Second Best Memorial Surana and Surana Trial Advocacy 2014 (D)

TEAM CODE: FC-04 T

SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION – 2014 – 2014

I N THE COURT OF SESSIONS BAMBI, THANE

TATE OF B AMBI S TATE …PROSECUTION

V.

P ANNA , S ABA & J AIMIL …DEFENCE

S.C. NO. 123 OF 2014. ACCUSED FOR THE OFFENCES CHARGED UNDER THE FOLLOWING SECTIONS OF THE BARATA PENAL CODE, 1860: PANNA: SECTIONS 120B READ WITH 34,227, 501 & 502; SABA: SECTIONS 120B READ WITH 34, 385, 501 & 502; JAIMIL: SECTIONS 120B READ WITH 34, 385, 501 & 502.

MEMORIAL FOR THE DEFENCE

I THE TABLE OF CONTENTS

NDE X O F AUTHORITIES ......................................... THE I NDEX ............................................................... ............................................ .................................... .............. III

STATUTORY COMPILATIONS ............................................ .................................................................. ............................................ ................................ .......... III DICTIONARIES ............................................ .................................................................. ............................................ ............................................ ................................ .......... III

WEBSITES

.......................................... ................................................................. ............................................. ............................................ ....................................... ................. III

BOOKS ............................................ .................................................................. ............................................ ............................................ ........................................... ..................... III TABLE OF CASES ........................................... .................................................................. ............................................. ............................................ ............................. ....... V

THE STATEMENT OF JURISDICTION ............................................ .................................................................. ............................................ ........................ VII THE STATEMENT OF FACTS ......................................... ............................................................... ............................................. ..................................... .............. VIII THE STATEMENT OF CHARGES ............................................ .................................................................. ............................................ ................................ ..........IX THE SUMMARY OF ARGUMENT ........................................... ................................................................. ............................................ ................................. ........... X THE ARGUMENTS ADVANCED ......................................... ............................................................... ............................................ ...................................... ................ 1 I.

THAT THE HON’BLE COURT OF SESSIONS DOES NOT HAVE THE REQUISITE JURISDICTION

TO TRY THE OFFENCES. ............................................ ................................................................... ............................................. ......................................... ................... 1

A. THAT SECTION 385

OF THE

BARATA PENAL CODE, 1860

IS TRIABLE BY

A NY

MAGISTRATE. ........................................... .................................................................. ............................................. ............................................ .............................. ........ 2 B. THAT SECTION 501 AND SECTION 502 OF

THE

BARATA PENAL CODE, 1860 ARE

TRIABLE BY THE MAGISTRATE OF FIRST CLASS. ............................................ ................................................................... .......................2

C. THAT SECTION 227 OF THE BARATA PENAL CODE, 1860 IS TRIABLE BY THE COURT BY WHICH THE ORIGINAL OFFENCE WAS TRIABLE. .......................................... ................................................................. ........................... .... 3

THE T ABLE OF CONTENTS

-MEMORIAL FOR THE DEFENCE-

II

II. THAT PAROLE

IS NOT REMISSION AS COVERED UNDER

SECTION 227 OF

THE

BARATA

PENAL CODE, 1860. ............................................. ................................................................... ............................................ ............................................. .......................4 A. THAT PAROLE IS NEITHER REMISSION NOR SUSPENSION O F SENTENCE. ........................ ........................ 4 B. THAT PAROLE OBTAINED BY HERO PANNA

WAS

GENUINE A ND

NOT

‘A PROHIBITED

ACTIVITY’ NOR WAS I N VIOLATION OF A NY R ULES ULES. ........................................... ........................................................... ................ 6

III.

THAT MR . SABA

AND

MR . JAIMIL

ARE NOT LIABLE UNDER

SECTION 385 OF

THE

BARATA PENAL CODE, 1860. .......................................... ................................................................ ............................................ .................................. ............ 7 A. THAT THERE IS A STRONG SUSPICION REGARDING THE PERSONS WHO MADE CALLS TO MS. NAIKA FROM PUBLIC BOOTHS. ............................................. ................................................................... ......................................... ...................7 B. THAT THE CALLS WERE ANONYMOUS AND WERE

PROBABLY FAKE THREATS. ............... 8

C. SECTION 385 OF THE BARATA PENAL CODE, 1860 REQUIRES ATTEMPT FOR DELIVERY OF SOME KIND OF PROPERTY, WHICH IS NOT PRESENT IN INSTANT CASE...............................8

IV.

THAT

THE

ACCUSED


SECTION 501 AND 502 OF BARATA

PENAL CODE, 1860. ............................................. ................................................................... ............................................ ........................................... .....................10 V. THAT THE ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY UNDER SECTION 120B .............................................. .. 13 READ WITH SECTION 34 OF THE BARATA PENAL CODE, 1860. ............................................ A. THAT THERE WAS NO AGREEMENT TO COMMIT B. I N

AN UNLAWFUL ACT............................ ............................ 13

CIRCUMSTANTIAL EVIDENCE, THE CHAIN OF EVIDENCE MUST SHOW THAT IN ALL

PROBABILITY THE ACT MUST HAVE BEEN DONE B Y THE ACCUSED......................................14

VI.

THAT ACCUSED PANNA, SABA

AND JAIMIL SHOULD BE PRESUMED TO BE INNOCENT

UNLESS THEIR GUILT IS PROVED BEYOND REASONABLE DOUBT. .......................................... ............................................ ..14

THE PRAYER ............................................. ................................................................... ............................................ ............................................ .................................... ..............XI

THE T ABLE OF CONTENTS


III THE INDEX OF AUTHORITIES STATUTORY COMPILATIONS

1. THE CODE OF CRIMINAL PROCEDURE, 1973. 2. THE BARATA PENAL CODE, 1860. 3. THE I NDIAN EVIDENCE ACT, 1872 4. THE ARMS ACT, 1959. ULES, 1959. 5. THE PRISONS (BOMBAY FURLOUGH AND PAROLE) R ULES

6. MODEL PRISON MANUAL

FOR THE

SUPERINTENDENCE

AND

MANAGEMENT

OF

PRISONS

IN

I NDIA.

