Symbiosis Law School- Defence Memo

Team Code: RECEPTIVITY

ND

AURO U NIVERSITY 2 NATIONAL MOOT COURT COMPETITION, 2016 BEFORE THE COURT OF SESSIONS AT NEW DELHI

S.C. NO. ____ NO. ____ OF OF 2016

FOR THE OFFENCES CHARGED UNDER : SECTION 302,SECTION 364,SECTION 313, SECTION 201,SECTION 120B,SECTION 34 OF THE INDIAN PENAL CODE, 1860

STATE OF DELHI (NCT) (PROSECUTION)

V/S

REKHA DAS, SUHAS KUMAR AND KUMAR AND SHYAM SAHU (DEFENCE)

BEFORE SUBMISSION TO HON‟BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

T AB L E OF CON T EN TS ........................................... ................................................................. ............................................ .......................................... ....................i L i st of Abbr A bbr evi evi ati ons on s .......................................... ................................................................ ............................................ ............................................. ......................... .. i i i TA BL E OF AU TH ORI TI ES ............ ................. .......... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... .......... .......... .......... .......... ......... ........ .... vi

[A] INDIAN CASE LAWS ............................... ..................................................... ............................................. ............................................ .....................vi [B] LEGISLATIONS ........................................... .................................................................. ............................................. ....................................... .................vii [C] LAW DICTIONARIES / LEXICONS........................................... .................................................................. .......................... ... viii [D] BOOKS ..................................... ........................................................... ............................................. .............................................. ..................................... .............. viii [E] DATABASES AND WEBSITES ............................................ ................................................................... .................................. ........... viii STAT EM EN T OF JU RI SDI CTI ON ....... ............ .......... .......... .......... .......... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... .......... ....... i x SUM M A RY OF F ACTS AC TS ........................................... .................................................................. ............................................. ......................................... ................... x I SSU SSU E S I N VOL VO L VE D ......................................... ............................................................... ............................................ ............................................. ......................... ..xi i SUM M ARY OF ARGUM AR GUM EN TS ............. .................. .......... .......... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... .......... .......... ......... ...... xi v ARGUM AR GUM EN TS AD VA N CED CE D .......... ............... .......... ......... ......... .......... .......... .......... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... .......... ....... 1

ISSUE 1: WHETHER CONFESSION WHETHER CONFESSION OF ACCUSED NO. 3, ADDUCED AS EVIDENCE, IS RELIABLE

…………………………………………………………

………Error!

Bookmark not defined.

[1.1] Confession by co- accused is weak evidence. ......... Error! Bookmark not defined. [1.2] Arguendo [1.2] Arguendo,, Confession lacks Corroboration ............................................ .............................................................. .................. 1 [1.3] Evidence from Hostile witness is unreliable and weak …………………………….2 …………………………….2 ISSUE

2:

WHETHER THE

THREE

ACCUSED

PERSONS

ACTED

IN

FURTHERANCE OF A COMMON INTENTION TO COMMIT THE CRIME……3

[2.1] There was no common intention…………………………………………………… intention ……………………………………………………4 4

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M EMORANDUM EMORANDUM ON B EHALF EHALF OF T HE HE D EFENCE EFENCE


[2.2] No act was done in furtherance of any crime……………………………………...4 crime…………………………………… ...4

ISSUE 3: WHETHER THE THREE ACCUSED PERSONS ARE GUILTY OF COMMITTING MURDER UNDER SECTION 302 ALONG WITH THE OFFENCE OF ABDUCTING IN ORDER TO COMMIT MURDER PUNISHABLE UNDER SECTION 364 OF THE INDIAN PENAL CODE,1860……………………………............5

[3.1] The entire case of the Prosecution is based on circumstantial evidence…………6 evidence………… 6 [3.2] Motive could not be established……………………………………………………7 [3.3] There is no evidence to prove the in tention of the murder …………………………8 ………………………… 8 [3.4] There is no evidence to prove the abduction of the victim…………………………... 9 [3.5] The chain of causation is incomplete with reference to offences under Section 364 and Section 302 of I.P.C …………………………………………………………………… …………………………………………………………………….9 .9 [3.6] Faulty investigation investigation …………………………………………………………………11 …………………………………………………………………11

ISSUE 4: WHETHER THE WHETHER THE THREE ACCUSED ARE GUILTY UNDER SECTION UNDER SECTION 120B OF INDIAN PENAL CODE, 1860.......................................... ................................................................. ........................................... ....................12

[4.1] No [4.1] No Agreement or Understanding between the Accused.......................................... Accused.......................................... 12

ISSUE 5: WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING DISAPPEARNCE OF OFFENCE OR GIVING FALSE INFORMATION TO SCREEN OFFENDER PUNISHABLE UNDER SECTION 201 OF THE INDIAN PENAL CODE, 1860………………………………………………………………………………………….Er ror! Bookmark not defined. 3 ISSUE 6: WHETHER A-1 IS LIABLE OF CAUSING MISCARRIAGE UNDER

SECTION 313 OF THE INDIAN PENAL CODE, 1860 ………………………………….14 ISSUE 7: WHETHER THE WHETHER THE THREE ACCUSED PERSONS ARE GUILTY BEYOND REASONABLE DOUBT …………………………………………………………………..15 PRAYER

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………………………………………………………………………………..17



LIST OF ABBREVIATIONS

A.I.R. All India Report

ALLMR

All Maharashtra Law Reporter

ALT Andhra Law Times

Anr. Another

Art. Article

Bom. Bombay

Cal. Calcutta

Co. Company

Coch. Cochin

Corpn. Corporation

Cri. LJ Criminal Law Journal

CrPC Code of Criminal Procedure,1973

Del. Delhi

DRJ Delhi Reported Judgments

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Ed. Edition

Id. Ibid

ILR Indian Law Reporter

IPC Indian Penal Code, 1860

Kart.

Karnataka

Ker. Kerala

L.R. Law Reports

Ltd. Limited

Nag Nagpur

NCT National Capital Territory

Ors. Others

p. Page

Para.

