, stuffed it into the bag, poured petrol over the bag and set it ablaze. When deciding the question of sufficiency of circumstantial evidence for the purpose of conviction, what the court has to consider is the total cumulative effect of all the facts. In the case of Ammini & Ors v State of Kerala 40, the accused persons entered the house and administered poison to cause the death of the woman, there was sufficient evidence regarding their movements, relevant time near the house, one of the accused confessed. On these facts the apex court held that the prosecution had proved the guilt of the accused beyond reasonable doubt. 41 In cases where the accused act in furtherance of a common intention and of a criminal conspiracy there acts must be judged on the basis of circumstantial evidence. 42 It is humbly submitted that in the present matter, the actions and the circumstantial evidence present on record establishes the link which proves that the three accused persons acted in furtherance of a common intention and of a criminal conspiracy.

4. WHETHER THE WHETHER THE THREE ACCUSED PERSONS ARE GUILTY OF THE OFFENCE OF MURDER PUNISHABLE MURDER PUNISHABLE UNDER SECTION UNDER SECTION 302, I.P.C

It is humbly contended that all the three accused persons are guilty of committing the offence under Sec. 302 of the Indian Penal Code, 1860. In order to bring a successful conviction under Section 302, IPC, it is pertinent to refer to Sec 300, IPC which elucidates the essentials of murder. A person is guilty of murder if he intentionally causes the death of a person or causes such bodily injury as he knows, is likely to cause death of that person or c auses such bodily injury, which in the ordinary course of nature results into death or commits an act so dangerous that it must, in all probability cause death of that person. 43 The Prosecution humbly contends both mens rea [ 1.1] and the actus reus [ 1.2] can be established

40

1998 Cr LJ 481(SC) Ammini & Ors v State of Kerala 1998 Cr LJ 481(SC) 42 Kehar Singh v. State AIR 1988 SC 1883 43 th Ratanlal, Dhirajlal, The Indian The Indian Penal Code, p. Code, p. 502 (34 Ed. 2014) 41

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4.1 The three accused persons had the intention to murder

It is humbly contended that the intention to cause death may be reveale d by the circumstances of the story which form a complete chain of events.44 The common intention of all the accused persons has been established in Issue no. 2. However, to add to that, the chain of events revealing the intention has been illustrated for all the accused persons individually in the subsequent subsequent sub-issues. 4.1.1 Rekha Mukherjee

As per A-3‟s A-3‟s confession, Rekha Mukherjee (hereinafter referred to as „A-1’ A-1’) had rented an Opel Corsa for the abduction and murder of the victim. Despite being from an affluent background, the very fact that she rented a car to pick up Trisha raises a reasonable suspicion on her intention, which was inclined towards abducting and murdering Trisha. Further, an evening prior to the murder, A-1 had conducted a recce of the dumping ground at Kausani forest. This clearly adds to her guilty intention. Another aspect in the matter that cannot be ignored is the victim‟s sudden “written resignation” resignation” to the company after having taken the leave of absence on 24th April, 2012. Additionally, Shobhit Shobhit Mukherjee also received a shocking breakup SMS from Trisha‟s phone on the day her written resignation was tendered to the company. Both Both of these incidents were rather sudden and unannounced as she had shown no inclination to take such actions in her past. In this case, there is nothing to prove that the victim was unhappy with her relationship with Shobhit Mukherjee or with her job and hence, this, without any deliberation, indicates that A-1 intended to remove Trisha from her social and professional circle without raising any doubt in the minds of other people.

