Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
IN THE HON’BLE BOMBAY HIGH COURT
Under Section 3!"#$ o% t&e Code o% Cri'in() Proced*re
IN THE MATTER O+
SOMNATH RA,I SATPUTE.///// SATPUTE./////////.APPELLANT ////.APPELLANT
.
STATE STATE O+ O + BA0ARASHTRA/////////RESPON0ENT BA0ARASHT RA/////////RESPON0ENT
Submitted By Saloni Agrawal Shubham Kumar Sharma Karan Parihar Institute of Law, Nirma University Ahmedabad, u!arat
- Appellant Appellant-
Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
TABLE O+ CONTENTS
LIST O+ ABBREIATION//////////./////.///.///../....ii IN0E1 O+ AUTHORITIES.////////.//.///////.////.//i2 STATEMENT O+ ,URIS0ICTION ////////..///.///.///../....i STATEMENT STATEMENT O+ +ACTS/////////.//////.///./////... +ACTS/////////.//////.///./////....i .i STATEMENT STATEMENT O+ ISSUES//////////////////////..//iii ISSUES //////////////////////..//iii SUMMARY O+ ARGUMENTS/...//./////.///////./////...4-# ARGUMENTS A0ANCE0/////////////////////.......3-#5
647 THE ACCUSE0 AS NOT RIGHTLY CONICTE0 +OR THE O++ENCE PUNISHABLE UN0ER SECTION 39# O+ IPC
6II7 THE ,U0GMENT PASSE0 BY THE TRIAL COURT AS AS NOT APPROPRIATE
PRAYER..///////////..////////////////////39
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8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
Arguments- Arguments-
- Appellant-
LIST O+ ABBREIATIONS
S. No. )* (*
A::re2i(tion + AB%
/* 0* 3* 4* 6* 7* 8* )9* ))* )(* )/* )0* )3* )4* )6* )7* )8* (9* ()* ((* (/* (0* (3* (4* (6* (7* (8* /9* /)* /(* //* /3* /4* /6* /7* /8* 09* 0)*
A.% A& Add* A&5 A I% AL& All* Anr* BL& Bom.% B$"L% .r*P*.* .riL5 &%5 &: ed* #1h* u!* on;ble i*e* IL% IP. KL5 "ohd* N$. $rs* PL5% P: S
+*)) +or' And All India %eorts-Bombay igh .ourt %eorts Allahabad .riminal %ulings Ae1 &e2ision Additional Allahabad &aily 5udgments All India %eorter Andhra Legal &e2isions Allahabad Another Bangladesh Legal &e2isions Bombay .rime %eorter Bombay Law %eorter .ode of .riminal Pro2edure .riminal Law 5ournal &elhi %eorted 5ournal &efense :itness #dition #1hibit u!arat onourable 'hat is Indian Law %eorter Indian Penal .ode Kerala Law 5ournal "ohammed Notes on .ases $thers Patna Law 5ournal Prose2ution :itness Son of Sureme .ourt Sureme .ourt .ases Se2tion Senior Uttar Pradesh Under Se2tion =ersus =olume :ee>ly Law Notes
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Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
IN0E1 O+ AUTHORITIES
,U0ICIAL 0ECISIONS
Abdullah v* Emperor Emperor , (6 .riL5 6/* 4. Abdullah v* #. Ashok Kumar Uttamchand Shah v* Patel Mohmad Asmal Chanchad , AI%)888u!*)97* 3. Balak Ram v* Ram v* State of U.P. and U.P. and Mohd. Mohd. Saeed Khan and !rs* !rs * v* State of U.P *, *, )860.riL5)074* !. Balb"r S"ngh v* S"ngh v* State of Pun#ab, Pun#ab , AI%(994S./(()* ;. Baldeo and Anr. Anr. v* v* State of U.P *, *, (990.riL5(474* !rs. v* State of Ra#asthan, Ra#asthan , )880.riL5(3(4* <. Bas"r S"ngh and !rs. v* . Bhanudas Bandu Bandu $h"te v* $h"te v* State of Maharashtra, Maharashtra, (9)/?0@AB%4)* Pradesh% )884.riL5/04)* 8. C. Chenga Redd and !thers v* State of Andhra Pradesh% )884.riL5/04)* 5. &amodaran &amu v* &amu v* State% )889?)@KL5(37*
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Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
49. 'anesh (ada) v* (ada) v* State of U.P *, *, (998.riL5?N$.@)997?All@* v* $he State of Maharashtra% (9)(Bom.%?.ri@/33* (9)(Bom.%?.ri@/33* 44. 44. 'anpat v* *, (9))?4@A&534/* (9))?4@A&534/* 4#. 'o)"nd *ar" S+am and !rs* !rs * v* State of U.P *, 43. *anumant 'o)"nd ,argundkar ,argundkar v* $he State tate of Madh Madha a Prad Prades esh% h% )83/.riL5)(8* v* State of B"har , )884?)@AL&?.ri@6/* 4!. Kart"k Malhar v* Anr * v* State of Ra#asthan, Ra#asthan , )884?(@:LN)/0* 4;. Kr"shan and Anr 4<. Kul+ant S"ngh v* S"ngh v* State of Pun#ab, Pun#ab , ?(990@8S..(36* aman v* State of Maharashtra, Maharashtra , AI% (99( S. (86/ ?)@* 4. aman v* 48. Md. Badarudd"n Ahmed Ahmed v* v* State of Assam% )878.riL5)764* Assam% )878.riL5)764* Statee /&elh /&elh"" Adm" Adm"n" n"str strat at"o "on0 n0,, )878 )878?) ?)6@ 6@&% &%5) 5)67 67 45. Madhu Bala v* Stat )889.riL5689* #9. Mona &as v* &as v* State of Assam, Assam, (9)0.riL5)690* !rs* v* State, State, )836.riL5))76* #4. Mukanda and !rs* ##. Munsh" Prasad v* v* State of B"har , (99) ?0@ PL5% )73* !rs * v* v* State of Andhra Prad radesh, sh, #3. Paparambaka Rosamma 1 !rs* )888?/@A.%()08?S.@* v* State of B"har , (99)?/@PL5%/76* #!. Paras Kumhar v* #;. Ram K"shore v* K"shore v* State, State, )889 .riL5 N$. ))7?&elhi@* of ,anaee /2n 3a"l0 v* 3a"l0 v* State of U.P *, *, (997 .riL5)(8?)/(@* #<. Rama Shankar son of S"ngh v* State of Pun#ab, Pun#ab, AI%)886S.(0)6* #. Sah"b S"ngh v* #8. Sha"kh Raf"4 and Anr. v* Anr. v* State of Maharashtra% (997.riL5)38(?S.@* Munsh" v* $he State% )88( State% )88( )( BL& ?A&@38* #5. S"dd"4ue Munsh" v* 39. State of Maharashtra v* Maharashtra v* San#a S5o &"gambarrao Ra#hans% AI%(993S. 86* Ra#asthan v* Smt. Kalk" 1 Anr , AI%)87)S.)/89* 34. State of Ra#asthan v* U.P. v* Ramesh Ramesh Prasad M"shra and Anr *, *, )884=IA&?S.@(98* 3#. State of U.P. v* 33. Sugal" Sankaram ramma 1 !rs. v* 6anna nna 6enkat nkates es+a +arl rlu u 1 !rs. !rs.,, (990.riL5(370* 3!. Sed Akbar v* v* State of Karnataka% AI% Karnataka% AI% )868 S. )707* Kerala, IL%)889?(@Kerala((* 3;. $hankappan Mohanan and !rs. v* State of Kerala, 'a#bh"e v* $he State of Maharashtra trough PS!% 3<. 6asanta S5o Shra+an 'a#bh"e v* (996?)98@B$"L%(()0* 0IGESTS= LE1ICONS
4. .*&* I#L&, .$""#N'A%C $N LA: $ #=I&#N.# A.', )76(, &#LI LA:
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'%IALS, UNI=#%SAL LA: PUBLISIN .$* P='* L'&* ?0 th ed* (997@* !. &%* K* N* .AN&%AS#KA%AN .AN&%AS#KA%AN PILLAI, #N#%AL P%IN.IPL#S $ .%I"INAL LA:, #AS'#%N B$$K .$"PANC ?) st ed* (996@* ;. &%* &%* K* N* .AN .AN&% &%AS AS#K #KA A%A %AN N PILL PILLAI AI,,
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Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
P%$.#&U%#, #AS'#%N B$$K .$"PANC ?4 th ed* (9)0@* P%$.#&U%# .$&#, )86/, L#DIS N#DIS, =$L* ) . &U%A &AS BASU, .%I"INAL P%$.#&U%# ?3th ed* (9)0@* P%$.#&U%# .$&#, )86/, L#DIS N#DIS, =$L* ( 8. &U%A &AS BASU, .%I"INAL P%$.#&U%# ?3th ed* (9)0@* 5. ALS ALSBU BU% %C;S LA: LA:S $ #NL #NLAN AN&, &, .%I" .%I"IN INAL AL LA: LA:, #=I& #=I&#N #N.# .# AN& P%$.#&U%#, L#DIS N#DIS BU''#%:$%'S, =$L* ))?0@ ?0 th ed* (994@* U%C;S LA:S $ IN& IN&IA, .%I"INAL LA:-II, L#DIS 49. ALSBU%C
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BU''#%:$%'S, =$L* 3?(@ ?(994@* ALSBU% U%C; C;S S LA: LA:S $ IN&IA, IN&IA, .%I"IN .%I"INAL AL P%$.# P%$.#&U% &U%#-I #-II, I, L#DIS L#DIS N#DIS N#DIS 44. 44. ALSB BU''#%:$%'S, =$L* // ?(996@* 4#. 5US' 5US'I. I.# # .*K* .*K* 'AKK AKK#% #% + "%S* "%S* "*.* "*.* 'AKK AKK#% #%,, LA: LA: $ #=I& #=I&#N #N.# .#,, :C'#S + .$*, =$L* ) ?(9)/@* 43. 5US'I.# "* "UNI%, '# LA: $ #=I&#N.#, UNI=#%SAL LA: PUBLISIN .$*, ?7' #&* (9))@* 5US'I.# # "*L* "*L* SINA SINAL L + SABIA SABIA,, AN ANAL ANALC C'I.AL 'I.AL AN& AN& #DAU #DAUS'I S'I=# =# 4!. 5US'I. .$""#N'A%C $N IN&IAN P#NAL .$&#, )749, P%#"I#% PUBLISIN .$*, =$L* ) ?(nd ed* (996@* 4;. 5US'I.# C = .AN&%A.U& + = % "AN$A%, %A'ANLAL + &I%A5LAL '# IN&IAN P#NAL .$&#, :A&:A NAPU% ?/) st ed* (996@* 4<. "*%* "ALLI.K, A*N* SAA;S .%I"INAL %##%#N.#, #AS'#%N LA: $US# ?4th ed* (998@* 4. %*.* %*.* $#L $#L + %A5I= %A5I= %A# %A#5A, 5A, IN' IN'S S AN& '%I. '%I.KS KS $N .%I" .%I"IN INAL AL LA: LA:, .API'AL ?IN&IA@ ?)st ed* (9)9@* 48. %*P* KA'U%IA, LA: $ .%I"#S AN& .%I"IN$L$C, =IN$& PUBLISIN ?P@ L'&* ?/rd ed* (9)0@* 45. %A" 5#'"ALANI + &*S* .$P%A, '# IN&IAN P#NAL .$&#, '$"S$N %#U'#%S, =$L* ) ?) st ed* (9)0@* #9. %A'ANLAL + &I%A5LAL, LA: $ .%I"#S, A .$""#N'A%C $N IN&IAN P#NAL .$&#, )749, BA%A' LA: $US#, =$L* ( ?(6 th ed* (9)/@* #4. S*.* SA%KA%, .$""#N'A%C $N #=I&#N.#, &:I=#&I LA: A#N.C, =$L* ) ?(nd ed* (997@* ##. S*.* SA%KA%, .$""#N'A%C $N #=I&#N.#, &:I=#&I LA: A#N.C, =$L* ( ?(nd ed* (997@* #3. S*.* SA%KA%, .$""#N'A%C $N '# IN&IAN P#NAL .$&#, )749, &:I=#&I LA: A#N.C, =$L* (, ?/ rd ed* (9)(@* *.* SA%K SA%KA% A%,, '# .$&# $&# $ .%I" .%I"IINAL NAL P%$. P%$.#& #&U% U%# #, L#DIS #DIS N#D N#DIS #!. S*.* BU''#%:$%'S BU''#%:$%'S :A&:A :A&:A NAPU%, =$L* ) ?)9 ? )9 th ed* (9)(@* #;. S*.* SA%KA%, '# .$&# $ .%I"INAL P%$.#&U%#, L#DIS N#DIS, =$L* ) ?))th ed* (9)3@* #<. S*.* SA%KA%, '# .$&# $ .%I"INAL P%$.#&U%#, L#DIS N#DIS, =$L* (
"#"$%AN&U" on behalf of APP#LLAN' 4
Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
?)9th ed* (9)0@* #. S*K* "UK#%5##, LA: $ .%I"INAL APP#ALS, %#=ISI$NS, %##%#N.#S, &:I=#&I LA: A#N.C ?( nd ed* (9)9@* S*K* SA% SA%=A%IA, %IA, %*A* %*A* N#LS N#LS$N $N;S ;S IN&I IN&IAN AN P#NA P#NAL L .$&# .$&#,, L#DI L#DIS S N#DI N#DIS S #8. S*K* BU''#%:$%'S, =$L* 0 ?8 th ed* (99/@* #5. SU%#N SU%#N&%A &%A "ALIK + SU&##P SU&##P "ALIK, "ALIK, SUP%#" SUP%#"# # .$U%' .$U%' $N .%I"IN .%I"INAL AL P%$.#&U%# .$&# + .%I"INAL '%IAL, #AS'#%N B$$K .$"PANC, =$L* ) ?(9))@* 39. SU% SU%CA NA%A NA%AC CAN "IS% "IS%A, A, '# '# IN&I IN&IAN AN P#NA P#NAL L .$&# .$&#,, .#N' .#N'%A %AL L LA: LA: PUBLI.A'I$N ?)3 th ed* (996@* 34. '# .$&# $ .%I"INAL P%$.#&U%#, BA%# A.', P%$#SSI$NAL B$$K PUBLIS#%S* 3#. '# IN&IAN #=I&#N.#S A.', )76(, P%$#SSI$NAL B$$K PUBLIS#%S* 33. '# IN&IAN P#NAL .$&#, #AS'#%N B$$K .$"PANC ?/0 th ed* (9)/@* =INAC SA%"A SA%"A,, &$:%C &$:%C &#A' &#A'S, L#AL L#AL P%$=I P%$=ISI$ SI$NS NS AN& AN& 5U&I.I 5U&I.IAL AL 3!. =INA IN'#%P%#'A'I$N, IN'#%P%#'A'I$N, &##P + &##P PUBLI.A' PUBLI. A'I$NS I$NS P='* L'&* L'&* ?(996@* ? (996@* 3;. =IS =IS: :AS S%I S%I& &A% A% S$$ S$$NI NI,, '# '# IN&I IN&IAN AN P#NA P#NAL L .$&# .$&#,, P%#" P%#"I# I#% % PUBLISIN .$"PANC, =$L* ) ?) st ed* (9))@* EBSITES
4. www*bombayhigh2ourt*ni2*in #. www*delhihigh2ourt*ni2*in 3. www*indian>anoon*org !. www*manuatrafast*in ;. www*s22online*2om <. www*westlawindia*2om
OTHER AUTHORITIES OTHER AUTHORITIES
APPREC2A$2!, !7 E62&E,CE !7 *!S$2E 82$,ESSES% "AA%AS'%A 4. APPREC2A$2!, 5U&I 5U&I.I .IAL AL
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Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
E(9se2ondE(9wor>E(9shoE(92riminalE(9datedE(9)9-9)-)3*df, ?last udated on eb* )), (9)4@* 5US'I. I.# # .*K* .*K* 'AK 'AKK# K#% % + "*.* "*.* 'AK 'AKK# K#%, %, #N.C #N.C.L .L$P $PA A#&I. #&I. LA: LA: 2. 5US' L#DI.$N, AS$KA LA: $US#, =$L* ) ?) st ed* (9)9@* 5US'I. I.# # .*K* .*K* 'AK 'AKK# K#% % + "*.* "*.* 'AK 'AKK# K#%, %, #N.C #N.C.L .L$P $PA A#&I. #&I. LA: LA: 3. 5US' L#DI.$N, AS$KA LA: $US#, =$L* ( ?) st ed* (9)9@* !. 5US' 5US'I. I.# # .*K* .*K* 'AK 'AKK# K#% % + "*.* "*.* 'AK 'AKK# K#%, %, #N.C #N.C.L .L$P $PA A#&I. #&I. LA: LA: L#DI.$N, AS$KA LA: $US#, =$L* / ?) st ed* (9)9@* ;. 5US' 5US'I. I.# # .*K* .*K* 'AK 'AKK# K#% % + "*.* "*.* 'AK 'AKK# K#%, %, #N.C #N.C.L .L$P $PA A#&I. #&I. LA: LA: L#DI.$N, AS$KA LA: $US#, =$L* 0 ?) st ed* (9)9@* L$I' KU"A%, KU"A%, KULBUSA KULBUSAN, N, .* B##%A B##%A + ANIL ANIL KU"A%, ME&2C!<. L$I' E'A
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STATEMENT STATEMENT O+ ,URIS0ICTION ,URIS0 ICTION
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Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
THE APPEL APPELLAN LANT T HAS MOE0 MOE0 AN APPEA APPEAL L BE+ORE BE+ORE TH THE E HON’BL HON’BLE E HIGH HIGH COURT COURT O+ BOMBA BOMBAY Y= IN TH THE E MAT MATTER O+ SOMANT SOMANTH H RA,I RA,I SAT SATPUTE PUTE . STA ST ATE O+ BA0ARA BA0ARASHT SHTRA= RA= UN0ER UN0ER SECTI SECTION ON 3!"#$ 3!"#$4 O+ THE CO0E O+ CRIMINAL PROCE0URE.