DICTIONARIES

1. BRYAN A. GARNER , BLACK ’S LAW DICTIONARY (8th ed. 2001) 2. OXFORD E NGLISH DICTIONARY, (2nd ed. 2009) 3. WEBSTER ’S NEW I NTERNATIONAL DICTIONARY (1926)

WEBSITES

1. www.manupatra.com 2. www.judis.nic.in 3. www.supremecourtcaselaw.com 4. www.scconline.com 5. www.indiankanoon.com BOOKS

1. Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19th Enlarged ed. Nagpur: LexisNexis Butterworths Wadhwa (2010). 2. Venkatachaliah, M.N., J. Ratanlal J. Ratanlal & Dhirajlal the Indian Penal Code, 32 Code, 32 nd Enlarged ed. Nagpur: LexisNexis Butterworths Wadhwa (2013). (2013). THE INDEX OF AUTHORITIES


IV

3. Lal, Batuk. Commentary on the Indian Penal Code, 1860- Volume 2, 2 nd ed. New Delhi: Orient Publishing Company (2011). 4. Lal, Batuk. Commentary on the Code of Criminal Procedure, 1973- Volume 2, 5th ed. New Delhi: Orient Publishing Company Company (2010). 5. Gaur, K.D. Commentary on the Indian Penal Code, 2nd ed. Delhi: Universal Law Publishing Co. (2013). 6. Thakker, C.K.,J. Ratanlal & Dhirajlal Law Dhirajlal Law of Crimes – Volume Volume 1, 23rd ed. New Delhi: Bharat Law House (1998). 7. Thakker, C.K.,J. Ratanlal & Dhirajlal Law Dhirajlal Law of Crimes – Volume Volume 2, 23rd ed. New Delhi: Bharat Law House (1998). 8. Kelkar, R.V. Criminal Procedure, Procedure, 4th ed. Lucknow: Eastern Book Co. (2013). 9. Gour, Hari Singh. Penal Law of India- Volume 4, 11th ed. Allahabad: Law Publishers (India) Pvt. Ltd. (2011). 10. Chandrachud, Y.V., J. Ratanlal & DhirajlalCommentary on the Code of Criminal Procedure- Volume 2, 18 2, 18th Enlarged ed. Nagpur: Wadhwa and Company (2006). 11. Sarkar, S.C. Commentary on the Indian Penal Code- Volume 4, 3rd ed. Allahabad: Dwivedi Law Agency (2011). 12. Sarkar, S.C. The Code of Criminal Procedure- Volume 1, 10th ed. Allahabad: Dwivedi Law Agency (2012). 13. Gaur, K.D. Textbook on The Indian Penal Code, 4 th ed. Delhi: Universal Law Publishing Co. Pvt. Ltd. (2013). 14. Sarkar, S.C. Commentary on Law of Evidence- Volume 1, 3rd ed. Allahabad: Dwivedi Law Agency (2011). 15. Bhattacharyya, T, The Indian Penal Code, Code , 6th ed. Allahabad: Central Law Agency (2010). 16. Mitra, B.B. Code of Criminal Procedure, 21 st ed. Kolkata: ed. Kolkata: Kamal Law House (2011).

THE INDEX OF AUTHORITIES


V TABLE OF CASES

1. Arun Shankar Ralmingam Ralmingam Naidu v. State of Maharashtra, Maharashtra , 2013 LawSuit (Bom) ( Bom) 639. ...... 6 2. Ashok Dangra Jaiswal v. State v. State of MP , AIR 2011 SC 1335. ............................................. ............................................. 15 3. Babu Singh v. State of Punjab, (1964) 1 Cri LJ 566 ........................................... ......................................................... .............. 14 4. Dadu @ Tulsidas Tulsi das v. State of Maharashtra, 2002 Maharashtra, 2002 (Cri. Supp.) Bom CR 390-SB: 2002 (1) Mah LJ 902: 2001 (5) BomCR 264: 2002 Cri LJ 3850.. .......................................... ..................................................... ........... 5 5. Dadu v Dadu v.. State of Maharashtra, (2000) 8 SCC 437: AIR 2000 SC 3203 ............................. 5 6. Dharam Das Wadhwani v. State v. State of U.P., (1974) U.P., (1974) 4 SCC 267: 1974 SCC (Cri) 429: 1974 Cri LJ 1249. ........................................... ................................................................. ............................................ ............................................ ................................ .......... 15 7. Dilip Sudhakar Pendse v. Central Bureau of Investigation, Investigation , Criminal Appeal No. 966 of 2013 (Arising out of SLP(Crl.)No. 6486 of 2011)-Decided on 16-July-2013. ................... 4 8. Edwards, 6 C&P. 515 .......................................... ................................................................. ............................................. ......................................... ................... 9 9. Fulchand Shah v. Shah v. Union Union of India, India , 2000 SCC (Cri) 659 ................................................. ...................................................... ..... 6 10. Ganeshlal v. State of Maharashtra, 2008 CrLJ (NOC) 1150: 2008 (4) AIR Bom R 448 (Bom) ............................................. ................................................................... ............................................ ............................................. .......................................... ................... 6 11. Hanumant 11. Hanumant v. State v. State of Madhya Pradesh,AIR Pradesh, AIR 1952 SC 343. .............................................. .............................................. 14 12. Hira 12. Hira Lal Hari Lal Bhagwati Bhagwati v. Central Bureau of Investigation, (2003) 5 SCC 257. ...... 13 13. K.M. 13. K.M. Nanavati v. State v. State of Maharashtra, AIR 1962 SC 605. ........................................... ............................................. .. 14 14. Kali 14. Kali Ram v. Ram v. State State of H.P., H.P., (1973) 2 SCC 808: 1973 SCC (Cri) 1048: 1974 Cri LJ 1. ...... 15 15. Kali 15. Kali Ram v. State of H.P., (1973) H.P., (1973) 2 SCC 808: 1973: 1973 SCC (Cri) 1048: 1974 Cri LJ 1 ......................................... ............................................................... ............................................. ............................................. ............................................. ................................ ......... 15 16. Kali 16. Kali Ram v. Ram v. State of Himachal Pradesh, Pradesh , AIR 1973 SC 2773. ..................................... .......................................... ..... 15 17. Kehar 17. Kehar Singh v. State v. State (Delhi Administration), AIR 1988 SC 1883. ......................... ................................... .......... 14 18. M & M 347. ........................................... ................................................................. ............................................ ............................................ .................................. ............ 9 19. Main 19. Main Pal v. v. State of Haryana, Haryana , 2004 SCC(Cri) 1882 ........................................... ......................................................... .............. 15



