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SURANA & SURANA NATIONAL TRIAL ADVOCACY COMPETITION - 2015
IN THE COURT OF SESSIONS DURG, XANADU, BHARAT
IN THE CASE OF STATE OF XANADU (PROSECUTION) VS
MANOHAR LAL AND RAHUL GULATI
(DEFENCE)
MEMORIAL ON BEHALF OF THE PROSECUTION
TEAM CODE __________
2
TABLE OF CONTENTS
INDEX OF AUTHORITIES………………...……………………………………………. VI STATEMENT OF JURISDICTION…………..…………………………………..……... IX STATEMENT OF FACTS………………………...………………………………....…… X THE STATEMENT OF CHARGES……………..…………………………………...…..XI ISSUES RAISED……………………….………………………………………………....XII THE SUMMARY OF ARGUMENTS……………………………….………….......…XIII ARGUMENTS ADVANCED………………………………………………………….……1 1. MR. MANOHAR LAL AND MR. RAHUL GULATI WERE INVOLVED IN CRIMINAL CONSPIRACY AGAINST
MR KARAN
…………………………………………………………..1 1.1 BOTH ACCUSED SHARED
THE COMMON INTENTION OF
MURDERING
MR. KARAN ………………………………………………………………………… 1 2. THE ACCUSED AND
66C
HAVE COMMITTED THE OFFENCE OF OF
INFORMATION
………………………………………….5
HACKING
TECHNOLOGY
UNDER SECTION ACT
66
2000
3
2.1 THE ACCUSED GAINED UNAUTHORISED ACCESS INTO THE VICTIM’S COMPUTER
AND
ONLINE
BANKING
ACCOUNT
…………………………..
………………………5 2.2 THE ACCUSED KNOWINGLY INTRODUCED A COMPUTER CONTAMINANT INTO THE
VICTIM’S
COMPUTER
…………………………………………………………..6 2.3 THE ACCUSED COMMITTED ARE LIABLE TO BE PUNISHED UNDER SECTION 43 OF INFORMATION TECHNOLOGY ACT, 2000 ………………………………………..7 3. THE ACCUSED MR. MANOHAR LAL FORGERY
AND
AND
MR. RAHUL GULATI
ARE LIABLE FOR
CRIMINAL BREACH OF TRUST ………………………………………..
…..9 3.1 MANOHAR AND RAHUL INTENDED TO CHEAT KARAN ………………………… 9 3.2 THE ACCUSED MISAPPROPRIATED THE VICTIM’S PROPERTY ENTRUSTED TO HIM ………………………………………………………………………………...10 4. THE
ACCUSED ARE LIABLE FOR THE
AMOUNTING
TO
MURDER
OFFENCE OF
PUNISHABLE
CULPABLE HOMICIDE
UNDER
SECTION
302
…………………………………………13
PRAYER FOR RELIEF ……………………………………………………………………16
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LIST OF ABBREVIATIONS Admn.
Administration
All ER
All England Reporter
AIR
All India Reporter
ALJ
Allahabad Law Journal
Bom CR
Bombay Cases Reporter
B.P.C.
Bharat Penal Code
BPO
Business Process Outsourcing
Cr LJ
Criminal Law Journal
Cy AT
Cyber Appellate Tribunal
Dr.
Doctor
Edn.
Edition
H.P.
Himachal Pradesh
Hon’ble
Honorable
i.e.
That is
IT
Information Technology
IPC
Indian Penal Code
mins.
Minutes
Mohd.
Mohammad
M.P.
Madhya Pradesh
NCT
National Capital Territory
Ors.
Others
P.
Page
PC
Privy Council
Rs.
Rupees
SCC
Supreme Court Cases
SC
Supreme Court
5
SCR
Supreme Court Reporter
&
And
v.
Versus
U.P.
Uttar Pradesh
6
INDEX OF AUTHORITIES STATUTES
CODE OF CRIMINAL PROCEDURE, 1973 INDIAN PENAL CODE, 1860 THE INDIA EVIDENCE ACT, 1872 INFORMATION TECHNOLOGY ACT, 2000
LIST OF CASES – INDIAN CASES 1. ABHINAV GUPTA V. STATE OF HARYANA 2008 CRI.L.J. 4536. 2. AJAY AGARWAL V. UNION OF INDIA AND ORS; 1993 AIR 1637 3. ASOKE BASAK V. STATE OF MAHARASHTRA (2010) 10 SCC 600; 4. BUDHI LAL V. STATE OF UTTARAKHAND ; AIR 2009 SC 87 5. CHACKO V. STATE OF KERALA ; (2004) 12 SCC 269 6. CHELLOOR MANKKAL NARAYAN ITTIRAVI NAMBUDIRI
V.
