IN THE HONOURABLE SESSIONS MAGISTRATE COURT OF AZADPUR AT AZADPUR
UNDER SECTION 26 OF CRIMINAL PROCEDURE CODE
CRIMINAL APPLICATION NO. ......OF 2013
THE STATE (PROSECUTION)
V/S
WALAITI RAM & OTHERS (ACCUSED)
MEMORIAL ON BEHALF OF THE ACCUSED
TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
I NDEX OF AUTHORITIES
List of statutes
Law Lexicons referred
List of books
List of cases
List of Internet Sources
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES PRESENTED
SUMMARY OF ARGUMENTS
BODY OF PLEADINGS
ISSUE1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF THE IPC? ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION OF THE IMPUGNED TECHNIQUES VIOLATES THE „RIGHT AGAINST SELF INCRIMINATION‟ ENUMERATED IN ARTICLE 20(3) OF THE INDIAN CONSTITUTION? ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT? PRAYER
LIST OF ABBREVIATIONS
AIR ART & Anr. CJ Cr.P.C DB Evi FB HC i.e. J. IPC Ors. PARA SC SUPRA Vs. VOL.
All India Reporter Article And Another Chief Justice Criminal Procedure Code Division Bench Evidence Full Bench High Court That Is Justice Indian Penal Code Others Paragraph Supreme Court Above Versus Volume
INDEX OF AUTHORITIES
LIST OF STATUTES
INDIAN PENAL CODE,1960 CRIMINAL PROCEDURE CODE,1974 EVIDENCE ACT THE CONSTITUTION OF INDIA,1950
TEXTS/ARTICLES/BOOKS REFERRED rd
Ratanlal and Dhirajlal‟s, Law of Crimes, 23 Edition
Banerjee‟s, Criminal Major Acts
PSA Pillai‟s, Criminal Law, 11 th Edition
Dr. Avtar Singh, Principles of The Law of Evidence, 20 Edition
Dr. J.N.PANDEY, The Constitutional Law of India, 49 Edition
P.M.Bakshi, The Constitution of India, 5 th Edition
K.D.Gaur, The Indian Penal Code, 4 th Edition
th
th
TABLE OF CASES Selvi v. State of Karnataka AIR 2010 SC 1974 M.P.Sharma v. Satish Chandra AIR 1954 SC 300 Rojo George vs Deputy Superentendent Of Police 2006 (2) KLT 197 Nandini Satpathy v. P.L.Dani1978 AIR 1025, 1978 SCR (3) 608 Santokben Sharmanbhai Jadeja vs State Of Gujarat 2008 CriLJ 68, (2008) 1 Manoj Kumar Singh vs The State (Govt. Of Nct Of Delhi) on 6 April, 2011 GLR 497, 2008 (2) KLT 398 JOURNALS REFERRED
All India Reporter
Criminal Manual
Law Suit
All India Criminal Decision
INTERNET SOURCES
www.unilexlegal.com
www.legalserviceindia.com
www.indiankanoon.org
www.manupatra.com
www.judid.nic.in
www.google.com
STATEMENT OF JURISDICTION
THIS HONOURABLE SESSIONS COURT OF AZADPUR DOES NOT HAVE THE JURISDICTION TO TRY, ADJUDICATE AND ENTERTAIN THIS MATTER UNDER SECTION OF THE CRIMINAL PROECEDURE CODE OF INDIA.
STATEMENT OF FACTS
On 01.05.2009, a telephone call was received in Police Station No.1, Azadpur at about 1.00 AM that two dead bodies were lying on the berm of the by-pass of Azadpur in a pool of blood. Upon arrival at the by-pass , the police party found the two dead bodies,one of male and other of female. In an ocular examination of the bodies revealed, the two dead bodies have been done to death by slitting their throats and in addition to that a large number of small injuries had also been inflicted on various body parts. The villagers from the nearby village Azadpur identified the deceased girl as Phool Wati from their village and the boy as Atma Singh of village Mastana. The girl belonged to high caste and boy belonged to low caste. The post mortem report revealed that the boy was aged about 22 years and the girl about 19 years and the cause of death was shock and haemorrhage, on account of multiple injuries. The blood stained earth was sent to forensic laboratory for analysis. The forensic analysis revealed human blood bearing 3 different blood groups, i.e. A+ boy, B+ girl and O+ did not relate to any of the deceased. Additional facts that came to light were that Atma Singh and Phool Wati belonged to different castes but wanted to get married against the wishes of the parents of Phool Wati . They eloped and got married at a Mandir. The family members of Phool Wati threatened to kill Atma Singh and his family members. The police arrested Walaiti Ram and Yash Rani, the parents of the girl and Yogesh, her younger brother and a community leader Zamidara on finding a prima facie case against them for offence punishable u/s 302/34 IPC. A medical examination of Yogesh revealed that he had a cut on his palm. The magistrate granted permission to the chief medical officer to draw a blood sample of his forcefully, as may be necessary. The report of the forensic laboratory disclosed that the third sample of blood, bearing blood group O+ matched with the blood group of Yogesh.
The police found out the weapons through Narco test and by forensic test, they found blood group A+ and B+ on the knife , but did not find O+. The police also recorded the statement of one Zile Ram, a Dalit, aged about 75 years and a resident of Village Mastana, to the effect that on midnight of 30 th April and 1st may, 2009, he had seen Yogesh and Walaiti Ram near the place of recovery of dead bodies. On the basis of this evidence, the police filed a final report
ISSUES RAISED ISSUE1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF THE IPC?
ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION OF THE IMPUGNED TECHNIQUES VIOLATES THE „RIGHT AGAINST SELF INCRIMINATION‟ ENUMERATED IN ARTICLE 20(3) OF THE INDIAN CONSTITUTION?
ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT?
SUMMARY OF ARGUMENTS
WHETHER THE ACCUSED ARE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF THE IPC? ISSUE 1:
The accused cannot be punished under sec.302 read with sec.34 of the IPC as the complete research is not done and the evidence is not strong against the accused. Therefore he cannot be accused of murder according to sec.302
ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT?
ARTICLE 20(3): No person accused of any offence shall be compelled to be a witness against himself Under this sec. of the article if the person is compelled to confess rd something by 3 degree or using tests like narco, brain mapping, etc. It can be stated that the “right against self incrimination” of accused person is violated.
ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT?
This section comes into play when a person whose statement is sought to be proved, has become incapable of giving evidence.
Charges cannot be laid against the accused depending on the evidence given by a person who has become incapable of giving evidence on grounds of his old age.
Hence the accused should not be held liable.
BODY OF PLEADINGS ISSUE 1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF THE IPC? It is most humbly submitted before this Honourable Sessions Court that the Accused are not liable for offence at all. This is submitted on the basis of the very facts of the cases & arguments advanced and the various judgements passed.
1.1 The police arrested Walaiti Ram, Yogesh, Yash Rani and Zamidara on the basis of the facts which as follows: -The deceased boy, named Atma Singh was of village Mastana and a lower caste boy, who wanted to marry the deceased girl, named Phoolwati of a high caste from village Azadpur. So, they eloped and got married at a temple. - The family girl had threatened to kill the boy and his family. - Zamidara called both the families and put pressure on them either to dissolve their marriage or face a social boycott.
1.2 At the time of investigation a wound was found on the arm of girl‟s brother Yogesh but on which arm the wound was found or how old it was is not mentioned. Yogesh could have got the wound many days before the murder.
1.3 The blood reports are not enough DNA tests should be carried to proof that rd the 3 person whose blood was found at the murder site was Yogesh
1.4 Girls family had threatened to kill the boy and his family but not the girl but here we see even the girl is killed. Why would they kill their own daughter? Hence, the accused cannot be held liable under sec.302 read with sec 34 of IPC.
ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION OF THE IMPUGNED TECHNIQUES VIOLATES THE „RIGHT AGAINST SELF INCRIMINATION‟ ENUMERATED IN ARTICLE 20(3) OF THE INDIAN CONSTITUTION? This is most respectfully submitted before this sessions court that this act of Tests is violative of the provisions of Article 20(3) of the constitution which is ex- facie evident from the facts of the case, the provisions of Article 20(3) and the various judgements available on this subject matter.
The issue laid down by the accused is reasonable and the same has nexus with the object sought to be achieved.
2.1The provision under article 20(3) provides for Prohibition against SelfIncrimination- that no person accused of any offence shall be compelled to be a witness against himself. The protection is against compulsion “to be a witness”. The Supreme Court interpreted the expression “to be a witness” very widely so as to include oral, documentary and testimonial evidence.
2.2The results obtained through involuntary administration of such tests like Narcoanalysis come within the scope of “testimonial compulsion”, thereby attracting the protective shield of Article 20(3) 1. This right has the following essentials: a) It is a right pertaining to a person who is “accused of an offence” b) It is a protection against “compulsion to be a witness”. c) It is a protection against such compulsion relating to his giving evidence “against himself”. 1 2
Selvi v. State of Karnataka AIR 2010 SC 1974
Santokben Sharmanbhai Jadeja vs State Of G ujarat 2008 CriLJ 68, (2008) 1 GLR 497, 2008 (2) KLT 398
2.3 narco analysis is a complicated procedure which has drastic side effects. It is further averred that if a person is subjected to Narco analysis at this young age of 24 or even below that, it will have far reaching consequences on both his physical and mental situation. The statements that came into picture during the Narco analysis cannot be reliable.
‘RIGHT AGAINST SELF INCRIMINATION’ HENCW, ENUMERATED IN ARTICLE 20(3) OF THE INDIAN CONSTITUTION WAS VIOLATED OF THE ACCUSED.
ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT? This is most respectfully submitted before this sessions court that this act is violative of the provisions of sec.32 of the evidence act which is ex- facie evident from the facts of the case, the provisions of sec.32 and the various judgements available on this subject matter .
The issue laid down by the accused can be considered as valid and the same has nexus with the object sought to be achieved .
3.1 Under sec.32 of Evidence Act a statement, written or verbal, or relevant facts made by a person who has become incapable of giving evidence cannot be called as a witness.
3.2 Incapability of a person is decided on the basis of his age, mental and physical condition etc. If the person is insane or too old or he has some physical problems like blindness or if he is underage he won‟t be fit to be a witness.
3.3Here, the witness is incapable because of his age because he is 75 year old. Hence , the accused cannot be held guilty on the statement of the witness.
PRAYER Wherefore it may please this Honourable Court in the lights of facts presented, issues raised, arguments advanced, and authorities cited, the counsel for the Accused humbly pray before this Honourable Court, to kindly adjudge and declare:
1) IN THE INSTANT CASE DEATH SENTENCE SHOULD NOT BE DECLARED. 2) THAT THE ACCUSED BE RELEASED WITHOUT ANY COST 3) THAT THE ACCUSED RIGHT TO LIFE AND RIGHT UNDER ARTICLE 20(3) SHOULD BE PROTECTED.
And pass any other appropriate order as the court may deem fit and for this act of kindness, the Accused as in duty bound, shall forever pray.
Respectfully Submitted Sd/Priya Arora Council for the accused