4.1.2 Suhas Kumar

It is humbly contended that the intention to kill can also be inferred from the nature of the injuries caused to the victim.45. Causing a serious injury on a vital part of the body of the deceased with a dangerous weapon must necessarily lead to the inference that the accused intended to cause death or bodily injury sufficient to cause death of the victim, and it 44

James v. State of Kerala, Kerala , (1995) 1 Cr LJ 55 (Ker.); Laxman v. State of Maharashtra, Maharashtra , AIR 1974 SC 1803

45

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answers to section 300, I.P.C. 46 It is humbly submitted that according to A-3‟s A-3 ‟s admission to the police, the victim was taken to one of the by-lanes in Dwarka where A-2 strangled her. This was clearly a serious injury to the neck of the victim which is a vital part of the body of the victim. 4.1.3 Shyam Sahu

It is contended that the guilty intention of the accused is proved or inferred from the acts of the accused.47 As per the above admission, on 24 th April 2012, the car that was used to abduct the victim was driven by Shyam A-3 who further drove the car to Dwarka where the victim was ultimately strangled. Afterwards, the victim‟s body was taken to A -1‟s residence where it was put in a bag and stuffed in the boot of the car. A-3‟s A- 3‟s intention is affirmed by his act of sleeping in the car with the body in the boot. It is humbly submitted that all the three accused persons had the intention to commit the murder. 4.2 Actus reus is established

It is contended that that Actus reus is any wrongful act.48 Thus, in a case of murder, actus reus would be the physical conduct of the accused that causes death of the victim. In the instant case, the actus reus is reus is established by way of witness statements and circumstantial evidence present on record. It is to be borne in mind that it is i s not for the prosecution to meet any and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. 49 The circumstantial evidence in the instant matter shows that within all human probability, the act must have been done by the accused persons. 50 Since the acts were done in furtherance of common intention, all the three accused persons are liable for the results of all the acts of others.51 According to A-3‟s A- 3‟s confession, all the three accused persons had picked up the victim from Cannaught Place on the evening of 24 th April 2012 .On the same evening she was strangled to 46

(Raj); Md. Sharif And Anr. v. Rex, AIR Md. Idrish v. Idrish v. State State,, 2004 Cr LJ 1724 (Raj); Md. Rex, AIR 1950 All 380; Badri v. Badri v. State State of U.P., U.P., AIR 1995 3 All 189; Dibia v. State of U.P., U.P. , AIR 1953 All 373, State of Maharashtra v. Bhairu Sattu Berad , AIR 1956 Bom 609 47 State of Maharashtra v Meyer Hans George, George , AIR 1965 SC 722 48 Aiyar, P Ramanatha, The Law Lexicon, Lexicon , p. 49 49 State of UP v Ashok A- 2 Srivastava, Srivastava, AIR 1992 SC 840 50 Bakshish Singh v State of Punjab, Punjab, AIR 1971 SC 2016 51 Barenda A-2 Ghosh v. King Emperor , AIR 1935 PC 1

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death by A-2. The same night (the early morning of 25 April 2012), the three accused drove to the village of Kotpuli, Kausani forest area. They allegedly wanted to avoid police checks on the highway and hence, to make it appear Trisha was sleeping, propped the body between A-1 and A-2 on the rear seat rather than putting it in the boot. At 0400 hours on 25 April 2012, the accused dragged the body out of the car in an isolated spot in the forest, stuffed it in the bag, poured petrol over the bag and set it ablaz e.52 This confession has been verified by two other circumstantial evidence materials on record. Firstly, on 24 th April 2012, A-2 and the victim‟s victim‟s phone location was found to be in the same location of the forest. This confirms that A-2 and the victim were definitel y present in that location on that night. Secondly, the DNA of the skeletal remains rem ains of the victim‟s body matched the DNA of A-1. This, without any deliberation, verifies the statement of the third accused and completes the chain of events as proposed by the prosecution.

Furthermore, one of the evidences produced before the Court on examination of Trisha‟s best friend, Ruhi (hereinafter referred to as „PW7‟) stated that Trisha was continuously in touch with Trisha through WhatsApp till the date A-1 was arrested. This, along with the fact that Trisha never agreed to talk on the phone or have a video conference even on repeated insistence, proves that A-1 was using the victim‟s victim ‟s phone throughout to text her friends to cover up for the murder since the messages stopped from the day of her arrest. Another similar compliant was received from Shobhit Mukherjee when he was examined as PW6 where he stated that he never got a reply of his Facebook message sent to Trisha and he also informed there was no activity on her account since 24 th April 2012 which was ver y uncharacteristic of Trisha who was fond of uploading pictures on Facebook. Also, there is no explanation for the omission on A-1‟s A- 1‟s part to file a missing report of her daughter since she had been missing from 24 th April 2012. Thus, these evidences confirm that not only A-1 murdered the victim but also acted further to cover up for her crime. Hence, it is humbly submitted that all the three accused persons had committed the act of Murder.

