DETERMINATION
2 ND AURO U NIVERSITY MOOT COURT COMPETITION, 2016
IN THE HON’BLE DISTRICT COURT OF DELHI PETITION NO. …/2016
Smt Rekha and Ors…………………………………………………………… Ors…………………………………………………………… DEFENDANTS
v.
State of Delhi…………………………………………………………………. Delhi…………………………………………………………………. PROSECUTION
(Memorial for the Prosecution) COUNSELS ON BEHALF OF THE PROSECUTION
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CONTENTS TABLE OF CONTENTS
2
INDEX OF AUTHORITIES ................................................................................................................. 3 LIST OF ABBREVIATIONS..................................................... ....................................................... .... 6 STATEMENT OF FACTS ................................................................................................................... 9 STATEMENT OF JURISDICTION ...................................................... ............................................... 10 AISED .................................................... ...................................................... .................... 11 ISSUES R AISED
SUMMARY OF ARGUMENTS ................................................. ....................................................... .. 12 ARGUMENTS ADVANCED ..................................................... ....................................................... .. 13
I.
THE EVIDENCE BROUGHT BEFORE THE HON ’BLE COURT CAN BE RELIED UPON BY THIS COURT. ....................................................................................................................................... 13 A.
DNA as evidence as conclusive proof of identity ....................................................... 13
B.
Narco Analysis and the admissibility of the statements thereof thereof ................................. 14
C.
Hostile Witness statements may be considered .......................................................... 16
D.
Circumstantial evidence is essential proof of guilt .................................................... 18
E.
Confessions to the police and admissibility of statements thereof ............................. 20
F.
Res gestae as evidence ................................................. ............................................... 21
G.
Burden of proof shifts in certain scenarios ...................................................... ................................................................ .......... 22
II. THE CHARGES FRAMED CANNOT BE PLACED AGAINST THE DEFENDANTS. .......................... 23 A.
The Accused must be convicted of Murder under Section Sec tion 302 ................................... 23
B.
There must be conviction for Kidnapping in order to murder under Section 364 ..... 24
C. The Accused must be convicted for Causing disappearance of evidence or giving false information to screen offender ............................................... ...................................... 25 D.
The Accused are guilty of Criminal Conspiracy under Section 120-B....................... 120-B....................... 26
E.
There exists Common Intention under Section 34 ...................................................... 26
F.
Rekha must be Punished for causing miscarriage under Section 313 ....................... 27
ELIEF...................................................... ....................................................... .......... 28 PRAYER FOR R ELIEF
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INDEX OF AUTHORITIES EFERRED CASES R EFERRED
1. Aftab Ahmad Ansari vs. State, (2010) 2 SCC 583 . 2. Agnoo Nageshwari v. State of Bihar 1966 SCR (1) 134. 3. AP Rao v. State, 1990 CrLJ 29 (Pat). 4. Badshah v. State of UP (2008) 3 SCC 681. 5. Bhagat Ram v. State of Punjab AIR 1954 SC 621. 6. Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396. 7. Bhimappa Chandappa Hosmani and Ors. v. State of Karnataka (2006) 11 SCC 323 8. BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34. 9. Charan Singh v. Dev Raj, (1989) 1 Punj LR 117. 10. Damodar v. State of Karnataka AIR 2000 SC 50. 11. Deepak v. State of Maharashtra (1995) 2 Cr LJ 2219 (Bom). 12. Dharam Deo Yadav v. State of UP (2014) 5 SCC 509. 13. Dinesh Dalmia v. State of Madras 2006 CriLJ 2401. 14. G.S.Bakshi v. State, A.I.R. 1979 S.C. 56. 15. Goburdhun Bera (1866) 6 WR (Cr) 80 16. Gura Singh v. State of Rajasthan, A.I.R 2001 SC 330. 17. Habeeb Khan v. Valasula Devi AIR 1997 AP 53. 18. Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh AIR 1952 SC 343. 19. Hasi Mohan Barman and Anr. v. State of Assam and Anr., AIR 2008 SC 388 20. Hasi Mohan Burman v. State of Assam, (2008) 1 SCC 184. 21. Himanshu alias Chintu v. State (NCT of Delhi), (2011) 2 SCC 36. 22. Inder Singh & Anr. v. State (Delhi Administration) (1978) 4 SCC 161. 23. Jhapasa Kabadi v. State of Bihar AIR 2002 SC 312. 24. Jhiku Nai v. State of U.P 2001CriLJ3965. 25. Kaluchand v. R, (1883) 13 Cal 53. 26. Kanti Devi v. Poshi Ram AIR 2001 SC 2226. 27. KP Rajan v. State of Kerala, 1991 CrLJ 1859 (Ker). 28. Krishna Sanowal v. State of Assam, 1987 (1) Crimes 336. Page | 3
