Def

TEAM CODE: T-1
UNIVERSITY INSTITUTE OF LEGAL STUDIES

2NDUILS NATIONAL TRIAL ADVOCACY-2016
BEFORE THE COURT OF SESSIONS

AT UNION TERRITORY OF CHANDIGARH
S.C. NO.155 OF 2016
THE STATE (UNION TERRITORY OF CHANDIGARH)

(PROSECUTION)
V.
PIA TANDON (ACCUSED NO. 1)
FARHAN QUERESHI (ACCUSED NO. 2)
(DEFENSE)
FOR OFFENCES CHARGED UNDER:
SECTIONS 302, 292, 295A OF THE INDIAN PENAL CODE, 1860 WITH67A,
67 OF THE INFORMATION TECHNOLOGY ACT, 2000 AGAINST ACCUSED
NO. 1 AND UNDER SECTION 354C, 292, 295A OF THE INDIAN PENAL
CODE, 1860 WITH67A, 67, 85 OF THE INFORMATION TECHNOLOGY ACT,
2000 AGAINST ACCUSED NO. 2
UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE

MEMORIAL ON BEHALF OF THE DEFENSE
TABLE OF CONTENTS
MEMORIAL FOR THE DEFENSE
GENERAL SECTION
GENERAL SECTION:
INDEX OF AUTHORITIES...I V
LIST OF ABBREVIATIONS.VI
STATEMENT OF JURISDICTION..VII
STATEMENT OF FACTS..VIII
STATEMENT OF CHARGES...IX
QUESTIONS OF LAW...X
SUMMARY OF ARGUMENTSXI - XIV
SUBSTANTIVE SECTION:
ARGUMENTS ADVANCED. 1-20
I.
WHETHER THE ACCUSED MS. PIA TANDON CAN BE HELD LIABLE UNDER
SECTION 292 AND 295 OF INDIAN PENAL CODE FOR SALE, ETC., OF OBSCENE
BOOKS, ETC AND INJURING OR DEFILING PLACE OF WORSHIP WITH
INTENT TO INSULT THE RELIGION OF ANY CLASS RESPECTIVELY?
A. ACCUSED IS NOT LIABLE UNDER SECTION 292 OF THE INDIAN PENAL CODE.
i.
The Accused was not involved in the recording of the alleged video.
ii. The video was not uploaded by the accused Mrs. PiaTandon
B. THE OFFENCE OF SECTION 295 IS NOT MADE OUT AGAINST THE ACCUSED AS
II.
SHE NEVER INSULTED ANY RELIGION OR RELIGIOUS BELIEFS.

i.
The video was never uploaded by the accused.
ii.
The offence under section 295 IPC is not made out against the accused
WHETHER THE ACCUSED MS. PIA TANDON CAN BE CHARGED FOR
COMMITTING THE OFFENCE OF MURDER UNDER SECTION 300 OF THE
INDIAN PENAL CODE OF DECEASED (MS. MONA)?
A. THE ACCUSED HAS NOT COMMITTED THE MURDER OF THE DECEASED
UNIVERSITY INSTITUTE OF LEGAL STUDIES, 2ND UILS NATIONAL TRIAL

ADVOCACY, 2016
GENERAL SECTION
i.
ii.
iii.
iv.
v.
False charge of murder framed against the accused.

Pancha is a planted witness.
The evidence in relation to Brown hair.
Conduct of the accused during the investigation.
Message sent by the deceased to her brother.
B. MR.SUHAS TANDON HAS COMMITTED THE MURDER OF THE DECEASED