STATE
OF
TRAVANCORE
1953 SC AIR 478 7. DEV RAJ V. STATE OF PUNJAB ; AIR 1992 SC 950 8. FATMA BIBI AHMED PATEL V. STATE OF GUJARAT & ANR; 2008(6)SCC789 9. HANUMANT V STATE OF MADHYA PRADESH ; AIR 1952 SC 343 10. INDER MOHAN GOSWAMI & ANR. V. STATE 251
OF
UTTARANCHAL & ORS AIR 2008 SC
7
11. INDYA SEGA VALVI V. STATE OF MAHARASHTRA ; 2001 CRLJ 4804 (BOM) 12. JANESHWAR PRASAD V. STATE OF U.P. ; 2013(3) ALJ 222 13. KEHAR SINGH V. STATE (DELHI ADMN.) ; AIR 1988 SC 1883 AT P.1954 14. KUMAR V. WHITLEY 15. LAXMINATH V. STATE OF CHATTISGARH ; AIR 2009 SC 87 16. MIRZA AKBAR V. KING EMPEROR ; AIR 1940 PC 176 AT P. 180 17. MURALIDHAR SATPATHY V. STATE OF ORISSA 2007(I) OLR 611 18. NASEEM AHMED V. DELHI ADMIN ; (1974) 2 SCR 694 (696) 19. NOOR MOHAMMAD YUSUF MOMIN V. STATE OF MAHARASHTRA ; AIR 1971 SC 885 20. ONKAR NATH MISHRA V. STATE (NCT OF DELHI) , (2008) 2 SCC 561 21. PRITHVI V. STATE OF HARYANA ; (2010) 8 SCC 536 22. R VENKATKRISHNAN V. CENTRAL BUREAU OF INVESTIGATION 2009 SCC 737; 23. RAMGOPAL V. STATE OF MAHARASHTRA ; AIR 1972 SC 656 24. RAMKRUSHNA V. STATE OF MAHARASHTRA ; (2007) 13 SCC 525 25. RULI RAM V. STATE OF HARYANA ; (2002) 7 SCC 671 26. SARDUL SINGH CAVEESHWAR V. STATE OF MAHARASHTRA 1964 2 SCR 378 27. SAROJ MALIK V. GIRISH
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28. SAROJ MALIK V. RAHUL P SHAH 2011 SCC ONLINE CYAT 9 29. SHIVAJI SAHEBRAO BOBADE V. STATE OF MAHARASHTRA ; AIR 1973 SC 2622 30. SHIVANARAYAN LAXMINARAYAN & ORS. V. STATE
OF
MAHRASHTRA & ORS.; (1980)
2 SCC 465 31. STATE V. NALINI AIR 1999 SC 2640 32. STATE OF H.P. V. KRISHAN LAL PRADHAN AIR 1987 SC 773 33. SUKANTI CHOUDHURY V. STATE OF ORISSA 2013 SCC ONLINE ORI 9 34. SUNDER LAL V. STATE OF RAJASTHAN ; (2007) 10 SCC 371 35. SURESH LALCHAND LULLA V. SUDHIS TALPADE 1992 (3) BOM CR 394 36. TUFAIL V. STATE OF UTTAR PRADESH ; (1969) 3 SCC 198 37. VEERAN V. STATE OF M.P. ; (2011) 11 SCC 367 38. VIJAYAN V. STATE OF KERALA ; AIR 1999 SC 1086 39. VINOD KAUSHIK & ORS.
V.
MADHVIKA JOSHI & ORS; ADJUDICATING OFFICER,
INFORMATION TECHNOLOGY ACT, 2000, GOVERNMENT
OF
MANTRALAYA,MUMBAI- 400032, COMPLAINT NO.2 OF 2010192. FOREIGN CASES 1. QUINN V. LEATHEM; 1901 AC 495 AT 528 2. MULCAHY V. REG (1868) L.R. 3 H.L. 306
MAHARASHTRA, AT
9
3. COCO V. A.N. CLARK ENGINEERS LTD. (1969) 2 R.P.C. 41 4. CRANLEIGH PRECISION ENGINEERING CO. LTD. V. BRYANT (1956) 3 ALL ENGLAND REPORT 301 BOOKS/ MANUALS/ DIGESTS AND OTHER RECOGNISED TEXTS-
1
PAWAN DUGGAL, CYBER LAW- THE INDIAN PERSPECTIVE , 2ND EDN., 2004
2
PROF. S.N. MISHRA, THE INDIAN PENAL CODE, 19TH EDN., 2013
3
RAM JETHMALANI AND D.S. C HOPRA, THE INDIAN PENAL CODE (VOLUME -1 AND
4
VOLUME - 2), 1 ST EDN., 2014
HARI SINGH GOUR, INDIAN PENAL CODE (VOLUME - 1 AND VOLUME - 2), 14TH EDN., 2013
5
M.C. S ARKAR, LAW OF EVIDENCE , 16TH EDN., 2007
6
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 28TH EDN., 2002
STATEMENT OF JURISDICTION 1. Section 177 of the Code of Criminal Procedure states that “Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed”.