THE PRESENT MEMORAN0UM SETS +ORTH THE +ACTS= CONTENTIONS AN0 ARGUMENTS.
STATEMENT O+ +ACTS
) Section 3!"#$ > A??e() %ro' con2iction@ Any erson 2onvi2ted on a trial held by a Sessions 5udge or an Additional Sessions 5udge or on a trial held by any other .ourt in whi2h a senten2e of imrisonment for more than seven years Fhas been assed against him or against any other erson 2onvi2ted at the same trialG may aeal to the igh .ourt*
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Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
or the sa>e of brevity and 2onvenien2e of the on;ble .ourt the fa2ts of the resent 2ase are summariHed as follows )* $n (0<8<( (0<8<(9) 9)9 9 at around around 6 am, the aella aellant nt Somnath Somnath had alter2at alter2ation ion with with his wife "an!u, on some oint, after alter2ation he 2omes outside with her daughter* (* Around Around 7 am, "an!u, "an!u, 2ame 2ame out of the house house and and her body was on fire fire and at that time time Somnath was standing with his daughter near the tra2tor where sand was unloading by &agadu Nemdae* /* Seeing Seeing her her on fire, Somna Somnath th tried tried to e1tingui e1tinguish sh the fire fire with his bare bare hands hands and as a result of this he got serious in!uries on his hand and finally her neighbors and brother in law e1tinguished the fire with the blan>et* 0* Kashinath Kashinath Nemade, Nemade, one of the the neighbors neighbors,, went to her her maternal maternal house and and brought brought her her mother there* After her arrival, Suhas nemade too> her in the Sumo !ee to the hosital and in the !ee Suhas Nemade, Shruti Ko>ane, Amol 5yotiram Nemade, =i!ay Nemade were resent and then Suhas Nemade admitted her in the Ambi>aur hosital and shifted in burn ward no* (3 at around )*(9 m* In the !ee her mother was instigating her to give statement against her husband* 3* At )(9 )(9 Shar Sharad ad :alun! lun! got got the the info inform rmati ation on rega regard rdin ing g the the burn burntt atie atient nt by the the Ambi>aur $P& Poli2e .onstable "unde B*No* )9(7 and then he rea2hed at )(9 m at Ambi>aur hosital from aveli oli2e station ?a22ording to Shri Sharad :alun!@* At )(3 he rea2hed near the atient and after inuiring from the do2tor about her 2ondition, too> her Statement around )/9* e was in the hosital for /9 minutes* &uring this statement by "an!u her mother was resent with her* 4* At around around /m, /m, P. Subhas Subhash h Shiva!i Shiva!i Aw Awhad was informe informed d about the in2ident in2ident by Sr*Poli2e Sr*Poli2e Inse2tor, "r* "ehere of "hadur Poli2e Station and was instru2ted to re2ord "an!u;s statement* e a2ted as er the instru2tions and re2orded her statement, i*e*, dying de2laration ?#1h*/0@ after inuiring from the do2tor about her 2ondition* 6* Both Both the dying de2lara de2laratio tion n given are 2ontrad 2ontradi2to i2tory ry in the nature nature,, as in one statemen statementt she told that their marriage was solemniHed 3 years ago and in the se2ond one she told that they got married before 4 years* In the first statement she said that her neighbors e1tinguished fire and in the se2ond one she said that her brother-in-law e1tinguished the fire*
"#"$%AN&U" on behalf of APP#LLAN' )9
Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
7* 'her 'heree are are also also ro2 ro2ed edur ural al las lases es in re rear arin ing g Sot Sot Pan2 Pan2hn hnam amaa and and Inu Inues estt Pan2hnama* Poli2e had not done Sot Pan2hnama in the resen2e of two or more indeendent and rese2table inhabitants of the so2iety Fse2tion )99?0@ ( of the .r*P*.*G* Inuest an2hanama should be reared by the "aduri oli2e station but this was done by Ambi>anagar Poli2e Station* 8* .harges .harges were framed framed against against the a22used a22used to whi2h whi2h he leaded leaded not not guilty guilty and 2laimed 2laimed to be tried* is statement was re2orded under Se2tion /)/ / of .r*P*.* whi2h was of total denial and false imli2ation* )9* 'he a22used a22used has already already been a2uit a2uitted ted under under Se2tion Se2tion 087A 0 and 2onvi2ted under Se2tion /9(3 of IP.*
Section 499-Per@on@ 499-Per@on@ in c&(re c&(re o% c)o@ed c)o@ed ?)(ce to ())o @e(rc& @e(rc& ?0@ Before ma>ing a sear2h under this ( Section
.hater, the offi2er or other erson about to ma>e it shall 2all uon two or more indeendent and rese2table inhabitants of the lo2ality in whi2h the la2e to be sear2hed is situate or of any other lo2ality if no su2h inhabitant of the said lo2ality is available or is willing to be a witness to the sear2h, to attend and witness the sear2h and may issue an order in writing to them or any of them so to do
/ Section 343- Poer to e('ine t&e (cc*@ed ?)@ In every inuiry or trial, for the urose of enabling the a22used ersonally to e1lain any 2ir2umstan2es aearing in the eviden2e against him, the .ourt-?a@ may at any stage, without reviously warning the a22used, ut su2h uestions to him as the .ourt 2onsiders ne2essaryJ ?b@ shall, after the witnesses for the rose2ution have been e1amined and before he is 2alled on for his defense, uestion him generally on the 2ase* ?(@ No oath shall be administered to the a22used when he is e1amined under sub- se2tion ?)@*?/@ 'he a22used shall not render himself liable to unishment by refusing to answer su2h uesti uestions ons,, or by giving giving false false answe answers rs to them*?0 them*?0@@ 'he answe answers rs given given by the a22us a22used ed may be ta>en ta>en into into 2onsideration in su2h inuiry or trial, and ut in eviden2e for or against him in any other inuiry into, or trial for, any other offen2e whi2h su2h answers may tend to show he has 2ommitted*
!58A-H*@:(nd or re)(ti2e o% &*@:(nd o% ( o'(n @*:Dectin &er to cr*e)t :hoever, being the 0 Section !58A-H*@:(nd husband or the relative of the husband of a woman, sub!e2ts su2h woman to 2ruelty shall be unished with imrisonment for a term whi2h may e1tend to three years and shall also be liable to fine* #1lanation*or the urose of this se2tion, 2rueltyM means?a@ any willful 2ondu2t whi2h is of su2h a nature as is li>ely to drive the woman to 2ommit sui2ide or to 2ause grave in!ury or danger to life, limb or health ?whether mental or hysi2al@ of the womanJ or ?b@ harassment of the woman where su2h harassment is with a view to 2oer2ing her or any erson related to her to meet any unlawful demand for any roerty or valuable se2urity or is on a22ount of failure by her or any erson related to her to meet su2h demand*
Sectio tion n 39#-P* 39#-P*ni@ ni@&'e &'ent nt %or '*rder '*rder:ho 3 Sec :hoev ever er 2omm 2ommit itss murd murder er shal shalll be uni unish shed ed with with deat death, h, or imrisonment for life, and shall also be liable to fine*
"#"$%AN&U" on behalf of APP#LLAN' ))
Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
STATEMENT STATEMENT O+ ISSUES
$he follo+"ng "ssues ha)e ar"sen for determ"nat"on before the *on9ble Court "n the "nstant matter:
)* :#' :#'# #% % '# '# A..US ..US#& #& :AS %I %I'L 'LC C .$N=I. .$N=I.'# '#& & $% $% '# '# $#N.# PUNISABL# UN&#% S#.'I$N /9( $ IP. (* :#' :#'# #% % '# '# 5U& 5U&#" #"#N #N' ' PASS#& SS#& BC '# S#SS S#SSI$ I$NS NS .$U% .$U%' ' :AS APP%$P%IA'#
"#"$%AN&U" on behalf of APP#LLAN' )(
- Arguments-
Appellant- Appellant-
SUMMARY O+ ARGUMENTS
4. THE ACCU ACCUSE0 SE0 A AS NOT RIGHTL RIGHTLY Y CONI CONICTE CTE0 0 +OR +OR TH THE E O++ENC O++ENCE E PUNISHABLE UN0ER SECTION 39# O+ IPC
'he 2ounsels on behalf of the aellant humbly lead that the 2onvi2tion of the a22used under se2tion /9(4 is inaroriate and un!ust* 'o 2onvi2 2onvi2tt any erson erson under under the aforeme aforementi ntione oned d se2tion se2tion,, the 2ommis 2ommissio sion n of the offen2e under se2tion /99 6 of IP. is reuired to be roved* urther, to rove the offen2e of murder two ma!or ingredients need to be fulfilled* irstly, whether the a22used had the intention to 2ommit the 2rime or not, is a 2ore issue, whi2h in the instant 2ase is not satisfied* 'he a22used, Somnath had no intention to 2ause the death his wife, wife, "an!u "an!u ?the ?the de2eased de2eased@* @* Se2ond Se2ondly ly,, 2ommis 2ommissio sion n of the a2t or offen2e offen2e in furtheran2e of the intention is another ingredient to be fulfilled in order to bring home the guilt of the a22used* Somnath did not 2ommit the a2t of setting his wife ablaHe on fire after she oured >erosene on herself, and thereby 2ausing her death due to burn in!uries*7 "oreov "oreover, er, the eviden eviden2es 2es ?both ?both do2um do2ument entary ary and oral@ oral@ resen resented ted by the resondents during the trial, stand to be sham and are therefore negated effi2iently by the aella aellant* nt* 'he 2onten 2ontended ded sole sole basis basis of 2onvi2 2onvi2tio tionn- dying dying de2lara de2laratio tion n of the de2e de2eas ased ed,, is in2o in2ons nsis iste tent nt and and suff suffer erss seri seriou ouss infi infirm rmit itie ies, s, and and is not not furt furthe her r 2orroborated by other eviden2es- seiHure, inuest and sot an2hanama, ostmortem 4Supra ,ote ; 6 Section 399 o% IPC-M*rder #12et in the 2ases hereinafter e12eted, 2ulable homi2ide is murder, if the a2t by whi2h the death is 2aused 2aused is done with the intention of 2ausing 2ausing death, or-Se2ondly*--If it is done with the intention of 2ausing su2h bodily in!ury as the offender >nows to be li>ely to Se2ondly*--If 2ause the death of the erson to whom the harm is 2aused, or-'hirdly*--If 'hirdly *--If it is done with the intention of 2ausing bodily in!ury to any erson and the bodily in!ury intended to be infli2ted is suffi2ient suffi2ient in the ordinary 2ourse of nature to 2ause death, or-or-ourthly*--If the erson 2ommitting the a2t >nows that it is so imminently dangerous that it must, in all ourthly*--If robability, 2ause death or su2h bodily bodily in!ury as is li>ely to 2ause death, death, and 2ommits su2h a2t a2t without any e12use for in2urring the ris> of 2ausing death or su2h in!ury as aforesaid*