Paragraph

Pat. Patna

PLR Punjab Law Reporter

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Raj. Rajasthan

Rang. Rangoon

Sec. Section

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.L.P. Special Leave Petition

Supp. Supplementary

u/s. Under Section

v. Versus

Vol. Volume

W.L. West Law

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TABLE OF AUTHORITIES

[A] INDIAN CASE LAWS

¶ 1. A.Jayaram and Anr v. State of AP, AIR 1995 SC 2128

Ma dhya Pradesh, 2010(10) SCC 259 ¶ 2. Abdul Sayeed v. State of Madhya ¶ 3. Ambani K. v. State, 2005 (13) SCC 422. ¶ 4. Badal Sheik v. State 1986 (2) Crimes- 316 ¶ 5. Baikunth Mahto v. State of Bihar, 2003 Cri LJ 2135 ¶ 6. Balvinder Singh v. State of Punjab, 1987 Cri LJ 33 (SC) ¶ 7. Bishnu Prasad Sinha v. State of Assam 2007 (11) SCC 467 ¶ 8. Budha Satya Venkata S. Rao v. State of A.P., 1995 SCC (Cri) 127 ¶ 9. C. Chenga Reddy and Others vs. State Sta te of Andhra Pradesh, AIR 1996 SC 3390 ¶ 10. Dani Singh v. State, 2004 (13) SCC 203. ¶ 11. G.S.Bakshi V. State, A.I.R. 1979 S.C. 569 ¶ 12. Gambir v. State of Maharashtra, 1982 Cri LJ 1243(SC) ¶ 13. Ganesh Singh v. Ram Raja, (1869) 3 Beng LR (PC) 44, 45 ¶ 14. Gian Singh v. State of Punjab, 1987 Cri LJ 1918

State of Madhya Pradesh AIR 1952 SC 343 ¶ 15. Hanumant v. State ¶ 16. Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184 ¶ 17. Hira Lal Hari Lal Bhagwati v. C.B.I. 2003 SCC (Cri) 1121. ¶ 18. Janar Lal Das v. State of Orissa, 1991 (3) SCC 27 ¶ 19. Kantipal alias K.L Gordhandas Soni v. State,2003 (2) GCD 1427 (SC) ¶ 20. Kaptan v. State, 2004 CrLJ 1556 (AII) ¶ 21. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 ¶ 22. Lalita Kumari v. Govt. of U.P & Ors., (2008) 7 SCC 164 ¶ 23. Mahaboob Shah v. King Emperor, AIR 1945 PC 118. ¶ 24. Mani Kumar Thapa v. State of Sikkim, 2002 Cri LJ 876 ¶ 25. Mithu Singh v. State of Punjab, AIR 2001 SC 1929. ¶ 26. Mohan Lal v. State of Uttar Pradesh, AIR 1974 SC 1144 ¶ 27. Moti Lal v. State 2001 Cri LJ 4341 (Kar) 4345-4346 ¶ 28. Narain Mohaton v State 1974 BLJR BLJR 642

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¶ 29. Nitin Jairam Gadkari vs State Of Maharashtra, 2004 (4) MhLj MhLj 419

H yderbad, AIR 1955 SC 216. ¶ 30. Pandurang Tukia v. State of Hyderbad, ¶ 31. Prabhu and Ors. v. State, Cr. App No. 454 of 2007 ¶ 32. Ram Tahal v. State of Uttar Pradesh, AIR1972 SC 254 ¶ 33. Ramachander v. State of Rajasthan, 1970 Cr.L.J. 653 ¶ 34. Ramakant Rai v. Madan Rai, Cr LJ 2004 SC 36 ¶ 35. Rangaswamy v. State of Tamil Nadu, AIR 1989 SC 1137 ¶ 36. Sahadevan & Anr. Vs. State of Tamil Nadu, (2012) 6 SCC 403 ¶ 37. Shankarlal Kacharabai and Others v. State of Gujarat, AIR 1965 SC 1260 ¶ 38. Shankarlal Kacharabai and Others v. State of Gujarat, AIR 1965 SC 1260. ¶ 39. Shiv Prasad Chunni Lal Jain v. State of Maharashtra, AIR 1965 SC 264. ¶ 40. Soni v. State of Gujarat, AIR 1991 SC 917 ¶ 41. Sonti Rambabu @ Ramu vs State Of A.P, Cr. App No. 1384 of 1998 ¶ 42. State of AP v. Kowthalam Narasimhula, 2001, Cr LJ 722 (SC) ¶ 43. State of Himachal Pradesh v. Kant Shekhari, AIR 2004 SC 4404 ¶ 44. State of Punjab v. Bhajan Singh AIR 1975 SC 258 ¶ 45. State of Punjab v. Rakesh Kumar, (1998) Cr LJ 3604 (SC) ¶ 46. State of U.P. v. Gambhir Singh AIR 2005 SC 2439 ¶ 47. Sunny Kapoor v. State, 2006 (10) SCC 182. ¶ 48. Suresh v. State, 2001 (3) SCC 673. ¶ 49. Tahsildar Singh And Another vs The State Of Uttar Pradesh, AIR 1959 SC 1012 ¶ 50. Tarseem Kumar v. Delhi, (1995) Cr LJ 470 (SC) ¶ 51. Tondil v. State of Uttar Pradesh, 1975 Cr.L.J. 950 at pp. 951, 952 (All.) ¶ 52. V.C. Shukla v. State (Delhi Administration), (1980) 2 SCC 665 ¶ 53. Wakkar & Anr vs State Of U.P, (2011) 3 SCC 306 ¶ 54. William Stanley v. State of Madhya Pradesh, 1956 AIR 116

[B] LEGISLATIONS ¶ 1. Constitution Of India ¶ 2. Code of Criminal Procedure, 1973 ¶ 3. Indian Penal Code, 1860 ¶ 4. Indian Evidence Act , 1872 vii | Page



[C] LAW DICTIONARIES / LEXICONS ¶ 1. Black‟s Law Dictionary ¶ 2. JOWITT‟S Dictionary of English Law

[D] BOOKS

Law : ¶ 1. Jain, MahabirPrashad, Samaraditya Pal, and Ruma Pal, Indian Constitutional Law: Lexis Nexis Butterworths Wadhwa Nagpur, 2010. ¶ 2. Gaur, K.D., Commentary On The Indian Penal Code. New Delhi: Universal Law Pub.

Co., 2013 ¶ 3. Stephens, Commentaries on the Laws of England ,21st ,21st Edition, volume IV ¶ 4. Lord Hailshameds, Halsbury‟s Hailshameds, Halsbury‟s Laws of England , Page 44., (4thed. 1987) th

A., Indian Penal Code, Code, p.2905, (10 Ed. 2008) ¶ 5. Nelson R. A., Indian ¶ 6. Justice Khastgir , Criminal Major Acts, Acts, 10th Edition, 2014, Page 301-302

Nelson, Indian Penal Code, Code, (9th ed., 2003), volume I ¶ 7. R A Nelson, Indian Code . ¶ 8. Ratanlal Ranchhoddas., et al. Ratanlal And Dhirajlal's , The Indian Penal Code. Nagpur: Wadhwa and Co. Law Law Publishers, 1992. th

Sarkar, Law of Evidence, Evidence, Volume II, 18 Edition, 2013, Page 2764-75 ¶ 9. S. C. Sarkar, Law

[E] DATABASES AND WEBSITES

¶ 1. LexisNexis [www.lexisnexis.com] ¶ 2. Westlaw [www.westlaw.com] ¶ 3. Jstor [www.jstor.com] ¶ 4. Manupatra[www.manupatra.com] ¶ 5. SCC Online [www.scconline.co.in] ¶ 6. Hein Online [www.home.heinonline.org] ¶ 7. Westlaw [www.westlaw.com]

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STATEMENT OF JURISDICTION

The Hon‟ble Hon‟ble Court Court has jurisdiction to try the instant matter under Section 177 read with Section 209 of the Code of Criminal Procedure, 1973.