VI

20. Manisha 20. Manisha Koirala v. Shashilal Nair, 2003 (2) BomCR 136: 2002 SCC Online Bom 827. ......................................... ............................................................... ............................................. ............................................. ............................................. .......................... ... 10, 12 21. ManjulabaiKisnaGulabe 21. ManjulabaiKisnaGulabe v. v. State of Maharashtra, Maharashtra , 2002 3 MhLJ 226. ............................... ............................... 6 22. Mina 22. Mina Patel v. State of West Bengal, 2007 CrLJ 3011: 2007 (2) Cal Cri LR 524 (Cal). ...... 4 23. Paramhans 23. Paramhans Yadav v. State v. State of Bihar , 1987 (35) BLJR 127. ............................................. ............................................... .. 14 24. R. 24. R. Venkata Krishnan v. CBI, (2009) 11 SCC 737: AIR 2010 SCC 1812: (2009) 11 SCALE 102: (2009) 13 SCR 762.................................... 762.......................................................... ............................................ ............................ ...... 13 25. Raghunath 25. Raghunath v. State of Haryana, AIR 2003 SC 165 .......................................... ........................................................... ................. 15 26. Ram 26. Ram Swaroop v. Swaroop v. State ( Govt . NCT ) of Delhi, Delhi , AIR 2013 SC 2068. ............................. ................................ ... 15 27. re, Mantri Mattapalli Narasimha Rao, AIR Rao, AIR 1919 Mad 954: 44 IC 973: 19 CrLJ 445........ 9 28. S. Sant Singh @ Pilli Singh v. Secretary, Home Department, 2006 Department, 2006 CrlJ 1515: 2006 (1) Bom CR (Cri.) 743-FB: 2006 (2) Mah LJ 422. ........................................................... ................................................................ ..... 4,6 29. S.Sant Singh v. Singh v. The State of Maharashtra, Maharashtra, Criminal Writ Petition no.345 OF 2005. ........ 6 30. Saju v. Saju v. State of Kerala, AIR 2001 SC 175. ......................................................... ....................................................................... .............. 13 31. Sarad Birdhi Chand Sarda v. State of Maharashtra, Maharashtra , 1984 Cri LJ 1738 (SC)...................14 32. Sarat v. Khagendra, AIR 1961 SC 334: (1961) 2 SCR 133 ............................................ ................................................ .... 3 33. State of Kerala v. P v. P Sugathan, (2000) 8 SCC 203................................. 203....................................................... ............................ ...... 13 34. State of Maharashtra and others v. Suresh v. Suresh PandurangDarvakar, PandurangDarvakar, (2006) 4 SCC 776........ 6 35. State(Govt. of NCT of Delhi) v. Prem v. Prem Raj, (2003) 7 SCC 121: 2003 SCC (Cri) 1586........ 3 36. Talab Haji Hussain Haji Hussain v. Madhukar Purshottam Mondkar, AIR Mondkar, AIR 1958 SC 376: 1958 Cri LJ 701.................................... 701.......................................................... ............................................ ............................................ ............................................ ................................ .......... 15



VII THE STATEMENT OF JURISDICTION

The Defence, most humbly and respectfully, respectfull y, submits that this Hon’ble Court of Court of Sessions does not have the requisite subject matter jurisdiction to entertain and adjudicate this matter under Section 26 of The Code of Criminal Procedure, 1973.

THE STATEMENT OF JURISDICTION


VIII THE STATEMENT OF FACTS

1. In 1993, Panna Boy was arrested under the provisions of Terrorist and Disruptive Act. However, after serving about a year and half in jail, he was released on bail. Finally in March 2013, the Supreme Court of Barata held him guilty and sentenced him to five years rigorous imprisonment under Arms Act, 1959 for illegal possession of arms. 2. Before conviction, Panna and Naika were shooting for a movie- “Hit“Hit-factory”. factory”. A few intimate scenes which Naika had declined earlier and a few scenes at a big hospital were left. However, after Panna’s conviction, Panna’s conviction, Naika refused to be associated with the film. Mr. Jaimil and Mr. Saba tried to persuade her forcefully and she had to call her security guards to ask them to leave. 3. Panna was first allowed parole in December 2013 and surprisingly on February 3, 2014 he got it again, citing his wife’s illness wife’s illness whom he visited daily at the Star Hospital. On February 6, Jaimil got admitted in the same hospital. Panna visited Smt. Mashaal (DW 5), who dons mother’s mother’s role for top movie stars and Ms. Poonam (DW 4), a starlet with striking resemblance with Naika at the hospital. On February 8, Panna wore a colourful retro outfit at the Central Mall where a shooting took place. 4. On February 14 posters of “Hit“Hit-Factory” were Factory” were released and on February 16, Naika filed a suit in the High Court of Bambi for permanent injunction of the movie. That evening she received two threatening phone calls from anonymous numbers. 5. Next day, she filed a criminal complaint in the Bambi Central police station against Mr. Saba, and Mr. Jaimil and named Panna as a co-conspirator. The Assistant Commissioner filed an FIR and ordered for enquiry. Mr. Panna’s parole was cancelled and an arrest warrant for Jaimil and Saba was issued by the Metropolitan Magistrate. The Magistrate’s Court took cognizance of the chargesheet forwarded by the police after investigation, and thereafter, committed the case to the Court of Sessions in Bambi Thane. THE STATEMENT OF F ACTS


IX THE STATEMENT OF CHARGES

1. Accused Mr.Panna Boy S/o Mr. Heera Boy has been charged for the offences under Section 120B r/w Section 34, Section 227, Section 501 and Section 502 of the Barata Penal Code, 1860. 2. Accused Mr. Saba S/o Late Mr. Musa Karim has been charged for the offences under Section 120B r/w Section 34, Section 385, Section 501 and Section 502 of the Barata Penal Code, 1860. 3. Accused Mr. Jaimil S/o Mr. Kabir has been charged for the offences under Section 120B r/w Section 34, Section 385, Section 501 and Section 502 of the Barata Penal Code, 1860.

THE STATEMENT OF CHARGES


X THE SUMMARY OF ARGUMENT

I.

THAT

THE

HON

’

BLE

COURT

OF

SESSIONS

DOES NOT HAVE THE REQUISITE

JURISDICTION TO TRY THE OFFENCES.

The Defence most respectfully pleads before this Hon’ble Court of Sessions that since the offences are triable by a Court of Magistrate, the prosecution thereof could not have been transferred to the Court of Sessions. Admittedly, the offences are not at all exclusively triable by the Court of Sessions. The accused have been charged under the Sections of Barata Penal Code, 1860 viz. Section 120B r/w Section 34, Section 227, Section 385, Section 501 and Section 502. Taking into consideration these Sections of the BPC and the Court which has the jurisdiction to try t ry these thes e offence, reference to Section 26 of the Code of Criminal Procedure, 1973 should be made which expressly provides the Courts by which the offences are triable.

II.

THAT PAROLE

IS NOT REMISSION AS COVERED UNDER

SECTION 227 OF

THE

BARATA PENAL CODE, 1860.

A bare perusal of Section 227 of BPC and Section 432 of Cr.P.C. clearly indicates that it deals with suspension and remission, so absque hoc remission these sections cannot be invoked. In the instant case remission per se is not there. As parole does not fall under either suspension or remission, it would not be covered by Section 432 of Cr.P.C. and Panna under no circumstances violated any conditions of the parole that were set forth before him. III.