7 Paerboo> on .riminal Aeal, 7 th Lo>manya 'ila> National Aellate "oot .ourt .ometition, (9)4
"#"$%AN&U" on behalf of APP#LLAN' )
- Arguments-
Appellant- Appellant-
reort, indoor 2ase aers* Also, the 2hain of 2ir2umstantial eviden2es has not been established to dire2t the allegation of the 2ommitted 2rime towards the a22used* en2e, the rose2ution ?the resondents@ has not been able to rove their 2ase beyond all reasonable doubts that the a22used has 2ommitted the murder of the de2eased in all human robabilities, and therefore his 2onvi2tion for the same under se2tion /9( of IP. is in2orre2t and un!ust* #. THE
,U0GMENT
PASSE0
BY
THE
TRIAL
COURT
AS
NOT
APPROPRIATE
'he 'he !udg !udgme ment nt asse assed d by the the Sess Sessio ions ns .our .ourtt in the the favor favor of reso resond nden ents ts is not not ar aro oria riate* te* 'he 'he enti entire re trial trial 2ond 2ondu2t u2ted ed,, start startin ing g from from the the re2o re2ord rdin ing g of dyin dying g de2lara de2laratio tion, n, invest investigat igation ion ro2ed ro2edure ure till the resen resentati tation on of eviden eviden2es 2es and oral oral testimonies before the 2ourt, was as2ertained with many ro2edural lases whi2h 2annot 2annot be negle2ted negle2ted by the 2ourt merely by stating them to be mista>es whi2h are so minor, a22ording to them, that it would not affe2t the !udgment as a whole* irstly, the duties erformed by the oli2e head 2onstables mentioned in the 2ase therein, in re2ording the dying de2larations of the de2eased were not aroriately done* :ith regards to this, the in2onsisten2ies whi2h they show in their testimonies raise a doubt on the statement of the de2eased whi2h they re2orded, thereby ma>ing them sus2etible to be dis2arded* Se2ondly, the investigation ro2ess 2ondu2ted by the oli2e inse2tors amount to enormous errors and omissions in 2omlian2e to their duties, whi2h towards the end oses a uestion on the 2redibility of the eviden2es they seiHed in furtheran2e of roving the guilt of the a22used* a22used *8 urthermore, there has been gross in!usti2e done to the aellant by the Sessions .ourt through the way of misinterretation of fa2ts and 2ir2umstan2es of the 2ase and of the eviden2es resented for the same and thereby senten2ing him life imrisonment for the offen2e whi2h he did not 2ommit* It is very well de2ihered from the oral !udgment given and the reasoning thus atta2hed, that the 2ourt at few instan2es bought the the argu argume ment ntss of the the ae aella llant nt and and were were 2onv 2onvin in2ed 2ed thus thus,, holdi holding ng them them to be reasonable enough, but towards the end stated them to be failed attemts made by the aella aellant nt and 2onsidered 2onsidered that that the resond resondent entss still still had establi establishe shed d the fa2ts fa2ts + eviden eviden2es 2es and roved roved the 2ase 2ase beyond beyond all reason reasonabl ablee doubts doubts,, thereby thereby giving giving the de2ision in their favor*)9
8 Supra ,ote < )9 2b"d )9 2b"d
"#"$%AN&U" on behalf of APP#LLAN' (
- Arguments-
Appellant- Appellant-
'herefore, the !udi2ial interretation done by the Sessions .ourt seems to have no ne1us with the roer ali2ation of reasons and !ustifi2ations whi2h is not only to be done but to be seen as well as a matter of intelligible understanding*
ARGUMENTS A0ANCE0 A0ANCE0
647 647 TH THE E ACCUS CCUSE0 E0 AS NOT NOT RIGH RIGHTL TLY Y CON CONIC ICTE TE0 0 +OR +OR TH THE E O++E O++ENC NCE E PUNISHABLE UN0ER SECTION 39# O+ IPC.
)* 'he 2ounsels 2ounsels for aella aellant nt humbly humbly submit submit that that that there was no no intention intention to 2ommit 2ommit the a2t on behalf of the a22used* Prima fa2ie, OIntention; is the >ey ingredient in bringing home the guilt of the a22used* It is the mental state of the erson 2ommitting a 2rime whi2h ma>es him guilty of the offen2e thereby 2ommitted* It 2an be dedu2ed from the following fa2tors that the a22used in this 2ase had no mens rea to 2ommit the offen2e* (* irstly, irstly, there were were no bodily bodily in!uries in!uries on the de2eased de2eased rior rior to this in2ident in2ident and it 2an be inferred from the fa2t that there were no ma!or in2onsisten2ies in their relationshi and he didn;t have any su2h grudge against her sin2e the in2etion of their marriage* )) en2e, it is imrobable that he 2ould have develoed an intention to ut her to death at this stage of their lives* /* Se2ondl Se2ondly y, the 2ontenti 2ontention on that he had the intent intention ion to 2ommit 2ommit the a2t 2an be negated negated by the fa2t that he himself suffered burns on his hand while attemting to e1tinguish fire from her body* body* 0* 'he other other element element for de2idin de2iding g the offen2 offen2ee of murder murder is that that of the the O Commission of Act ; not :een :een @(ti @(ti@% @%ie ied d by the a22used by the a22used, whi2h in the resent 2ase has not
Somnath* :hen this arti2ular in2ident o22urred, the a22used was not resent there ?in the house@* 'his fa2t is suorted by the statements given by the rose2ution witness ) ?P:), =i!ay Nemade@ and defense witness ) ?&:), Ketan Nemade@ a22ording to whi2h the a22used was outside the house* 3* P:) has e1li2i e1li2itly tly brough broughtt out in his stateme statement nt that the a22used, a22used, Somna Somnath th was resent resent near the tra2tor along with his daughter when the wor> of unloading sand from the
)) Supra ,ote <
"#"$%AN&U" on behalf of APP#LLAN' /
- Arguments-
Appellant- Appellant-
trolley of the tra2tor was going on by P:) and when simultaneously the de2eased, "an!u 2ame running out of the house with her body on fire *)( 4* &:) has also also stated in in his testimony testimony that that on the day day of the in2ident in2ident when when he was was sitting in front of his house, wor> of unloading sand from tra2tor was going on by =i!ay Nemade and Kashinath Nemade and Somanth Satute, the a22used, was standing beside them along with his daughter, and that is when he saw "an!u, the de2eased, shouting and 2oming out of her house engulfed in fire* )/ 6* "oreov "oreover, er, both both of the above above mentio mentioned ned witnesse witnessess also also stated stated that when the neighbor neighbors, s, in2luding themselves, were trying to e1tinguish fire from the erson of the de2eased, the a22used had also attemted to e1tinguish fire from his hand though he did not su22eed in doing that* 7* en2e en2e,, all the above above fa2to fa2tors rs dire2 dire2tt towa toward rdss the the abse absen2 n2ee of intent intentio ion n and and the the nonnon2ommission of the a2t, whi2h are the res2ribed reuisites for the offen2e of murder, by the a22used, Somnath* 'he mere e1isten2e e1isten2e of the intention intention without 2ommission 2ommission of the a2t or the 2ommission of the a2t without the intent, does not, as a general rule, 2onstitute 2rimeM*)0 8* urt urth her, er, a 2hai 2hain n of circumstantial evidences ought to be satisfied by the rose2ution in order to rove that all the 2ir2umstan2es of the in2ident dire2t to the guilt of the a22used whi2 whi2h h in the the insta instant nt 2ase 2ase the the ros rose2 e2ut utio ion n has has faile failed d to do* do* "oreo "oreove ver, r, the the rov roved ed 2ir2umstan2es must be 2onsistent only with the hyothesis of the guilt of the a22used and totally in2onsistent with his inno2en2e* )9* It is well to remember remember that in 2ase where the eviden2e is of a 2ir2umstantial 2ir2umstantial nature, the 2ir2umstan2es from whi2h the 2on2lusion of guilt is to be drawn should in the first instan2e be fully established, and all the fa2ts so established should be 2onsistent only with the hyothesis hyothesis of the guilt of the a22used* Again, Again, the 2ir2umstan2es 2ir2umstan2es should be of a 2on2lusive nature and tenden2y and they should be su2h as to e12lude every hyothesis but the one roosed to be roved* In other words, there must be a 2hain of eviden2e so far 2omlete as not to leave any reasonable ground for a 2on2lusion 2onsistent with the inno inno2en 2en2e 2e of the the a22u a22used sed and it must must be su2h su2h as to show show that that with within in all human human robability the a2t must have been done by the a22used*)3
)( Supra ,ote <% -4 <% -4 )/ Supra ,ote <% -49 <% -49 )0 P* %A"ANA'A AICA%, C!,C2SE A8 &2C$2!,AR( , L#DIS N#DIS BU''#%:$%'S :A&:A :A&:A NAPU%, 440 ?0 th ed* (9)(@* ,argundkar v* )3 *anumant 'o)"nd ,argundkar v* State of Madha Pradesh% )83/.riL5)(8*
"#"$%AN&U" on behalf of APP#LLAN' 0
- Arguments-
Appellant- Appellant-
44. 44. In a 2ase based on 2ir2umstantial eviden2e, the settled law is that the 2ir2umstan2es from
whi2h the 2on2lusion of guilt is drawn should be fully roved and su2h 2ir2umstan2es must be 2on2lusive in nature* "oreover, all the 2ir2umstan2es should be 2omlete and there should be no ga left in the 2hain of eviden2e* urther, the roved 2ir2umstan2es must be 2onsistent only with the hyothesis of the guilt of the a22used and totally in2onsistent with his inno2en2e* inno2en2e *)4 )(* All the eviden2e eviden2ess resen resented ted by the resonde resondents nts in order order to suor suortt their their 2ase, 2ase, stand stand inad inadmi missi ssibl blee and and nonnon-2re 2redi dibl blee sin2 sin2ee they they suff suffer er from from vario various us dis2 dis2re rean an2ie 2iess and and 2ontradi2tions whi2h has made them unable to rove their 2ase beyond all reasonable doubts* Below resented is a list of all the eviden2es ?both do2umentary and statement from witnes witnesses@ ses@ along along with with their their in2ons in2onsiste isten2i n2ies es whi2h whi2h the aella aellants nts would would negate negate 2onse2utively* ORAL TESTIMONIES"i$
St(te'en 'ent o% o% P P4= i iD( Ne Ne'(d '(de.