Section 177: „ 177. 177. Ordinary place of inquiry and trial Every offence shall ordinarily be inquired into and tried t ried by a court within whose local jurisdiction jurisdiction it was committed.‟

Read with section 209: „ 209. Commitment of case to court of session when offence is triable exclusively by itWhen in a case instituted on a police report or otherwise, the accused appears 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(a) commit the case to the court of session; (b) subject to the provisions of this code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the public prosecutor of the commitment of the case to the court of session.‟

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SUMMARY OF FACTS ¶ 1. Trisha Das was the daughter of Rekha Das who was an Indian HR consultant and

media executive ¶ 2. After splitting with Siddhart Das, Rekha left Trisha under the care of her parents

in Mumbai and moved to Delhi ¶ 3. Later, Rekha settled with Jacob Mukherjee and Trisha came to Delhi to live with

them. ¶ 4. In June, 2011, Trisha, assistant manager in Delhi Metro One cohabited with

Shobhit Mukherjee from 2009 to 2012 which was the result of their mutual romantic relationship ¶ 5. In 2011, Trisha got pregnant with Shobhit‟s child and she was allegedly forced by

Rekha to abort the child ¶ 6. On 24th April 2012, Trisha took leave of absence and while on leave, she “sent in

her written resignation” and a break up SMS to Shobhit. Her mother claimed that Trisha had gone to U.S for higher higher studies and hence no missing FIR was lodged ¶ 7. On 30th April 2012, Shobhit went through two failed attempts to file a missing

complaint in Lajpat Nagar and Cannaught Place police station and also confronted Rekha about the passport used to send Trisha to U.S since he had the original one rd

¶ 8. On 23 May, 2012, police found a decomposed body at Kausani forest and the

skeletal remains were sent to JJ Hospital. However, Trisha‟s disappearance and the identification of skeletal remains were unreported and unlinked for 40 months ¶ 9. Rekha was kept under surveillance but arrests were made after Shyam Sahu,

Rekha‟s driver was arrested on August 21, 2015, in a case relat ed to illegal arms ¶ 10. As per the FIR lodged by Delhi Police, Sahu gave a statement to the Police that

the murder was planned by Rekha who had discussed the same with Suhas Kumar, her ex-boyfriend ¶ 11. Rekha had allegedly done a recce of the dumping ground the evening before the

murder th

¶ 12. On 24 April 2012, Suhas Kumar had flown to Delhi and checked into Hotel

Hilltop

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¶ 13. Rekha had earlier asked Trisha to her on 24 th evening and consequently, rented an

Opel Corsa for abducting her. Later, on 24 th at 6 pm, she picked up Suhas from the hotel and went to Cannaught place to pick Trisha who was dropped there by Shobhit at 7pm ¶ 14. Further, Sahu drove the car to the by-lanes of Dwarka where Kumar allegedly

strangled her and after the murder, her body was taken to Rekha‟s residence in Lajpat Nagar where it was put in a bag and stuffed in the car‟s boot ¶ 15. The same night, the three accused drove to the village of Kotputli, Kausani forest

area. On the way, they propped the body between Rekha and Kumar to avoid police detection th

¶ 16. Further, on 25 April, at 4 am, the accused dragged the body out of the car in an

isolated spot in the forest, stuffed it in the bag, poured petrol over the bag (the driver brought petrol from Shri Ram Petrol pump situated on the highway) and set it ablaze ¶ 17. After the body was burnt, all the three accused returned to Delhi and Kumar later,

left Delhi.

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ISSUES INVOLVED

ISSUE I

W H E T H E R T H E CONFESSION OF ACCUSED OF ACCUSED N O. 3, ADDUCED A S EVIDENCE, I S RELIABLE

[I.1.] Confession by co-accused is weak evidence [I.2.] Arguendo, Confession lacks Corroboration Corroboration [I.3.] Evidence from Hostile witness is unreliable and weak

ISSUE II

W H E T H E R TH E THREE ACCUSED PERSONS ACTED I N FURTHERANCE OF A OF A COMMON INTENTION T O C O M M I T TH E CRIME

[II.1.] There was no intention for the commission of the crime [II.2.] No act was committed in furtherance of a crime

ISSUE III

W H E T H E R T T H E THREE ACCUSED THREE ACCUSED PERSONS PERSONS A A RE GUILTY OF GUILTY OF C O M M I T T I N G MURDER UNDER SECTION 302 ALONG W I T H T H E OFFENCE OF ABDUCTING OF ABDUCTING I N ORDER T ORDER T O C O M M I T MURDER MURDER PUNISHABLE PUNISHABLE UNDER SECTION UNDER SECTION 364, I N D I A N PENAL CODE, 1860

[III.1.] The entire case of the Prosecution is based on circumstantial evidence [III.2.] Motive could not be established [III.3.] There is no evidence to prove the intention to murder

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[III.4.] There is no evidence to prove abduction of the victim [III.5] The chain of causation is incomplete with reference to offences under Section 364 and

Section 302 of I.P.C. [III.6] Faulty investigation

ISSUE IV

WHETHER THE THREE ACCUSED ARE LIABLE UNDER SECTION 120-B OF INDIAN PENAL CODE, 1860

[IV.1.] No Agreement or Understanding between the Accused

ISSUE V WH ETH ER TH E ACCUSED ACCUSED PERSONS PERSONS ARE GUI L TY OF OF CAU SI NG DI SAPPEARNCE OF OFF ENCE OR GIVI NG FAL SE I NFORMATI ON TO SCR SCREEN EEN OFF ENDER PUNISHABL E UND ER SECTION SECTION 201 OF TH E I NDI AN PENAL CODE, CODE, 186 1860 0

ISSUE VI

W H E T H E R A -1 I S GUILTY OF CAUSING MISCARRIAGE UNDER SECTION 313 OF TH OF TH E I N D I A N PENAL CODE, 1860

ISSUE VII

W H E T H E R T H E THREE ACCUSED PERSONS A RE GUILTY BEYOND REASONABLE DOUBT

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SUMMARY OF ARGUMENTS

WHETHER T H E CONFESSION OF ACCUSED N O. 3, ADDUCED A S ISSUE I WHETHER T EVIDENCE, I S RELIABLE

It is humbly submitted that the confession given by the co-accused, adduced as evidence, is not reliable as the confession given by the co-accused is weak evidence. However, even if the confession is considered to be reliable, it loses its evidentiary value since it is not well grounded and remains uncorroborated by circumstantial evidence. In addition to that, the evidence given by the hostile witness is unreliable and weak and lastly, the chain of events inferred from the evidences is incomplete. Hence, it is proven that the confession of the accused no. 3 if highly reliable.