29. Lata Singh vs. State of U.P. & Anr. (2006) 5 SCC 475. 30. Limbaji v. State of Maharashtra, AIR 2002 SC 491; 31. Mahipal Maderna v. State of Maharashtra, 1971 Cri L J 1405 (Bom). 32. Mani Kumar Thapa v. State of Sikkim 2002(7) SCC 157. 33. Maqsoodan v. State of U.P. 1983 Cr LJ 218. 34. Ms Neelam Katara v. Union of India, ILR (2003) 2 Del 377. 35. Mulakh Raj v. Satish Kumar (1992) 3 SCC 43 36. Nathuni 36. Nathuni Yadav v. State of Bihar (1998) 9 SCC 238. 37. Pandurang Kalu Patil v. State of Maharashtra¸ AIR 2002 SC 733. 38. Pantangi v. State of A.P 2003 Cri. L.J. 4508 39. Pappu v. The State of Maharashtra, 2015 (3) BomCR(Cri) 344. 40. Parasa Raja Rao v. State of Andhra Pradesh (2003) 12 SC 306. 41. Parimal Gowala v. State of Tripura, 2007 CrLJ 2394 (Gau). 42. Prabhu and Ors. v. State, Criminal Appeal No.454 of 2007; 43. Pulukuri Kottaya v. R, A 1947 PC 67. 44. R v. Babu Lal, (1884) ILR 6 All 509. 45. R. v. Palmer, (1971) AC 814. 46. Ram Kumar Pandey v. State of M.P, (1975) 3 SCC 815. 47. Ram Nivas v. State, Crl Appeal No. 1271/2011. 48. Ramchandra Reddy and Others v. State of Maharashtra, 2004 BomCR (Cri) 657. 49. Ramjanam Singh v. State of Bihar, AIR 1956 SC 643. 50. Ramjee Rai v. State of Bihar, (2006) 13 SCC 229. 51. Rangilal v. State of Uttar Pradesh, 1991 CrLJ 916. 52. Samandar Singh v. State, 2009 CrLJ 3708 (MP) (DB). 53. Santosh Kumar Singh v. State thr. CBI, (2010) 9 SCC 747. 54. Seema Azad and others v. State of UP, Cr. Appeal No. 1055 of 2011. 55. Selvi vs. State of Karnataka, (2010) 7 SCC 263. 56. Sheikh Zakir v. State of Bihar, AIR 1983 SC 911. 57. Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3 SCC 654. 58. Shiv Kumar & Ors v. The State of Uttar Pradesh, 2000 CriLJ 4172. 59. State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. Page | 4
60. State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. 61. State of A.P. v. R. Punnayya, 1977 Cr LJ 1. 62. State of H.P. v. Jeet Singh, (1999) 4 SCC 370. 63. State of HP v. Jeet Singh, AIR 1999 SC 1293. 64. State of Karnataka v. David Razaria, AIR 2002 SC 3272. 65. State of M.P. v. Ashish Batham, 2002 (1) JLJ 289 (MP). 66. State of Maharashtra v. Damu Gopinath Shinde & Ors., AIR 2000 SC 1691. 67. State of Orissa v. Babai Charan Mohanty, 2004 SCC (Cri) 785. 68. State of Rajasthan v. Dallela, ILR (1958) 8 Raj 181. 69. State of U.P. v. Babu Ram, (2000) 4 SCC 515. 70. Sushil Sharma v. State of Haryana, Crl. appeal No. 693/2007. 71. Yogesh v. State of Maharashtra, (2008) 10 SCC 394. 72. Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 10 SCALE 369. 73. Zahira Habibulla H Sheikh v. State Of Gujarat And Ors., (2004) 4 SCC 158. EFERRED BOOKS R EFERRED
1. WOODROFFE AND AMIR ALI, LAW OF EVIDENCE (Lexis Nexis Butterworth eds., 19th ed. 2013). 2. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (Lexis Nexis Butterworth eds., 33d. ed. 2013).
EFERRED STATUTES R EFERRED
1. Indian Penal Code,1960 2. Code of Criminal Procedure,1973 3. Indian Evidence Act, 1872
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LIST OF ABBREVIATIONS ABBREVIATION
FULL FORM
&
And
A.P
Andhra Pradesh
AIR
All India Reporter
Andh
Andhra
Bbc
British broadcasting channel
Bom
Bombay
BomCR
Bombay Case Reporter
Cal
Calcutta
Co
Company
Cr.
Criminal
Cri
Criminal
Cri. L.J.
Criminal Law Journal
CRL.A
Criminal Appeal
DB
Division Bench
Del
Delhi
DLT
Delhi Law Tribunal
Gau
Guwahati
Html
Hyper text markup language
Http
Hypertext transfer protocol
ILR
Indian Law reporter
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J.
Journal
J&K
Jammu and Kashmir
Ker
Kerala
LT
Law Tribunal
Mad
Madras
MP
Madhya Pradesh
NCT
National Capital territory
No.
Number
Ori
Orissa
Pat
Patna
R
Regina
Raj
Rajasthan
Rang
Rangoon
SC
Supreme Court
SCALE
Supreme Court Almanac
SCC
Supreme Court Cases
SCR
Supreme Court Review
Supp
Supplementary
T.N
Tamil Nadu
Uk
United kingdom
UP
Utter Pradesh
US
United States
Page | 7
v.
Versus
Vs
Versus
W.P.
Writ Petition
WR
Writ Review
www.
World wide web
Page | 8
STATEMENT OF FACTS 1. Trisha Das was born to Rekha Mukherjee (Accused) and Siddhartha Da in 1987s. Rekha’s marriage with Siddhartha Das broke off in 1990, following which Trisha was put under the care of Rekha’s parent. Rekha, later, was with Suhas Kumar, but broke off with him in 2002. She later married Jacob Mukherjee. 2. On Rekha’s request Trisha moved to Delhi in 2006, obtained bachelors degree in 2006 from St. Xavier’s College. She met Shobhit, Jacob’s son, early on and later they entered into a romantic relationship with him, ending up cohabiting with hum from 2009-2012, till when Rekha murdered her along with Suhas Kumar and Shyam Sahu. Trisha found a friend-confidant in Ruhi whom she had met while working as trainee at KVS infrastructure.. 3. In 2011, Trisha got pregnant with Shobhit’s child, which Rekha vehemently opposed as it was socio-religious taboo, as Shobhit was also her son. She was coerced into aborting her th
child by Rekha. On 24 April, Trisha sent in her written resignation and sent a break message to Shobhit. Rekha claimed that Trisha had gone to the US because she wanted to leave Shobhit, therefore, no missing FIR was filed, though Trish’s passport was still with Shobhit. On Shobhit’s Shobhit’s insistence Police visited Rekha, where she said Trisha shifted to USA USA because of Shobhit’s stalking. stalking. Rekha was put under surveillance. 4. Shyam Sahu, Rekha’s driver, was caught for illegal arms, where he confessed to be an accomplice in Trisha’s murder. Trisha Trisha was kidnapped near National College, whree she was called by Rekha; strangled by Suhas Kumar in one of the by-lanes in Dwarka, who th
had flown in to Delhi, a, bagged and put in the car boot. Later, on 25 April morning, her body was taken to Kotpuli, Kausani forest area where it was set ablaze after pouring rd
petrol over it. The decomposed body was found on 23 May, 2012, after which the remains were put there till now at J.J. Hospital. Later, by way of DNA it was identified at Trisha’s body after Sahu admitted to the crime. Police filed FIR. In the investigation, the Narcoanalysis corroborated the FIR, Kumar’s phone was traced back to Kausani forrest th
area on 25 April, 2012.