)/* irstly, this this rose2ution witness stated in his testimony that when he was unloading unloading sand from trolley of his tra2tor near his house, at that time the a22used, Somnath was resent near the tra2tor along with his one year old daughter* daughter* :hen the de2eased 2ame running running out of the house shouting in a state of being engulfed in fire, the a22used was there outside along with the other neighbors and had also attemted to e1tinguished fire by his hand* )0* Se2ondly, when =i!ay =i!ay and others too> the de2eased to the hosital in the !ee, during that time she told him to ta>e 2are of her daughter and that her husband is not at fault in this in2ident*)6 "oreover, in the !ee in their resen2e, the mother of the de2eased was instigating instigating her against against the a22used* After admitting admitting her in the hosital, hosital, when the oli2e rea2hed there in order to do inuiry about about the in2ident, in2ident, all of them were as>ed to va2ate the room but the mother a22omanied the de2eased while the inuiry was made by the oli2e* 'he resen2e res en2e of mother during the time of re2ording of dying de2laration de2lar ation of the de2ea de2eased sed by the the oli2 oli2e, e, is )er"f"ed by the history stated in the Indoor .ase Paers ?#1h*03@)7 in whi2h every detail is mentioned as to what a2tions were ta>en ea2h day after her admission in the hosital, who visited the ward on a arti2ular day, what is the
)4 C. Chenga Redd + !thers v* State of Andhra Pradesh% )884.riL5/04)* )6 Supra ,ote => )7 Supra ,ote <% -/8 <% -/8
"#"$%AN&U" on behalf of APP#LLAN' 3
- Arguments-
Appellant- Appellant-
2ondition of the atient after a 2ertain time interval, what treatment is going on, what tye of in!uries are suffered by the atient, et2* )3* 'hirdly 'hirdly, the assistant assistant oli2e investigato investigatorr in his statement statement mentioned that he has 2orre2tly 2orre2tly re2orded re2orded ortion mar>ed A in the statement statement of =i!ay =i!ay given to him and is at #1h*39* But =i!ay 2laims that he has not stated anything of ortion A in his statement earlier made to the oli2e and 2annot assign any reason as to why it aeared in his statement when it was read over to him* 'he ortion mar>ed A is the fa2t that whether the de2eased stated the entire in2ident to =i!ay as to what haened inside the house and how she 2aught fire over over hers herself elf** 'he 'he 2ont 2ontest ested ed fa2t fa2t over over here here is that that the the oli oli2e 2e 2laim 2laim that that =i!ay has has ment mentio ione ned d in his his statem statemen entt abou aboutt the the in2i in2ide dent nt whi2 whi2h h was was narra narrate ted d to him him by the the de2eased, but =i!ay 2laims in his statement before the sessions 2ourt during the trial that the de2eased at no oint of time has mentioned about the entire in2ident of that arti2ular day to him and the mention of the same in his statement given to the oli2e is not 2orre2t* 2orre2t*)8 )4* Lastly, Lastly, the testimony of =i!ay =i!ay is reliable reliable and 2annot be dis2arded dis2arded as a whole on a22ount of being turned into hostile witness* 'he test of hostility is that of 2orroboration and 2ontradi2tion, and not mere addition* ad it been the 2ase where =i!ay would have said a arti2ular thing about the resen2e of the a22used in his revious statements and later would have res2inded from it by ma>ing another 2ontradi2ting statement before the 2ourt, then the issue of hostility would have barged into the s2ene, but here, =i!ay nowhere stated in his revious statements that a22used was there at some anonymous la2e at the time of the in2ident and then later before the 2ourt stated that the a22used was standing outside the house along with him* him *(9 en2e, his testimony is admissible* )6* 'he mere fa2t that the truth has been revealed and it has gone against the arty 2alling 2alling him as a witness 2annot render his eviden2e unreliable wholly or in art* A witness is not ne2essarily hostile if he reveals the truth* 'he whole of his eviden2e so far as it affe2ts both the arties, favorably or unfavorably, must be 2onsidered and the th e 2ourt whi2h gets the the oo oort rtun unit ity y to obse observ rvee his his deme demean anor orss is at libe liberty rty to ma>e ma>e asse assessm ssmen entt of the the eviden2e* eviden2e* If 2orroboratio 2orroboration n from other sour2es is available to the eviden2e of a hostile hostile witness, there is no reason why his eviden2e should be re!e2ted outright* If the eviden2e of the hostile witness fits in with the attending 2ir2umstan2es, then it may be a22eted and 2onsidered along with other eviden2e* ()'he statement statement of hostile hostile witness is not to be
)8 Supra ,ote => (9 2b"d (9 2b"d () S"dd"4ue Munsh" v* Munsh" v* State, State, )88( )( BL& ?A&@38*
"#"$%AN&U" on behalf of APP#LLAN' 4
- Arguments-
Appellant- Appellant-
re!e2ted as a whole simly on the ground that the witness is hostile* If some ortion of the hostile witness if insired 2onfiden2e it 2an be relied uon* uon*(( )7* 'he statement statement of hostile hostile witness 2annot be altogether altogether dis2arded dis2arded but it should should be 2losely s2rutiniHed and that ortion of the eviden2e whi2h is 2onsistent with the 2ase of the resondents or aellants may be a22eted* (/ )8* 'he on;ble Sureme .ourt .ourt in various !udgments !udgments dis2ussed about the hostile witnessa* In Md. Badarudd"n Ahmed v* v* State of Assam Assam in this Sureme .ourt told that unless the arti2ular matter on view in revious statements sought to be 2ontradi2ted is la2e before the witness for e1lanation, the revious statement 2annot be used in eviden2e* 'he drawing of the attention of witness to his revious statement sought to be 2ontradi2ted and giving of all oortunities to him for e1lanation are 2omulsory* 2omulsory*(0 b* In $hankappan Mohanan v* State of Kerala, Kerala, the .ourt held that what is really ne2essary is substantial 2omlian2e of reuirements of se2tion )03 of the A2t and the urose of se2ond art of se2tion )03 is to treat the witness fairly him reasonable oortunity to e1lain the 2ontraindi2ations after his attention has been drawn to them* 'he ideal ro2edure would be to re2ord and e1tra2t in deositions relevant revious statements*(3 2* In Sed Akbar v* v* State of Karnataka Karnataka .ourt said that witness though turned hostile, we 2an;t re!e2t his testimony in totality* If his testimony was not sha>en on material oints in 2ross e1amination then it 2annot be brushed aside*(4 (9* irstly our witness witness is not hostile hostile and the after seeing above above !udgments !udgments we 2an find that the statement of ostile witness 2an be relied uon* 'he above !udgments 2learly e1lain the 2ondition where testimony of hostile witness 2an be a22eted* "ii$ ii$ St( St(te'e te'en nt o% o% 0 04= Ke Kett(n Ne'( Ne'(de de.. ()* ()* 'his 'his defe defense nse witn witness ess stated stated in his his test testimo imony ny that that when when the the in2id in2iden entt o22u o22urre rred d on
(0<98<(9)9, he was sitting in front of his house* 'here he saw the a22used standing with his daughter beside =!iay Nemade and Kashinath Nemade Nemade who were doing the wor> of unloading sand from the tra2tor, and at that time he heard the shouts of the de2eased as she 2ame running out of her house engulfed in fire *(6 (( Ashok Kumar Uttamchand Shah v* Shah v* Patel Patel Mohmad Asmal Chanchad% AI%)888u!*)97* Chanchad% AI%)888u!*)97* (/State (/State of U.P. v* U.P. v* Ramesh Ramesh Prasad M"shra and Anr * )884=IA&?S.@(98* (0 Md. (0 Md. Badarudd"n Ahmed ). ). State of Assam% )878.riL5)764* Assam% )878.riL5)764* (3 'han>aan "ohanan and $rs* v* State of Kerala, IL%)889?(@Kerala(( (4 Sed Akbar v* v* State of Karnataka AI%)868S.)707 Karnataka AI%)868S.)707 (6 Supra ,ote =?
"#"$%AN&U" on behalf of APP#LLAN' 6
- Arguments-
Appellant- Appellant-
((* Ketan Ketan was the one one who had e1tingui e1tinguished shed fire by wrai wraing ng blan>et blan>et around around her and therefore it;s not reasonable to show that he would ma>e a statement against her in order to save the a22used* "oreover, at this time the de2eased told him that she herself set her on fire and that her husband is not at fault, and when her mother arrived there she stated to her the same thing* 'his shows her 2onsisten2y in 2laiming that her husband was nowhere at fault in this in2ident and that she herself had set her on fire* (7 (/* en2e, both the above above mentioned mentioned witnesses show that the a22used is not guilty of the offen2e of murder of his wife and their testimonies are reliable and trustworthy for the uroses of the 2ourt in as2ertaining the 2orre2tness of eviden2es resented during the entire trial* As Add* Session .ourt dis2arded the statement of Ketan Nemade by saying that he is the interested witness* 'hat;s why the following are the arguments related to the interested witness* (0* 2nterested (0* 2nterested +"tness the term Ointerested witness;; witness;; ostul ostulates ates that the witness must have some dire2t interest in having the a22used somehow or the other 2onvi2ted for some animus or for some other reasons*(8 (3* 'he eviden2e eviden2e tendered by the defense witness 2annot 2annot be always termed as to be tainted one by reason of the fa2tum of the witnesses being e1amined by the defense* 'he defense witnesses are entitled to eual rese2t and treatment as that of the rose2ution* 'he issue of 2redibility and the trustworthiness ought also to be attributed to the defense 2ounsel at ar with that of the rose2ution*/9 'hat;s why the statement of Ketan Nemade should be treated eually as the statement of Prose2ution witnesses* (4* A witness witness may be 2alled QinterestedQ QinterestedQ only when he or she derives some benefit from the result of litigation in the de2ree in a 2ivil 2ase or in seeing an a22used erson unished* /) (6* A witness witness is normally normally to be 2onsidered 2onsidered indeendent indeendent unless he or she srings from sour2es whi2h are li>ely to be tainted and that usually means unless the witness has 2ause su2h as enmity against the a22used, to wish to imli2ate him falsely*/( $rdinarily, a 2lose relative would be the last to s2reen the real 2ulrit and falsely imli2ate an inno2ent erson* // (7 Supra ,ote =? (8 5US'I.# .*K* 'AKK#% + "*.* 'AKK#%, #N.C.L$PA#&I. LA: L#DI.$N, AS$KA LA: $US#, =$L* ( ?) st ed* (9)9@* /9 Munsh" /9 Munsh" Prasad v* v* State of B"har , (99)?0@PL5%)73* /) State of Ra#asthan v* Smt. Kalk" 1 Anr , AI%)87)S.)/89 /( 5US'I.# "* "UNI%, '# LA: $ #=I&#N.#, UNI=#%SAL LA: PUBLISIN .$*, ?7' #&* (9))@* // Kart"k Malhar v* v* State of B"har , )884?)@AL&?.ri@6/
"#"$%AN&U" on behalf of APP#LLAN' 7
- Arguments-
Appellant- Appellant-
(7* 'estimo 'estimony ny of interested interested witnesses 2annot be altogether dis2arded dis2arded it should should be deal with more 2are and 2aution* /0 If interested witness is 2onsistent, free from any doubt and insire 2onfiden2e then it 2annot be dis2arded merely on the ground that witnesses are related to ea2h other */3 :hen eviden2e eviden2e available on re2ord is trustworthy, then re!e2tion of eviden2e of witnesses on the grounds of being interested being un!ustified*/4 (8* 'he above 2onditions 2onditions are laid down in the different different 5udgments 5udgments of the .ourts .ourts if we see this above guidelines and 2omare with this resent 2ase then we 2an see that Keta Ketan n Nema Nemade de is not not an inter interest ested ed witn witness ess and he is only only the the indeendent indeendent witness and his testimony 2annot be dis2arded dis2arded and .ourt .ourt should should ta>e his testimony for 2onsideration* urther, the other witnesses resented by the the reso resond nden ents ts la2> la2> 2redi 2redibi bilit lity y sin2e sin2e they they are as2er as2ertai taine ned d with with 2ertai 2ertain n in2onsisten2ies* 'hose are subseuently s ubseuently negated below*
"iii$ iii$
St( St(te'e te'en nt o% P<= 0r. 0r. P(ndi (nditt S('i ('i== tre(tin (tin doct octor o% M(nD* nD* S(t?*te.
/9* /9* 'he 'he do2to do2torr durin during g his his 2hie 2hieff e1am e1amin inati ation on state statess that that at the the time time of ma>i ma>ing ng dyin dying g de2larations to the oli2e, the de2eased was 2ons2ious and in a state of ma>ing valid statement whi2h on 2onfirming only he allowed to ta>e statements, but later during his 2ross e1amination he states that in both the de2larations ?#1h*(( and /0@ there is no referen2e as to the 2onfirmation that the atient was 2ons2ious and oriented* /)* /)* "ore "oreov over er,, in both both his his statem statemen ents ts duri during ng the the trial trial he 2ont 2ontes ested ted that that he had had made made endorsements on both the de2larations after they had been re2orded by the rese2tive oli2e 2onstables in order to verify that the de2laration was given by the atient only when it was 2onfirmed by him that she was in a fit and 2ons2ious state of mind to give the same, but those endorsements aear nowhere in the e1hibits of dying de2larations resented before the sessions 2ourt as a matter of do2umentary eviden2e*/6 'hus, this raises a doubt on the admissibility and reliability of the testimony given by this do2tor*
/0 Sugal" Sankaramma 1 !rs. v* !rs. v* 6anna 6enkates+arlu 1 !rs., !rs. , (990 .riL5 (370 /3 Paras /3 Paras Kumar v* State of B"har , (99) ?/@PL5%/76?at@ /4 Supra ,ote =; /6 Supra ,ote <% -)(, <% -)(, (/
"#"$%AN&U" on behalf of APP#LLAN' 8
- Arguments-
Appellant- Appellant-
"i2$ "i2$
St(t St(te' e'en entt o% P3= P3= Ro&( Ro&(n n Pr(2 Pr(2in in C&(n C&(ndr dr(. (.
/(* 'his witness was 2alled in the oli2e station for an2hanama* A22ording to his his statement he was 2alled in order to be a witness for the seiHure of the 2lothes of the a22used* But in a2tuality what haened was that the 2lothes were already seiHed and were >et beside the a22used when he rea2hed the oli2e station, and he was a witness of only the a2t that the seiHed 2lothes were wraed in brown aers searately, were labeled and then sent for further ro2edure /7* en2e, his role as a an2h witness has not been aroriately 2omlied with and therefore 2annot be 2onsidered reliable eviden2e* "2$ "2$
St(t St(te' e'en entt o% P;= P;= 0r. 0r. A:& :&iD iDee eett B()( B()( S& S&e) e)Fe Fe..
//* 'his 'his witnes witnesss is an autos autosy y surgeon surgeon to whom whom the 2orse 2orse of the de2eased de2eased was sent sent for 2ondu2ting the ostmortem* e has simly stated in his testimony about the in!uries being ante mortem in nature and the sho2> due to burns the 2ause of the death* /8 .onseuentially, his deosition as a witness testimony is not suffi2ient enough in order to rove the guilt of the a22used for the offen2e of the murder of the de2eased* de2eased*
"2i$ "2i$
St(t St(te' e'en entt o% o% P8 P8== At' At'(r (r(' (' 0e2i 0e2id( d(@@ Ne' Ne'(d (de. e.
/0* 'his 'his witnes witnesss is a an2h an2h witness* witness* e mentio mentioned ned in his 2hief e1amina e1aminatio tion n that that he was 2alled in the house of the a22used while he was assing from his house where he found ie2es of burnt saree* Poli2e seiHed the arti2les in a lasti2 bag, reared an2hanama and obtained his signature* e 2ontends that that an2hanama was then shown to him and the 2ontents read over to him were 2orre2t* Also, he stated that if the arti2les, i*e*, burnt ie2es of saree, sare e, mat2h bo1 and lasti2 2an, are a re shown s hown to him then he 2an identify them, but when the arti2les were later shown to him he was not able to identify them* "oreover, in his 2ross e1amination he has stated that it is true that nothing was seiHed by the oli2e in his resen2e and they simly obtained his signatures on blan> aers* 09 'his statement of his altogether raises a serious doubt on its 2redibility and is thus eligible for being dis2arded sin2e it fails to suort any >ind of eviden2e whi2h would would rove the guilt of the a22used*
/7 Supra ,ote <% -)4 <% -)4 /8 Supra ,ote <% -(0 <% -(0 09 Supra ,ote <% -3) <% -3)
"#"$%AN&U" on behalf of APP#LLAN' )9
- Arguments-
Appellant- Appellant-
0OCUMENTARY EI0ENCES"i$ "i$
0YIN 0YING G 0ECL 0ECLAR ARA ATIONION-4 4 "AT "AT E1H E1H.# .##$ #$ AN0 AN0 0YIN 0YING G 0ECLA 0ECLARA RAT TIONION-# # "AT "AT E1H.3!$ GIEN BY THE 0ECEASE0= MAN,U SOMNATH SATPUTE.