52

Moot problem, Page 2, Para 1

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4.3 The fact of the ‘Last Seen Together’ Theory shifts the burden on the accused It is humbly contended that in cases where the accused was last seen with the deceased victim just before the incident, it becomes the duty of the accused to explain the circumstances under under which the death of the victim occurred. 53 The theory of the „Last Seen Together‟ Together‟ theory is based on the principal of probability and cause and connection. Where a fact has occurred with a series of acts accompanying it, it can be safely presumed that the fact was possible as a direct cause of the accompanying acts.54 As per A-3‟s A-3‟s confession the victim was picked up the accused persons at Cannaught Place on 24th April 2012. Furthermore, according to the evidence before the court victim‟s phone location was along with A-2‟s A- 2‟s phone location. Therefore, location. Therefore, the fact of the Last Seen Theory has been squarely established in the present case. Victim‟s body was found on 23 rd May 2015 from Kausani forest after the villagers had complained a foul odour. 55 The victim was last seen on 24 th April 2012 and as mentioned above her phone location on that night was in Kausani forest. Therefore, the time period, between the time when the deceased was last seen by the accused and her death is too short to raise the probability that anyone else except the t he accused could have committed the act. 56 4.3 Absence of motive is irrelevant

Assuming for the sake of argument that the accused persons had no motive, it is contended that absence of motive is no ground for acquitting the accused. Motive is immaterial so far as the offence is concerned, and need not be established57 as the mere existence of motive is by itself, not an incriminating circumstance and cannot take the place of a proof 58. Therefore, absence of proof of motive, does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case and is not fatal as a matter of law.59 When the circumstantial evidence on record is sufficient to prove beyond any doubt to prove that it was the accused and no one else, who

53

Ganeshlal v. State of Maharashtra, Maharashtra , (1992) 3 SCC 106 Ratanlal & Dhirajlal, The Indian Penal Code, Code , 32nd Enlarged Edition, 2013, Page 1566-67 55 Moot Problem, Pg 1, Para 9 56 Trimukh Maroti Kirkan v. State of Maharashtra , (2006) 10 SCC 681 57 Ratanlal and Dhirajlal, The Indian Penal Code, Code , 33rd Ed. (2011) 58 State of Punjab v Sucha Singh, Singh , AIR 2003 SC 1471 59 Mulakh Raj v. Satish A-2, A-2, AIR 1992 SC 1175 54

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intentionally caused the death of the accused then, motive of the crime need not be proved, 60 as in the current case. Moreover, when the presence of the accused with the deceased at the scene of occurrence is is found established, motive takes a back seat. 61 In the present case, as evident from above, above, the presence of A-1, A-2 and A-3 at the scene of occurrence (Kausani forest) was established by the statement given by A-3 and the evidence produced before the Court. Hence, it is humbly submitted that Motive is not a sine qua non for the success of prosecution case since other evidences remain convincing and prove the offence beyond reasonable doubt. 5. WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING THE OFFENCE OF ABDUCTING IN ORDER TO COMMIT MURDER UNDER SECTION 364 OF THE INDIAN PENAL CODE

It is humbly contended that to establish an offence under Section 364, I.P.C, it must be proved that the person charged with the offence offence had the intention at the time of abduction that the person abducted will be murdered or so disposed of as to put in danger of being murdered.62 It is to be noted that the essential elements of Sec. 364 are as follows: 

The accused kidnapped or abducted some person



The accused had the intention at the time of kidnapping or abducting that the person kidnapped/abducted will be murdered or so disposed of being murdered 63