ISSUE II WHETHER TH E THREE ACCUSED PERSONS ACTED I N FURTHERANCE OF A OF A COMMON INTENTION T O C O M M I T TH E CRIME

It is humbly submitted the accused persons did not act in furtherance of a common intention since the evidence relied upon is uncorroborated and weak and there is no link, whatsoever, between the evidences recovered or submitted in the court. Further, there was no prior concert or prior meeting of minds. Hence, the three accused did not act in furtherance of a common intention

AR E GUILTY OF ISSUE III WHETHER T H E THREE ACCUSED PERSONS ARE C O M M I T T I N G MURDER UNDER SECTION 302 SECTION 302 ALONG WITH TH WITH TH E OFFENCE E OFFENCE OF OF ABDUCTING I ABDUCTING I N ORDER N ORDER TO TO C C O M M I T MURDER MURDER PUNISHABLE PUNISHABLE UNDER UNDER SECTION SECTION 364, I N D I A N PENAL CODE, 1860

It is humbly submitted before this Honourable Court that the three accused are guilty of offences under Section 302 as well as Section 364, I.P.C. With regard to Sec 302, both, mens rea and actus reus are absent from this case since both are primarily dependent upon the uncorroborated confession of A-3. Further, motive, an important aspect of circumstantial evidence, could not be established. Moreover, the incomplete chain of causation and faulty

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investigation by the police created a reasonable doubt over the actions of the accsued. In addition to all the other causes, there was no evidence to prove the act of abduction to make the accused guilty under Sec. 364. Hence, the crime of murder and abduction to murder cannot stand against the three accused

ISSUE IV WHETHER THE WHETHER THE THREE ACCUSED ARE LIABLE UNDER SECTION UNDER SECTION 120B OF INDIAN PENAL CODE, 1860

It is humbly submitted that the three accused are not guilty of Criminal Conspiracy since there was no agreement or understanding the accused persons and the prosecution has not been able to establish that three accused even met on the night. Hence, the offence under Sec. 120-B cannot stand against them.

ISSUE V WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING DI SAPPEARNCE APPEARNCE OF OF OF F ENCE OR GIVI NG FAL SE I NF ORM ORM ATI ON TO SCREEN CREEN OFFEN DER PUNI PUNI SHABL E UNDER SECTION SECTION 201 201 OF TH E I NDI AN PENAL CODE, CODE, 1860

It is humbly submitted that the three accused are guilty of causing disappearance of evidence of offence or giving false information to screen the offender punishable under Section 201, I.P.C since the offence itself hasn‟t be proven to have committed committed beyond reasonable doubt. Moreover, no false evidence was given by the t he accused, in furtherance of a common intention since she genuinely believed in the information. Hence, the crime under Section 201 cannot stand. ISSUE VI WHETHER A -1 I S GUILTY OF CAUSING MISCARRIAGE UNDER SECTION 313 OF TH OF TH E I N D I A N PENAL CODE, 1860

It is humbly submitted that A-1 A-1 is guilty of causing miscarriage without the victim‟s consent and is punishable under Section 313, I.P.C since the prosecution has offered no material and corroborative evidence whatsoever to prove that the victim aborted her child under A1‟s pressure. Hence, the offence under Sec 313 cannot stand. stand.

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ISSUE VII WHETHER T WHETHER T H E THREE E THREE ACCUSED ACCUSED PERSONS PERSONS A A RE GUILTY RE GUILTY BEYOND BEYOND REASONABLE DOUBT

It is humbly submitted that the three accused persons were not guilty beyond reasonable doubt as the evidence that was relied upon, to prove the guilt, remains uncorroborated and weak and the Prosecution failed to make the link between „may have committed the crime‟ and „must have committed the crime‟, thus raising suspicion on the commission of the crime

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ARGUMENTS ADVANCED 1.WHETHER CONFESSION 1.WHETHER CONFESSION OF ACCUSED NO. 3, ADDUCED AS EVIDENCE, IS RELIABLE

It is humbly contended before this Honourable Court that the confession given by Accused No. 3, Shyam Sahu (hereinafter referred to as „A„A-3‟) is not reliable as reliable as confession by co-accused is a weak evidence [ 1.1]. However, even if the confession is considered to be reliable, it loses its evidentiary value since it is not well grounded and remains uncorroborated by circumstantial evidence [ 1.2].

Further, the evidence given by the

hostile witness is unreliable and weak. [ 1.3] and secondly, the chain of causation is incomplete.[3.5] 1.1. Confession by co-accused is weak w eak evidence

It is humbly contended that the prosecution has majorly relied his case upon the extra judicial confession of A-3. The Apex Court has held that confessions of a co- accused cannot be used against the accused unless the Court is morally satisfied on other evidence that the accused is guilty. 1 The Hon‟ble Supreme Court held that in the absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra-judicial confession or a judicial confession and least of all on the basis of retracted confession.2 In the present case, A-3‟s A-3‟s confession cannot be relied upon as the confession by a coco accused is considered as a very ver y weak form of evidence which is on a very low footing 3

1.2 Arguendo , Confession lacks Corroboration Corroboration

A conviction made on the basis of a confession by a co- accused in absence of corroboration from other independent evidence would be considered very unsafe to do so.4 Corroboration on material particulars means that there should be some additional or independent evidence thati.

Renders the story told by the accomplice true and reasonably safe to act upon.

ii.

Identifying the accused as one of those or among those who committed the offence

1

Badal Sheik v. State 1986 State 1986 (2) Crimes- 316 Bishnu Prasad Sinha V. State of Assam 2007 Assam 2007 (11) SCC 467 3 State of Punjab v. Bhajan Singh AIR Singh AIR 1975 SC 258 4 Haricharan Kurmi v. State of Bihar AIR AIR 1964 SC 1184 2

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iii.

Showing direct or circumstantial evidence linking the accused with the cr ime5

In the present case, substantial parts of A-3‟s A-3‟s confession confession lack corroboration as there are various parts of the statement which have not been corroborated by any material piece of evidence. Starting with the car used for the alleged abduction, there has been no evidence to prove that an Opel Corsa was actually rented for the same. Similarly, there has been no evidence on record to prove that the prime accused was present at the scene of the alleged crime. Even with regard to the inferred evidence available about the presence of the other two accused at the crime location, the evidence is highly unreliable and do not complete the chain of events purported by the prosecution. The above mentioned evidences have been dealt with in the Issue No. 2. Hence, it is humbly submitted that A-3‟s A- 3‟s confession is highly unreliable and holds extremely low evidentiary value to be made admissible in the Court.

1.3 Evidence from Hostile witness is unreliable and weak

In the case of Baikunth of Baikunth Mahto v. State of Bihar ,the ,the court held that since the two sole eye witnesses were hostile and no longer supported the prosecution‟s case, the conviction was held to be set aside by the court. 6 Thus, it is clear that when a prosecution witness turns hostile by stating something which is destructive of the prosecution case, the prosecution is entitled to request the Court that such witness be treated as hostile. 7 It also has to be remembered here that the court cannot by itself declare a witness a hostile witness but it can do so only on the request made by the prosecution attorney. Clearly, once the prosecution declares a witness hostile, it exhibits its intention of not relying on the evidence of that witness, and hence his version cannot be treated to be the version of the prosecution. In the present matter, PW2 only identified A-3 before the police but later turned hostile. Therefore, it is humbly submitted that in this particular matter any evidence derived from PW2 is unreliable and weak.