/3* $n (0<98<)9, when the de2eased was admitted in the burn ward no*(3 of the Ambi>aur Ambi>aur osital, her statement was re2orded by Poli2e ead .onstable, Sharad :alun! at around )*/9m )*/9m** Later Later anothe anotherr stateme statement nt was re2orde re2orded d at around around 3*/9 m by Poli2e Poli2e ead ead .onstable, Subhash Shiva!i* 0)
2,C!,S2S$E,C2ES BE$8EE, BE$8EE, 72RS$ A,& A,& SEC!,& &(2,' &ECARA$2!,:&ECARA$2!,:/4* 'he reason as to why both the dying de2larations de2larations given given by the de2eased de2eased 2annot be relied uon as the sole basis for the 2onvi2tion is that they amount to 2ontradi2tions e1isting among themselves* /6* In State of Maharashtra )s. San#a S5o &"gambarrao Ra#hans @>, the de2eased suffered 83E burn in!uries and the dying de2larations she gave, 2onstituted allegations against the a22used* But they la2>ed 2onsisten2y therefore the 2ourt held that they were not reliable and did not insire the 2onfiden2e of the 2ourt* /7* irstly, irstly, the gravity of osing allegation allegationss on the a22used in the instant 2ase was mu2h more in the se2ond de2laration in 2omarison to the first one* In the first de2laration she initially stated that the a22used always used to tell her to get money from her mother and used to abuse, threaten and beat her as well* 'hen, when she as>ed him to ta>e her to the 2lini2 he relied by saying that why was she shrie>ing, that he wouldn;t ta>e her to the hosital and instead she should die* Being annoyed by this rea2tion she oured >erosene available in the home on her body* urther she mentioned that she sustained burn in!ures on her 2hest, abdomen, hands and legs and therefore she has a legal 2omlaint against him*0/ /8* Later in the se2ond de2laration de2laration she modified her statement by saying saying that right from the solem solemni niHat Hatio ion n of their their marri marriag agee till till the the date date of the the in2i in2ide dent nt,, the the a22us a22used ed used used to 2ontinuously trouble her to get money from her maternal home for 2onstru2tion of house*00 She informed informed about the same to the eole at her maternal house to whi2h they resonded by saying that her husband;s behavior would 2hange and she should 2ontinue her marital life* urther, she mentioned that he 2ontinued harassing her hysi2ally and 0) Supra ,ote <% -6, <% -6, (9 0( AI%(993S.86 0/ Supra ,ote <% -)( <% -)( 00 Supra ,ote <% -(/ <% -(/
"#"$%AN&U" on behalf of APP#LLAN' ))
- Arguments-
Appellant- Appellant-
mentally for all the years of their married life and then on the date of the in2ident when when she as>ed him to ta>e her to the 2lini2 he relied by telling her to get out of the house and assaulted her with hands* Being annoyed by this, she oured >erosene over her and to this he said that he would >ill >ill her and set her on fire* She 2laims that he tried to >ill her and therefore she has a legal 2omlaint against him* 09* rom the above above mentioned statements, it is aarent that there there are 2ertain in2onsisten2ies between both the statements given by the de2eased* 'he time differen2e between the re2ordings of these de2larations is aro1imate / hours* 'he oli2e 2onstable ta>ing the se2ond de2laration said that when he went near her in order to re2ord her statement, she was lying in bed 2almly* en2e, it dire2ts the aellants to the fa2t that she was in a roer state of mind and had amle amount of time to reiterate her statements with modifi2ations whi2h 2onseuentially were of a greater intensity* intensity*03 0)* &ying de2laration de2laration should should be of su2h a nature nature as to insire full 2onfiden2e 2onfiden2e of the .ourt in its truthfulness and 2orre2tness, as the a22used has no ower of 2ross e1amination* 04 'his reuisite reuisite of a dying de2laration de2laration to be 2onsidered 2onsidered as reliable and admissible in a 2ourt of law is absent and not satisfied in the resent 2ase sin2e the de2eased was beheld in a rage of revenge against the 2ruelty whi2h she 2laims that the a22used has been osing uon her from the ast years of their marriage* She was under an imression that it is highly robable that her husband will be 2onvi2ted if she gives su2h a statement whi2h shows her utmost utmost miserable miserable 2ondit 2ondition ion,, hen2e hen2e there there was an additio addition n in her se2ond se2ond dying dying de2laration to ma>e his 2onvi2tion 2ertain* "oreover, the uestion of Oassault; also 2omes into i2ture later*06 E77EC$ !7 2,S$2'A$2!, 2,S$2'A$2!, !R $U$!R2,' !, &(2,' &ECARA$2!,:&ECARA$2!,:0(* &ying de2laration de2laration should should be free from any >ind of instigation instigation or influen2e influen2e else it uts a uestion uestion on the 2redibility 2redibility of the statement made by the erson* 'he statement statement made by the de2eased was instigated by her mother* 'his 2ontention 2an be suorted by P:);s statement wherein he stated that throughout their way to hosital in !ee the mother of the de2eased was instigating her to give the statement against the a22used and also she was resent when her dying de2laration was being re2orded* 07 'he 'he foll follow owin ing g test test 2an be devi devised sed in orde orderr to answ answer er the the ues uesti tion on whet whethe herr dyin dying g de2laration is true or not03 2b"d 03 2b"d 04 6asanta S5o Shra+an 'a#bh"e v* State of Maharashtra through through PS!% (996?)98@B$"L%(()0 06 Supra ,ote @@ 07 Supra ,ote =>
"#"$%AN&U" on behalf of APP#LLAN' )(
- Arguments-
Appellant- Appellant-
)@ :heth :hether er the the de2la de2laran rantt had had suff suffi2i i2ien entt oo oort rtun unity ity to obser observe ve and and iden identif tify y his his assailantJ (@ :hethe :hetherr the 2aa2ity 2aa2ity of the de2larant de2larant to remember remember the fa2ts fa2ts stated, stated, had not been been imaired at the time he was ma>ing the statement, by 2ir2umstan2es beyond his 2ontrol either due to nature of in!uries or for any other 2auseJ /@ :hether :hether the statement statement has been 2onsist 2onsistent ent througho throughout ut if the de2larant de2larant had several several oortunities of ma>ing a dying de2laration aart from the offi2ial re2ord of it* 0@ :hether :hether the statement statement had been been made at the earliest earliest oortun oortunity ity and was was not the the result of tutoring by interested artiesJ 3@ :hethe :hetherr the stateme statement nt made by the de2larant de2larant is intrinsi intrinsi2ally 2ally sound sound and a22ord a22ord with robabilitiesJ 4@ :het :hethe herr any any mate materi rial al art art of stat statem emen entt is rov roved ed fals falsee by othe otherr reli reliab able le eviden2e*08
0/* In the the 2ase of of Mona &as v* State v* State of Assam, Assam , it was held that though a dying de2laration is entitled to great weight, weight, it is worthwhile worthwhile to note that the a22used has no ower of 2rosse1amination* Su2h a ower is essential for eli2iting the truth as an obligation of oath 2ould be* 'his is the reason the .ourt also insists that the dying de2laration should be of su2h a nature as to insire full 2onfiden2e of the 2ourt in its 2orre2tness* 'he .ourt has to be on guard that the statement of de2eased was not as a result of either tutoring or romting or a rodu2t of imagination* 'he .ourt must be further satisfied that the de2eased was in a fit state of mind after a 2lear oortunity to observe and identify the assai assailan lant* t* $n2e $n2e the the 2our 2ourtt is sati satisfi sfied ed that that the the de2la de2larat ratio ion n was was true true and and volu volunt ntary ary,, undoubtedly, it 2an base its 2onvi2tion without any further 2orroboration* It 2annot be laid down as an absolute rule of law that the dying de2laration 2annot form the sole basis of 2onvi2tion unless it is 2orroborated* 'he rule reuiring 2orroboration is merely a rule of ruden2e*39 00* In the the 2ase 2ase of Kr"shna 1 Anr. Anr. )s. State of Ra#asthan, Ra#asthan , the 2ourt held that there are a number of dying de2larations then the dying de2laration made first in the oint of time should be given referen2e as there are lesser 2han2es of tutoring or romting by the 08Chandra+at" 08Chandra+at" v* State* State* )884 .rL5 863, S*.* SA%KA%, .$""#N'A%C $N #=I&#N.#, &:I=#&I LA: A#N.C, 4//, =$L* ) ?( nd ed* (997@* 39 (9)0.riL5)690
"#"$%AN&U" on behalf of APP#LLAN' )/
- Arguments-
Appellant- Appellant-
interested arties* All the dying de2larations made by the de2eased should be 2onsistent and and if ther theree is any any in2o in2ons nsist isten en2y 2y then then no relia relian2 n2ee 2an be la2e la2ed d on thes thesee dyin dying g de2larations*3) Absence of Mag"strate:03* urther, absen2e of "agistrate in re2ording dying dying de2laration is a 2ru2ial oint whi2h the state has negle2ted on their art* 04* 04* In the the 2ase of of &amodaran &amu )s. State, State , it was held that dying de2laration made to a Poli2e $ffi2er is also admissible under se2tion /( of the Indian #viden2e A2t, )76( but it is better to >ee a dying de2laration made to a Poli2e $ffi2er out of 2onsideration until and and unle unless ss the the ros rose2u e2uti tion on satisf satisfie iess the the 2our 2ourtt as to why why it was was not not re2or re2orde ded d by a "agistrate or at least by a do2tor* 'he ra2ti2e of investigating $ffi2ers themselves re2ording dying de2laration when it is ossible by a "agistrate or a do2tor will have to be dis2ouraged in order to avoid wrong de2larations being ut in* 3( 06* In the the 2ase 2ase of Bhanudas Bandu $h"te v* State of Maharashtra, Maharashtra , the a22used was in hosital for more than three days, it was surrising to note that her dying de2laration was not re2orded by Se2ial #1e2utive "agistrate and this a22ording to the 2ourt, 2reated doubt about genuineness of rose2ution 2ase* 2ase *3/ 07* 07* In the the 2ase 2ase of Smt. Madhu Bala v* State /&elh" Adm"n"strat"on.0, Adm"n"strat"on.0, it was held that it is mand mandat ator ory y for for the the inve invest stig igati ating ng offi offi2er 2er or othe otherr oli oli2e 2e offi offi2e 2ers rs to aly aly to .hief .hief "etroolitan "agistrate to deute some "agistrate for re2ording of dying de2laration* 30 08* urthe urther, r, in the the 2ase of Bas"r S"ngh 1 !rs. !rs . v* State of Ra#asthan ;; it was said that dying de2larations ta>en by oli2e head 2onstables or the investigating offi2ers reuire to be dis2ouraged* dis2ouraged* 'hey are always interested in the su22ess of the investigation, investigation, hen2e, they 2annot be said to be indeendent witnesses and the dying de2laration re2orded by them should always be dis2ouraged* 34 39* 39* In the the 2ase 2ase of Balak of Balak Ram v* State of U.P. it was observed observed that investigatin investigating g offi2ers are >eenly interested in the fruition of their efforts and though there is no assumtion against
3) )884?(@:LN)/0 3( )889?)@KL5(37 3/ (9)/?0@AB%4) 30)878?)6@&%5)67 )889.riL5689* 33)880.riL5(3(4* 34S*.* SA%KA%, .$""#N'A%C $N #=I&#N.#, &:I=#&I LA: A#N.C, 344, =$L* ) ?( nd ed* (997@*
"#"$%AN&U" on behalf of APP#LLAN' )0
- Arguments-
Appellant- Appellant-
their vera2ity, it is not rudent to base the 2onvi2tion on a dying de2laration made to an investigating offi2er *36 3)* %e2ording of a &ying &ying de2laration by a Poli2e Poli2e $ffi2er or "edi2al $ffi2er:here a dying de2laration is re2orded by a Poli2e $ffi2er or a "edi2al $ffi2er, it shall, so far as ossible, ought to be attested by one or more of the ersons who haen to be resent at the time*37 3(* &ying de2laration de2larationss to be re2orded by 5udi2ial 5udi2ial "agistrates?i@ "agistrates?i@ :here a erson whose eviden2e is essential to the rose2ution of a 2riminal 2harge or to the roer investigation of an alleged 2rime, is in danger of dying before the enuiry ro2eedings or the trial of the 2ase 2ommen2es, his statement, if ossible, be got re2orded by a 5udi2ial "agistrate* :hen the oli2e offi2er 2on2erned with the investigation of the 2ase or the medi2al offi2er attending uon su2h erson arehends that su2h erson is in the danger of dying before the 2ase is ut in .ourt, he may aly to the .hief 5udi2ial "agistrate, and, in his absen2e, to the senior most 5udi2ial "agistrate resent at the headuarters, for re2ording the dying de2laration* de2laration*38 Absence of f"tness cert"f"cate:3/* Also, before re2ording re2ording the dying de2laration de2laration of the de2eased, fitness fitness 2ertifi2ate was not obtained by the oli2e from the do2tor on duty whi2h is a reuirement in the sense that it verifies the hysi2al and mental 2ondition of the atient that whether or not she is in a roer and fit state of mind to >now what she was going going to say in her statement* 49 30* In the the 2ase 2ase of 'o)"nd *ar" S+am 1 !rs. v* State State of U.P. U.P.% it was held that dying de2laration, whi2h is not 2ertified by do2tor, shall not be a22etable* 4) 33* In the the 2ase of of 'anpat v* State of Maharashtra whether de2eased was in a fit state of mind at the time of ma>ing any su2h statement was highly doubtfulJ and in the absen2e of eviden2e of the do2tor, who is suosed to have 2ertified de2easedQs fitness to ma>e a statement at the material time, it is more robable than not that de2eased was not in a fit state of mind to ma>e a roer, and rational statement* 4( 34* 34* In the the 2ase 2ase of Paparambak Rosamma 1 !rs. v* State of Andhra Pradesh it was stated that a22ording a22ording to Se2tio Se2tion n /( of Indian Indian #viden #viden2e 2e A2t, A2t, )76(, )76(, erson erson ma>ing ma>ing dying dying 36 )860.riL5)074 37 &(2,' &ECARA$2!,S% &ECARA$2!,S% htt<