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2. Section 193 of the Code of Criminal Procedure states that, “Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this code.” Hence in the instant case as per the facts mentioned, the Magistrate Court has referred the instant case to the Court of Sessions in Durg , Xanadu, Bharat, hence this Court has the requisite jurisdiction to try the instant case. 3. Section 209 of the Code of Criminal procedure states that, “When in a case instituted on a police report or otherwise, the accused appeared or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session;” he shall commit it to the Court of Session. Thus this case is tried at the Court of Session on being committed to it by the Magistrate and thus has the requisite jurisdiction. 4. Section 199(1) of the Code of Criminal Procedure states that, “No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) expect upon a complaint made by some person aggrieved by the offence” Here in the instant case a complaint was filed by the aggrieved party, hence, this court has the requisite jurisdiction.
STATEMENT
OF
FACTS
1. The accused, Manohar Lal (Mano), upon being orphaned, began residing with his uncle the victim, Karan, along with his wife Devika and son Raghav. Karan was encouraging of
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Mano’s excellent academic performance and provided financial and emotional support, which culminated in an admission into the medical college TMC. Mano was enthralled by the affluence of his classmates and became friends with Rahul, who had always been a proficient hacker. Soon Mano began borrowing money from Rahul and the debt had reached Rs. 1 Lakh upon which Rahul demanded its return. 2. Given his fractious relationship with Raghav and Devika, and Karan’s ill health Mano was nominated benefactor to an insurance policy of Rs 2 Crores. On a few occasions, Rahul came over to Mano’s house for a sleep over and connected a keylogger into Karan’s computer which enabled them to decrypt his online banking password and transferred money to his account. Rahul came to know about the insurance policies. 3. Karan asked Mano to transfer money to his account to pay his semester fees, which Devika had not paid. Mano tried to open Karan’s bank account, but was unable due to inappropriate password. He found the id and password in one file and opened the Karan’s account and transferred Rs. 2.50 lakhs as opposed to Rs. 2.25 lakhs which is what he would usually transfer to his account. 4. The next day Mano sat with Karan before leaving for college. Karan started coughing heavily, he also had chest pain and stomach ache. Mano was looking for the pain killers, but could not find them. So he took a pen and wrote the name of a medicine Angispan on Dr. Chowdhary’s prescription. Raghav immediately rushed and got the medicines. Manohar administered the pain killer via intravenous. Karan was quiet for about half an hour. Suddenly he developed fits and seizure and was moaning heavily and collapsed. Mano and Raghav tried to revive him but failed. Karan had passed away. STATEMENT
Following are the charges against the accused:
OF
CHARGES
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a. Manohar Lal – Under Sections 302, 465 read with 34 and 120B of the B.P.C. 1 and Sections 66 and 66C of the Information Technology Act2. b. Rahul Gulati – Under Sections 302, 465 read with 34, 120B and 109 of the B.P.C. and Sections 66 and 66C of the Information Technology Act.
The Laws of Bharat are pari materia to the Laws of India.
ISSUES RAISED-
1 Bharat Penal Code. 2 Information Technology Act, 2000.
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1
WHETHER
THE ACCUSED HAVE CONCOCTED A CRIMINAL CONSPIRACY AGAINST
KARAN? 2
WHETHER
THE ACCUSED ARE LIABLE TO BE CHARGED UNDER
SECTION 66
AND
66C OF THE IT ACT, 2000? 3
WHETHER
THE ACCUSED ARE LIABLE TO BE CHARGED FOR FORGERY AND
CRIMINAL BREACH OF TRUST?
4
WHETHER THE ACCUSED ARE LIABLE FOR
SUMMARY
I.
OF
COMMITTING MURDER ?
ARGUMENTS
THAT MANOHAR AND RAHUL HATCHED A CRIMINAL CONSPIRACY AGAINST KARAN.
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That the accused were part of a criminal conspiracy against Karan. The said conspiracy was illegal which is obvious from the chain of events, which were all part of the same transaction. II.
THAT ALL THE ACCUSED ARE LIABLE TO BE CHARGED UNDER SECTION 66 AND 66C OF THE INFORMATION
TECHNOLOGY ACT, 2000.
The accused committed various offences under section 66 and 66C of the Information Technology Act, 2000. Section 66 prescribes the punishment for the offences committed under section 43, whereas section 66C apart from describing the offence of dishonest use of unique identification feature also prescribes its punishment. III.
THAT THE ACCUSED ARE LIABLE FOR FORGERY AND CRIMINAL BREACH OF TRUST. By forging the electronic document, which is Karan’s net banking id and password in this case the accused also cheated him of his money, thus forging for the purpose of cheating Karan. Hence they should also be charged under section 468 of the I.P.C. which lays down the punishment for forgery committed for purpose of cheating. They
IV.
should also be punished under Section 405 of the I.P.C. for criminal breach of trust. THAT THE ACCUSED ARE LIABLE FOR THE OFFENCE OF MURDER. Section 300(4) of the I.P.C. deals with murder and Section 302 of the I.P.C. prescribes punishment for the same. In the said case, the accused are liable for the offence of murder for murdering Karan.