5. The Prosecution has now approached the Honourable District and Sessions Court for prosecuting the accused under Sections 302, 364, 201, 120-B, 34 and 313 of the IPC. Page | 9
STATEMENT OF JURISDICTION
The Prosecution has approached the Hon’ble District and Sessions Court under Section 226, Chapter XVIII of the Code of Criminal Procedure, 1973 in the present matter.
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ISSUES RAISED
The issues raised raised before the Hon’ble Court are as follows: I.
WHETHER THE EVIDENCE BROUGHT BEFORE THE HON’BLE COURT CAN BE RELIED UPON BY THIS COURT.
II.
WHETHER
THE
DEFENDANTS
CAN BE CONVICTED UNDER THE CHARGES PLACED AGAINST
THEM.
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SUMMARY OF ARGUMENTS I.
THE EVIDENCE BROUGHT BEFORE THE COURT CAN BE RELIED UPON BY THIS COURT .
Firstly, DNA results as evidence of the identity of the deceased may be admitted by this court as
expert evidence; Secondly, Narco analysis of the defendants may be relied on by the court for the statements
revealed therein; Thirdly, the statements made by the hostile witness may be used to such extent as is required for
confronting the witness with his previously made statements to the police; Fourthly, the circumstantial evidence that permeates throughout the facts of this case must be
analysed by this court in order to reach a justiciable result ; Fifthly, the confessions of the defendant Sahu to the police may be used to a certain extent by
the court as corroboration of the circumstantial evidence; gestae apply in the case at hand in the favour of the Prosecution; and Sixthly, the principle of res gestae apply , the burden of proof shifts to the Defendants regarding certain facts that are sought to be Lastly established by the Defendants. II.
THE DEFENDANTS CAN BE CONVICTED UNDER THE CHARGES PLACED AGAINST THEM .
Firstly, the defendants are guilty of the Murder of the deceased Trisha Das under Section 302 of
the IPC; Secondly, they are guilty of Kidnapping with the intent of murdering Trisha, under Section 364; Thirdly, they caused the disappearance of material evidence to the case under Section 201; Fourthly, they took part in a criminal conspiracy under Section120-B; Fifthly, they had a common intention to commit crime under Section 34;
, Rekha must be convicted of causing the miscarriage of the deceased Trisha Das, as Finally punishable under Section 313 of the IPC . Page | 12
ARGUMENTS ADVANCED I.
THE EVIDENCE BROUGHT BEFORE THE HON ’BLE COURT CAN BE RELIED UPON BY THIS COURT .
The Petitioner submits that the court must rely on the evidences as presented. Firstly, DNA results of the deceased’s identity may be admitted by this court as expert evidence [A], while Narco Analysis of the Defendants may be relied on by the court for the statements revealed therein [B]. The statements made by the hostile witness may be used to such extent as is required for confronting the witness [C], and most importantly, the circumstantial evidence that permeates throughout the facts of this case must be analysed by this court in order to reach a justiciable result [D]. Finally, the confessions of the Defendant Sahu to the police may be used to a certain extent by the court as corroboration of the circumstantial evidence [E], the principle of res gestae apply in the case at hand in the favour of the Prosecution [F], and lastly, the burden of proof shifts to the Defendants regarding certain facts that are sought to be established by the Defendants [G]. A. DNA AS EVIDENCE AS CONCLUSIVE PROOF OF IDENTITY The evidentiary admissibility of DNA is well established in criminal law under Section 45 of the Evidence Act as it has a cent percent chance of being accurate. The Supreme Court has held that in circumstantial evidence forensic science plays a pivotal role. It further held that STRs is a 1
highly sensitive and is a conclusive test applicable for degraded samples also. The court, in furtherance of the above principle has held that “It is not disputed that DNA test test is very useful for establishing the identity of a dead person 2
whose body is recovered which is not in an identifiable condition because of decomposition.” decomposition.”
Hon'ble J. Bhatt has stated that, “ Forensic Science is an important branch of jurisprudence, it is a potent and powerful weapon in the armoury of administration of justice....The growth, development and use of Forensic Science in detection of crime in developed countries is 3
tremendous and increasing with new techniques."
1
Dharam Deo Yadav v. State of UP, (2014) 5 SCC 509. Sushil Sharma v. State of Haryana, Crl.appeal No. 693/2007. 3 Justice Jitendra Nath Bhatt, A Bhatt, A profile of Forensic Science in Juristic Journey Journey, (2003) 8 S.C.C. J-25. 2
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The above case yields a high degree of reliability in the present matter and the body, as in the present case was burnt and decomposed beyond recognition, thus the only plausible way of recognition of the body was a DNA test. The SC has held that the result of a genuine DNA test is 4
scientifically accurate; certain High Courts have accepted DNA as a perfect science and have observed that DNA has to come from one person and that the chances of a dual identity is around 1 in 30 million.
5
SC has held that the accurate recovery for purpose of DNA evidence is not required for the purpose of the trial. This is because the court held that it is the very ve ry intention of the murdered to ensure that the body cannot be discovered in a proper state. The court held that the evidence 6
discovered on the body could be used by the court. Further, the court also held that if the murder has been committed in the house or by a family member, the evidence will be circumstantial and the burden of proof on the prosecution is lessened and it is the burden of the 7
defense to explain the death of the person.