5

Ratanlal, Dhirajlal, Law of Evidence, p. 801(24th Ed. 2011) Baikunth Mahto v. State of Bihar, 2003 Bihar, 2003 Cri LJ 2135 7 G.S.Bakshi v. State, State , A.I.R. 1979 S.C. 569 6

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2. WHETHER THE WHETHER THE THREE ACCUSED PERSONS ACTED IN FURTHERANCE OF A COMMON INTENTION TO COMMIT THE CRIME

It is humbly contended that all the three accused did not act conjointly in furtherance of a common intention to commit the crime. The concept of joint liability comes under Section 34 of IPC which states that “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 mann er as if it were done by him alone.” 8The section can be explained as when two or more persons commit any criminal act and with the intention of committing that criminal act, then each of them will be liable for that act as if the act is done by them individually. The ingredients of section 34 of IPC are1) A criminal act is done by several persons. Criminal Act means either committing the act or omitting to commit the act, which is an offe nce under IPC. 2) The criminal act must be to further the common intention of all. It is necessary that the act is done by more than one person as if the act is done by only one person then this section does not applies. 3) There must be participation of all the persons in furthering the common intention. It means that the persons should have decided in advance about the commission of the act and every one of them have acted keeping in mind that common intention. The persons cannot be held liable if they have decided what to do and then they have not done that thing, every person who is a part of the group should do something so as to participate in the commission of the act. 9

8

Ratanlal & Dhirajlal, The Indian Penal Code, Code , 32nd Enlarged Edition, 2013, Page 188-190 9 Rangaswamy v. State of o f Tamil Nadu, AIR Nadu, AIR 1989 SC 1137; William Stanley v. State of Madhya Pradesh , 1956 AIR 116

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2.1 There was no Common Intention

It is humbly contended that the accused persons did not have a common intention to commit any crime. To prove common intention two elements must be necessarily proved i.e. there was common intention and an offence was committed in furtherance of the crime. 10 “Where parties go with a common purpose to execute a common intention, each and every one becomes responsible for the acts of each and every other in execution and furtherance of their common purpose, as the purpose is common so must be the responsibility.” 11 Common intention implies that there should be a prior concert or prior meeting of minds 12 and such has to happen prior to the commission of the act of crime. 13 Criminal act must be done in concert pursuant to the pre-arranged plan. Common intention comes into being prior to the commission of the act in point of time. Where there is no indication of premeditation or of a pre-arranged plan, the mere fact that the two accused were seen s een at the spot or that the two accused fired as a result of which one person died and two others received simple injuries could not be held sufficient to infer common intention 14. It is also not necessary that the persons always share the common intention and commit crime. In the present p resent matter matt er there is no evidence whatsoever to prove that main accused was present at the crime scene and the evidence in support of the other two are weak and unreliable. Common intention can be established circumstantially.15 The actions of the parties prove that the acts committed are two different and separate acts. Furthermore, even if it is assumed that the accused acted with a similar intention, common intention has been distinguished and understood differently from similar intention.16 It has also been contended earlier that there was no proper chain of events happening as to convict the accused on the basis of the story made by the A3. 2.2 No Act was done in furtherance furtherance of any crime

To attract the commission of mischief under Section 34 participation is necessary in the commission of the offense. 17 In the case of Shankarlal Kacharabhai v. State18, the term 10

Shiv Prasad Chunni Lal Jain v. State of Maharashtra, Maharashtra, AIR 1965 SC 264. Ganesh Singh v. Ram Raja , (1869) 3 Beng LR (PC) 44, 45 12 Pandurang Tukia v. State of Hyderbad , AIR 1955 SC 216. 13 Shankarlal Kacharabai and Others v. State of Gujarat, AIR 1965 SC 1260; Ram Tahal v. State of Uttar Pradesh, AIR1972 SC 254 14 Ramachander v. State of Rajasthan, Rajasthan , 1970 Cr.L.J. 653 15 Mahaboob Shah v. King v. King Emperor, AIR Emperor, AIR 1945 PC 118. 16 Mithu Singh v. State of Punjab,AIR Punjab,AIR 2001 SC 1929. 17 Sunny Kapoor v. State, 2006 (10) SCC 182. 11

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“furtherance” has been interpreted to mean an act done in advancement or promotion of crime.19 Section 34 denotes a series of act as a single act and does not include independent criminal actions.20 In the present case the prosecution has not been able to establish that three accused even met on the night of 24th April 2012.Therefore, for two acts to be commonly intended they also have to be conjointly committed which in our case did not happen. 21Thus it is humbly submitted before this Hon‟ble court that the accused to this case should be acquitted on the ground of lack of circumstantial evidences and reasonable doubt against th em.

3. WHETHER THE THREE ACCUSED PERSONS ARE GUILTY OF COMMITTING COMMITTING MURDER UNDER SECTION 302 ALONG WITH THE OFFENCE OF ABDUCTING IN ORDER TO COMMIT MURDER PUNISHABLE PUNISHABLE UNDER SECTION 364 OF THE INDIAN PENAL CODE, 1860

It is humbly contended before this t his Hon‟ble Court that the accused are not guilty of the offence under Sec 302 and Sec. 364 of the Indian Penal Code, 1860 (hereinafter referred to as the „IPC‟). In the matter at hand, it has been wrongfully alleged that the accused has abducted the victim in order to commit murder. To establish an offence under the charge of abduction in order to commit murder 22, the Prosecution must prove the following elements, beyond reasonable doubt 

The accused kidnapped or abducted some person



The accused had the intention at the time of kidnapping or abducting that the person kidnapped/abducted will be murdered or so disposed of being murdered 23

Further, in order to bring a successful conviction under this charge, however, it is pertinent to refer to Sec 300, IPC which elucidates the essentials of murder. In order to bring a successful conviction under Section 302, IPC, it is pertinent to refer to Sec 300, IPC which elucidates the essentials of murder. A person is guilty of murder if he intentionally causes the death of a person

18

Shankarlal Kacharabai and Others v. State of Gujarat, AIR 1965 SC 1260. Dani Singh v. State, State, 2004 (13) SCC 203. 20 Suresh v. State, 2001 (3) SCC 673. 21 Ambani K. v. State, 2005 (13) SCC 422. 22 Section 364, IPC 23 th R A Nelson , Indian Penal Code, Code , (9 Ed., 2003), Vol I 19

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

or causes such bodily injury as he knows, is likely to cause death of that person



or causes such bodily injury, which in the ordinary course of nature results into death



or commits an act so dangerous that it must, in all probability cause death of that person.24