MONA.
i.
Mr. SuhasTandon visited the house of the deceased to commit murder
ii.
Death caused by Asphyxiation
iii.
SuhasTandons absence from the home at the time of murder.
iv.
No Motive of killing the deceased
v.
The Post mortem Report of the deceased
vi.
The brown hair and blood on the glass.
vii.
No Fingerprints taken from the crime scene
viii. Alibi: The accused was with her father at the time of the Murder.
C. PROSECUTION HAS FAILED TO FORM A COMPLAINT CHAIN OF EVENTS.
i.
Circumstances speak of innocence of the accused.
III. WHETHER THE ACCUSED NO. 1 IS LIABLE UNDER SECTION 67A & 67 OF THE
INFORMATION TECHNOLOGY ACT, 2000?
A. CHARGE UNDER SECTION 67 IS NOT MADE OUT AGAINST THE ACCUSED.
IV.
WHETHER THE ACCUSED NO.2 BE CHARGED FOR SECTION 67A, 67 & 85 OF

THE INFORMATION TECHNOLOGY ACT, 2000 AND U/S 354C, 292, 295A OF
INDIAN PENAL CODE, 1860?
A. THE ABOVEMENTIONED CHARGES ARE NOT MADE OUT AGAINST MR.
FARHAN QURESHI
B. THE OFFENCE UNDER SECTION 85 IS NOT MADE OUT AGAINST
MR.QURESHI
C. MR. FARHAN QURESHI WAS AN INTERMEDIARY
D. SECTION 295A AND 354 C OF THE INDIAN PENAL CODE NOT MADE OUT
AGAINST THE ACCUSED.
i.
Essential ingredients of Section 295A is not made out against the accused.
ii.
Section 354 IPC is not made out against the accused.
GENERAL SECTION
INDEX OF AUTHORITIES
BOOKS REFERRED
S. No
1.
Name Of The Books

MALIKS, MURDER TRIAL (2nd ed. 2012)
2.
Prof. N.V. PARANJAPE , INDIAN PENAL CODE ( 2nded. 2013)
3.
S.N.MISRA , THE CODE OF CRIMINAL PROCEDURE , 1973 (18th ed.

2012)
4.
GLANVILLE WILLIAMS, TEXT BOOK OF CRIMINAL LAW (2nd ed.)
7
5.
P S A PILLAIS , CRIMINAL LAW (12TH ed. 2014)
8
6.
RATANLAL & DHIRAJLAL , LAW OF CRIMES , VOLUME 2 (26th ed.
2007)
7.
B.M.GANDHI, INDIAN PENAL CODE (3rd ed. 2010)
GENERAL SECTION
10
8. SHAMSUL HUDA , PRINCIPLES OF THE LAW OF CRIMES (1st ed.
11 2011)
9.
WOODROFFE , COMMENTARIES ON CODE OF CRIMINAL
12 PROCEDURE, VOLUME 2 (3rd ed. 2009)

10. K.D. GAUR, CRIMINAL LAW (7th ed. 2014)
13
11. R. V. KELKAR, CRIMINAL PROCEDURE (5th ed. 2012)
14
12. CK THAKKAR TAKWANI, CRIMINAL PROCEDURE (3rd ed. 2012)
15
13. GLANVILLE WILLIAMS, CRIMINAL LAW (2nd ed. 2012)
16
14. KENNYS OUTLINES OF CRIMINAL LAW (19th ed. 2006)
17
15. S.S. SRIVASTAVA, CRIMINOLOGY CRIMINAL ADMINISTRATION (3rd
18 ed. 2007)
16. S.N. MISHRA, INDIAN PENAL CODE (19th ed. 2013)
19
17. DR. AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (21st ed.
20 2014)
STATUES REFERRED
S No.
1
Name of the Statues

CODE OF CRIMINAL PROCEDURE, 1973(REVISED)
INDIAN PENAL CODE , 1860
THE CONSTITUTION OF INDIA, 1950
INDIAN EVIDENCE ACT, 1872
GENERAL SECTION
5
INFORMATION TECHNOLOGY ACT, 2000
DICTIONARIES REFFERED
S No.
1.
Name Of The Reporters

BLACKS LAW DICTIONARY WITH PRONUNCIATIONS CENTENNIAL
2.
Ed. (1891 1991)