It is submitted that in the current case, the murder has taken place in the secrecy of the family, allowing very less trace for any witness or other substantive corroboration. But the DNA test has identified the body as that of Trisha’s. This must be held as conclusive as a) DNA test is a conclusive science b) even if not conclusive enough due to lapse of time, the burden of proof is lesser on the prosecution to have an absolute and accurate identification of the body. ADMISSIBILITY OF THE STATEMENTS THEREOF THEREOF B. NARCO A NALYSIS AND THE ADMISSIBILITY
The present case witnesses the use of narco analysis of Rekha, Sahu and Kumar (‘ (‘the 8
Accused’ Accused’) . While considering the constitutionality of these tests and as to whether they are in violation of Article 20(3) of the constitution of India, it has been held that such tests do not necessarily lead to the violation of the person’s personal rights. Certain high courts such as the Bombay High Court upheld the usage of various tests like brain mapping and narco analysis. It further went on to hold that the evidence is not only permissible
4
Kanti Devi v. Poshi Ram, AIR 2001 SC 2226. Pantangi v. State of A.P 2003, Cri. L.J. 4508. 6 Mani Kumar Thapa v. State of Sikkim, 2002(7) SCC 157. 7 Ram Nivas v. State, Crl. Appeal No. 1271/2011. 8 Factsheet Page 2. 5
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9
but also admissible in court. The Madras High Court has also allowed for such tests. This decision is important as it held that a person’ person’s right to silence is not violated when such tests are 10
administered. The Bombay High Court further held that tests like narco analysis is completely valid and even went to state and uphold that the such tests does not violate the person’ person’s right against self-incrimination guaranteed under Article 20(3) of the constitution.
11
The principles of
the high courts have found its presence in certain real life situations, including murders wherein the chief judicial magistrate has allowed for the usage of narco analysis on the prime accused of 12
a murder case.
Due to increased discussions regarding its applicability in crimes, the Court has looked into the aspect and has juxtaposed its applicability by holding that only due to possibility of abuse, such 13
tests cannot be completely rejected . Thus, all narco analysis tests are not completely invalid, as if they are done with the consent of the person, then such statements is permissible and admissible before the courts as statements made under Section 27 of the Indian Evidence Act, 1872.
14
It is thus submitted that since the concept of narco analysis has been given a very wide
scope with regard to its usage, with the Supreme Court upholding its usage, the statements that have been obtained from the Accused are admissible before the court during the trial. Any statement that is made with regard to narco analysis is to be made before a police officer. With regard to this, there have been certain courts have held high importance to corroboration for information with FIR. The courts have held that in certain situations that an FIR can be used for 15
corroboration purposes in order to prove the prosecution charges. It has also been accepted that 16
an FIR can be used to corroborate the prosecution’s stand. Courts have also accepted the fact 17
that an FIR can be treated as a confession and it can be used for corroboration.
It is submitted that the facts of the present case allow for the principles applied by the court with the facts of the matter. The evidence that has been relied on in the present case is the narco analysis of the accused, namely, Rekha, Kumar and Sahu which has further corroborated the 9
Ramchandra Reddy and Others v. State of Maharashtra, 2004 BomCR (Cri)657. Dinesh Dalmia v. State of Madras, 2006 CriLJ 2401. 11 Ibid. 12 Seema Azad and others v. State of UP, Cr. Appeal No. 1055 of 2011. 13 Mahipal Maderna v. State of Maharashtra, 1971 Cri L J 1405 (Bom). 14 Selvi v. State of Karnataka, (2010) 7 SCC 263. 15 Ram Kumar Pandey v. State of M.P., (1975)3SCC 815. 16 Ramjanam Singh v. State of Bihar, AIR 1956 SC 643. 17 Agnoo Nageshwari v. State of Bihar, 1966 SCR (1) 134. 10
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18
contents of the FIR, as is required by the courts. Furthermore, it is submitted that in the present case, Sahu and Suhas are also witnesses for each other and against Rekha, as per the Section 114(b) read with Section 133 of the Evidence Act. Thus, their statements seek to operate against each other and indicate their collective guilt. C. HOSTILE WITNESS STATEMENTS MAY BE CONSIDERED The Supreme Court has defined defined a hostile witness as one “who is not desirous of telling the truth 19
at the instance of one party calling him”. In the present case, the petrol pump attendant Rambahadur (PW2) turned hostile in Court, after consciously making an identification earlier to the police, wherein he had stated to the contrary, that he had seen Sahu at the Shri Ram petrol pump situated on the High way connecting Kotputli forest. It is submitted that this indicates that the witness thereby became adverse to the proceedings in this court. 20
In the Best Bakery Case , the first trial where a prime witness turned hostile, was found to be a farcical ‘mock trial’. In order to prevent miscarriage of justice, the statement of the hostile witness must be allowed during the trial and it should not be prejudicially held against the case of the prosecution. It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable 21
evidence in support of the conviction. The Supreme Court has held that the dependable part of 22
the evidence of a hostile witness can be relied on . The witnesses may have turned hostile out of 23
fear, inducement, threat or they are won over by the adversaries a dversaries by corrupt means.
To obtain the leave of the court under Ss. 154 and 142 of the Act, it is not necessary to declare a witness ‘adverse’ or ‘hostile’. It is also not necessary to ask for leave to ‘cross‘cross -examine’ the 24
witness. . Along with the answers given, even the demeanour or the behaviour of the witness can make him hostile. The prosecution can even seek for the witness to be termed hostile if he 25
says anything detrimental to the prosecution’s the prosecution’s case case .