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1
WRITTEN SUBMISSIONS
________________________________ CONTENTION 1 . MR. MANOHAR
LAL AND
IN CRIMINAL CONSPIRACY AGAINST
MR. RAHUL GULATI
WERE INVOLVED
MR KARAN l
Section 120A (1) of the IPC defines criminal conspiracy3 and Section 120B prescribes punishment for criminal conspiracy4.. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means.5 When two or more persons agree to carry such act into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum6, capable of being enforced, if lawful, is punishable for a criminal object or for the use of criminal means.7 1.1 BOTH ACCUSED SHARED THE COMMON INTENTION OF MURDERING MR. KARAN In the present case it can be seen that Rahul was a computer lover who had been forced to take medicine. Rahul also had an eye on Mano and his uncle’s money which was why he established a close friendship with Mano who himself dreamt of an opulent lifestyle. A clear evidence of their friendship and Rahul’s evil intent was when he gave money to Mano 3 Section 120A of The Indian Penal Code, 1860 4 Section 120B of The Indian Penal Code, 1860 5 Section 120A of the Indian Penal Code, 1908. 6 A contract is an act as it were against an act. 7 Fatma Bibi Ahmed Patel v. State of Gujarat & Anr; 2008(6)SCC789; Quinn v. Leathem; 1901 AC 495 at 528; Mulcahy v. Reg (1868) L.R. 3 H.L. 306; Ajay Agarwal Vs. Union of India and Ors; 1993 AIR 1637, 1993 SCR (3) 543.
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continuously and later, suddenly demanded it back and pressurised Mano to do so. Moreover, he instigated Mano slightly by saying that he could hack in to his father’s account and transfer money without a trace. Meanwhile, Karan had developed drinking habits and this was disliked by Mano yet he continued to support Karan so as to gain his trust. Also, during this time, Rahul started coming to Mano’s house for sleepovers inspite of their relations being strained. Here, they both transferred money from Karan’s account via the keylogger and moreover, Raghav has stated that he saw them both working on the computer continuously and thus Karan got a taste of the blood and this activity occurred on a few more occasions. Later on, things started to take a turn at Karan’s as once Devika accused him of being close to Karan only for his money and while Karan laughed at the same, Mano felt upset and left. Later, the humiliation he faced in class for defaulting in payment of semester fees added fuel to the fire and the resultant spat at home triggered the conspiracy and his desire to be the master of his own fate which could be seen from Devika’s statement which shed light on Mano’s desire to be his own master and hence getting rid of dependency. The next day, when Karan was tearyeyed and sad, Mano was stone-faced and did not show any reaction which shows that Karan’s actions were too late and when asked to transfer money he transferred extra money so as to execute his plan. Thus, it can be clearly seen that they both conspired to kill Karan; Mano to live an opulent, independent life and Rahul to fulfil his tech dreams. Thereon, Mano became the active member of their association. The ingredients of the offence of criminal conspiracy are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal 8. Generally a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the
8 Ram Jethmalani and D.S. Chopra, The Indian Code 552 (Thomson Reuters, 1 st edn., 2014)
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same9. The prosecution craves leave to rely more upon circumstantial evidence. The conspiracy can be undoubtedly proved by evidence, either direct or circumstantial 10. Mere evidence as to transmission of thoughts sharing the unlawful design may be sufficient. In most cases proof of conspiracy is largely inferential though the inference may be founded on solid facts. Surrounding circumstances and antecedent or subsequent conduct, constitute relevant material11. To bring home the charge of conspiracy within the ambit of Section 120B of the IPC it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy 12. It has been held in the case of State of H.P. vs. Krishan Lal Pradhan13 that every one of the conspirators need not take active part in the commission of each and every one of the conspirational acts. Moreover, this has been supplemented in the case of State vs. Nalini14 where it was held that where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to do the object of conspiracy, all of them will be liable even if
9 Shivanarayan Laxminarayan & Ors. State of Mahrashtra & Ors.; (1980) 2 SCC 465 10 Kehar Singh vs. State (Delhi Admn.) ; AIR 1988 SC 1883 at p.1954 11 Noor Mohammad Yusuf Momin vs. State of Maharashtra ; AIR 1971 SC 885 12 Vijayan vs. State of Kerala ; AIR 1999 SC 1086 13 AIR 1987 SC 773 14 AIR 1999 SC 2640