OXFORD DICTIONARY OF LAW OXFORD UNIVERSITY PRESS Ed.
3.
(2015)
BURTONS LEGAL THESAURUS WILLIAM C. BURTON 4th Ed. (1980)
CASES REFERRED
INDIAN CASES
S No.
1
Case Name
Bakshish Singh v State of Punjab
Citation
AIR 9171 SC 2016
Sharat Babu Digumarti V State of Govt. Of
31 August, 2015
NCT Of Delhi
Tomaso Bruno & Anr. V State Of U.P
Paramjeet Singh V State Of Uttarakhand
2011 Cri LJ 663
Varun Chaudhary V State Of Rajasthan
2011 (72) ACC 271 (SC)
Adil, Irfan and Abdul Tahir v State of UP
19th April, 2008
Criminal Appeal no. 142 of 2015, (Arising ou

No. 1156/2013)
GENERAL SECTION
6
Sanjay Kumar Kedia V Narcotics Control
(2008) 2 SCC 294
Bureau And Another

Sujato Bhadra Vs State Of West Bengal
(2005) 3 CALLT 436 HC
Avnish Bajaj V State
(2005) 3 CompLJ 364 Del
Krishnan V State
2001 (64) ACC 288 (SC)
10
Binay Kumar Singh V. State Of Bihar
(1997) 1 SCC 283
11
C. Chenga Reddy V. State Of A.P
(1996) 10 SCC 193
12
State Of U.P. V. Ashok Kumar Srivastava
A.I.R.1992 SC 840
13
Neeraj V State Of MP
1991 Cr LJ 2549 (MP) (DB)
15
16
Gurbachan Singh V Satpal Singh

Padala Veera Reddy V. State Of A.P
1990 (1) Cr LC 409 At 421 (SC)

AIR 1990 SC 79
17
Padala Veera Reddy V. State Of A.P. And Ors.
1989 Supp. (2) SCC 706
18
Ashok Kumar Chatterjee V. State Of M.P
1989 Supp. (1) SCC 560
19
20
21
22
State Of Assam V Manik Chandra Dey

Balwinder Singh V. State Of Punjab
Himangshu Pahari V State
Laxmi Jani V State
1989 Cr LJ 1495 (Gau) (DB)

(1987) 1 SCC 16
1986 Cr LJ 662 (Cal) (DB)
1986 Cr LJ 513 (Ori) (DB)
23
Chandigarh Administration V Dharma Singh
AIR 1985 SC 1671.
24
State Of U.P. V. Sukhbasi
(1985 (Supp.) SCC 79)
25
26
Manju V State
Earabhadrappa V. State Of Karnataka
1985 (1) Crimes 455 : ( 1985) 59 Cut LT 180

(1983) 2 SCC 330
27
Bhagwat Singh V Commissioner Of Police,
(1983) 3 SCC 344; 1983 SCC (Cri) 637
Delhi
GENERAL SECTION
28
Gambhir V State Of Maharashtra
AIR 1982 SC 1157
29
Kadungoth Alavi V State Of Kerela
1982 Cr LJ 94 (Ker) (DB)
30
Pohalya Motya Valve V State Of Maharashtra
AIR 1979 SC 1949 At 1950
31
32
33
34
35
36
37
Ram Das V. State Of Maharashtra

Hukam Singh V. State Of Rajasthan
Lakshmi Singh V State Of Bihar
Rahman V State of U.P.
Nika Ram V State of Himachal Pradesh
Udaipal Singh V State of Uttar Pradesh
Awadhi Yadav V State of Bihar
(1977) 2 SCC 124 , 1977 SCC (Cri) 254

(1977) 2 SCC 99
AIR 1976 SC 2263
AIR 1972 SC 110
AIR 1972 SC 2077
AIR 1972 SC 54
AIR 1971 SC 69
38
Charan Singh V State Of UP
AIR 1967 SC 520
39
Joseph Alias Avuthakunhi V State Of Kerela
1963 Ker LT 292 At 302
40
ChandMal v State of Rajasthan
AIR 1967 SC 917
41
Devanandan Mishra V State Of Bihar
(1955) 2 SCR 570
42
Hate Singh Bhagat Singh V State Of MP
AIR 1955 SC 801

