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Before THE HONOURABLE HIGH COURT OF UTTAR PRADESH AT LUCKNOW

-Statement of Jurisdiction-

-Petitioner-

STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for appeal filed before this Honourable Court . This criminal appeal is filed U/s 378 (1) and (3) Criminal Procedure Code, 1973 by the State Public Prosecutor for the state praying that this Honble court may be pleased to grant leave to file an appeal against the judgment passed by learned Sessions Judge Acquitting the Respondents/Accused for the offence P/U/S 498-A, 304-B r/w Section 34 IPC and etc.

-Statement of Facts-

-Petitioner-

STATEMENT OF FACTS
said amount from her parents and the same resulted into a family feud after which she went back to her parents house. IV In June 2005, Kishori Lal tried to reconcile by getting her back. Thereafter Kiran went back to her matrimonial home . Manak Ram received no major complaints from her daughter except few incidents of minor quarrels due to financial crisis after that.

V In December of 2005 Manak Ram received a call from his daughter in which she said , If you want to see me alive you must arrange Rs.5,000/- immediately so as to pay an instalment amount due for a loan taken for the purpose of carrying out business

VI

On 1st January 2006 Manak Ram called up Kiran to wish her a happy new year but he found her very upset due to her husbands habit of consuming alcohol on a regular basis and she was continuously crying on the phone.

VII After a week he received a call that his daughter has consumed poison and has succumbed to it. On January 7th , 2006 Kishori Lal called up the police station and informed that Kiran his wife had committed suicide by consuming poison in the form of pesticide.

VIII

-Statement of Facts-

-Petitioner-

On the morning of 8th January 2006 , Manak Ram lodged an FIR alleging that Kishori Lal and his parents had forcefully made Kiran to consume poison in the form of pesticides and hence it is a case of dowry death.

IX On investigation the police sent the body for post mortem . Dr. Puspa Kumar Sharma opined in the post mortem report that , there was presence of poison in the body and also a head injury that could have been fatal. Also according to him the approximate time of death was between 1 to 1.30 am.

The police during investigation recorded the statements of he neighbours , their child Ketan and the in laws.

XI

When the neighbours were interrogated by the police they told the police that they heard the couple fighting and shouting from 9 to 10:30 in the night where both of them were involved in an apparent quarrel. After this there were no sounds that were heard and everything became calm and quite

XII When Ketan was asked as to what happened the night before his mother expired, he told the police officer in charge, both my mother and father were fighting My father got

-Statement of Facts-

-Petitioner-

angry and pushed her away as a result of which she fell down and after some time she went back inside her room and closed the door. Papa came to me and asked me to go inside my room and sleep.

XIII The in laws on interrogation said, their daughter in law was always depressed and had a negative approach to life and did not have the will to live. Her death was a result of a suicide that she committed by consuming a poisonous pesticide. Such pesticides were easily available at there home as Kishori Lal was engaged in the business of agricultural products.

XIV

When the police interrogatyed Kishori Lal he told the police officer in charge that he hit her with a metal vase and gave her poison in the form of pesticide so as to kill her and that the pesticide given to her was kept on the shelf adjacent to the dressing table where the body was found later Later the police found the bottle of pesticide at the said place.

XV The case went before the learned Sessions Judge where charges were framed under Section 34 , 304 B , Section 498 A of the Indian Penal Code and of the Dowry Prohibition Act of 1961 , Section 113 B of the Indian Evidence Act . The prosecution alleged that it was a case of dowry death and that the call made by the deceased to her father was a dying declaration mentioning the demands of Kishori Lal where she had clearly requested her father to give the money if he wanted to see her alive. Also he said the childs witness was inadmissible and non reliable as it was given by an incompetent person. They also alleged

-Statement of Facts-

-Petitioner-

that on the said night Kishori lal was intoxicated and under the effect of it he killed Kiran by hitting her with something heavy at the back of her head.

XIV

During the trial the court admitted witness of the neighbours , Ketan and Prem Lata, Ram Bihari and Manak Ram. Before the court Kishori Lal declined to have made any confession before the police and on being questioned on the discovery of fact i.e. bottle of pesticide found adjacent to the dressing table the defence said that it was no discovery of the fact because Kishori Lal dealt in agricultural products and his house was full of such pesticide and products of like nature. Also that the defence pleaded that even if Kiran had consumed poison it was by mistake because she was illiterate and she confused it to be edible as the same was placed on the shelf adjacent to the dressing table where certain eatables were placed.

The Court acquitted Kishori Lal and his parents on the following reasons as given by the defence : 1) That it is not a case of common intention under Section 34 . 2) The call was not a valid dying declaration as it was not made immediately before the death of Kiran 3) The statement of Ketan is inadmissible before the court as he is a minor and hence incompetent. 4) That Kishori Lal was intoxicated could not be proved beyond reasonable doubt 5) That it was not a case of dowry death u/s 304 B of the IPC 6) That the confession to police is not admissible as evidence before a court of law.