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some of them have not actively participated in commission of those offences 15. In a case before the SC it was again substantiated by the Hon’ble Court. Section 10 of the Indian Evidence Act, 1872 talks about things said or done by conspirator in reference to common design16. Section 10 of the Evidence Act must be construed in accordance with the principle that the thing done, written, spoken in carrying out the conspiracy is receivable as a proof of the conspiracy 17. This has been further elaborated in the case of Sardul Singh Caveeshwar vs. State of Maharashtra18 where it was held that once prima facie evidence exists as to whether a person was a party to the conspiracy, anything said, done or written by the conspirator with reference to the common intention, is relevant for proving the other person was a party to it. Section 154 of the Indian Evidence Act, 1872 deals with the questioning and testimonies of witnesses19. According to the section, evidence of hostile witness can be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident20. Thus there is no legal bar to conviction on the basis of these testimonies21. Section 6 of the Indian Evidence Act, 1872 deals with the relevancy of facts forming part of same transaction22. 15 Mohd. Usman Mohd. Hussain vs. State of Maharashtra ; 1981 CrLJ 588 SC 16 Section 10 of the Indian Evidence Act, 1872 17 Mirza Akbar vs. King Emperor ; AIR 1940 PC 176 at p. 180 18 (1964) 2 SCR 378 19 Section 154 of The Indian Evidence Act, 1872 20 Prithvi vs. State of Haryana ; (2010) 8 SCC 536 21 Ramkrushna vs. State of Maharashtra ; (2007) 13 SCC 525 22 Section 6 of The Indian Evidence Act, 1872
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It is humbly submitted before the Honorable Court that all the facts and circumstances corroborating with each other indicate that both the accused acted in collaboration to kill Karan for fulfilling their motives.
________________________________ CONTENTION 2. THE ACCUSED SECTION
HAVE COMMITTED THE OFFENCE OF
66 AND 66C OF INFORMATION TECHNOLOGY
ACT
HACKING
UNDER
2000
P
L
In the case at hand, Manohar and Rahul, committed various offences under section 43 and 66C of the Information Technology Act, 2000. Section 6623 prescribes the punishment for the offences committed under section 43, whereas section 66C apart from describing the offence of dishonest use of unique identification feature also prescribes its punishment. Thus Manohar and Rahul are liable to be punished under Section 66 and 66C of the Information Technology Act. 2.1 THE ACCUSED GAINED UNAUTHORISED ACCESS INTO THE VICTIM ’S COMPUTER AND ONLINE BANKING ACCOUNT In Kumar V. Whiteley24, the accused logged in to the Joint Academic Network, (JANET) as if he was the authorised user, thereby causing a loss of Rs. 38,482 to the authorised subscribers. The accused was held liable under section 66 of the Information Technology Act, 2000. In this case, Manohar and Rahul committed various computer related offences, starting on a day when Rahul came over to Karan’s house for a sleepover. They gained unauthorised access to 23 Section 66 of the Information Technology Act, 2000. 24 http://www.slideshare.net/NIIConsulting/it-act-2000-penalties-offences-with-case-studies last accessed on 26th July 2015
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Karan’s computer, then they inserted the key logger device and installed its software into the computer and used it to decrypt (extract) Karan’s online banking password and transfer various amounts of money at various times to Rahul’s account. These offences are punishable under section 66 and 66C of the Information Technology act, 2000. Under section 66C of the Information Technology Act, 2000 any person who makes a fraudulent or dishonest use of any electronic signature, password or any unique identification feature of any other person is an offence. It also prescribes the punishment for this offence. In Vinod Kaushik & Ors. V. Madhvika Joshi & Ors. the respondent accessed her husband’s and father-in-law’s email id’s by using their password. The respondent was held liable for violating section 66C. Similarly in Saroj Malik V. Girish , the respondents were held liable for violating section 66C of the Information Technology Act, 2000. 2.2 THE ACCUSED KNOWINGLY INTRODUCED A COMPUTER CONTAMINANT INTO THE VICTIM’S COMPUTER Under Section 43 of the Information Technology Act, 2000 25securing unauthorised access to a computer or computer system26 or downloading, copying or extracting data from the system27 or introducing a computer contaminant or virus into the computer system 28 qualify as offences. In Abhinav Gupta V. State of Haryana29, the petitioner was accused of hacking and gaining access to confidential information, of his former employer while in its employment, and forwarded the details to one of his employer’s competitors. In another case, better known as 25 Section 43 of the Information Technology Act, 2000 26 Section 43(a) of the Information Technology Act, 2000. 27 Section 43(b) of the Information Technology Act, 2000. 28 Section 43(c) of the Information Technology Act, 2000. 29 2008 Cri.L.J. 4536.