AIR 1953 SC 468
43
Hanumant V State of Madhya Pradesh
44.
Eradu V. State Of Hyderabad
1953 Cri LJ 1933 (SC)

AIR 1952 SC 343
1952 SCR 1091
AIR 1956 SC 316
45.
Bhagat Ram V. State Of Punjab
AIR 1954 SC 621
46
Ghirrao V Emperor
AIR 1933 Oudh 265 AT 268
Dila Ram V Emperor
35 Cri LJ 1009
AIR 1932 Lah 195 At 195
Marler V State
35 Cri LJ 501
67 Al 55 : 42 Am Rep 95
GENERAL SECTION
ABBREVIATIONS
TERMS
MEANING
&
V.
PW
DW
IT
Anr.
Ors.
Honble
SCC
AIR
CrPC
IPC
FIR
And
Versus
Prosecution Witness
Defense Witness
Information Technology
Another
Others
Honorable
Supreme Court Cases
All India Reporter
Code of Criminal Procedure
Indian Penal Code
First Information Report
STATEMENT OF JURISDICTION
GENERAL SECTION
The Honble Court has jurisdiction to try the instant matter under Section 177 read with
Section 209 of the Code of Criminal Procedure, 1973.
Section 177: Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired
into and tried by a Court within whose local jurisdiction it was committed.
Read with
Section 209: Commitment of case to Court of Session when offence is triable exclusively by
it- When 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.
The Prosecution shall, accept any Judgement, Order or Decree of this HonbleCourt as final
and binding upon them and shall execute it in it good faith.
GENERAL SECTION
STATEMENT OF FACTS
The Prosecution in the present trial is The State (Union Territory of Chandigarh).
The Defense in the present trial is Mrs. PiaTandon and Mr. FarhanQuereshi.
List of Prosecution witnesses:
P.W.1 Mr. NitinRastogi, The Informant who is the brother of the deceased and is a
software engineer.
P.W.2. Mr. SuhasTandon, The boss of the deceased with whom the deceased had illicit
relationship.
P.W.3 Mr. Rajesh Sherwal, Owner of High Speed Caf from where the obscene video
was uploaded.
P.W.4 Mr. HimanshuGarg, Pancha to the investigation carried out on 14th Mar, 16.
P.W.5 I.O. ShamsherSingh, The Investigating Officer in the present case.
List of Defense witnesses:
D.W.1 Mrs. PiaTandon, Wife of SuhasTandon who is accused of uploading obscene