THAT SABA AND JAIMIL


SECTION 385 OF THE BARATA

PENAL CODE, 1860.

The Defence most humbly pleads before this Hon’ble Court that no overt act has been committed by the accused Saba and Jaimil under Section 385 of BPC and there is no evidence to prove the same. The phone call could have been made by a fan or any other THE SUMMARY OF ARGUMENTS


XI

person for that matter. Moreover, the shoot had already been completed by using editing techniques on the previous scenes. The question of doing two days shoot and completing the film does not arise. This clearly proves that somebody was giving fake threats to Ms. Naika. There is no demand of property or forcing or demanding of any delivery of property which is sine qua non of the offence under Section 385 of BPC. As the essential requirement of the offence under Section 385 of BPC is not fulfilled, hence the invoking of this section cannot be there. IV.

THAT THE ACCUSED ARE NOT GUILTY OF OFFENCE UNDER SECTIONS 501 AND 502 OF BARATA PENAL CODE, 1860.

The Defence respectfully pleads before the Hon’ble Court of Sessions that Ms. Naika had admittedly signed a contract for acting in the movie for which she had also accepted advance money from Mr. Saba and Mr. Jaimil, after hearing the story thereof and after having fully accepted the storyline with eyes wide open, which allowed the accused to print any material to advertise via print and digital media the movie “Hit Factory”. It is further ruled out by the Bombay High Court that once a person agreed to act in the film then it is not possible thereafter to contend that certain scenes filmed filmed are defamatory to that person’s character or reputation. Ergo, the accused are not liable under Section 501 and 502 of BPC. V.

THAT

ALL THE THREE ACCUSED ARE NOT LIABLE FOR

UNDER

SECTION 120B READ

WITH

SECTION 34 OF

CRIMINAL CONSPIRACY

THE

BARATA PENAL CODE,

1860.

The Defence humbly contends that the accused are not liable for Criminal Conspiracy under Section 120 B of BPC. For this offence, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. A few bits here and a few bits there on which the prosecution relies will not be held to be adequate for connecting the accused

THE SUMMARY OF ARGUMENTS


XII

with commission of criminal conspiracy. Though it is difficult to support charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to be established otherwise conspiracy cannot be accepted .

VI.

THAT PANNA, SABA AND JAIMIL SHOULD BE PRESUMED TO BE INNOCENT UNLESS THEIR GUILT IS PROVED BEYOND REASONABLE DOUBT.

The defence most most humbly submits before this Hon’ble Court that the principle that the accused person is presumed to be innocent unless his guilt is proved beyond reasonable doubt is of cardinal importance in the administration of criminal justice. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the Courts cannot record a finding of the guilt of the accused. The Court has rightly held that for proving prosecution case quality and not not quantity of evidence was essential.

THE SUMMARY OF ARGUMENTS


1 THE ARGUMENTS ADVANCED I.

THAT

THE

ON’BLE COURT HON’

OF

SESSIONS

DOES NOT HAVE THE REQUISITE

JURISDICTION TO TRY THE OFFENCES.

The Defence most respectfully pleads before this Hon’ble Hon’ble Court that since the offences are triable by a Court of Magistrate, the prosecution thereof could not have been transferred to the Court of Sessions. Admittedly, the offences are not at all exclusively triable by the Court of Sessions. The accused have been charged under the Sections of Barata Penal Code, 1860 1 viz. Section 120B r/w Section 34, Section 227, Section 385, Section 501 and Section 502. Taking into consideration these Sections of the BPC and the Court which has the jurisdiction to try these offence, reference to the Section 26 2 of the Code of Criminal Procedure, 1973 3 should be made which expressly provides the Courts by which the offences are triable. As far as offences under the Penal Code are concerned they are triable by the High Court, the Court of Sessions or any other Court shown in the first Schedule to Cr.P.C. 4

1

Here in after referred to as ‘BPC’.

2

Section 26 of the Code of Criminal Procedure, 1973 states: “Courts by which offences are triable. Subject to the other provisions of this Code,(a) any offence under the Indian Penal Code (45 of 1860 ), may be tried by(i) the High Court, or(ii) o r(ii) the Court of Session, or (iii) any other Court by which such offence is shown in the First Schedule to be triable;Provided that any offence under Section 376A, Section 376B, Section 376C, Section 376D, Section 376E of the Indian Penal Code(45 of 1860) shall be tried as far as practicable by a Court presided over by a woman. ](b) ](b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by -(i) the High Court, or(ii) or(ii) any other Court by which such offence is shown in the First Schedule to be triable. ” 3

Here in after referred to as ‘Cr.P.C.’.

4

Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19 LexisNexis Butterworths Wadhwa (2010), p. 80.

THE ARGUMENTS ADVANCED

th

Enlarged ed. Nagpur:


2 A. THAT SECTION 385

5

OF THE

BARATA PENAL CODE, 1860 IS

TRIABLE BY

ANY

MAGISTRATE.

Referring to the offences that the accused have been charged with, Section 385 of BPC is triable by ‘Any Magistrate’. 6

B. THAT SECTION 501

AND

7

SECTION 502

OF THE

BARATA PENAL CODE, 1860 ARE

TRIABLE BY THE MAGISTRATE OF FIRST CLASS.

For Section 501 and Section 502 of BPC, the Schedule provides two courts having jurisdiction to try the offence in two different situations i.e. First Situation: if the printing or sale or engraving matter knowing knowing it to be defamatory defamatory is against the President or the Vice-President or the Governor of a state or Administrator of a Union territory or a Minister in respect of his conduct in the discharge of his public functions when instituted insti tuted upon a complaint made by the public prosecutor, then the offence is triable by the Court of Sessions. Second Situation: if the Sale or printing or engraving matter knowing it to be defamatory, in any other case, then the offence is triable by the Magistrate of the First Class. The instant case falls under the second aforesaid situation i.e. the offences under Section 501 and Section 502 of BPC in the instant case, are triable by the Magistrate of the First Class.

5

Section 385 of the Barata Penal Code, 1860 states: “ Putting person in fear of injury in order to commit extortion. — — Whoever, Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. ”

6

Section 501 of the Barata Penal Code, 1860 states: “ Printing or engraving matter known to be defamatory — defamatory — Whoever Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. ”

7

Section 502 of the Barata Penal Code, 1860 states: “Sale of printed or engraved substance containing defamatory matter. — matter. — Whoever Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend extend to two years, or with fine, or with both. ”



3 8

C. THAT SECTION 227

OF THE

BARATA PENAL CODE, 1860 IS TRIABLE BY THE COURT

BY WHICH THE ORIGINAL OFFENCE WAS TRIABLE.