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the Mphasis BPO fraud four employees obtained pin codes from customers in an unauthorised manner and used these pin codes to transfer various sums of money from the accounts of those customers amounting to a total of $ 4,26,000. The court held that due to the unauthorised nature of access to the accounts of these customers, Section 43(a) would be applicable30. Similarly when they secured unauthorised access to Karan’s computer, they committed an offence under section 43(a). In the case, Saroj Malik V. Rahul P Shah 31, the respondents had copied a domain name (a web domain) and were held to be liable for violation of Section 43(b) of the Information Technology Act. Similarly in a case in Raigarh32, Chattisgarh an email was used to hack into an SBI Branch’s system to capture the username and password of the Dial-Up connections and send them to a specific email address. The accused was held liable under section 66 for violating Section 43(b) of the IT Act. 2.3 THE ACCUSED COMMITTED ARE LIABLE TO BE PUNISHED UNDER SECTION 43 OF INFORMATION TECHNOLOGY ACT, 2000 Rahul and Manohar violated section 43(b) when they decrypted or in other words extracted Karan’s net banking password using the key logger. Manohar and Rahul also introduced a computer contaminant, i.e. the key logger device and software, thereby violating section 43(c) of the Information Technology Act, under which introducing a computer contaminant into a computer system is prohibited. In the same case 33, the respondent took up a very interesting mode of operation. He sent a mail with an attachment which was basically a 30 http://www.slideshare.net/NIIConsulting/it-act-2000-penalties-offences-with-case-studies last accessed on 26th July 2015 31 2011 SCC OnLine CyAT 9 32 Pavan Duggal, Cyber Law – The Indian Perspective 311 (Saakshar Law Publications, New Delhi, 2nd edn.) 33 Ibid
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computer contaminant that captured information. The respondents were held liable for violating section 43(c) of the Information Technology Act. A Computer contaminant means any set of computer instructions that are designed to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network or by any means to usurp the normal operation of the computer, computer system or computer network34. In the case at hand, Rahul introduced a key logger device as well as its software into Karan’s computer. Though the key logger device does not come under the definition of a computer contaminant but its software does. Any software is a set of computer instructions. The key logger software was used by Manohar and Rahul to decrypt Karan’s net banking password, thus the key logger software, i.e. a set of computer instructions was used to record data, which is Karan’s password. Thereby the key logger software falls within the definition of a computer contaminant. The presence of the key logger software in the hard disk of Karan’s computer is admissible as an evidence under Section 3(2) of the Indian Evidence Act, 1872, which defines “Evidence” and covers within its ambit electronic records and other documents. Further reliance is placed on expert witness, Hashmeet’s statement, which is also admissible under section 3(2) of the Indian Evidence Act, 1872. Whether a particular action of introducing a computer contaminant or virus is done intentionally or unintentionally or with or without any knowledge, the legal liability for damages by way of compensation remains the same 35. Hence, though Manohar and Rahul intended to transfer money from Karan’s account to Rahul’s account, their intention need not be proved to hold them liable under this section. Both of them will be liable for violating section 43(c) of the Information Technology Act, 2000.Thus Manohar and Rahul should be
34 Explanation (i) to Section 43 of the Information Technology Act, 2000. 35 Pavan Duggal, Cyber Law – The Indian Perspective 211 (Saakshar Law Publications, New Delhi, 2nd edn.)
9
held liable for violating this section by using Karan’s net banking id and password to transfer various amounts of money to Rahul’s account
_______________________________ CONTENTION 3. THE ACCUSED MR. MANOHAR LAL LIABLE FOR
AND
MR. R AHUL GULATI
ARE
FORGERY AND CRIMINAL BREACH OF TRUST
p
l
Manohar and Rahul are liable for punishment of forgery as under section 465 of the I.P.C. 36, forgery is defined as making any false documents or electronic record with the intent to cause damage to any person or to commit fraud under section 463 of the IPC. By forging the electronic document, which is Karan’s net banking id and password in this case they also cheated him of his money, thus forging for the purpose of cheating Karan. Hence they should also be charged under section 468 of the I.P.C. which lays down the punishment for forgery committed for purpose of cheating. 3.1 MANOHAR AND RAHUL INTENDED TO CHEAT KARAN In order to constitute an offence of forgery, the ingredient of mala fide intention must be satisfied. In Sukanti Choudhury V. State of Orissa 37, there existed allegations of forgery of High School Certificates issued to the petitioner by the Board of Secondary Education, Orissa for the purpose of cheating. The offence of cheating as defined under section 415 of the I.P.C. 36 Indian Penal Code, 1860 37 2013 SCC online Ori 9