video. Accused No. 1 in this case.
D.W.2 Mr. Farhan Qureshi, The CEO of Buy It Sell It and Co. Accused No. 2. The
owner of the website through which the video was uploaded.
D.W.3 Mr. AniruddhSethi, The father of Accused No. 1.
D.W.4 Mr. Babu Rao Apte, Intern at Mr. Tandons advertising agency.
D.W.5 Mr. Bahadur Ram, Cook of Mr. and Mrs. Tandons house.
BONE OF CONTENTIONS
In the present trial, an FIR was registered by the informant for an attempted suicideby the
deceased upon receiving a text message from the deceased in that regard. The investigation
initially focused on reasons for committing such suicide by the deceased which were put forth
to be torture faced by her in the society and at work in respect to the uploading of her obscene
video with her boss SuhasTandon. Upon further investigation elements of foul play were
found which created a possibility of involvement of Accused No. 1 PiaTandon in the murder
of the deceased. Furthermore, charges were also made out against uploading such obscene
content on the part of Accused No.1 and lack of filters to block such content on the part of
Accused No.2.
HENCE, THE PRESENT TRIAL
GENERAL SECTION
STATEMENT OF CHARGES
Ms. PiaTandonherein referred as Accused No.1 has been charged under sections
302/292/295A of the Indian Penal Code, 1860 which are relating to offences of Murder, Sale,
etc. of obscene material and Malicious acts intended to outrage religious feelings of any class
respectively with sections 67A/67 of the Information Technology Act, 2000 which are of
Transmitting material containing sexually explicit act in electronic form and Transmitting
Obscene material in electronic form respectively.
Mr. Farhan Qureshi herein referred as Accused No. 2 has also been charged with Section
354C/292/295A of the Indian Penal Code, 1860 which are relating to offences of Voyeurism,
Sale, etc. of obscene material and Malicious acts intended to outrage religious feelings of any
class respectively with sections 67A/67/85 of the Information Technology Act, 2000 which
are of Transmitting material containing sexually explicit act in electronic form, Transmitting
Obscene material in electronic form and Offence by companies respectively.
GENERAL SECTION
ISSUES RAISED
QUESTIONS OF LAW
I
WHETHER THE ACCUSED MRS. PIA TANDON CAN BE HELD LIABLE UNDER
II
III
WHETHER THE ACCUSED NO. 1 IS LIABLE UNDER SECTION 67A , 67 & 85
OF THE INFORMATION TECHNOLOGY ACT, 2000 AND UNDER SECTION
354C , 292 , 295A OF INDIAN PENAL CODE, 1860?
IV
GENERAL SECTION
SUMMARY OF ARGUMENTS
ISSUE 1
It is submitted that the prosecution has charged the accused no.1 PiaTandon under section 292
and 295A of the Indian Penal Code stating that she had uploaded a pornographic video on the
site owned by accused no.2. The pornographic video was of the deceased and the husband of
the accused. The case of the prosecution is that the video was recorded by a hidden spy
camera. The said camera was broken and it could not record anything on it. Further it is the
case of the prosecution that it had the picture of Gyan Baba Ji in the background and the title
was Baba ji blesses Happy Office Couple. It is submitted that the video was not uploaded
by the accused. There is no reason for her to upload the video of her own husband and bring
bad name to the family. Therefore an acquittal for the same is prayed for.
ISSUE 2
It is humbly submitted that the case of the prosecution is that the murder of the deceased has
been committed by the accused. It is submitted that she was present with her father, to discuss
about the getting a divorce from her husband. It is submitted that there a shabby
investigation to protect the real culprit that is Mr. SuhasTandon, who has committed the
murder of Mona she has was being pressured by Nitin to get married to the deceased. It is
submitted that there has been no collection of the finger prints and further blood samples of
other suspects were not taken and sent for sampling. The prosecution has done a biased
GENERAL SECTION
investigation. It is submitted that she has not committed that murder of the deceased but the
same was committed by her husband, who has become a prosecution witness against the
accused.
ISSUE 3
WHETHER THE ACCUSED NO. 1 IS LIABLE UNDER SECTION 67A & 67 OF
THE INFORMATION TECHNOLOGY ACT, 2000?
It is submitted that the accused PiaTandon has been charged under section 67A and 67 of the
IT Act. It is submitted that in the present matter, accused no.1 has been falsely accused of
publishing a video containing sexual activity on the website www.sell-it.com . Accused no. 1