"#"$%AN&U" on behalf of APP#LLAN' )3
- Arguments-
Appellant- Appellant-
de2laration de2laration in hosital hosital before "agistrate, no eviden2e led to rove that erson in sound state of mind to ma>e de2laration, only eviden2e led was for his 2ons2iousness, medi2al 2ertifi2ate not obtained for 2ertifying state of mind of erson ma>ing de2laration, 2ase of 2ir2u 2ir2ums mstan tanti tial al evid eviden en2e 2e shou should ld be rov roved ed beyon beyond d reaso reasona nabl blee doub doubt, t, absen absen2e 2e of 2ertifi2ate raises doubt on state of erson ma>ing de2laration, dying de2laration not aears to be reliable and authenti2*4/ "ii$
S?ot ?(nc&n('(
Section 499 > Per@on@ in c&(re o% c)o@ed ?)(ce to ())o @e(rc&. 36* Se2tion )99?0@ )99?0@ 40 before ma>ing a sear2h under this 2hater, the offi2er or other erson
about to ma>e it 2all uon two or more indeendent and rese2table inhabitants of the lo2ality in whi2h the la2e to be sear2hed is situate or of any other lo2ality if no su2h inhabitant inhabitant of the said lo2alities is available or is willing willing to be a witness to the sear2h, to attend and witness the sear2h, to attend and witness the sear2h and many issue an writing to them or any of them so to do* 37* In this resent 2ase five things things were seiHed from the home home of the a22used by the "hadur oli2e station43 and they are a* Blui Bluish sh li liui uid d in a las lasti2 ti2 2an 2an b* "at2h sti2> 2ontaining mat2h sti2>s 2* Parti Partiall ally y burn burntt saree saree and and blou blouse se d* '-shir -shirtt wra wraed ed in aer aer** e* ull ull an antt wra wrae ed d in in a aer er** 38* 'here were two indeenden indeendentt witnesses witnesses to this an2hnama, an2hnama, they were Atmaram Atmaram &evidas Nemade and &eea> Nemade* 49* Sot an2hnama an2hnama was made on (3<8<(9)9 (3<8<(9)9 and the in2ident haened haened on (0<98<(9)9 (0<98<(9)9 and the house was in the oen 2ondition* So it is highly robable that the eviden2es would have been tamered in one or the other way* 4)* Shri Atmaram Atmaram &evidas &evidas Nemade said that nothing was seiHed by oli2e in his resen2e resen2e and oli2e simly obtained signature on the blan> aer* 44 :hen he was assing from there oli2e !ust 2alled him in the house* Poli2e 2alled &eea> Nemade and Atmaram at the same time* If we 2omare se2tion )99 ?0@ with the resent situation, in this 2ase no indeen indeenden dentt witnes witnesss were were there, there, oli2e oli2e !ust !ust got their their signat signature ure on the blan> blan> aer aer**
4/ )888?/@A.%()08?S.@ )888?/@A.%()08?S.@ 40 Se2tion )99?0@, '# .$&# $ .%I"INAL P%$.#&U%#, BA%# A.', P%$#SSI$NAL B$$K PUBLIS#%S*
43 Supra ,ote <% -0 <% -0 44 Supra ,ote <% -3) <% -3)
"#"$%AN&U" on behalf of APP#LLAN' )4
- Arguments-
Appellant- Appellant-
Indeendent witnesses only saw the arti2les already seiHed in the bag and they didn;t see the seiHing of the arti2les* 'hat is why the sot an2hnama doesn;t have any 2redibility* 4(* "oreover, "oreover, the ob!e2t of the rovision rovision is to guard against against ossible 2hi2anery 2hi2anery and unfair dealings on the art of the ersons authoriHed to sear2h and to ensure that anything in2riminating whi2h may be said to have been found in the remises sear2hed, was really found there and was not introdu2ed by the member of sear2h arty* arty *46 4/* 'he resen2e resen2e of witnesses at a sear2h is always always desirable and their absen2e absen2e will wea>en and may sometimes destroy the a22etan2e of the eviden2e as to the finding of the arti2le*47 'hat;s why in this 2ase the findings of the arti2les are not the strong eviden2e* 40* It is obligatory on the art of the oli2e offi2er to 2all on and get get two or more rese2table inhabitants of the lo2ality to be witnesses of the sear2h* 'hese witnesses must be 2alled before the sear2h is started*48 In this 2ase witnesses were 2alled after the investigation had started* So this is the serious la2una in the investigation ro2ess* "iii "iii$$ Arr Arre@t e@t (nd (nd @ei @ei*r *ree ?(nc ?(nc&n &n( ('( > 69 43* Se2tion Se2tion )9( )9( of .r*P*. .r*P*. e1lains about the ro2edure related to SeiHure Pan2hnama of the
roerty whi2h may be alleged or suse2ted to have been stolen or found under susi2ion of 2ommission of offen2e* 44* It is mandatory mandatory for every oli2e offi2er offi2er to to reort su2h seiHure to the magistrate having !urisdi2tion* Su2h oli2e offi2er may give 2ustody thereof to any erson on his e1e2uting Bond underta>ing to rodu2e before 2ourt uing to rodu2e the roerty before the .ourt as and when reuired and to give effe2t to the further orders of the .ourt as to the disosal of the same* Provided that where the roerty seiHed under sub-se2tion ?)@ is sub!e2t to seedy and natural de2ay and if the erson entitled to the ossession of su2h roerty is un>nown or absent and the value of su2h roerty is less than five hundred ruees, it may forthwith be sold by au2tion under the orders of the Suerintendent of Poli2e and the rovisions of se2tions 036 and 037 shall, as nearly as may be ra2ti2able, aly to the net ro2eeds of su2h sale*
"#"$%AN&U" on behalf of APP#LLAN' )6
- Arguments-
Appellant- Appellant-
46* Sub se2tion se2tion / has been inserted inserted in )867 to remove a la2una in the law in the matter of reuirement of the oli2e to forthwith reort the seiHure of roerty to the magistrate* 6) 47* 47* In this this 2ase, 2ase, the oli oli2e 2e as>ed as>ed the the a22u a22used sed on (7<9 (7<98< 8<(9 (9)9 )9 that that what what you you wore wore on (0<98<(9)9 and a22used gave 2lothes to the oli2e on (7<98<(9)9 whi2h he wore on (0<98<(9)9 in the resen2e of the two an2hs* In #1hibit no* /( API said that a22used resented the 2loth to him whi2h was wore by him on (0<98<(9)9* 6( 'his seems little illogi2al that a22used is giving the eviden2e against him* 48* :e 2an also raise the doubt on the 2redibility of the indeendent witness be2ause the resondents have failed to rove that the witnesses are indeendent and rese2table* :e 2annot verify that whether the witnesses are indeendent or not* So we 2annot a22et that 2lothes of somnath smelled of >erosene*
"i2$ In*e@t ?(nc&n('( 70. Se2tion )606/ of .r*P*., - 'his will be done by the offi2er in 2harge of oli2e station or
some other oli2e offi2er se2ially emowered by the state government in that behalf re2eives information that a erson has 2ommitted sui2ide or has been >illed by another ?homi2idal@ or has died under 2ir2umstan2es raising a reasonable susi2ion that some other erson has 2ommitted 2ommitted an offen2e, offen2e, he shall immediately immediately give intimation intimation thereof to the nearest #1e2utive "agistrate emowered to hold inuests, and, unless otherwise dire2ted by any rul e res2ribed by the State overnment, or by any general or se2ial order of the &istri2t or Sub- divisional "agistrate, shall ro2eed to the la2e where the body is* 71. In this resent resent 2ase the "hadur oli2e station has ower to investigate investigate the matter under Se2tion )34?)@60 of the .r*P*., that;s why "hadur Poli2e station has ower to ma>e the inuest an2hnama but this inuest an2hnama was reared by the Sharad :alun! who was not authoriHed by law to ma>e the inuest an2hnama* e was also not informed the nearest e1e2utive magistrate about the an2hnama*
6) S*.* SA%KA%, '# .$&# $ .%I"INAL P%$.#&U%#, P%$.#&U%#, L#DIS N#DIS BU''#%:$%'S :A&: :A&:A A NAPU%, /9/, =$L* =$L * ) ?)9 th ed* (9)(@* 6( Supra ,ote <% P-)7 6/ Se2ti Se2tion on )60, )60, '# '# .$&# .$&# $ .%I"I .%I"INAL NAL P%$.#& P%$.#&U% U%#, #, BA%# BA%# A.', .', P%$# P%$#SS SSI$ I$NA NAL L B$$K B$$K PUBLIS#%S*
Cr.P.C.Poli2e offi2ers ower to investigate 2ogniHable 2ase*- ?)@ Any offi2er in 2harge of 60 Section 4;<"4$ o% Cr.P.C. a oli2e station may, without the order of a "agistrate, investigate any 2ogniHable 2ase whi2h a .ourt having !urisdi2tion over the lo2al area area within the limits of su2h station would have ower ower to inuire into or try under under the rovisions of .hater DIII* DIII*
"#"$%AN&U" on behalf of APP#LLAN' )7
- Arguments-
Appellant- Appellant-
72. It was reared under the observation of indeendent an2has "rs* Saraswati Lo>hande
and &igvi!ay Patil by the sharad walun!* Sharad :alun! was the oli2e head 2onstable and he was not oli2e offi2er so he is not authoriHed by the law to reare the inuest an2hnama* Sharad ad walu walun! n! was was the the Poli Poli2e 2e ead ead .ons .onsta table ble in the the Ambi Ambi>a >au urr 2how 2how>y >y and and the the 73. Shar de2eased de2eased belonged belonged to the area area whi2h whi2h was under under the !urisdi2ti !urisdi2tion on of "hadur "hadur oli2e oli2e station63, so aroriate oli2e station would be "hadur oli2e station and moreover it should have been done by the investigating offi2ers and not oli2e 2onstables* 74. 'he inuest reort 2annot be substantive eviden2e but it may be used for 2orroboration of the eviden2e given by the oli2e offi2er ma>ing the reort* 64 75. 'he ob!e2t of the ro2eedings under se2tion )60 is merely to as2ertain whether a erson has died under susi2ious 2ir2umstan2es or as unnatural death and if so what the aarent 2ause of the death is* 'he reort reared is indeed aimed at serving a statutory fun2tion, to lend 2reden2e, to the rose2ution 2ase* 2ase *66 76. 'he inuest reort 2annot be substantive eviden2e, but it may be used for 2orroboration of the eviden2e given by the oli2e offi2e ma>ing the reort* 67 An investigation under Se2tion )60 is for the limited uroses namely for dis2overing whether in a 2ase the death was a22idental, sui2idal or 2aused by animal* 68 'he s2oe of inuest ro2eedings is limited to as2ertain the 2ause of death* 79 'he oinion given in the inuest reort does not attain finality be2ause the dead body has to be sub!e2ted to ost mortem e1amination whi2h is done by medi2al e1ert and is more authenti2 be2ause oli2e offi2er is not the medi2al e1ert*7) 77. So by this above arguments and observation of Indian .ourts we 2an say that the Inuest Pan2hanama reared by the Sharad :alun! is of no use and it is not reliable at all* 'his Inuest Pan2hnama 2annot be used against a22used and it has not mu2h substantiate thing to rove against a22used*
63 Supra ,ote <% P-6 64 Mukanda and !rs* !rs* v* State, State, )836.riL5))76* 66 Mehara# S"ngh v* State of U*P*?)880@ 3 S.. )77 at )84 )880 S.. ?.ri@ )/8)* 67Supra 67Supra ,ote @? 68 'anesh (ada) v* (ada) v* State of U.P., U.P., (998.riL5?N$.@)997?All@ 79 Rama 79 Rama Shankar v* v* State of U.P., U.P., (997 .riL5)(8?)/(@ 7) Baldeo and Anr. Anr. v* v* State of U.P *, *, (990.riL5(474*
"#"$%AN&U" on behalf of APP#LLAN' )8
- Arguments-
Appellant- Appellant-
6II7 THE ,U0GMENT PASSE0 BY THE TRIAL COURT AS AS NOT APPROPRIATE. #.4 ERRONEOUS ,U0GMENT 8. 'he 2ounsels on behalf of the aellant humbly submits before this on;ble ben2h of the
igh .ourt that the oral !udgment and the order assed by the Sessions .ourt is an e1amle of how mis2arriage of !usti2e 2an be done by any 2ourt of authority to whi2h every >ind of arty loo> uon for deliveran2e of !usti2e* 5. 'he ro2edure 2arried out ?in2luding the investigating ro2ess@ to rea2h the !udgment after 2ondu2ting the entire trial was in itself not aroriate* i. PROCE0 PROCE0URA URAL L LAPSES LAPSES IN THE THE T TRI RIAL AL
"#"$%AN&U" on behalf of APP#LLAN' (9
- Arguments-
Appellant- Appellant-