18
Factsheet Page 2. Gura Singh v. State of Rajasthan, A.I.R 2001 SC 330. 20 Zahira Habibulla H Sheikh v. State Of Gujarat And Ors., (2004) 4 SCC 158. 21 Sheikh Zakir v. State of Bihar, AIR 1983 SC 911. 22 Himanshu alias Chintu v. State (NCT of Delhi), (2011) 2 SCC 36. 23 Pappu v. The State of Maharashtra, 2015 (3) BomCR(Cri) 344. 24 Krishna Sanowal v. State of Assam, 1987 (1) Crimes 336. 25 G.S.Bakshi v. State, A.I.R. 1979 S.C. 56. 19
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26
In the factually similar case of Bhagwan Dass , the mother of the accused, during her cross examination denied making the statement before the police whereby her son confessed to a murder. The police used the proviso under Section 162(1) of CrPC wherein a statements before the police can be used to contradict the testimony. The took cognizance of this and held that the witness had turned hostile as she had second thoughts and wanted to save her son. The defence also failed to prove any wrong doing by the police. It is submitted that since a similar sequence of events has occurred in this case, as well, i.e. the witness had deposed to the police in a way to favour the prosecution, and later refuting the same in front of the court. The court in the Bhagwan Dass correctly identified that the witness had turned hostile owing to either pressure from her home or a desire to save her son, and in an unprecedented move, had rejected her deposition in court and accepted the one before the police. 27
The Delhi High Court issued guidelines for witness protection in a case relating to alleged murder. If conflicting statements made due to to fraud, dishonesty or treachery, the party calling him should be permitted to cross examine him in order to reduce the credit of the person making 28
the conflicting statements under as under Section 155 of the CrPC. The general rule followed by the courts to call a person hostile is that, firstly, when the person shows through his behaviour, hostility to the party that called him to the witness stand and secondly, he speaks 29
something contrary to what is expected from him . The trial court has wide and unfettered discretion to allow leave for cross examination of the 30
witness under Sections 155 and 156 of the Evidence Act.
This discretion is to be used by the
31
court in the interest of justice. In a case of rape and murder, the sole witness of the factum of last seen, just like in the present case, was declared as hostile, yet a plea that the accused should 32
be held to be innocent on the basis of such declaration was held to be untenable.
26
Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396. Ms Neelam Katara v. Union of India, ILR (2003) 2 Del 377. 28 Kaluchand v. R, (1883) 13 Cal 53. 29 BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34. 30 AP Rao v. State, 1990 CrLJ 29 (Pat). 31 WOODROFFE AND AMIR ALI, LAW OF EVIDENCE 1405 (Lexis Nexis Butterworth eds., 19th ed. 2013). 32 Samandar Singh v. State, 2009 CrLJ 3708 (MP) (DB). 27
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The evidence of a hostile witness need not be whole discarded – discarded – the the court can accept whatever is 33
acceptable from that evidence. It can be used to corroborate other reliable evidence available 34
on the record. Further, a 2006 amendment allowed for courts to rely on the evidence of 35
witnesses declared as hostile under Section 154(2). Thus the there is no legal bar on admission 36
of the evidence of a hostile evidence. Thus, it is submitted that PW-2’s PW- 2’s statement with the police may be accepted acce pted in light of the other circumstantial circumstantial evidence which supports the witness’ prior statement, since there is other evidence on record to indicate the presence of the Defendants at the scene of the crime. D. CIRCUMSTANTIAL EVIDENCE IS ESSENTIAL PROOF OF GUILT It is submitted that if any case is based on circumstantial evidence and some circumstances are indicating towards merely guilt of accused, role of motive to commit offence like murder would be of great significance. It has been laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 37
It is also an established principle of criminal law that in ca ses of circumstantial evidence.
There should be a need for a reason – reason – a a motive – motive – which which should allow the fuelling of an act of committing a crime, making it an imperative element. Motive can be ascertained by the surrounding circumstances. It is not important that the motive has to be of a certain magnitude to incite a criminal act. There is no objective bar of fulfillment to qualify motive as criminal. The Supreme Court held that it is without doubt that a principle that every criminal act was done with a motive which the prosecution has to establish and prove, but as a corollary it cannot be said that no criminal act was done if the prosecution fails to prove the motive, or is unable to further put on record the manner in which such ire would have swelled up in the mind of the offender o ffender to such a degree as to impel him to commit the offence.
38
Furthermore, motive alleged by the prosecution if not strong enough for others to develop such a degree of grudge, would not mean that the assailants had no serious reasons to do this. The Court 33
KP Rajan v. State of Kerala, 1991 CrLJ 1859 (Ker). Rangilal v. State of Uttar Pradesh,1991 CrLJ 916. 35 WOODROFFE AND AMIR ALI, s upra note upra note 31. 36 Parimal Gowala v. State of Tripura, 2007 CrLJ 2394 (Gau). 37 Bhagat Ram v. State of Punjab, AIR 1954 SC 621. 38 State of H.P. v. Jeet Singh, (1999) 4 SCC 370. 34
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cannot look into the minds of the criminal to ascertain whether the motive was serious enough, 39
as many a criminals have committed crimes for less prominent reasons. Relying on the above principle, it has been held that it is not necessary to look at the motive of the crime separately as 40
every crime would have been committed with a motive. Especially, in cases of circumstantial evidence, if facts of the case tends towards the possibility of a motive, then the failure to 41
establish it will not derail the Prosecution’ Prosecution’s case exonerating the accused. It is contended that in the present case, the facts suggest that Rekha had sufficient motive to honor kill Trisha as she shared a relationship which is considered a taboo in the society, thus tarnishing her reputation. In any criminal case, it is established that the whole of the facts needs to be seen and it should not be seen in specific places. Circumstantial evidence does not find any place in the statute books, but being judicially espoused e spoused it is considered to be the broadest principle under unde r which all a ll facts, remote and far-fetched, must be considered. It has been held that circumstantial evidence is broader than "circumstances of the transaction" which is a principle under Section 32 of the 42
Evidence Act in which all relevant facts are to be taken for evidentiary consideration. It has been held that the testimony, evidence, in cases of circumstantial nature depend on judicial evaluation of the totality, not isolated isolated scrutiny. Proof beyond reasonable doubt is a guidance and not a fetish, thus, a guilty man should not get away if there are infirmities in the totality of the circumstances.
43
It is a settled principle in cases of circumstantial evidence, that the prosecutions story must be 44
consistent with the guilt of the accused. The prosecutions story in this case is the same as has been filed by the Police in the FIR, which then has been duly corroborated by the DNA and Narcoanalysis tests. The prosecutions story is further corroborated by the surrounding circumstances and behavior of the accused, where Rekha lied about Trisha leaving for USA with a new passport, all while slyly maintaining Trisha’s WhatsA pp account for the next 40 months so that people believe that Trisha was alive and left them abruptly due to Shobhit’s stalking.