In the present matter, the Prosecution‟s case is liable to be dismissed because of heavy reliance on uncorroborated confession and also due to faulty investigation, all creating the existence of a reasonable doubt. It is contended that both, the mens rea and rea and the actus reus are reus are absent from this case since both are primarily dependent upon the confession of A-3. Moreover, the witness statement of A-3 is inadmissible in evidence and cannot be relied upon [Issue No. 1, sub issue 1- 1.1] In such a situation, the accused should be given the benefit of doubt as the whole case being based on circumstantial evidence [3.1]

where, motive being a significant element, could not be

established [3.2]. Further, there was no evidence to establish the intention to commit the murder [3.3]. Moreover, the chain of causation with regard to Sec 364 as well as Sec 302 is incomplete. [3.5] Lastly, due to faulty investigation by the police [ 3.6] there exists a reasonable doubt over the actions of the accused.[6.1] With regard to Section 364, apart from the above contentions, there was no evidence to prove the act of abduction [ 3.4]

3.1 The entire case of the Prosecution is based on circumstantial circumstantial evidence

It is contended before this Court that the Prosecution has solely based its case on circumstantial evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence.

In Hanumant v. State of Madhya Pradesh 25, The Hon‟ble Hon‟ble Supreme Court observed, “ In dealing with circumstantial circ umstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn

24

Ratanlal, Dhirajlal, The Indian The Indian Penal Code, p. Code, p. 502 (34 th Ed. 2014) AIR 1952 SC 343

25

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should in 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. In other words there can be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused .” .”

It is submitted that in the present case, all the evidences that came before the Court were indirect in nature. The statement given by one of the accused before the Police is a circumstantial evidence and not direct evidence in the strict sense.26 Further, discovery of Kumar‟s mobile location at Kausani forest, fo rest, recovery of passport from the custody of Shobhit Mukherjee were indirect evidences that were relied upon by the Prosecution.

Thus, in a case in which the evidence is of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is said to be established beyond reasonable doubt and the facts and circumstances so established, should not only be consistent with the guilt of the accused but they must also be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. 27 It is humbly submitted that the above mentioned principle has not been fulfilled.

3.2 Motive could not be established

It is humbly contended before the Court that although motive is generally not relevant in cases of Murder, but where the case is based on circumstantial evidence, motive on part of the accused assumes importance.28 The current case being based on circumstantial evidence, motive becomes a relevant factor. Further, with regard to the offence under Section 364, IPC, it was observed in the case of Narain Mohaton v State that, State that, “..where “..where there was not an iota of evidence as to any reason for the accused to do away with the deceased, the accused accuse d cannot be pinned down to charge under Sect ion 364, I.P.C ” I.P.C ”29 26

Tahsildar Singh And Another vs The vs The State Of Uttar Pradesh , AIR 1959 SC 1012 State of Himachal Pradesh v. Kant Shekhari, Shekhari , AIR 2004 SC 4404; Soni v. State of Gujarat , AIR 1991 SC 917; Balvinder Singh v. v. State of Punjab, Punjab, 1987 Cri LJ 33 (SC); Gambir v. State of Maharashtra, Maharashtra , 1982 Cri LJ 1243(SC); Gian Singh v. State of Punjab, Punjab , 1987 Cri LJ 1918 28 Wakkar & Anr vs State vs State Of U.P , (2011) 3 SCC 306 29 1974 BLJR 642 27

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This principle was supported by the case of Kaptan v. State

30

, where the conviction of the

accused was held to be not proper as the motive was not known and the Prosecution‟s case had discrepancies. In such a situation where there is no motive, conviction on the basis of circumstantial is imprudent and unjustified. 31 It is submitted that in the current case, the evidences produced are not sufficient to connect the accused persons‟ motive with the alleged offence. The argument of honour killing being the primary motive behind the murder does not hold water. This argument is wrong and bogus as the victim had been cohabitating with Shobhit Mukherjee since 2009. Furthermore, the prosecution has also stated that the victim‟s pregnancy was the imme diate reason behind the alleged crime is also baseless. This claim too does not hold water as the victim got pregnant in 2011 and the alleged crime was committed in April 2012. If the prosecution‟s story is to be believed then it would seem that Rekha was infuriated with the victim‟s pregnancy but waited for almost 5 months(assuming she got pregnant in December) to commit this crime, which seems highly unlikely and far-fetched. Furthermore, as far as the other two accused persons are concerned no claim of motive can be attributed to them.

3.3 There is no evidence to prove the intention to murder

It is contended that the Prosecution has failed to produce cohesive evidence to prove the accused persons‟ intention to commit murder. There is an additional burden burden on the prosecution to establish, in cases which rest on circumstantial evidence, that the circumstantial evidence is inconsistent with the innocence of the accused besides it being consistent with his guilt. True it is, in a murder case, the evidence that the deceased was last found in the company of the accused is an important link in the chain of circumstances pointing to the guilt of the accused, but it could not be deemed to be conclusive, unless it is further established that during the interval between the time when they were last seen together and the time at which the victim died every circumstance was inconsistent with the innocence of the accused.32 In the present case, the chain of events formed with the help of the evidences brought before the Court had many loopholes which prevented the consistency of the same. The car that was alleged to have been used for abduction could not be recovered. This was the first element of suspicion raising a doubt on the intention of the accused. Further, there is no substantial

30

2004 CrLJ 1556 (AII) Budha Satya Venkata S. Rao v. State of A.P ., ., 1995 SCC (Cri) 127 32 Mani Kumar Thapa v. State of Sikkim, Sikkim , 2002 Cri LJ 876 31

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evidence to prove that the written resignation and the break up SMS was sent by any person other than victim, thus, eliminating the possibility of the required intention to remove her from the social circle. Moreover, the reliance on the fact that A-1 did a reccee of the dumping ground is weak as it has been derived from an uncorroborated confession.

Hence, it is submitted that there is no material evidence to prove that the accused had the intention to commit the offence of Murder

3.4 There is no evidence to prove abduction of the victim

With regard to the offence under Section 364, IPC, the Prosecution must prove the two ingredients mentioned above. Abduction under Section 362, IPC requires the accused to entice a person by deceitful means or by forcible compulsion to go from one place. 33 In the present case, the prosecution failed to establish by adducing cogent and substantial evidence to prove that the three accused persons had played any force or inducement by deceitful means, compelling Trisha to leave from Cannaught Place. According to A-3, A-1 had asked Trisha to meet her on the evening of 24 th April 2012 and though reluctant, Trisha agreed. This statement, by itself does not prove any involvement of force or deceit to take her from Cannaught Place. Further, there is no evidence in record to show that Trisha was taken against her will or that she was forced or compelled to go by any deceitful inducement by the accused persons to go with them. Therefore, it is humbly submitted that there was no legal evidence to substantiate Trisha‟s abduction. 3.5. The chain of causation is incomplete with reference to offences under Section 364 and Section 302 of I.P.C.