The Prosecution contends both abduction [ 5.1] as well as the intention to commit murder [5.2]

60

State of Madhya Pradesh v. Digvijay Singh, Singh , 1981 Cri. LJ 1278 (SC) Ramkrushna v. State of Maharashtra, Maharashtra , 2007 CrLJ 3431 (3433) : 2007 AIR SCW 3134 62 Ratanlal and Dhirajlal, The Indian Penal Code, Code , 33rd Ed. (2011) 63 Badshah v. State of U.P ., ., (2008) 3 SCC 681: 2008 Cr LJ 1950: (2008) 3 All LJ 524 61

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5.1 The accused persons committed the offense of Abduction under Section 362, I.P.C

It is contended that all the three accused had committed the offence under Section 364 I.P.C. The ingredients of Abduction are: 



Forcible compulsion or inducement by deceitful means; The objects of such compulsion or inducement must be the going of a person from any place.64

It is submitted that provision envisages two types of abduction i.e. (1) b y force or by compulsion; and/or (2) inducement by deceitful means.. The case at hand falls i n the second category. To "Induce" means "to lead into". Deceit according to its pl ain dictionary meaning signifies anything intended to mislead another. It is a matter of intention and even if A1 did not expressly use any misleading statements, the question was whether she was acting in a bonafide manner bonafide manner or not. 65 The accused persons‟ guilty intention int ention has already been established in the previous issue and hence, it is submitted s ubmitted that the three accused deceitfully deceitfull y induced the victim to move from Cannaught place to Dwarka. 5.2 The three accused persons had the intention to commit the Murder

This intention has already been proved in Issue No. 2, sub-issue 1[ 2.1].

6. WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING DISAPPEARNCE DISAPPEARNCE OF OFFENCE OR GIVING FALSE INFORMATION TO SCREEN OFFENDER PUNISHABLE UNDER SECTION 201, INDIAN PENAL CODE

It is contended that all the three accused persons have committed the offence under Sec. 201 of the Indian Penal Code, 1861. It can be seen that the basic necessities of this Section are 1.

an offence has been committed,

64

Jyotish Das and Anr. Vs. Vs. State of Tripura, Tripura, 2010 (1) ALT (Cri) 23 Malleshi Vs. Vs. State of Karnataka, Karnataka , 2004 (3) ACR 2688 (SC); Vinod vs. State vs. State of Haryana, Haryana , AIR 2008 SC 1142

65

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2.

the accused must or has reason to believe that the offence has been committed, committ ed,

3.

the accused must either cause any an y evidence of the commission of that offence to disappear, or give any information respecting the offence which he knows or believes to be false, and

4.

the accused must have acted with an intention to s creen the offender from the legal punishment.66

Firstly, it is important to determine whether this section can be charged against the person who is screening the evidence to save oneself f rom legal punishment. This was answered by the Supreme Court in the case of Kalawati of Kalawati v. State 67 where it was held that the Section will be held applicable not only against a person who who causes disappearance of evidence with the intention of screening an offender from legal punishment, but also against one who does so intending to screen himself from legal punishment after having committed the offence himself.68 The same principle was reiterated by Jammu and Kashmir Kashmir High Court.69 On scrutinising the actions of A-1, A-2 and A-3, it can be observed that their actions fall well within the ambit of the Section to satisfy their conviction. Firstly and most importantly the offence of murder under Sec. 302 of the Indian Penal Code, 1860 has been committed by the three accused in question. This in it self satisfies the first fi rst ingredient of the crime of destruction of evidence. Secondly, all of them acted in furtherance of the common intention as proved in the first issue and hence, the three accused had full knowledge of the fact that the victim was dead. Further, as per A-3‟s A-3‟s confession, confession, after the commission of the murder, the three accused persons propped the body between A-1 and A-2 to avoid police detection. This This was the first attempt to screen the offender from legal punishment. This strongly reflects her intention to screen the offender which requires to be the primary object of the accused for conviction under this Section.70Additionally, A-1 avoided the filing of the FIR of her missing daughter by telling the Police Officers that the vicitm was outside India and informed the same to Shobhit on his repeated confrontations about Trisha‟s whereabouts. She also informed