39
Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238. R. v. Palmer, (1971) AC 814. 41 Mulakh Raj v. Satish Kumar, (1992) 3 SCC 43; Bhimappa Chandappa Hosmani and Ors. v. State of Karnataka, (2006) 11 SCC 323; Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 10 SCALE 369. 42 Shiv Kumar & Ors v. The State of Uttar Pradesh, 2000 CriLJ 4172. 43 Inder Singh & Anr. v. State (Delhi Administration), Administration), (1978) 4 SCC 161. 44 Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343. 40
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E. CONFESSIONS TO THE POLICE AND ADMISSIBILITY OF STATEMENTS THEREOF Section 25 does not operate as a bar to confront a prosecution witness with his statement which 45
he made to the police officer as an accused. This implies that a confession made by an accused before a police officer may be used against the maker of the confession in the course of his 46
trial.
47
Applying S. 27 of the Act, Sir John Beaumont in Pulukuri in Pulukuri Kottaya v. R
stated that information
supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of the knives, since they were discovered years ago. However, it leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and thus this fact is relevant. This was upheld in two more cases as being covered by S. 27, wherein the statement was recorded after the discovery of the physical object, however the 48
later statement corroborated with the discovery so made.
It would be fallacious to say that the expression “discovery of fact” should not be conferred only to the discovery of a material object, and the knowledge of the accused in relation thereto. It should be read with the definition of “fact” as per S. 3 of the Act, which includes any state of things or relation of things, capable of being perceived by senses and also includes any mental condition of which any person is “conscious”. If the fact is discovered in pursuance of the information given by the accused willingly, it fastens his involvement in the commission of the 49
crime if he happens to be the author of concealment of articles at a particular place.
S. 27, thus, this includes discovery of both physical things as well as mental facts. In that sense, S. 27 will apply whenever there is discovery, not contingent on the recovery of a physical object, as long as the discovery amounts to be confirmatory in character, guaranteeing the truth of the 50
information. Thus, it embodies the doctrine of confirmation by subsequent events.
45
Joginder Singh v. State of Punjab, 1984 Ch Cr Cas 99 (P&H). State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. 47 A 1947 PC 67. 48 Limbaji v. State of Maharashtra, AIR 2002 SC 491; Pandurang Kalu Patil v. State of Maharashtra¸ AIR 2002 SC 733. 49 State of Maharashtra v. Damu Gopinath Shinde & Ors., AIR 2000 SC 1691; State of M.P. v. Ashish Batham, 2002 (1) JLJ 289 (MP). 50 State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. 46
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It is thus submitted that although the statement of Sahu was recorded after the body of the deceased was recovered from the site of the crime, the fact that his statement corroborates with the location of the body, which would be unknown to anyone else who is not party to the commission of the crime, implies that there is a discovery of “fact” in the sense that the body was burned on that location. It is pointed out that the factual matrix clearly state that “the skeletal remains found in Kausani forest area were not linked with Trisha Das' case”, which implies that the fact was previously unknown, and only after the statement was made to the police was it technically deemed to have been “discovered”. Section 27 is also not vitiated merely because the recovery of the body may have been from a place which was wa s “open or accessible ac cessible to others”, since what is really to be checked is if the area was ordinarily visited or visible to the others.
51
Lastly, on the basis of information given by the defendant under S. 27, the Prosecution started its 52
case, it cannot be said that the defendant had a malicious intention. Furthermore, the objections to the admissibility of the statement as per Sections 24, 25 and 26 are considerably addressed, 53
since Section 27 is an exception to Sections 25 and 26 , and it also reduces the potency of 54
Section 24, thus rendering that part of the statement admissible. It is thus humbly submitted to this court that so much of the statement by Sahu which indicates that the body was burned and left at the location where it was found i.e. in the forests, be accepted as admissible evidence by this court. ES GESTAE AS EVIDENCE F. R ES
It is submitted that sections 6,7 and 8 collectively establish the principle of Res Gestae. Section 6 says the facts which are not in issue connected with the case but are relevant they must be considered by the court. The facts which are worth concerning with respect to Section 6 are Rekha’s possible conduct under which she had allegedly coerced Trisha to abort her child and the possibility of Rekha abhorring Trisha’s relationship with Shobhit because of it being a social
51
State of HP v. Jeet Singh, AIR 1999 SC 1293. Charan Singh v. Dev Raj, (1989) 1 Punj LR 117. 53 State of Karnataka v. David Razaria, AIR 2002 SC 3272; R v. Babu Lal, (1884) ILR 6 All 509. 54 S v. Deoman¸ 1961 1 SCR 14. 52
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taboo in India. Section 8, which warrants taking in consideration the previous and subsequent conduct of the accused, when taken into the context of the present case, implicates Rekha as she: a) Had a valid motive of honor killing Trisha who was resorting to acts which due to being taboos would have tarnished Rekha’s reputation. b) Her subsequent conduct of clearly lying about Rekha being alive makes her liable to prove the fact under Section 106 of the Evidence Act, failing which she should be implicated. c) Her conduct was unnatural as she alleged Shobhit of stalking Trisha after her mysterious disappearance after they both were openly cohabiting for 3 years. This creates a strong 55
suspicion against Rekha.
G. BURDEN OF PROOF SHIFTS IN CERTAIN SCENARIOS Under Section 101 of the Evidence Act, it is upon Rekha to prove the fact that Trisha wanted to be separate from Shobhit in such a drastic manner, owing to which she left India for USA in such a hurried manner. Under Section 106, it is upon the person who knows of a particular fact to prove that fact. In the current case, it is only Rekha who knew of Trisha’s reason for quitting her job and leaving India. Also, she got go t made the Passport for Trisha’s leave to USA. Trisha left for higher studies, as stated by Rekha. It is upon her to produce documents and evidences which back her claims for such particular facts. If Rekha is unable to produce these documents as her best evidence, then an adverse inference 56
can be drawn against her. This principle has been laid down by the Supreme Court.