It is contended that in case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused.34 It is a well settled principle that where the case is mainly based on circumstantial evidence, the court must satisfy itself that various circumstances in the chain of evidence should be clearly established and that the completed chain must be such so as to rule out a

33

Indian Penal Code, Section 362 Sahadevan & ANR. Vs. Vs. State of Tamil Nadu , (2012) 6 SCC 403

34

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reasonable likelihood of the innocence of the accused. 35 Moreover, all the circumstances should be complete and no gap should be left in the chain of evidence. 36 When even a link breaks away, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of the accused beyond reasonable doubts.37 Further, with specific regard to Section 364, where there is no evidence to show that a person was abducted for being murdered and the statement given by the witness does not inspire confidence, the conviction of the accused under Section 364, IPC, cannot be sustained.38 Similarly when the prosecution could not establish the link of circumstances leading to the crime, the accused were acquitted of Section 302 of the I.P.C. 39 Failure of the prosecution to prove even one of the elements mentioned gives the benefit of doubt to the Accused.40 Further, it was clearly observed in the case of State of U.P. v. Gambhir Singh 41 that since a number of alternate inferences, consistent with the innocence of the accused, could be drawn, the accused was not to be convicted, merely, on the basis of circumstantial evidence, adduced.42 Similarly, in a case where the dead body was found in the room of the accused but the vital links of circumstances were not established, the conviction was set aside.43 It is submitted that the present case rests on circumstantial evidence and the circumstances that were established are not conclusive in nature and the chain is broken from many places. There is no corroborating and solid proof of the rented Opel Corsa, location of the prime accused, accused, the alleged abortion, the victim‟s phone location for 40 months after her death, etc which are important material links in the chain of causation. These material facts should have been investigated upon by the police as they form the base of the theory formed by the prosecution.

35

Mohan Lal v. State of Uttar Pradesh, Pradesh , AIR 1974 SC 1144 vs. State of Andhra Pradesh, C. Chenga Reddy and Others vs. Pradesh, AIR 1996 SC 3390 37 Janar Lal Das v. State of Orissa, Orissa, 1991 (3) SCC 27; A. Jayaram and Anr v. State of AP , AIR 1995 SC 2128 38 Tondil v. State of Uttar Pradesh, Pradesh , 1975 Cr.L.J. 950 at pp. 951, 952 (All.) 39 Kantipal alias K.L Gordhandas Soni v. State,2003 State, 2003 (2) GCD 1427 (SC) 40 th Justice Khastgir , Criminal Major Acts, Acts, 10 Edition, 2014, Page 301-302 41 AIR 2005 SC 2439 42 Ibid. 43 Tarseem Kumar v. Delhi, v. Delhi, (1995) Cr LJ 470 (SC) 36

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3.6 Faulty investigation

It is contended before this Court that improper handling of investigation leads to acquittal. 44 Apex Court has held that in cases where there are a number of infirmities in the evidence of the eyewitnesses, the benefit of doubt is given to the accused. 45 It is submitted that in the current case, the fact that the victim‟s disappearance and the disposal of the body along with the identification of the skeletal remains went unreported for 40 months until August, 2015 46, shows that the case was improperly handled and there is a grave possibility that vital evidences such as residue on victim‟s clothes, fingerprints or other material piece of information may have been lost by the virtue of callous investigation techniques. Furthermore, investigative authorities have failed to produce any piece of evidence which supports the claim of the alleged abortion. There has been no corroboration of this claim by any of the witnesses including PW7 (Roohi) who was a close friend of the victim. The police have failed to produce any medical records which confirm the all eged abortion. Furthermore, the investigative authorities have failed to provide any evidence to support Sahu‟s claim of renting of an Opel Corsa. This is a very v ery valuable piece in the chain of events proposed by the prosecution. Without confirmation of the same, an essential es sential material fact is absent from the story proposed by the prosecution. Furthermore, there is again no evidence to prove the fact that Rekha was present at the crime scene on 24 th April 2012. Except for the uncorroborated statement given by Sahu, which was later retracted, there has been nothing to even suggest that Rekha was present at the crime scene on that particular night. The biggest blunder by the investigative authorities in this case was to not track down the location of Trisha‟s phone from which the real culprit was sending text messages to all of her family and friends. Since the police failed in tracking the location of the phone, they have missed out on a very valuable piece of evidence in the purported chain of events. It is contended that the person responsible for using the victim‟s phone is trying to set up Rekha as he/she stopped using the phone as soon as Rekha got arreste d.

44

State of AP v. Kowthalam Narasimhula, Narasimhula , 2001, Cr LJ 722 (SC) State of Punjab v. Rakesh Kumar , (1998) Cr LJ 3604 (SC) 46 Moot Problem, page 2, Line no. 2 45

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4.WHETHER THE THREE ACCUSED ARE GUILTY UNDER SECTION 120-B OF THE INDIAN PENAL CODE,1860

It is humbly contended before this Court that the three accused are not liable for Criminal Conspiracy and Criminal action in furtherance of a common intention punishable under Sec 120-B and Sec 34, I.P.C respectively. Criminal conspiracy as defined under Sec.120B consists of an agreement between two or more persons to commit an illegal act or a legal act by illegal means. 47 The elements of a criminal conspiracy are: Agreement between two or more persons by whom the agreement is effected and a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. 48 4.1 No Agreement or Understanding between the Accused

The provisions of 120B IPC state that the offence of conspiracy lies not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties.49 Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same thus relying on evidence of acts of various parties to infer that they were done in reference to their common intention. 50 For an offence under Sec.120B IPC, the intention must proceed to an agreement. 51 In the present matter, there was no intention to commit the alleged crime. As stated in the earlier issues, there is no solid evidence to prove that there was a common intention to form a conspiracy or commit the crime. The prosecution has relied on A-3‟s A- 3‟s confession confession to prove that A1 and A2 had discussed the plan with each other. As stated earlier, this part of the statement lies uncorroborated and hence cannot be relied upon. The prosecution has also relied upon the weak circumstantial evidence on record to infer from the alleged acts of the accused persons. However, the prosecution has failed to provide an unbroken chain of causation since most of the material facts are either unproven or uncorroborated. 47

V.C. Shukla v. State (Delhi Administration), (1980) 2 SCC 665.; Lord Hailshameds, Halsbury‟s Laws of England , Page 44., (4 thed. 1987) 48 V.C. Shukla v. State (Delhi Administration), (1980) 2 SCC 665 49 Hira Lal Hari Lal Bhagwativ. C.B.I . 2003 SCC (Cri) 1121. 50 Section 10, Indian Indian Evidence Act (Act 1 of 1872); Kehar Kehar Singh v. State (Delhi Administr ation), ation) , AIR 1988 SC 1883 51 Abdul Sayeed v. State of Madhya Pradesh, Pradesh , 2010(10) SCC 259