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requires essential element of deception as well as fraudulent or dishonest inducement by the accused. While analyzing the provisions under sections 420 and 415 of the I.P.C. it has been pointed by the Supreme Court in Inder Mohan Goswami & Anr. V. State of Uttaranchal & Ors.38 that it is the intention which is the gist of the offence of cheating. Similarly, it has been pointed out by this Court in Muralidhar Satpathy V. State of Orissa 39 that guilty intention is an essential ingredient of the offence of cheating. In order to constitute offence punishable under section 420 of the I.P.C., intention to deceive should be in existence at the time when inducement was offered. Forgery requires that a false document must be made with intent to cause damage or with intent to commit fraud. Under section 464 of the I.P.C. making of a false document for the purpose of forgery must be with dishonest or fraudulent intention. Section 471 of the I.P.C., providing for punishment for the offence of using of forged document as genuine, postulates that the accused knew or had reason to believe that it was a forged document and also that accused used it fraudulently or dishonestly. Use of a forged document dishonestly or fraudulently shall arise only when accused uses the document with intention of causing wrongful gain or wrongful loss or to defraud40. In the present case, Rahul had inserted a ‘keylogger’ in Karan’s computer, which allowed Rahul and Manohar to decrypt Karan’s online banking password and transfer amounts of money from Karan’s bank account by forging his net banking id and password, without his knowledge or permission. This clearly highlights the mala fide intentions of Rahul and Manohar. 3.2 THE ACCUSED MISAPPROPRIATED THE VICTIM ’S PROPERTY ENTRUSTED TO HIM
38 AIR 2008 SC 251 39 2007(I) OLR 611 40 Suresh Lalchand Lulla V. Sudhis Talpade 1992 (3) Bom CR 394
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In the present case, there also exists an element of criminal breach of trust. There existed a relationship of trust between the victim and the accused. In order to come closer to the victim, the accused would support the victim and provide emotional support, especially when his relations with the rest of his family had become strenuous. The mala fide intention of the accused became apparent to the victim’s wife Devika, and on one occasion she even remarked how the accused was close to the victim only because he was after the victim’s money. This statement shows that the accused wanted to gain the trust of the victim and then misappropriated it to his own advantage. The accused was successful in doing so and this is apparent from the incidents wherein the victim had allowed the accused to transfer money from the victim’s account to his account. The existence of a strong bond of trust between the two is further strengthened when we come to know of the fact that the victim had taken a two crore policy and named the accused as the benefactor in case of his death, to which none other than the accused was privy. Section 405 of the I.P.C. defines criminal breach of trust as an act of any person who is in any manner entrusted with property, dishonestly misappropriates or converts to his own use that property in violation of any legal contract, express or implied, which he has made touching the discharge of such trust, commits “criminal breach of trust”. In Asoke Basak V. State of Maharashtra41, the Hon’ble Supreme Court held that in order to constitute an offence of criminal breach of trust the following ingredients must be satisfied: a) A person must be entrusted with property, or with any dominion over property; b) That such person should dishonestly misappropriate or convert to his own use that property; c) That such dishonest use or disposal of that property should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any
41 (2010) 10 SCC 600; Coco V. A.N. Clark Engineers Ltd. (1969) 2 R.P.C. 41
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legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. In R Venkatkrishnan V. Central Bureau of Investigation 42, the Supreme Court held that the terms of Section 405 was very wide and that apply to anyone who is entrusted with property or dominion over property. The court held that if such person wilfully misappropriates or converts the property entrusted to him, he commits criminal breach of trust. As stated above, the accused
was entrusted with dominion over the victim’s property and dishonestly misappropriated the victim’s property for his own benefit and caused wrongful loss to the victim. In Onkar Nath Mishra V. State (NCT of Delhi)43, the Hon’ble Supreme Court noted that in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. As previously stated, the accused accessed Karan’s online banking account by using the keylogger and transferred sums of money on several occasions. Notwithstanding that, Karan had entrusted Manohar with permission to transfer small amounts of money, provided that Manohar kept Karan informed about the same. As per the factsheet, the accused fraudulently transferred Rs. 2.5 lakhs from Karan’s bank account as opposed to the sum of Rs. 2.25 lakhs for which he had authority to transfer. In Chelloor Mankkal Narayan Ittiravi Nambudiri V. State of Travancore 44, the Hon’ble Supreme Court held that, “to constitute and offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property 42 2009 SCC 737; Cranleigh Precision Engineering Co. Ltd. V. Bryant (1956) 3 All England Report 301 43 (2008) 2 SCC 561 44 1953 SC AIR 478
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or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do”. Thus, the prosecution states that the accused was entrusted with dominion or power over the victim’s property, i.e. his computer and bank account, and that there was a dishonest use in violation of an implied legal contract by the accused himself.