55
State of Orissa v. Babai Charan Mohanty 2004 SCC (Cri) 785. Habeeb Khan v. Valasula Devi AIR 1997 AP 53.
5656
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II.
THE CHARGES FRAMED CANNOT BE PLACED AGAINST THE DEFENDANTS.
It is submitted that the Defendants are guilty of the Murder of the deceased Trisha Das under Section 302 of the IPC [A], as well as guilty of Kidnapping with the intent of murdering the deceased under Section 364 [B], causing disappearance of material evidence to the case under Section 201 [C]. Further, the Prosecution seeks to prove that the Defendants took part in a criminal conspiracy under Section120-B [D], and had a common intention to commit crime under Section 34 [E]. Finally, that Rekha must be convicted ,under Section 313 of the IPC [F]. A. THE ACCUSED MUST BE CONVICTED OF MURDER UNDER SECTION 302 Murder is act of culpable homicide done intentionally, murder being the specie of the genus of 57
culpable homicide. The necessities of culpable homicide amounting a mounting to murder being: i)
Act should be done to cause death or likeliness that it would cause death
ii)
Should not be arising out of provocation , in private defence , done in advancement
58
59
60
61
of public duty by public servant , out of premeditation , or by way of foreseeable 62
risk.
Motive is an important element to carry out the intention to carry out death of another, 63
especially, in cases of circumstantial evidence. Presence of motive in cases of circumstantial 64
evidence itself forms a link in the chain of the crime. Supreme Court in Santosh Kumar Singh 65
v. State through CBI agreed with the petitioner's contention that though motive alone cannot attract conviction, in light of other circumstances, circumstances, it goes a long way to forge important links. It is submitted that in the present case, the alleged killing was done by strangulation by the accused Suhas Kumar, then the body was taken to Kausani forest which was burnt. The motive for such annihilation of a person lies in Rekha’s motive of abhorring Trisha’s relationship with her step-son. The motive can be inferred by an act of honor killing.
57
State of A.P. v. R. Punnayya, 1977 Cr LJ 1 . Exception 1, Section 300, Indian Penal Code, 1860. 59 Exception 2, Section 300, Indian Penal Code, 1860 60 Exception 3, Section 300, Indian Penal Code, 1860 61 Exception 4, Section 300, Indian Penal Code, 1860 62 Exception 5, Section 300, Indian Penal Code, 1860 63 State of U.P. v. Babu Ram, (2000) 4 SCC 515 . 64 Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3 SCC 654. 65 Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747. 58
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An honor killing is the murder of a member of family by another member on the belief that the 66
person has brought some shame or dishonor on the family. Courts have held that this crime can 67
occur in the case wherein a person is in a relationship which is not accepted by the family.
In
the same case, the court strongly went against this act and convicted the party under Section 302 68
of the IPC. The court has accepted those confessions that were given before the police, using it 69
as evidence. The Court has vehemently lashed out against its gruesomeness, stating that it 70
deserves the death penalty.
The present case presents a high possibility of Honor being the main motive behind the crime. This is on the basis that the present facts are in tune with the principles of law laid down by the court on honor killing, as Rekha was very upset about Trishas relation with Shobhit till such an extent as to force her to have an abortion, thus giving a situation wherein Rekha feels that Trisha has brought shame on the family. Thus the facts along with the legal principles will allow this Hon’ble court to hold that the crime of Honor killing is applicable in the present c ase. IDNAPPING IN ORDER TO MURDER UNDER SECTION 364 B. THERE MUST BE CONVICTION FOR K IDNAPPING 71
The necessary ingredients under this section as iterated b y the Apex Court are : i)
Abduction must be proved
ii)
Person charged must have had the intention at the time of abduction to murder the abducted or be put in such danger
A conduct which destroys the presumption of innocence is a material fact. In a case where the accused misled the kidnap rescue search and did not allow the police to search specific places 72
created a cast iron doubt over his innocence, establishing liability. Certain High Courts have held that it is necessary to prove the cause of death in case it is inferred that the Kidnapping 73
resulted in the death of the deceased. The present case presents a high degree of inference on the accused as Rekha lied about Trisha’s existence. Sahu’s Cellphone was traced back to the Kausani on the day where Trisha was murdere, while Sahu confessed to before becoming hostile. 66
Honour Crimes, Crimes, Ethics Code, http://www.bbc.co.uk/ethics/honourcrimes/ http://www.bbc.co.uk/ethics/honourcrimes/(last (last accessed Feb. 02, 2016). Lata Singh v. State of U.P. & Anr., (2006) 5 SCC 475. 68 Ibid. 69 Aftab Ahmad Ansari v. State, (2010) 2 SCC 583. 70 Bhagwan Dass vs State (NCT) Of Delhi, (2011) 6 SCC 396. 71 Badshah v. State of UP, (2008) 3 SCC 681. 72 Jhapasa Kabadi v. State of Bihar, AIR 2002 SC 312. 73 State of Rajasthan v. Dallela, ILR (1958) 8 Raj 181. 67
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Even if the confession given by Sahu is not accepted by the court, the proof of abduction by the accused along with the principles laid down by the the court can allow this Hon’ble Hon’ble court to convict the accused. It is hereby contended that there is high degree of presumption against Rekha as she first lied about her daughters resettlement to the US whereas the skeletal remains discovered belonging to Trisha was obtained in Kausani. Due to this, it can be assumed that Trisha was not in contact with her mother but her WhatsApp was continuously active. Rekha further accused Shobhit of stalking Trisha after she forced Trisha to get an abortion. Rekha lied about Trisha’s visit to the US too as Trisha’s passport was with Shobhit, Shobhit, and no person can have two passports. It is submitted that all these facts and lies cast an iron cloud of doubt over Rekha’s Rekha’s innocence. C. THE ACCUSED
MUST BE CONVICTED FOR
CAUSING
DISAPPEARANCE OF EVIDENCE OR
GIVING FALSE INFORMATION TO SCREEN OFFENDER
The main ingredients which invoke Section 201 are: i)
Commission of an offence
ii)
Cause any evidence to disappear
iii)
Intention of screening the offender from legal punishment.