has neither published or transmitted or caused any material which contains sexually explicit
act to be published or transmitted. She never had any video with her to be published. The
prosecution has not been able to establish any guilty intention. Accused no.1 has clearly in
her statement stated she never wanted anyone to know about his husbands infidelity and
therefore, she never had the mensrea to publish the video even if she had it.
ISSUE 4
It is submitted that the accused has been charged, only because he has been running a
website. He is charged under section 67A and 67, wherein he has not published any such
content. The essential ingredients of the offences are not made out.
It is submitted that the charges under 354C, 292, 292A essentials are also not fulfilled by
the prosecution. Thus the accused cannot be charged under the said sections.
SUBSTANTIVE SECTION
ARGUMENTS ADVANCED
SECTION 292 AND 295 OF INDIAN PENAL CODE FOR SALE, ETC., OF
OBSCENE BOOKS, ETC AND INJURING OR DEFILING PLACE OF WORSHIP
WITH INTENT TO INSULT THE RELIGION OF ANY CLASS RESPECTIVELY?
The present issue arises before this Honble Court as the accused Mrs. Pia Tandon herein
referred as Accused no.1 has been charged under section 292 and 295 of the Indian Penal
Code, 1860, the accused pleads not guilty and defends the charges against her as hereunder.
A. ACCUSED IS NOT LIABLE UNDER SECTION 292 OF THE INDIAN PENAL
CODE.
i.
The Accused was not involved in the recording of the alleged video.
1. It is humbly submitted before this Honble Court that the accused Mrs. PiaTandon,
who is the wife of Mr. SuhasTandon (Prosecution Witness) has been falsely
implicated and charged in this case by the prosecution for the murder of Ms. Mona
(deceased), with whom Mr. SuhasTandon, husband of the accused had an admitted
extra marital affair.
2. It is humbly submitted that the accused has been booked under section 292 which
relates to {Sale, etc., of Obscene Books, etc.} and section 295A {Injuring or Defiling
Place of Worship with Intent to Insult the Religion of Any Class} of the Indian Penal
Code.
3. It is submitted that there has been no evidence on record placed by the prosecution in
the present case to prove that accused No.1 is guilty beyond reasonable doubt under
the above mentioned sections. It is further submitted that the husband of the accused
no.1, who is also the Prosecution Witness no. 2, Mr. SuhasTandon was having an
illicit and an extra marital relationship with the deceased, who was his personal
secretary. The fact that Mr. SuhasTandon was having an affair with the deceased is
an admitted fact1.
4. It is submitted that the accused no.1, Mrs. PiaTandon was suspicious about the illicit
relationship of the deceased and her husband. Further out of being a loyal and
insecure wife, she confronted her husband Mr. SuhasTandon with this fact and his
1 The Factsheet, Page No.7 Statement Of Mr. SuhasTandon.
SUBSTANTIVE SECTION
guilty conscious convinced her of his infidelity2. It is further submitted that there is
no doubt of the fact which has also been admitted by the accused in her statement
that she had installed a spy camera in her husbands office but due to some technical
failure or fault, the camera failed to record any video. It is further submitted that the
accused has also categorically mentioned in her statement that her husband Mr.
Suhas Tandon snatched the camera from her which she got installed in her husbands
office and in a fit of rage broke the same3.
5. It is submitted that the camera which was allegedly installed by the accused had a
technical fault and no video was recorded on the said camera. It was broken, had a
clean memory and therefore, the accused under no circumstances could have
uploaded the allegedly video on the website www.sell-it.com .
6. It is also pertinent to mention that the accused in her statement states that she never
wanted anyone to know about her husbands infidelity as it would bring bad name to
her and her fathers family and reputation4. Thus, it is highly improbable to think that
the accused did any act in furtherance of uploading the alleged video of her husband
and the deceased in a compromising situation. Further the accused didnt have any
motive or intention to hurt the deceased.
ii. The video was not uploaded by the accused Mrs. PiaTandon
7. It is humbly submitted that the accused was not aware of any such video of the
deceased and her husband Mr. SuhasTandon. Further it is the case of the prosecution
that the video was uploaded on www.sell-it.com which allegedly had sexual content
8.
by the accused. The same is hereby denied by the accused.