The Court that has the requisite jurisdiction to try the offence under Section 227 of BPC is the Court by which the original offence was triable. The Section 227 deals with the ‘violation of condition of remission9 10 11 of punishment.’ The The essential ingredients of this offence are: (i)

That the accused was sentenced to undergo imprisonment but it was remitted;

(ii)

That the accused accepted any conditional remission of punishment;

(iii)

That the accused violated any condition(or which remission was granted);

(iv)

That the accused did so knowingly. 12

It is humbly submitted before this Hon’ble Court Hon’ble Court that the requirements of this offence are not fulfilled in the instant case, as Panna has not accepted any conditional remission of punishment. Absque hoc remission, the question of invoking Section 227 of BPC does not arise. The facts that the accused was granted a remission of punishment and that the conditions on which the remission was granted must also be proved by documentary

8

Section 227 of the Barata Penal Code, 1860 states: “Violation of condition of remission of punishment. — — Whoever, Whoever, having accepted any conditional remission of punishment, knowingly violates any condition on which such remission was granted, shall be punished with the punishment to which he was originally sentenced, if he has already suffered no part of th at punishment, and if he has suffered any part of that punishment, then with so much of that punishment as he has not already suffered.” 9

th

Gaur, K.D. Textbook on The Indian Penal Code, 4 Code, 4 ed. Delhi: Universal Law Publishing Co. Pvt. Ltd. (2013), p.362 states: “Remission is reduction of the quantum of punishment without changing its character. It exempts the convict from undergoing that part of the sentence which is remitted.” remitted.” 10

In Sarat v. Khagendra, AIR Khagendra, AIR 1961 SC 334: (1961) 2 SCR 133 , the Hon’ble Supreme Court observed: ¶138 “in law the order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the court and the sentence passed by it untouched. ” 11

In State(Govt. of NCT of Delhi) v. Prem v. Prem Raj, (2003) 7 SCC 121: 2003 SCC (Cri) 1586 , the Hon’ble Supreme Court observed: ¶10 ¶10 “ Remission is reduction of the amount of a sentence without changing its character. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the Court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is relieved from serving out a part of it.” 12

Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Indian Penal Code, 32 nd Enlarged ed. Nagpur: LexisNexis Butterworths Wadhwa (2013), p. 1075.



4

evidence. It has been rightly ruled by the Hon’ble Hon’ble Supreme Court that if there is error in committing the case to the Court of Sessions and even if the Court of Sessions framed the charges then the matter will again have to go back to the Magistrate Court for the trial. 13 Section 228 of the Cr.P.C. provides that if Session Judge is of opinion that an offence has been committed but that t hat offence is not exclusively triable by him, he frames fr ames a charge char ge against the accused and transfers the case to the Chief Judicial magistrate.14 When the Court of Sessions does not find the case exclusively triable by it, it has to remit the case to the Chief Judicial Magistrate either after framing charge or without framing charge.15 It is, therefore, submitted that the Magistrate was in error in committing the case to the Court of Sessions. It was further submitted that even if the Court of Sessions framed the charges, the matter will again have to go back to the Magistrate Court for the trial. II.

THAT PAROLE IS NOT REMISSION AS COVERED UNDER SECTION 227 OF THE BARATA PENAL CODE, 1860.

A. THAT PAROLE IS NEITHER REMISSION NOR SUSPENSION OF SENTENCE.

A perusal of Section 227 of BPC and Section 432 of Cr.P.C. clearly indicates that it deals with suspension and remission, so absque hoc remission these sections cannot be invoked. But in the instant case remission per se is not there. In S. Sant Singh v. Secretary, Home Department,16 the issue was whether the grant of parole amounts to suspension of sentence within the meaning of Section 432 of Cr.P.C. The Hon’ble Bombay Hon’ble Bombay High Court ruled : ¶ 34 “The grant of parole does not amount to suspension of sentence as contemplated by Section 432, Criminal Procedure Code” 13

Dilip Sudhakar P endse v. Central Bureau of Investigation, Investigation , Criminal Appeal No. 966 of 2013 (Arising out of SLP(Crl.)No. 6486 of 2011)-Decided on 16-July-2013.

14

Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19th Enlarged ed. Nagpur: LexisNexis Butterworths Wadhwa (2010), p. 1004.

15

Mina Patel v. State of West Bengal, 2007 CrLJ 3011: 2007 (2) Cal Cri LR 524 (Cal).

16

2006 CrlJ 1515: 2006 (1) Bom CR (Cri.) 743-FB: 2006 (2) Mah LJ 422.



5

The Hon’ble Hon’ble Supreme Court in Dadu v. State of Maharashtra, Maharashtra ,17 held that parole does not amount to suspension, remission or commutation of sentences. The Court stated: ¶6 “ parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail manual or the Government orders. “Parole” means that release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good good behaviour and return to jail. It is a release from jail, prison or other interment after actually been in jail serving part of sentence.” sentence.” Rule 2018 of the Prisons (Bombay Furlough and Parole) Rules, 1959 provides that period spent on parole shall not count as remission of the sentence. In Bombay High Court in Dadu @ Tulsidas v. State of Maharashtra, 19 Justice R.K. Bhatt held: ¶6 ¶6 “Rule 20 “Rule 20 of the Prisons (Bombay Furlough and Parole) Rules, 1959 provides that the period spent on parole shall not count as remission of the sentence. It neither amounts to suspension of sentence. In such circumstances, the period of parole has to be treated as part of the sentence and the said period shall, therefore, be counted towards the sentence undergone by the petitioner.” petitioner. ” Parole is a form of "temporary release" from custody, which does not suspend the sentence or period of detention. Remission means reducing the period of sentence without changing its character. Thus, as parole does not fall under either suspension or remission, it would not be covered by Section 432 of Cr.P.C. The Government has no powers to grant parole under

17

(2000) 8 SCC 437: AIR 2000 SC 3203.

18

Rule 20 of the Prisons (Bombay Furlough and Parole) Rules, 1959 states: “ Parole not to be counted as remission of sentence- the period spent on parole shall not count as remission of the sentence.” 19

2002 (Cri. Supp.) Bom CR 390-SB: 2002 (1) Mah LJ 902: 2001 (5) BomCR 264: 2002 Cri LJ 3850.



6

Section 432 of Cr.P.C. 20 However, Government or Competent Authority can grant parole to convicts under the Rules framed under the Prisons Act. 21 Where a person is released on parole, his period of release would not be counted towards total period of sen tence undergone by him.22 B. THAT PAROLE OBTAINED BY HERO PANNA WAS GENUINE AND NOT ‘A PROHIBITED ‘A PROHIBITED ACTIVITY’ ACTIVITY’, NOR WAS IT IN VIOLATION OF ANY R ULES ULES.