66

Nitin Jairam Gadkari vs State vs State Of Maharashtra, Maharashtra , 2004 (4) Mh LJ 419 1953 SCR 546 68 ibid 69 Razak Khizar v. State, 1967 Cri LJ 484 70 Omanakuttan Alias Biju and Binu T vs. vs. State of Kerala, Kerala , 2000 CriLJ 4893 67

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Shobhit about “another passport” that was made to send Trisha to U.S since Shobhit was in the possession of the original one. All these false information was generated by A-1 to justify the sudden disappearance of Trisha. This clearly satisfies the core element of this Section which criminalises giving of false information with respect t o the offence. Finally, all the three accused in furtherance of common intention, caused the disappearance of the chief evidence in this particular case i.e Trisha‟s body, by body, by it setting ablaze. Hence, it is humbly submitted before the Court that all t he three accused were guilty under Section 201 of the Indian Penal Code. 7. WHETHER A-1 IS GUILTY OF THE OFFENCE OF CAUSING MISCARRIAGE UNDER SECTION 313 OF THE INDIAN PENAL CODE

It is contended that A-1 Mukherjee is guilty of causing miscar riage under Section 313, I.P.C The essential ingredients of an offence under Section 313 are: (i) That the accused caused miscarriage to a woman with child; (ii) That he did so voluntarily; (iii) That he cause miscarriage without the consent of that woman. 71 To establish an offence under this Section, the miscarriage must be made without the consent of the victim. Thus, if the consent is obtained by force, circumvention or undue influence, it is to be treated as a delusion and not free act of the mind. 72 In the present case, the victim had to abort the chid due to A- 1‟s pressure. Apart from Apart from the alleged force, A-1 was also in a dominating position to influence the decision of the victim. Moreover, there was no apparent reason for Trisha to have gone in for medical termination of pregnancy. Hence, in all circumstances, the miscarriage was not consented to by the victim. Additionally, A-1 A-1 did not approve of Trisha‟s relationship with Shobhit Mukherjee and wanted to keep this as a secret as it is considered to be a social and religious taboo in India.73 Hence, considering this as the primary motive, it was in the interest of A-1 to have the pregnancy terminated as that would “lighten her burden” burden” on her to defend the controversial

71

Prabhu @ Kulandaivelu v. State Rep , CRLMP Nos. 10666/2015 JOWITT‟S Dictionary JOWITT‟S Dictionary of English Law 73 Moot Problem, page 1, para 4 72

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relationship between Trisha and Shobhit. This proves that the miscarriage was voluntaril y caused by A-1. Therefore, it is humbly submitted that in the context of the facts of this case, A-1 Mukherjee is guilty of committing an offence under Section 313 of the Indian Penal Code.

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PRAYER

her efo efor e, W he

in light o f the Issues

aised, R ai

Author itie ities

most humbly and respectfully requested that the

Cited

Hon ble ‟

and Ar gument guments Advanced, it is

High Cour t of State be pleased to:

¶ 1. Convict the Accused No. 1, Rekha Mukherjee, for offences punishable under Section

364, 302, 120B, 34, 201 and 313 of the Indian Penal Code, 1860 . ¶ 2. Convict the Accused No. 2, Suhas Kumar , for offences punishable under Section

364, 302, 120B,34 and 201 of the Indian Penal Code,1860 . ¶ 3. Convict the Accused No. 3, Shyam Sahu, for offences punishable under Section Secti on 364,

302, 120B, 34 and 201 of the Indian Penal Code, 1860.

AND/OR

Pass any other order it may deem fit, in the interest i nterest of Justice, Equity and Good Conscience. Al l of whi ch is most most hum bly and respe respectful ctful ly submi submi tted. tted.

Date:_________, 2016 COUNSEL ON BEHALF OF THE PROSECUTION

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Symbiosis Law School - Prosecution Memo

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