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Therefore, it is humbly submitted that Criminal Conspiracy on part of the accused cannot be proved beyond reasonable doubt. doubt. 5. WHETHER THE ACCUSED PERSONS ARE GUILTY OF CAUSING DISAPPEARNCE DISAPPEARNCE OF OFFENCE OR GIVING FALSE INFORMATION TO SCREEN OFFENDER PUNISHABLE UNDER SECTION 201 OF THE INDIAN PENAL CODE, 1860

It is contended that all the three accused persons have not committed the offence under Sec. 201 of the Indian Penal Code, 1861. It can be seen that the basic necessities of this Section are 1.

an offence has been committed,

2.

the accused must or has reason to believe believ e that the offence has been committed, committ ed,

3.

the accused must either cause any an y evidence of the commission of that offence to disappear, or give any information respecting the offence which he knows or believes to be false, and

4.

the accused must have acted with an intention to scr een the offender from the legal punishment.52

In the present case, the offence which has been alleged to have been committed by the relied on the evidences provided by A-3‟s A- 3‟s confession which is highly unreliable, uncorroborated uncorroborate d and weak as contended in the first issue. Hence, the first ingredient itself fails to establish the Prosecution‟s case. This was supported by the Supreme Court in the case of Moti Lal v. State53 where it was held that the extra judicial confession by the co-accused at most raises doubt but in no manner provides sufficient evidence to convict the other accused. 54 Further, it was held in the case of State Of Kerala vs Markose 55that Section 201 of I.P.C contemplates giving information respecting an offence which the accused person knows or believes to be false. The Kerala High Court further held that a statement given by a person in 52

Nitin Jairam Gadkari vs State vs State Of Maharashtra, Maharashtra , 2004 (4) MhLj 419 2001 Cri LJ 4341 (Kar) 4345-4346 54 Id . 55 AIR 1962 Ker 78 b 53

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the course of an investigation by the police cannot amount to an offense under this Section even if it ultimately turns out to be false. 56 In this current case, On PW6‟s insistence, the police visited AA -1‟s Lajpat Nagar Residence to obtain further information about Rekha‟s whereabouts. 57 This act of the police fell within the course of investigation since the Police can undertake an investigation if they genuinely believe that a cognizable offence has been committed by the means of a credible information.58 Later, in the same course of investigation, A-1 informed the information to the police that the victim was in the U.S. for higher studies since she genuinely believed so. Lastly, there must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and the accused has caused the evidence to disappear, in order to screen the offender, known or unknown.59 In this case, there is no cogent evidence on record to prove A-1 had the knowledge to believe that the victim was dead and not in the U.S. and thus, did not have any intention to screen herself or any other co-accused. Therefore, it is humbly submitted that the three accused persons had not caused any disappearance of evidences of the offence and were consequently not guilty under Section 201, I.P.C

6. WHETHER A-1 WHETHER A-1 IS LIABLE OF CAUSING MISCARRIAGE UNDER SECTION UNDER SECTION 313 OF THE INDIAN PENAL CODE, 1860

It is humbly contended that A1 is not guilty of causing miscarriage without woman's consent under Section 313 of the I.P.C as the prosecution has failed to prove any of the requisite ingredients of the section beyond reasonable doubt. Section 313 states – states – Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life li fe or with imprisonment of either description for f or a term which may extend exte nd to ten years, and shall also be liable to fine. The essential ingredients of an offence under this section are: (i) That the accused caused miscarriage to a woman with child; 56

Id Moot Problem, Page 1, para 7 58 Lalita Kumari vs Govt.Of vs Govt.Of U.P.& Ors, (2008) 7 SCC 164 59 Sukh Ram v. State of Maharashtra, Maharashtra , (2007) 7 SCC 502 57

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(ii) That he do voluntarily; (iii) That he cause miscarriage without the consent of that woman 60 It is humbly contended that in the present matter the prosecution has offered no evidence whatsoever to prove that the victim aborted her child under A1‟s pressure. It is only alleged that the victim had to abort her child due to pressure by the accused. 61 Since there is no evidence to support the prosecution‟s claim c laim it is difficult to establish that there was any pressure on the part of the accused, the first ingredient of Section 313 is not established. The High Court of Andhra Pradesh held that where there has been no medical evidence or corroborative evidence to prove that there was an abortion, the acquittal was held to be proper.62 In the present matter both PW6 and PW7 who were close friends of the victim also did not provide any statement or evidence to prove that the victim aborted her pregnancy under the pressure from the accused. Therefore, it is humbly submitted that the accused is not guilty under Section 313 of the I.P.C.

7. WHETHER THE WHETHER THE THREE ACCUSED PERSONS ARE GUILTY BEYOND REASONABLE DOUBT

It is contended that the case against the three accused could not be proved beyond reasonable doubt. It is contended that there exists a reasonable doubt and hence all the accused persons should be acquitted of the crime. A reasonable doubt must not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason and common sense arising out of the evidence of the case. ca se. 63 In the present matter there has been no collaborating evidence to prove that Rekha, Suhas Kumar and Shyam Sahu were present in the crime scene on the night of 24 th April 2012. The only unreliable evidence that has been put forward by the prosecution is the phone location of Suhas Kumar and testimony of a hostile witness The Prosecution‟s arguments are leaning towards the fact that the crime „may have been committed by the accused persons‟, however, they have failed to make the link between „may have committed committed the crime‟ and „must have committed the crime‟ and that gap must be filled by the Prosecution by legal, reliable rel iable and unimpeachable evidence before a conviction can be sustained.64 60

Prabhu and Ors. v. State, State , Cr. App No. 454 of 2007 Moot problem, Pg 1, Para 4 62 Sonti Rambabu @ Ramu, vs State Of A.P,. Cr. App No. 1384 of 1998 63 Ramakant Rai v. Madan Rai, Rai, Cr LJ 2004 SC 36 64 th IV. Nelson R. A., Indian A., Indian Penal Code, Code, p.2905, (10 Ed. 2008) 61

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Thus, it is humbly submitted before this Court that the charge under Section 364, I.P.C has not been made out and the accused persons should be acquitted for the same.

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PRAYER

her efo efor e, W he

in light o f the Issues

aised, R ai

Author itie ities

most humbly and respectfully requested that the

Cited

Hon ble ‟

and Ar gument guments Advanced, it is

High Cour t of State be pleased to:

¶ 1. Acquit Rekha Mukherjee of the offences under Section 364, 302, 120B , 34, 201 and

313 of the Indian Penal Code, 1860. ¶ 2. Acquit Suhas Kumar of the offences under Section 364, 302, 120B , 34 and 201 of

the Indian Penal Code, 1860 ¶ 3. Acquit Rekha Mukherjee of the offences under Section 364, 302, 120B , 34 and 201

of the Indian Penal Code, 1860

AND/OR

Pass any other order it may deem fit, in the interest i nterest of Justice, Justi ce, Equity and Good Conscience. Al l of whi ch is most most hum bly and respe respectful ctful ly submi submi tted. tted.

Date:_________, 2016 COUNSEL ON BEHALF OF THE DEFENCE

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Symbiosis Law School- Defence Memo

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