Hero Panna applied for parole due to his urgency. The parole obtained by Panna both in December and and February, February, were genuine. Parole doesn’t amount to suspension of sentence. 23 From this it becomes clear that parole cannot be covered by Section 432 of Cr.P.C. 24 Parole is to be granted only on sufficient cause being shown. 25 Parole is essentially granted to meet emergent situations26. Panna under no circumstances violated any conditions of parole. Panna’s wife was admitted in the hospital hospit al for a serious ailment. As per the rules for granting parole, the same was granted by a competent authority which is in compliance complia nce with Rule 18 and 19 of the Prisons (Bombay ( Bombay parole and furlough) rules, 1959. The purpose of Rule 19 is to afford an opportunity to the prisoner to meet his relatives and to take part in not only the moment of sorrow, illness or death but also in the moment of joy. 27 Also, with respect to

20

Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Code of Criminal Procedure, 19 LexisNexis Butterworths Wadhwa (2010), p. 1746.

th

Enlarged ed. Nagpur:

21

S. Sant Singh @ Pilli Singh v. Secretary, Home Department, 2006 Department, 2006 CrlJ 1515: 2006 (1) Bom CR (Cri.) 743FB: 2006 (2) Mah LJ 422.

22

Ganeshlal v. State of Maharashtra, 2008 CrLJ (NOC) 1150: 2008 (4) AIR Bom R 448 (Bom).

23

Fulchand Shah v. Shah v. Union Union of India, India, 2000 SCC (Cri) 659.

24

S.Sant Singh v. Singh v. The State of Maharashtra, Maharashtra , Criminal Writ Petition no.345 OF 2005.

25

State of Maharashtra and others v. Suresh v. Suresh PandurangDarvakar, (2006) PandurangDarvakar, (2006) 4 SCC 776.

26

Arun Shankar Ralmingam Naidu v. State of Maharashtra, Maharashtra , 2013 LawSuit (Bom) 639.

27

ManjulabaiKisnaGulabe v. ManjulabaiKisnaGulabe v. State of Maharashtra, Maharashtra, 2002 3 MhLJ 226.



7

availing the parole, Panna got special leave for the illness of his spouse as per Rule 17.09 28 of the Model Prison Manual, 2003. No provision of the aforementioned manual has been violated by Panna. As per Rule 17.15 29, of the Model Prison Manual, 2003, also, the prisoner can be released only after obtaining a police report. Panna under no circumstances violated any conditions of the parole that were set forth before him. It isn’t a condition as stipulated under Rule 24 of the prisons (Bombay Parole and Furlough) Rules, 1959. Thus, even if the court holds that the Accused No.1 shot for a film, which is vehemently denied, denied , it won’t be a violation of parole rules as he had a genuine cause. III.

THAT MR . SABA

AND

MR . JAIMIL


SECTION 385 OF

THE

BARATA PENAL CODE, 1860. A. THAT

THERE IS A STRONG SUSPICION REGARDING THE PERSONS WHO MADE CALLS

TO MS. NAIKA FROM PUBLIC BOOTHS.

The Defence most humbly pleads before this Hon’ble Hon’ble Court that no overt act has been committed by the accused Saba and Jaimil under Section 385 of BPC and there is no evidence to prove the same as has been committed by both the accused. The phone call could have been made by any fan or any other person for that matter. It cannot be proved beyond a reasonable doubt that the accused are the ones who overtly performed this act. The alleged phone calls were received by Ms. Naika from two different public booths30 and anybody would have called her from the public booth. It creates a strong doubt against the notion that the persons who called from the public booths were Mr. Saba and Mr. Jaimil. 28

Rule 17.09.of the Model Prison Manual states that: “Prisoners eligible for the grant of special leave should not get itfor a itfor a period of more than 30 days at a time. However in special circumstances such leave can be extended extended up to a maximum period of90 days, but in no case such leave should be extended further .Competent .Competent Authority must be there to Sanction Leave/Special Leave. Leave. ” 29

Rule 17.15 of the Model Prison Manual states that: “The police of the concerned district will submit its report through the District Magistrate to the Inspector General of Prisons within 4 weeks of receipt of such reference. In case the police disagree with the proposed release of a prisoner on leave, reasons for such disagreement should be specified.”

30

Annexure – Annexure – 4, 4, Call record - Transcript, p. 13 of the proposition.



8 B. THAT THE CALLS WERE ANONYMOUS AND WERE

PROBABLY FAKE THREATS.

Taking into consideration the transcript provided under Annexure- 4 of the proposition, the person calling Ms. Naika at 6:05 p.m. on 16 th Feb, 2014 stated that he came to know that Ms. Naika refused to cooperate in ‘completing’ the film fil m31and then again when the call was made to her at 6:15 p.m. on 16 th Feb, 2014, that person stated that Ms. Naika should finish the movie and only two days shoot was required and if she does not complete the shooting in order to complete the film then she would face tragic results. 32 The Defence would like to state that the movie had already been completed by using editing techniques on the previous scenes. The question of doing two days shoot and completing the film does not arise. This clearl y proves that somebody was giving fake threats to Ms. Naika. C. SECTION 385

OF THE

BARATA PENAL CODE, 1860

REQUIRES ATTEMPT FOR

DELIVERY OF SOME KIND OF PROPERTY, WHICH IS NOT PRESENT IN INSTANT CASE.

Section 385 of BPC provides for ‘ Putting Putting person in fear of injury in order to commit extortion’ , which seeks to punish an attempt to commit extortion, but when the attempt has failed, the offence is not complete and the property is not delivered. 33 This section punishes an attempt which has failed to induce delivery of the property, but the intimidation was intended to bring about those results, though it did not succeed in doing so. 34 The offence under Section 385 has following essentials: (i)

That the accused put any person in fear; or

31

Annexure – 4, 4, Call record - Transcript, p. 13 of the proposition, Phone No. 12345678(Public Booth) – Time Time th 6:05 p.m. on 16 February, 2014: “Male voice1: We know everything. Heard that you refused to cooperate in completing the film. It is not good for you. Not good at all.” 32

Annexure – Annexure – 4, 4, Call record - Transcript, p. 13 of the proposition, Phone No. 56781234(Public Booth) – Time Time th 6:15 p.m. on 16 February, 2014: “Male voice2: By all means. Finish the movie dear. Just two days shoot… very discreet.. Else….Results will be very tragic.” 33

Thakker, C.K.,J. Ratanlal & Dhirajlal Law Dhirajlal Law of Crimes – Volume 2, 23rd ed. New Delhi: Bharat Law House (1998), p. 1884. 34

Gour, Hari Singh. Penal Law of India- Volume 4, 11 4, 11th ed. Allahabad: Law Publishers (India) Pvt. Ltd. (2011), p.3786.