79* Startin Starting g from from the wor> done by the oli2e oli2e head head 2onstab 2onstables les in re2ordi re2ording ng the dying dying de2laration of the de2eased till the 2omletion of the investigation ro2ess in 2arrying out an2hanama, seiHure, et2* underta>en by the oli2e inse2tors, the entire ro2edure was as2ertained with various lases* 'hese lases range from being minor-to-ma!or whi2h as a whole 2onstitutes the error-omission of formalities* ?i@ By P:( 7)* $n the date of the in2ident (0<98<(9)9, at around around )*(9 m, oli2e head 2onstable, Sharad :alun! was given the information about the admission of the de2eased due to burn in!uries in!uries in the burn ward of the Ambi>au Ambi>aurr hosital hosital and was as>ed to immediately immediately ta>e the ne2essary stes*7( irstly, irstly, there are un2ertaint un2ertainties ies in the time line with regards regards to the entire ro2ess of his re2ording the dying de2larations* As er the fa2ts of the 2ase, the de2eased was ta>en to the hosital at around )*)3m and admitted in the burn ward at around )*(9m* Surrisingly, he was also informed about the in2ident at )*(9m on re2eiving whi2h he rea2hed near the burn ward within five minutes only, i*e* at around )*(3m, and when he rea2hed near her, the "edi2o Legal .ase aers were already reared* Also, he stated s tated in his testimony that while he was re2ording her statement, no relatives of her met him, but at the same time, in the Indoor .ase aers there is a mention of the resen2e of the mother of the de2eased in the entire s2hedule, i*e* history, of the date the in2ident while her dying de2laration was being re2orded* 7/ 7(* 'he above mentioned mentioned fa2ts ose distrust and a sense of unreliability unreliability on the ro2edural ase2t of the statement ta>en by this arti2ular oli2e 2onstable* 7/* e had to re2ord her statement after 2onfirming that whether she was in a fully 2ons2ious state to ma>e a statement or not* e was given an oral 2onfirmation for the same and then he started to re2ord the statement* Before record"ng record"ng the statement:70* An error whi2h he made made before before re2ordin re2ording g her statemen statementt is that that he didn;t didn;t obtain obtain any fitne fitness ss 2ert 2ertifi ifi2at 2atee thou though gh it was was ossi ossibl blee for for him to do so* so*70 e ment mentio ioned ned in his his testimony that desite of having an oortunity to obtain a fitness 2ertifi2ate from the do2tor with rese2t to the mental and hysi2al 2ondition of the de2eased, he did not do so* e wouldn;t have stated this if it had been the 2ase that the do2tor was busy to give him the same or it was an omission of duty on their art*
7( Supra ,ote ; 7/ Supra ,ote <% -8, <% -8, /8 70 Supra ,ote <% -)9 <% -)9
"#"$%AN&U" on behalf of APP#LLAN' ()
- Arguments-
Appellant- Appellant-
73* In absen2e of any 2ertifi2ate by do2tor rior to re2ording of dying de2laration de2laration that she was in a fit mental state to give de2laration in a 2oherent and 2onvin2ing manner, no relian2e 2an be la2ed on said statement ese2ially when it is mentioned in her autosy reort that she had 89E suerfi2ial and dee burns* It is further noted that said dying de2laration de2laration was not re2orded re2orded in resen2e resen2e of do2tor do2tor nor there was eviden2e to that effe2t and hen2e it would be diffi2ult diffi2ult to rely uon su2h a dying dying de2laration de2laration in total absen2e of any eviden2e regarding mental and hysi2al 2ondition of the de2easedM* 73 74* :ife died due due to severe burn in!uries* &ying &ying de2laration indi2ating husband as a22used* &e2eased suffered )99E burn in!uries* Absen2e of do2tor;s 2ertifi2ate to show de2eased was fit to ma>e ma>e statemen statement* t* In absen2e absen2e of fitness fitness 2ertifi2 2ertifi2ate, ate, dying de2laratio de2laration n not a22etedM* a22etedM*74 76* "oreover, "oreover, he stated that it was not felt ne2essary by him to 2all the "agistrate "agistrate of the 2on2erned !urisdi2tion to re2ord the atient;s statement though it was ossible for him to do so*76 #ven if it was diffi2ult for him at that arti2ular moment to inform the "agistrate he 2ould have done so later on for the simle reason that the atient had not died till the ne1t four days* 'his is a ro2edural on his art, firstly in the 2onte1t of dying de2laration, and se2ondly, after ta>ing the inuest an2hanama also he didn;t submit its reort to the "agistrate*
At the t"me of record"ng:record"ng:77* urther urther at the time of re2ording the statement, statement, her treatment was going on, and she was yelling and s2reaming due to ain when he rea2hed near her and nobody was resent there*77 'his raises a doubt on the fa2t that was she a2tually in a roer 2ondition to ma>e a statement that he straightaway rea2hed her bed in the ward to re2ord her statement* After record"ng record"ng the statement:78* Subseuently Subseuently,, after re2ording the statement, he did not ma>e the attestation of the toe imression imression ta>en of the de2eased desite of having the oortunity oortunity to do so* 78 'his is an
73 'o)"nd *ar" S+am v* State of U.P., U.P., (9)) .ri L5 0074 All, 5US'I.# .*K* 'AKK#% + "%S* "*.* 'AKK#%, LA: $ #=I&#N.#, :C'#S + .$*, 7(/, =$L* ) ?(9)/@* 74 6asanta S. 'a#bh"e v* 'a#bh"e v* State of Maharashtra, Maharashtra , (997 .ri L5 N$. 30/ Bom (997 ?(@ AI% Bom, 5US'I.# .*K* 'AKK#% + "%S* "*.* 'AKK#%, LA: $ #=I&#N.#, :C'#S + .$*, 7//, =$L* ) ?(9)/@* 76 Supra ,ote <@ 77 Supra ,ote <% -8 <% -8 78 Supra ,ote <@
"#"$%AN&U" on behalf of APP#LLAN' ((
- Arguments-
Appellant- Appellant-
omission omission on his art be2ause be2ause of the simle reason that he 2ould have done so and this in turn 2reates in2ertitude towards the 2redibility of the de2laration given by the de2eased* ?ii@ By P:0 89* .arryi .arrying ng on with with the ro2ed ro2edure ure,, a se2ond se2ond dying dying de2larati de2laration on was re2orde re2orded d by anothe another r oli2e head 2onstable, Subhash Shiva!i Awhad of "hadur oli2e station whi2h had !urisdi2tion of the la2e of the in2ident ?house of the a22used and the de2eased@* 89 $n (0<98<(9)9 at around /m he got information about the in2ident from a Senior Poli2e Inse2tor, "r* "ehere and was instru2ted to re2ord the atient;s statement* $n re2eiving the same, at around 3*/9m he rea2hed the Ambi>aur hosital whi2h doesn;t fall in the territorial !urisdi2tion of "hadur oli2e station* After rea2hing near her ward he made inuiry about her hysi2al and mental health status with the medial offi2er on duty so that he 2ould re2ord her statement* Li>e the revious head 2onstable, he also made 2ertain errors in the ro2edure while erforming his duty of re2ording statement, whi2h are mentioned below Before record"ng record"ng the statement:8)* irstly irstly,, he didn;t didn;t ma>e ma>e the entry of his arrival arrival in the se2ifi se2ifi22 burn burn ward and was not simly able to e1lain its 2ondition and lo2ation before the 2ourt* e didn;t mention the name of the do2tor from whom he enuired about the 2ondition of atient* e didn;t see the medi2o legal 2ertifi2ate whi2h was the most imortant thing* 8) e didn;t made entry in the medi2al 2ase aers of atient as well as medi2al aers of ward no* (3*
8(* urthe urther, r, he didn;t didn;t obtain obtain fitness fitness 2ertifi 2ertifi2ate 2ate from the do2tor do2tor with with regard regardss to the health 2ondition of the atient whi2h is a rereuisite for re2ording dying de2laration and an imortant ase2t of their ro2edure in order to eliminate any >ind of arbitrariness* 8/* e stated in his testimony that before re2ording re2ording her statement he got the >nowledge >nowledge that the atient was going to lodge a 2omlaint* 8( 'his is se2ious to a 2ertain e1tent in the sense that he wasn;t aware if any other oli2e authority had 2ome rior to him in order to inuire about the in2ident and re2ord atient;s statement if reuired* 'his was a art of his legal formality to be done sin2e he >new that there was a oli2e 2how>y within the hosital remises* e should have inuired about it either with the oli2e or with the do2tors* At the t"me of record"ng:record"ng:89 Supra ,ote <% -(9 <% -(9 8) Supra ,ote <% -() <% -() 8( Supra ,ote <% -(( <% -((
"#"$%AN&U" on behalf of APP#LLAN' (/
- Arguments-
Appellant- Appellant-
80* e didn;t 2all the magistrate to re2ord her statement though though it was ossible for him him to 2all the magistrate* magistrate*8/ 'his shows his negligen2e towards his duty sin2e even after re2ording the statement he 2ould have done this art >nowing the fa2t that it was not an emergen2y 2ase to the e1tent that it was not feasible to 2all the "agistrate at that very arti2ular moment* #lse he should;ve got the signature of an indeendent witness on the dying de2larat de2laration ion if the "agistr "agistrate ate was not there* there* urthe urther, r, dying de2lara de2laratio tion n should should be in uestion answer but he too> this in the statement form* 'o this, there is dis2rean2y in his testimony be2ause he stated that in his 2areer u till now he had re2orded about )99 dying de2larations and he is aware that the de2laration is to be re2orded in uestion answer form, but on the 2ontrary he said that they never used to re2ord dying de2larations instead they used to re2ord 2omlaints* 80 After record"ng record"ng the statement:83* e said that he got the signature signature and endorsement endorsement of the do2tor at the end of the dying de2laration but the same does not aear in the do2umentary eviden2e resented to the 2ourt, i*e* #1h* /0* urther, he did not attest the thumb imression of the atient desite of havi having ng an oo oort rtun unity ity to 2all 2all some somebo body dy ?ind ?inde een ende dent nt witn witness ess@@ to do so afte afterr its its 2omle 2omletio tion* n* No attesta attestatio tion n of imress imression ionss has raised raised a doubt doubt on its reliabi reliability lity** :ith :ith regards to ta>ing of thumb imression, he got the imression of her left hand;s thumb but subseuently in his testimony he mentioned that in the ward her body was 2overed in a 2age from where only her fa2e and feet were visible*83 en2e this raises a uestion on the reliability of his statements* ?iii@ By P:8 and P:6 84* 'he investigation investigation ro2ess of the in2ident in2ident was 2arried out by Poli2e Poli2e Inse2tor =asudeo =asudeo Shridh Shridhar ar Pote Pote and Assistan Assistantt Poli2e Poli2e Inse2 Inse2tor tor 5*"*u 5*"*un!a n!al, l, both both of them them atta2h atta2hed ed to "hadur "hadur oli2e station* Initially, Initially, the investigatio investigation n was 2ondu2ted 2ondu2ted by the oli2e inse2tor who visited the sot of the in2ident on (3<98<(9)9 to reare sot an2hanama* 84 86* e mentioned mentioned in his statement that he did not feel ne2essary to visit the sot and reare reare the an2hanama on (0<98<(9)9 during the night time, i*e*, he visited the sot after (3-(4 hours had assed away, and when he rea2hed there witness %u>mini was resent there
8/ 2b"d 8/ 2b"d 80 2b"d 80 2b"d 83 Supra ,ote > 84 Supra ,ote <% -3( <% -3(
"#"$%AN&U" on behalf of APP#LLAN' (0
- Arguments-
Appellant- Appellant-
and the house was in oen 2ondition* 86 "oreover, e12et the sot of the in2ident, he did not inse2t the surrounding remises* 87* It is very aarent from all the above mentioned mentioned fa2ts that the oli2e inse2tor has 2reated enormous amount of ro2edural lases* irstly, he should have rea2hed the sot on the same day of the in2ident itself irrese2tive of the fa2t that it was night time or day time be2ause it was 2ertain and highly robable that tamering with the eviden2es might have ta>en la2e during all that time when he was not there* Se2ondly, he did not roerly investigate the in2ident remises* 88* urthe urtherr when when it 2omes to the wor> done by the assistant assistant oli2e oli2e investi investigato gator, r, he also visited the sot of the in2ident on (3<98<(9)9* After After he had done the seiHure of the 2lothes of the the a22u a22used sed on (7<9 (7<98< 8<(9 (9)9 )9 he did did not not send send the the reo reort rt to the the 2hem 2hemi2a i2all analy analyHer Her immediately desite of having the oortunity to do the same* 87 :hen he re2eived the inuest inuest an2ha an2hanam namaa made made by head head 2onstab 2onstable le :alun!, lun!, who who also too> the first first dying dying de2laration, he neither inuired about the statement ta>en nor about the reort being submitted to any senior offi2er or not* Instead he was suosed to 2arry out the inuest an2hanama himself as a art of his duty, under Se2tion )60?)@88 of .rP.* )99* )99* "oreov "oreover, er, both both the inse inse2to 2tors rs never never visited visited the the hosi hosital tal in the the san of of four days days and and there thereby by neve neverr saw saw the the indo indoor or 2ase 2ase ae aers rs whi2 whi2h h were were the the sour sour2e 2e of the the inu inuest est an2hanama*)99 )9)* )9)* en2e, en2e, the inves investiga tigatin ting g offi2e offi2ers rs have have not done done !usti2e !usti2e to their their duties duties and have have simly simly tried to disose of the 2ase as soon as ossible* ii. ii.