________________________________ CONTENTION 4. THE
ACCUSED ARE LIABLE FOR THE OFFENCE OF
HOMICIDE AMOUNTING
TO
MURDER
UNDER SECTION
300
CULPABLE
PUNISHABLE
UNDER
SECTION 302 P
L
Section 300(4) of the IPC reads as – Except in the cases here in after excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or; if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Under the scheme of the IPC, “culpable homicide” is genus and “murder” its species. Thus all murder is “culpable homicide” but all “culpable homicide” is not “murder” 45. There are
45 Veeran vs. State of M.P. ; (2011) 11 SCC 367
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differing degrees of culpable homicide namely, first, second, third 46. The first degree culpable homicide is defined as “murder” under Section 300 of IPC47. Cases like the present one rely enormously on circumstantial evidence. When evidence is of a circumstantial nature, circumstances for conclusion of guilt should be established 48 and facts should be consistent with hypothesis of guilt of accused 49. For determining the usefulness of circumstances, regard must be had to the totality of the circumstances 50. Individual circumstances considered in isolation and divorced from the context may by themselves appear innocuous51. It is only when the various circumstances are considered conjointly that it becomes possible to understand them. Hence there must be a chain of events which does not leave any reasonable ground for a conclusion consistent with innocence of accused 52. It must show that within all human probability the act must have been done by the accused 53.Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty54.Such knowledge on the part of the offender must be of the highest degree 46 Ruli Ram vs. State of Haryana ; (2002) 7 SCC 671 47 Chacko vs. State of Kerala ; (2004) 12 SCC 269 48 Shivaji Sahebrao Bobade vs. State of Maharashtra ; AIR 1973 SC 2622 49 Ramgopal vs. State of Maharashtra ; AIR 1972 SC 656 50 Naseem Ahmed vs. Delhi Admin ; (1974) 2 SCR 694 (696) 51 Janeshwar Prasad vs. State of U.P. ; 2013(3) ALJ 222 52 Tufail vs. State of Uttar Pradesh ; (1969) 3 SCC 198 53 Hanumant vs State of Madhya Pradesh ; AIR 1952 SC 343 54 Budhi Lal vs. State of Uttarakhand ; AIR 2009 SC 87
15
of probability55, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid 56.In this case Manohar, the accused, as shown in many instances and testified by Dr. Deshpandey ,possesed good knowledge about the medicines,and also knew the medical history of Karan. He had knowledge that his act of injecting air bubbles via intravenous) will in all probability cause death It has been held that although this clause is usually invoked in those cases where there is no intention to cause the death of any particular person 57. The clause may also be used in those cases where the person knows that the act is likely to cause death or such bodily injury as is likely to cause death.58 Section 45 of the Indian Evidence Act, 1872 deals with opinions of experts59. Mano and Rahul wanted to kill Karan. Manohar’s motive was to secure the future on his hands whereas wanted to fulfil his dreams of becoming a tech-guru. Manohar was looking for an opportunity to kill Karan and for that, he transferred extra Rs. 25000 to his account as security money to execute the plan. As Manohar was a very bright student( according to Dr. Deshpande’s testimony) , it could be expected out of him to know a little about the medicine. Moreover Manohar himself testified before the Investigating Officer that he had administered Angispan via intravenous as he had practiced it on alcoholics in Altis hospital. On August 3, Karan’s condition worsened and this was the window of opportunity for Manohar who seized it. He was well versed with medicines and sent Raghav to buy the same. The pharmacist has testified that the pharmacy has a lot of customers so in this case, it could be reasonably 55 Laxminath vs. State of Chattisgarh ; AIR 2009 SC 87 56 Sunder Lal vs. State of Rajasthan ; (2007) 10 SCC 371 57 Dev Raj vs. State of Punjab ; AIR 1992 SC 950 58 Indya Sega Valvi vs. State of Maharashtra ; 2001 CrLJ 4804 (Bom) 59 Section 45 of The Indian Evidence Act, 1872
16
expected that the time interval was about 15-20 mins. This time was used by Manohar to inject air bubbles slowly in the veins of Karan via intravenous. This was done by using 3 syringes. In the report of Investigating Officer 4 used syringes were found. All the prescribed medicines of Dr. Choudhary were orally administered and syringe was used for giving Angispan. He slowly injected air bubbles which lead to air embolism in the artery thereby causing blockage to oxygen rich blood reaching the heart. Damage to the heart led to Arrhythmia which further led to cardiac arrest as stated in forensic report. Thus this act of Manohar will fall under Section 300(4) of IPC because it fulfils all the requisites of this clause as stated before. And for Mr. Rahul Gulati Acc to section 34 of IPC He is equally liable as Mr. Manohar lal.
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PRAYER FOR RELIEF
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced, it is most humbly prayed that this Court of Sessions be pleased to adjudge and declare that:
1
That the accused are guilty of the offence of criminal conspiracy which is punishable under Section 120B of the I.P.C.
2
That the accused persons have committed an offence under Section 66 and 66C of Information Technology act 2000
3
That the accused are guilty under Section 468 and section 405 of the Indian Penal Code, 1860, for the offence of Forgery and Criminal Breach of Trust respectively.
4
That the accused be charged and punished for conspiring to commit murder , punishable under section 302 of the Indian Penal Code, 1860.
The Court may pass any other order that it deems fit in the interest of justice, equity and good conscience.
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For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.
Date: Place: Durg, Xanadu, Bharat
S/d …………… (Counsel on behalf of the Prosecution)