9

(ii)

The accused attempted to put any person in fear, of an y injury; and

(iii)

The accused did so in order to the committing of extortion. 35

It is a question of fact whether what was done by accused amounted to an attempt to extortion.36 For this purpose, there must be evidence not only of a demand, but also a demand supported by threats of injury in case of non-compliance. This need not be expressed, but may be understood from the position of the accused and the surrounding circumstances. 37 Under this Section the extortion is not committed, only the preparation is made. It is possible that the accused may make preparation by putting the person in fear of injury to commit extortion, but people come and intervene and the offence is not complete. 38 For the purpose of Section 385 of BPC, it is necessary necessar y that the accused should have put some person in fear of injury in order to extort some property from him. ‘Injury’ includes only such harm as may be caused illegally to a person’s mind, body, reputation or property.

39

The Court must be

satisfied that the putting in fear was with the intention of extorting delivery of some property.40 Extortion has been defined under Section 383 41 of BPC. In extortion the person is put in fear to deliver to any person any property propert y or valuable security, or anything signed si gned or sealed which may be converted into valuable security. Delivery of property by the person put

35

Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Indian Penal Code, 32 Code, 32 nd Enlarged ed. Nagpur: LexisNexis Butterworths Wadhwa (2013), p. 2231.

36

Edwards, 6 C&P. 515.

37

th Gour, Hari Singh. Penal Law of India- Volume 4, 11 4, 11 ed. Allahabad: Law Publishers (India) Pvt. Ltd. (2011), p.3787. 38

Lal, Batuk. Commentary on the Indian Penal Code, 1860- Volume 2, 2nd ed. New Delhi: Orient Publishing Company (2011), p. 2301.

39

In re, Mantri Mattapalli Narasimha Rao, AIR Rao, AIR 1919 Mad 954: 44 IC 973: 19 CrLJ 445.

40

M & M 347.

41

Section 383 of the Barata Penal Code, 1860 states: “ Extortion. — — Whoever Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits ‘ extortion’. ”



10

in fear is the essence of the offence under this Section.42 In other words, to constitute constitute the offence of extortion there must be fear and delivery of property.43 In the instant case, taking into consideration the transcript provided under Annexure-4, there is no demand of property or forcing or demanding of any delivery of property which is sine qua non of the offence under Section 385 of BPC. As the essential requirement of the offence under Section 385 of BPC is not fulfilled, hence the invoking of this section cannot be there. IV.

THAT

THE

ACCUSED


SECTION 501 AND 502 OF BARATA

PENAL CODE, 1860.

The Defence respectfully pleads before the Hon’ble Hon’ble Court of Sessions that Ms. Naika had admittedly signed a contract for acting in the movie for which she had also accepted advance money from Mr. Saba and Mr. Jaimil, after hearing the story thereof and after having fully accepted the storyline, which allowed the accused to print any material to advertise via print and digital media the movie “Hit Factory”. Ms. Naika had foreknowledge of the trial going against Panna and very well knew that he was being charged under provisions of TADA, also she knew about his tumultuous childhood, but still she gave her consent to work in a movie alongside Panna. Thus, after explicitly signing the contract and agreeing to act as a star in a movie with Panna, she cannot go back on her word and say that her starring with Panna would tarnish her name in the industry. In Manisha In Manisha Koirala v. Shashilal Nair ,44 which had similar facts and circumstances, wherein an actress had sought injunction against intimate scene shot by a double, the High Court laid down the following tests to check whether using a double in the film would amount to defamation or not : 42

Gaur, K.D. Textbook on The Indian Penal Code, 4th ed. Delhi: Universal Law Publishing Co. P vt. Ltd. (2013), p. 695. 43

nd

Gaur, K.D. Commentary on the Indian Penal Code, 2 ed. Delhi: Universal Law Publishing Co. (2013), p.1272. 44

2003 (2) BomCR 136: 2002 SCC Online Bom 827.



11

¶8“The ¶8“The next issue would be whether prima facie atleast the scene enacted by the double would resul t in the tort or defamation…The defamation… The question, however, is whether the scenes which are shown in the film would fall within within the expression "defamation". 1st test: Salmond & Heuston on the Law of Torts. Twentieth Edition defines a defamatory statement as under:-‘ under:-‘ A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one, and it is no defence to say that the statement was not intended to be defamatory, or uttered by way of a joke. A tendency to injure or lower the reputation of the plaintiff suffices, for If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue. Hence it is settled that a statement may be defamatory although no one to whom it is published published believes it to be true.’ 2nd Test: Test: Carter-Ruck on Libel and Slander, Fifth Edition have carved out some of the tests as under:-(1) a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, professional or trade.(2) A false statement about a man to his discredit.(3) Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?“ generally? “



12

In Manisha Koirala v. Shashilal Nair ,45 the Hon’ble Hon’ble Bombay High Court further held that once a person agreed to act in the film then it is not possible thereafter to contend that certain scenes filmed are defamatory to that person’s character or re putation. ¶8“ ¶8“Once the plaintiff had agreed to act in the film it is not possible thereafter to contend that certain scenes filmed are defamatory to the plaintiff's character and reputation. The scenes are integral as contended by defendant No. 1 to the film. There is no material to the contrary either in the affidavit or documents. Once the scenes are integral it must be assumed that the plaintiff was aware that this would form part of the film. All that can be said is that the plaintiff did not act in those scenes which had to be acted by a fill-in artist or double….. double ….. It It is, however, clear to my mind that once having agreed to act in the film it will be too late for the plaintiff atleast on the material as it stands, to hold that a case of defamation has bee n made out.” Ms. Naika had foreknowledge of existence of intimate scenes which were essential to the script of movie. Earlier, Ms. Naika had declined to shoot intimate scenes and same were to be shot using a double with the consent of Ms. Naika, but later on she agreed to the scenes herself.46 She had already acted in many scenes of the movie. But after, Panna’s conviction, she withdrew herself from the movie. The movie was almost over and only few scenes remained. The accused had no option, but to consider the use of Ms. Poonam, a double for Ms. Naika as she had already acted on behalf of her on previous occasions. The frames were to be superimposed using Ms. Poonam and most of Panna ’s scenes were already over and the few that remained were to be completed using a double in his stead which is a standard practice in the Barata. Thus, the accused are not liable under Section 501 and 502 of BPC. 45

2003 (2) BomCR 136: 2002 SCC Online Bom 827.

46

5th line, ¶ 5, p. 1 of the proposition states: “The producer, Mr. Saba had borrowed heavily and had invested lot money on the lead actress Ms Naika. A few scenes with the lead actress that were supposed to be intimate scenes for which Ms. Naika had declined earlier, w ere to be shot and a few scenes at a big hospital was also remaining to be shot.”