Section 201 is automatically attracted if an offence has been committed and there has been an attempt to cover the offence. A person under S. 201 can be convicted if there has been any attempt to cover the offence or/and the offender, without any charge. The Courts have accepted the above principle by convicting the accused in a case where subsequent burning of the dead 74
body was present, the accused was held to be liable under S. 201, along with S. 302. In cases where the body found has been linked to the accused, the accused unable to explain the body’s the body’s presence and the link or if the dead body’s death by murder is corroborated, then the onus is on 75
the accused to explain the death failing which he is liable under S. 201.
It is submitted that in i n the present case, there has been attempt to conceal Trisha’s murder by burning her body. The fact of her murder is corroborated by the dead body’s DNA and the
74
Deepak v. State of Maharashtra, (1995) 2 Cr LJ 2219 (Bom). Damodar v. State of Karnataka, AIR 2000 SC 50.
75
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corroboration of the FIR by way of Narco analysis test. Thus, making Rekha, Suhas, and Sahu, 76
all liable as they all helped each other in concert.
D. THE ACCUSED ARE GUILTY OF CRIMINAL CONSPIRACY UNDER SECTION 120-B The essential ingredients of a criminal conspiracy are: i)
There must be an agreement between the persons who are alleged to conspire
ii)
The agreement must be for a) doing an illegal act, b) doing a legal act illegally.
Conspiracy can be ascertained by inferring from the facts and circumstances. It can arise out of circumstances giving rise to irresistible inference of an agreement between two persons. The help of circumstantial evidence is necessary as a conspiracy is always hatched in secrecy and cannot 77
be proved by direct evidence. It is manifest that the meeting of two minds is a sine a sine qua non but non but it may not be possible to establish direct evidence, thus, it can be proved by necessary 78
implication. When read with section 34, which essentially demands that there must be an act in pursuance of the agreement and unity either by one or all. It is submitted that in this case, the differentiated facts which when read together provide clear indication of a conspiracy been carried out. These facts are : a) Motive of Rekha to honor kill her daughter, along with forced abortion b) Suhas Kumar’s phone found in the same Kausani forest area as that of Trisha on the night of the alleged incident c) Driver’s presence spotted by the Petrol Pump attendant attendant along with his confession, plus the proof of his character which is evidenced by him being caught in another criminal incident. The chain is clearly drawn. E. THERE EXISTS COMMON I NTENTION UNDER SECTION 34 Section 34 is used not substantively but to bring under the ambit of all persons accomplice to a common crime, where it is difficult to distinguish between the acts of the individual members of the common intention of all. All such people are deemed guilty as the presence of an accomplice 76
Goburdhun Bera, (1866) 6 WR (Cr) 80. Yogesh v. State of Maharashtra, (2008) 10 SCC 394. 78 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE 209-210 (Lexis Nexis Butterworth eds., 33d. ed. 2013). 77
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79
80
gives encouragement, support and the final shape to the criminal act. The main ingredients for Section 34 are: i)
common intention;
ii)
participation by all accused in the act or acts in furtherance of the common intention.
Furtherance Furtherance means “action of helping forward”, which was adopted by the Supreme 81
Court. There is no requirement that all participants must converge together, but they must act in concert to give result to the crime Common intention must be inferred the facts or relevant 82
circumstances, as direct evidence is seldom present. Court has also held that conduct of parties 83
can lead to substantial inference . As proven by the retracted admitted statement of Shyam Sahu and Suhas Kumar that they indeed did give shape to the Trisha’s abduction and murder, and also that Narco Analsyis corroborated the concerted story in the FIR filed by the police based on the Shyam Sahu’s admission of Trisha’s murder. EKHA MUST BE PUNISHED FOR CAUSING MISCARRIAGE UNDER SECTION 313 F. R EKHA
Using the Medical Termination of Pregnancy Act, 1971 and circumstantial evidence, the courts have held that in cases where sexual activity of the woman outside marriage was the cause of the pregnancy, leading to disapproval from surrounding family members and lover, it may be 84
assumed that the miscarriage was without consent. If the woman was herself not willing to abort her child, but was pressurized to do it, this section shall be attracted.
85
It is submitted that Rekha pressurized Trisha to abort the child owing to the taboos and norms of Indian society. An act done under duress lacks consent, thus, section 313 is attracted, and Rekha should be convicted for the same.
79
Ibid. Ramjee Rai v. State of Bihar, (2006) 13 SCC 229. 81 Parasa Raja Rao v. State of Andhra Pradesh, (2003) 12 SC 306. 82 Maqsoodan v. State of U.P., 1983 Cr LJ 218. 83 Jhiku Nai v. State of U.P., 2001CriLJ 3965. 84 Prabhu and Ors. v. State, Criminal Appeal No.454 of 2007; Hasi Mohan Barman and Anr. v. State of Assam and Anr., AIR 2008 SC 388. 85 Hasi Mohan Burman v. State of Assam, (2008) 1 SCC 184. 80
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PRAYER FOR RELIEF
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments adva nced, it is most humbly prayed before this Hon'ble Court that it may be pleased to adjudge and declare the following: 1. The Defendants are guilty of the murder of Trisha Das under Section 302 of the Indian Penal Code; 2. The Defendants are guilty of the kidnapping of Trisha Das under Section 364; 3. The Defendants are guilty of causing disappearance of evidence under Section 201; 4. The Defendants are guilty of common conspiracy to commit a crime under Section 120-B and had common intention thereof under Section 34; and 5. The Defendant Rekha is guilty of o f causing miscarriage without consent under Section 313.
OR
May pass any other order that it deems fit in the light of Justice, Equity and Good Conscience.
Sd//_______________ (Counsel for the Defendant)
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