RONG ONG INTE INTERPRE RPRET TATION ION O+ +A +ACTS CTS AN0 AN0 EI0 EI0E ENCES NCES O+ THE THE CASE BY THE SESSIONS COURT
86 2b"d 86 2b"d 87 Supra ,ote <% -04 <% -04 88 Section 4!. Po)ice to en*ire (nd re?ort on @*icide= etc *?)@ :hen the offi2er in 2harge of a oli2e station or some other oli2e offi2er se2ially emowered emowered by the State overnment in that behalf re2eives information that a erson has 2ommitted sui2ide, or has been >illed by another or b y an animal or by ma2hinery or by an a22ident, or has died under 2ir2umstan2es raising a reasonable susi2ion that some other erson has 2ommitted an offen2e, he shall immediately give intimation thereof to the nearest #1e2utive "agistrate emowered to hold inuests, and, unless otherwise dire2ted by any rule res2ribed by the State overnment, or by any general or se2ial order of the &istri2t or Sub- divisional "agistrate, shall ro2eed to the la2e where the body of su2h de2eased erson is, and there, in the resen2e of twoQ or more rese2table inhabitants of the neighborhood, shall ma>e an investigation, and draw u a reort of the aarent 2ause of death, des2ribing su2h wounds, fra2tures, bruises, and other mar>s mar>s of in!ury as may be found on the body, body, and stating in what what manner, or by what weaon or instrument ?if any@J su2h mar>s aear to have been infli2ted* )99 Supra ,ote <
"#"$%AN&U" on behalf of APP#LLAN' (3
- Arguments-
Appellant- Appellant-
)9(* )9(*
'he 'he !udg !udgme ment nt given given by the trial trial 2ourt 2ourt is an erro errone neou ouss one one sin2e sin2e it has failed failed to
aro aroriat riately ely and reason reasonably ably interret interret the fa2ts fa2ts of the 2ase and simult simultane aneous ously ly the eviden2es also whi2h were rodu2ed by the resondents in order to rove their 2ase* )9/* )9/* Initial Initially ly the !udgme !udgment nt misses misses out on the the details details of time as mentio mentioned ned the the fa2ts as to what a2t haened at a 2ertain oint oint of time* It said that the de2eased was shifted to the hosital and admitted in the burn ward at around )*/9 m after whi2h intimation was given to the oli2e by hosital authority* But as er the fa2ts of the 2ase and the statements statements given by all the witnesses, witnesses, by )*/9 m the dying de2laration de2laration of the de2eased was already ta>en sin2e the oli2e was informed about the in2ident by )*(9m itself after whi2h he rea2hed the hosital* )9) 'hen many times that it mentions that the initial investigation was 2ondu2ted and sot an2hanama was reared by the oli2e inse2tor "ehere, rather it was reared by oli2e inse2tor =asudeo who later on gave the 2ase to his assistant 5*"*un!al for further investigation* )90* )90* urthe urtherr when it started started with with the substant substantive ive art art of the 2ase, 2ase, it failed to inter interret ret a se2ifi2 defense of the aellants that the de2eased 2ommitted sui2ide by setting herself on fire, and thereby said that he has been falsely imli2ated at the instant of the mother of the de2eased*)9( :hen the resondents endeavored to establish that the a22used had 2ommitted homi2idal death, whi2h the aellants had seriously 2hallenged, the 2ourt 2onsidered the O2ause of the death; as a 2ru2ial oint to be figured out for whi2h it felt ne2essary to e1amine the eviden2es on re2ord* &"ng &eclarat"on:)93* irst in in the list list it dealt dealt with the the most most imortant imortant eviden2 eviden2e, e, i*e*, i*e*, dying dying de2laration de2laration of of the de2eased with whi2h it was satisfied that the resondents; resondents; 2ase rests mainly uon these de2larations* Although it admits that two different de2larations were re2orded by two oli2e offi2ers, whi2h raises the level of susi2ion, it misinterrets misinterre ts them at the end to be 2onsistent with ea2h other and true and voluntary* 'he 2ourt a22ets the absurd argument of theirs that law does not reuire dying de2laration to be re2orded by "agistrate only, there is no res2ribed format of it and obtaining obtaining fitness 2ertifi2ate before re2ording re2ording it is also not ne2essary* ne2essary*)9/ %ather it should have dis2arded this by stating that the law reuires its ali2ability ali2ability as er the differentiated differentiated fa2ts of ea2h 2ase and not as a sole rin2ile rin2ile to be alied in ea2h 2ase without loo>ing into its vera2it y* 'he reason for doing this is that both the dying de2larations suffer from infirmities infirmit ies as it is very aarent for the 2ourt to
)9) Supra ,ote <% -6, <% -6, 44 )9( Supra ,ote <% -43 <% -43 )9/ Supra ,ote <% -47 <% -47
"#"$%AN&U" on behalf of APP#LLAN' (4
- Arguments-
Appellant- Appellant-
observe that the gravity of osing allegations against the a22used rose to a signifi2ant level level during during her se2ond se2ond dying de2larati de2laration on as a matter matter of having having suffi2ien suffi2ientt time time in between the re2ordings of the two statements when she made all the modifi2ations* "oreover, the resondents also failed to !ustify the absen2e of "agistrate by merely saying that it is not a reuirement reuirement of law that the "agistrate "agistrate should be resent resent to re2ord the dying de2laration* Instead this is !ustified only in 2ases of emergen2y where it is simly simly not not ossi ossibl blee to wait wait for for the the "agi "agistr strate ate to 2ome 2ome and and re2o re2ord rd the the statem statement ent,, however, in the resent 2ase, the de2eased was alive till four days after being admitted in the hosital and there were amle oortunities oortunities with the resondents resondents to 2all and inform the "agistrate, whi2h they didn;t do thereby 2ommitting negligen2e* )94* )94* In one of the the !udg !udgme ment ntss referr referred ed by the sessio sessions ns 2ourt 2ourt,, whi2 whi2h h laid laid down down 2ertain 2ertain roositions with regards to the admissibility of dying de2laration )90, li>e- O:here the dying dying de2lara de2laratio tion n is susi2 susi2iou ious, s, it should should not be a2ted a2ted uon uon withou withoutt 2orrob 2orrobora oratio tion n eviden2e*; , and OIf after 2areful s2rutiny the 2ourt is satisfied that it is true and free from any effort to indu2e the de2eased to ma>e a false statement and if it is 2oherent and 2onsistent, there shall be no legal imediment to ma>e it basis of 2onvi2tion even if there is no 2orroboration*;, the 2ourt failed to ma>e the 2orre2t interretation* In the instant 2ase, the investigation offi2er didn;t find any substantive eviden2e to 2orroborate with the dying de2laration* 'here are two different dying de2larations whi2h 2reated susi2ion be2ause of 2ontradi2tions* )96* "oreover "oreover the the statement statement of of P:) and &:) &:) show show that that the a22used was standin standing g outside outside the house at the time of offen2e* )93 urther, her statement is made under the influen2e of the mother sin2e she was there in the !ee instigating her to give statement against the a22used and also when the statement was given to the oli2e, whi2h was later verified by the do2tor and the indoor 2ase aers* )94 'o 2orroborate dying de2laration the oli2e didn;t find any relevant witness or substantive eviden2e ertaining to the 2ase* )97* 'he 2a 2 ases of o f Balb"r S"ngh ). State of Pun#ab = an and Kul+ant S"ngh ). State of Pun#ab=<, referred to by the resondents and relied uon by the 2ourt as well, were wrong wrongly ly inte inter rret reted ed by saying saying that that there there is no reu reuire ireme ment nt of law law that that the the dyin dying g de2laration should be the re2orded by "agistrate, and at the same time the oli2e offi2ers
)90 Supra ,ote <% -6/ <% -6/ )93 Supra ,ote <% -4, <% -4, 49 )94 Supra ,ote <% -4, <% -4, /0, /8 )96 AI%(994S./(()* )97 ?(990@8S..(36
"#"$%AN&U" on behalf of APP#LLAN' (6
- Arguments-
Appellant- Appellant-
are not revented by law from re2ording the dying de2laration* )98 But in a2tuality, the 2on2erned .ourt held that oli2e is e1emted to 2all the "agistrate where it is imossible to 2all the "agistrate* owever, in the instant 2ase, oli2e had the oortunity to 2all the "agistrate sin2e she died after / days and in between oli2e 2ould have easily 2alled the magistrate and too> her statement* en2e, the above 2ited 2ases nowhere suort the 2ase of the resondents* "oreover, in lethora of !udgments, the Sureme .ourt have given guidelines that oli2e should 2all the "agistrate if it is ossible for them to do so* Also, both the dying de2larations de2larations in the instant 2ase were re2orded in form of statement statement when they should have been re2orded in uestion answer form* )98* In rely, the aell ellants relied ied uon the 2ase of Sha" Sha"kh kh Raf" Raf"4u 4uee )s. Stat Statee of Maharashtra% wherein the 2ourt held that dying de2laration 2ould not be relied uon if it was not re2orded in the manner it has to be re2orded* ))9 But in the instant 2ase, the 2ourt interreted it differently and 2onsidered that all the ro2edures 2an be s>ied if the 2on2erned 2on2erned arty feels li>e doing it and wor> a22ording a22ording to their own whims and fan2ies* 'here were many flaws in the ro2edure of ta>ing dying de2laration still the session 2ourt ignored them, and also dis2arded the above 2ited 2ase by stating it to be irrelevant for the aellant;s 2ase to hel* hel*))) ))9* ))9* In de2idin de2iding g the 2ore issue issue whether whether the dying dying de2larati de2laration onss re2ord re2orded ed suffer suffer from any serious infirmity or not, the resondents further 2ited the 2ase of aman )s. State of Maharashtra==> % where wherein in the the .our .ourtt 2ons 2onsid ider ered ed that that the the absen absen2e 2e of medi2 medi2al al fitne fitness ss 2ertifi2ate 2an be valid e12use and a 2ertifi2ate by the do2tor is essentially a rule of 2aution, but the oint to be noted is that there the "agistrate himself too> the de2laration and that is why the dying de2laration was heavily relied uon by the !udge* owever, in the instant 2ase, there was no role of the "agistrate and there was no fitness 2ertifi2ate obtained, thereby ma>ing both the 2ases different* Also the rule of 2aution was not alied by the Session .ourt in this 2ase* en2e, it was misinterreted by the .ourt and should have been dis2arded instead of relying uon it* ))/ )))* )))* Subs Subse eue uent ntly ly,, when when the aell aellan ants ts relied relied uon uon Paparambak Rosamma )s. State of ==@ Andhra Pradesh ==@ % wherein the 2on2erned 2ourt said that dying de2laration 2annot be the
)98 Supra ,ote <% -60 <% -60 ))9 (997.riL5)38(?S.@* ))) Supra ,ote <% -63, <% -63, 64 ))( AI%(99(S.(86/* ))/ Supra ,ote <% -79, <% -79, 7) ))0 )888S..?.ri@)/4)
"#"$%AN&U" on behalf of APP#LLAN' (7
- Arguments-
Appellant- Appellant-
sole basis for the 2onvi2tion and also said that 2ourt has to 2onsider the eviden2e suorting it* But here, the .ourt blindly 2onsidered the dying de2laration as the sole basis for the 2onvi2tion))3 and also !ustifies its interretation, thereby, dis2arding this 2ase relied uon by the aellants* Se"Dure of clothes:))(* ))(* 'he 2ourt 2ourt has failed miserably miserably to in ma>ing ma>ing the 2orre2t 2orre2t interretati interretation on of the the eviden2es eviden2es addu2ed by the resondents in order to rove the resen2e of the a22used at the sot of the in2ident* It un!ustifiably bought the argument of the resondents wherein they said that by addu2ing the eviden2e of the assistant oli2e inse2tor 5*"*un!al and an2h witness Avinash Avinash :agh, :agh, the resondents res ondents have roved the seiHure of 2lothes of a22used* a 22used*))4 ))/* ))/* irstly irstly,, the an2h an2h witness witness mentio mentioned ned above above has nowhe nowhere re in the 2ase been e1amin e1amined ed for for re2or re2ordi ding ng of his his testi testimo mony ny** 'here 'herefo fore re the the relev relevan an2y 2y uon uon the the same same be2o be2ome mess uestionable* ))0* ))0* Se2ond Se2ondly ly,, it has already already been !ustifie !ustified d by the aellant aellantss in their their submissio submission n above, above, that the inse2tor had 2ommitted many ro2edural lases while doing the arrest and 2loth seiHure due to whi2h his eviden2e and testimony 2annot be relied uon* ))6 7actum of &eath:))3* ))3* :hen :hen the 2ase rea2hed rea2hed the oint oint of rovin roving g and de2idi de2iding ng the fa2tum fa2tum of death death and its 2ause, the 2ourt failed to a22et and aroriately interret the defense of sui2idal death of the de2eased ta>en by the aellant, thereby unreasonably de2laring it as homi2idal death))7 and without as2ertaining any !ustifi2ation for the same* ))4* :hen :hen the the ael aella lant ntss relie relied d uon uon the the 2ase 2ase of Bhanudas Bandu $h"te )s. State of Maharashtra== % in 2onte1t of the issue of stri>ing down of the word Osui2idal; and rela2 rela2in ing g it with with the the word word Ohom Ohomi2i i2ida dal; l;,, the the 2our 2ourtt here here 2ons 2onsid idere ered d it of havi having ng no 2onseuen2e of relying uon it and therefore dis2arded it to be irrelevant* In the above mentioned 2ase, when the Osui2idal; word was 2hanged to Ohomi2idal; afterwards, the 2ourt 2onsidered the initial la2ing of word only, i*e*, Osui2idal; and did not 2onsider the substitution made I the medi2al aers* owever, in the instant 2ase, the 2ourt failed to interret this 2ase aroriately* Although it a22eted that the 2hange is made but then
))3 Supra ,ote <% -7) ))4 Supra ,ote <% -47 <% -47 ))6 Supra ,ote <% -47 <% -47 ))7 Supra ,ote <% -69, <% -69, 6) ))8 (9)/ALL"%?.ri@/976
"#"$%AN&U" on behalf of APP#LLAN' (8
- Arguments-
Appellant- Appellant-
stated that it is still not fatal for the 2ase of resondents* )(9 $n one side where they a22eted the fault of the do2tor, on the other side they said that it is a valid e12use sin2e the do2tor has a22eted in his oral eviden2e that he had made the said 2hanges, but simultaneously the 2ourt did not ta>e into the 2onsideration the high robability of the do2tor ma>ing su2h 2hanges after getting influen2ed by the de2eased and her mother* ))6* ))6* urther, urther, the 2ourt 2ourt 2onsidered 2onsidered the the eviden2e eviden2e of the autosy autosy surg surgeon eon and was 2onvin2ed 2onvin2ed with the fa2t that the resondents have roved that the death of the de2eased was 2aused due to burn in!uries* It is an undisuted fa2t that the 2ause of death was burn in!uries sustained but nowhere the resondents and the 2ourt !ustified that the burn in!uries were due to homi2ide* )() 'hey failed to interret the fa2tum of death and to intelligibly observe that there were no e1ternal in!uries on the body of the de2eased aart from those suffered due to burns, whi2h ma>es it aarent that had it been the 2ase of homi2ide, the de2eased would have suffered suffered other in!uries as well as a matter of resisting the a2t, if done by the a22used* But here it is an aarent 2ase of sui2ide where the de2eased suffered only those in!uries whi2h were a 2onseuen2e of her own a2t and not by any other e1ternal a2ts*
)(9 Supra ,ote <% -68 <% -68 )() Supra ,ote <% -6) <% -6)
"#"$%AN&U" on behalf of APP#LLAN' /9
- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
PRAYER
2n l"ght of the facts stated% "ssues ra"sed% arguments arguments ad)anced and author"t"es author"t"es c"ted% "t "s subm"tted that the honorable Sess"ons Court Court be pleased In light of the fa2ts resented, issues raised, arguments advan2ed and authorities 2ited the .ounsel for the Aellant humbly rays before this on;ble .ourt that it may be leased =. $o declare declare that the Appella Appellant nt has been un#ustl un#ustl con)"cted con)"cted for the offence offence pun"shab pun"shable le under Sect"on ?> of 2nd"an Penal Code% =<F >. $o declare declare that that the 3udgment 3udgment passed passed b the Sess"ons Sess"ons Court Court "s "napprop "nappropr"ateF r"ateF ?. $o ac4u ac4u"t "t the accu accused sed of all all the char charge gesF sF
!r pass an other order or make d"rect"ons as the *on9ble Court ma deem f"t to meet the "nterest of #ust"ce% e4u"t and good consc"ence "n the "nstant case. And for this a2t of >indness, the Aellant shall duty bound forever ray* %ese2tfully Submitted on Behalf of the AellantsJ
.$UNS#LS $% APP#LLAN'
/)