13 V.

THAT THE ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY UNDER SECTION 120B

47

READ WITH

SECTION 34

48

OF THE

BARATA PENAL CODE, 1860.

The Defence humbly contends that the accused are not liable for Criminal Conspiracy under Section 120 B of BPC. For this offence, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. 49 The Hon’ble Supreme Hon’ble Supreme Court in R. in R. Venkata Krishnan v. CBI 50 laid down the following ingredients of criminal Conspiracy: (i)

An agreement between two or more persons;

(ii)

Agreement

must

relate

to

doing

or

causing

to

be

done

either:

(a) An illegal act (b) an act a ct which is not illegal in itself i tself but is done by illegal means.51 A. THAT THERE WAS NO AGREEMENT TO COMMIT

AN UNLAWFUL ACT.

For criminal conspiracy, it must established that all the accused had the intention and had agreed to commit the crime. 52 A few bits here and a few bits there on which the prosecution relies will not be held to be adequate for connecting the accused with commission of criminal conspiracy.53 The relative acts or conduct of parties must be conscientious and clear to mark

47

Section 120 B of the Barata Penal Code, 1860 states: “P unishment unishment of criminal conspiracy. — — (1) (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence .(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” 48

Section 34 of the Barata Penal Code, 1860 states: “ Acts done by several persons in furtherance of common intention. — intention. — when when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 49

Hira Lal Hari Lal Bhagwati v. Central Bureau of Investigation, (2003) 5 SCC 257.

50

(2009) 11 SCC 737: AIR 2010 SCC 1812: (2009) 11 SCALE 102: (2009) 13 SCR 762.

51

Venkatachaliah, M.N., J. Ratanlal & Dhirajlal the Indian Penal Code, 32 nd Enlarged ed. Nagpur: LexisNexis Butterworths Wadhwa (2013),p. 607.

52

Saju v. Saju v. State of Kerala, AIR Kerala, AIR 2001 SC 175.

53

State of Kerala v. P v. P Sugathan, (2000) Sugathan, (2000) 8 SCC 203.



14

their concurrence as to what must be done. Such concurrence may not be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. 54 B. IN CIRCUMSTANTIAL EVIDENCE, THE CHAIN OF EVIDENCE MUST SHOW THAT IN ALL PROBABILITY THE ACT MUST HAVE BEEN DONE BY THE ACCUSED.

In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should at the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and in tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 55 The circumstances from which the conclusion of guilt is to be drawn ‘should’ be fully established and not ‘may be’ established. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused and must show that in all probability the act must have been done by the accused. 56 It is difficult to support charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to t o be established otherwise conspiracy cannot be accepted. 57 VI.

THAT ACCUSED PANNA, SABA AND JAIMIL

SHOULD BE PRESUMED TO BE INNOCENT

UNLESS THEIR GUILT IS PROVED BEYOND REASONABLE DOUBT .

The defence most humbly submits before this Hon’ble Hon’ble Court that the principle that the accused person is presumed to be innocent unless his guilt is proved beyond reasonable doubt is of cardinal importance in the administration of criminal justice. 58 So the Court shall not convict accused unless prosecution proves its case beyond reasonable doubt. 59

54

Kehar Singh v. State v. State (Delhi Administration), AIR Administration), AIR 1988 SC 1883.

55

Hanumant v. State v. State of Madhya Pradesh, AIR 1952 SC 343.

56

Sarad Birdhi Chand Sarda v. State of Maharashtra, Maharashtra , 1984 Cri LJ 1738 (SC).

57

Paramhans Yadav v. State v. State of Bihar , 1987 (35) BLJR 127.

58

Babu Singh v. State of Punjab, (1964) Punjab, (1964) 1 Cri LJ 566; Nanavati 566; Nanavati v. State v. State of Maharashtra, AIR 1962 SC 605.



15

The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the Courts cannot record a finding of the guilt of the accused. 60 Every criminal trial begins with the presumption of innocence in favour of the accused and the provisions of the code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption. 61 The prosecution is not able to prove beyond reasonable doubt the guilt of accused, so the benefit of doubt should be in favour of accused. It is well settled principle of law, if two views are possible, one in favour of the accused and other adversely against it, the view favouring the accused must be accepted. 62 The Supreme Court emphasized the necessity of having principle of “ presumption of innocence” and observed: “ It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse; however is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in the civilized society.” society.”63 The Hon’ble Supreme Hon’ble Supreme Court observed there has to be clear evidence of guilt of accused and in absence of that it is not possible to record finding of his guilt 64 The Court has rightly held that for proving prosecution’s prosecution ’s case, case, the quality and not quantity of evidence was essential. 65

59

Ashok Dangra Jaiswal v. State v. State of MP , AIR 2011 SC 1335.

60

Kali Ram v. Ram v. State State of H.P., H.P., (1973) 2 SCC 808: 1973 SCC (Cri) 1048: 1974 Cri LJ 1.

61

Talab Haji Hussain Haji Hussain v. Madhukar v. Madhukar Purshottam Mondkar, AIR Mondkar, AIR 1958 SC 376: 1958 Cri LJ 701.

62

Raghunath v. State of Haryana, AIR Haryana, AIR 2003 SC 165; Main 165; Main Pal v. v. State of Haryana, Haryana , 2004 SCC(Cri) 1882

63

Kali Ram v. State of H.P., (1973) H.P., (1973) 2 SCC 808: 1973: 1973 SCC (Cri) 1048: 1974 Cri LJ 1; See also Dharam Das Wadhwani v. Wadhwani v. State State of U.P., (1974) U.P., (1974) 4 SCC 267: 1974 SCC (Cri) 429: 1974 Cri LJ 1249. 64

Kali Ram v. Ram v. State of Himachal Pradesh, Pradesh , AIR 1973 SC 2773.

65

Ram Swaroop v. Swaroop v. State ( Govt . NCT ) of Delhi , AIR 2013 SC 2068.



XI THE PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is most humbly and respectfully prayed before this Hon’ble Court Hon’ble Court to adjudge and declare that: 

The accused Mr. Panna boy is not guilty for offence u/s 120 B read with 34, 227, 501 & 502 of the Barata Penal Code, 1860.



The Accused Mr. Saba is not guilty u/s 120 B read with 34, 385, 501 & 502 of Barata Penal Code, 1860.



The Accused Mr. Jaimil is not guilty u/s120 B read with 34, 385, 501 & 502 of Barata Penal Code, 1860.

And any other order which this Hon’ble Hon’ble Court may be pleased to grant in the interest of justice, equity and good conscience. All of which is most humbly and respectfully submitted.

Date:

Counsels for the Defence

Place: Bambi

THE PRAYER


Second Best Memorial Surana and Surana Trial Advocacy 2014 (D)

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