-Statement of Facts-

-Petitioner-

-Questions Presented-

-Petitioner-

QUESTIONS PRESENTED

1. WHETHER IT WAS A CASE OF COMMON INTENTION UNDER SECTION 34 OF INDIAN PENAL


CODE?

2. WHETHER

THE CALL MADE BY THE

_DECEASED

AMOUNTS TO VALID DYING

DECLARATION?

3. WHETHER THE STATEMENT OF MINOR CHILD , KETAN IS ADMISSIBLE BEFORE COURT OF


LAW ?

4. WHETHER THE RESPONDENT ACCUSED


INCIDENT?

NO.1 WAS INTOXICATED AT THE TIME OF

5. WHETHER IT IS A CASE OF DOWRY DEATH U/S 304 B OF INDIAN PENAL CODE? 6. WHETHER
LAW? THE CONFESSION TO POLICE IS ADMISSIBLE AS EVIDENCE BEFORE COURT OF

-Pleadings-

-Petitioner-

ARGUMENTS ADVANCED
1. WHETHER IT WAS A CASE OF COMMON INTENTION UNDER SECTION 34 OF INDIAN PENAL CODE?\

It is to be further submitted that if the money for meeting the business expenses has been the sole problem as to which the accused and his family resorted cruel behavior towards the deceased and left her with no option other than committing suicide, the family of accused being a resourceful family could have easily managed that and there should not have been the fate of Mrs.Kiran , deceased.

Thus it is requested to set aside the order of the Honble Sessions court in the larger interest of fair justice.

2. WHETHER THE CALL MADE BY THE DECEASED_ AMOUNTS TO VALID DYING DECLARATION?

It is contended before this Honble Court that the call made by the deceased to her father is a valid dying declaration. This Honble Court is pretty well versed about the maxim Nemo moriturus praesumitur mentire i.e. a man will not meet his maker with a lie in his mouth. Its admissibility is explained in the section 32 (1) of Indian Evidence Act which is reproduced as under : The direct words If you want to see me alive you must arrange Rs.5000 are in itself is a pointer to the testimony that the deceased was passing through a difficult phase of her life was under the anticipation of being killed , thereby clothing the statement as dying declaration.

Thus it is requested to set aside the order of the Honble Sessions court in the larger interest of fair justice.

3. WHETHER THE STATEMENT

OF MINOR CHILD ,

KETAN IS

ADMISSIBLE BEFORE COURT OF LAW ?

-Pleadings-

-Petitioner-

It is submitted by prosecution before this Honble Court that as ver well averred from the fact sheet , the couple has a son named Ketan out of their wedlock who is around 4 years of age , thereby a minor. The prosecution contends that the statement of Ketan is admissible before court of law and in cannot be rendered inadmissible only on The deposition given by grief struck child by loss of his mother can in no way be inadmissible before a Court of Law. He has full right to state the facts what he witnessed and the court cannot render him inadmissible only because of his tender age.

Thus it is requested before this Honble Court to set aside the findings of the trial Court .

4. WHETHER THE RESPONDENT ACCUSED NO.1 WAS INTOXICATED AT THE TIME OF INCIDENT?

It is respectfully submitted before this Honble Court that the Respondent Accused No.1 was well intoxicated at the time of incident. This is amply proved by the fact at para No.6 of the fact sheet which clearly elaborates as under : Thus, that an act is done with a particular intention or with a particular knowledge is largely a matter of inference to be drawn from the overt-act itself and the circumstances in which it was committed It is contended by the prosecution that hitting the deceased with a metal vase was no lesser than the overt act and thus the prosecution prays before this Honble Court to set aside the findings of the Trial Court and

5. WHETHER IT IS A CASE OF DOWRY DEATH U/S 304 B OF INDIAN PENAL CODE?

-Pleadings-

-Petitioner-

It is submitted before this Honble Court that prosecution contends that this is a case of dowry death u/s 304 B of Indian Penal Code. Section 304 B IPC is reproduced here under :

and. It was not connected to dowry . The bride committed sucicide. Husband is guilty of abetment under Section 306 IPC . When husband omitted to protect his wife and she committed sucide for ill treatment or frustration then the husband shall be liable for abetment Thus it is prayed before this Honble Court that the Respondent accused shall be charged under Section 306 IPC and the ______________________

6. WHETHER THE CONFESSION TO POLICE IS ADMISSIBLE AS EVIDENCE BEFORE COURT OF LAW? It is contended by the prosecution that the confession to police is admissible as evidence before Court of law. The statement given by the respondent accuse No. 1 at para 14 of the fact sheet that he hit her with a metal vase and gave her poison in the

Thus , it is aptly proved with the help of the above judgments and the enactment of Section 27 of the Indian Evidence Act, that in this case, the confession to police is admissible as evidence before a court of law

-Prayer-

-Petitioner-

PRAYER

In the light of arguments advanced and authorities cited, the Petitioner humbly submits that the Honble Court may be pleased to adjudge and declare that:

1. The award be set aside. 2. The Respondent be held guilty of civil contempt of court. 3. The Respondent be held guilty of perjury.

Any other order as it deems fit in the interest of equity, justice and good conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/-

SPARSH GUPTA