It is submitted that the prosecution alleges to have investigated the source from where
the alleged video was uploaded and it was found out on investigation that the same
was uploaded from the Hi- speed cyber caf which belongs to Mr. Rajesh Sherwal. It
is further submitted that Mr. Rajesh Sherwal, owner of the caf has been produced by
the prosecution as Prosecution Witness No.3, he has stated that Mrs. Pia visited his
caf a few times5 but has not given as to when and exactly how many times she has
visited his cafe. It is submitted that the owner of the caf has failed to bring forth any
2 The Factsheet, Page No.13 Statement Of Mrs. PiaTandon.
3 The Factsheet, Page No.13 Statement Of Mrs. PiaTandon.
4 The Factsheet, Page No.13 Statement Of Mrs. PiaTandon
SUBSTANTIVE SECTION
documentary evidence, any footage or any photocopy of the Identity of the accused as
to show that the accused used to visit the said caf. Therefore, the testimony of the
owner of the caf cannot be relied upon without any supporting evidence to his claim
and it can be said that he is a planted witness by the prosecution. As per Rule 56 ,
After the identity of the user and any person accompanied with him has been
established as per sub-rule (1) of rule 4, the Cyber Cafe shall record and maintain the
required information of each user as well as accompanying person, if any, in the log
register for a minimum period of one year. The prosecution witness, Mr. Rajesh
Sherwal has even failed to show any register or diary which in nature is mandatory to
be maintained by any Cyber caf, as to show the presence of the accused in his caf.
9. It is further submitted that there is no evidence on record to show that the accused was
present in the caf and it cannot be relied on the statement given by the owner orally.
The testimony of the witness is highly unreliable as he has stated that the register
which had the details of the visitor of past one week has been burnt when there is no
evidence of a fire in the caf. It is further stated that the date on which fire took place
has also not been mentioned by the witness. This statement is highly unbelievable and
has no evidence to support it. Also, PW3 does not have any recollection of exact date
and time and as it is the caf has not maintained record of the visitors which is a must
as per the guidelines.
10. It is on this account that the uncorroborated statements of single witness, especially
when they testify to atrocious crimes, or are known, like accomplices, to be persons of
bad character and to have an interest in the result, have been regarded with merited
distrust, and are now in practice generally deemed insufficient to warrant a
conviction.7
11. It is submitted that section 292(2)8is not made out. It is further submitted that the
accused has never uploaded the video or has sold or lets to hire, distributed or publicly
exhibited any obscene representation and therefore cannot the charged with the same.
Firstly, the prosecution has not given any report on record as to show from which IP
5 The Factsheet, Page No.8 Statement Of Mr. Rajesh Sherwal
6 Information Technology (Guidelines For Cyber Cafe) Rules, 2011
7 Taylor, Evidence, Vol.1 , Sec. 578; Sec 67, 8thEdn.
SUBSTANTIVE SECTION
address the said video was uploaded and has even failed to prove the presence of the
accused at the caf.
12. Hence, there is no evidence on record against the accused that the said video was
uploaded by the accused or the presence of the accused at the caf. The video has been
traced back to the caf by computer experts as stated by the I.O9 but the prosecution
has not supplied the Honble court with any report of the same. Therefore the defense
is of the opinion that Mr. Rajesh Sherwal is planted witness to support the case of the
prosecution. The moment he got to know that it was his caf from where the video had
been uploaded, he immediately thought that it was better to become a prosecution
witness and depose for the state in order to escape the liability which he would have
incurred because of non adherence to the rules.10
13. It is a well laid principlethat Falsus in uno, falsus in omnibus which means that false
in one particular is a false in all. This is the case with the testimony of PW3. He
wasnt even able to recognize properly who Mrs. Pia was. It is further submitted that
on the basis of scanty evidence which is practically no evidence at all in the eyes of
law the court cannot pass the order of conviction.11The testimony of PW3 fails to
prove anything against the accused.Hence, the prosecution has failed to prove that the
accused has uploaded the said video beyond reasonable doubt and therefore cannot be
charged under section 292 of IPC.
B. THE OFFENCE OF SECTION 295 IS NOT MADE OUT AGAINST THE
ACCUSED AS SHE NEVER INSULTED ANY RELIGION OR RELIGIOUS
BELIEFS.
i. The video was never uploaded by the accused
8Section 292(2) IPC-whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in
his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other
obscene object whatsoever shall be punished.
9 The Factsheet, Page No.11 Statement Of I.O.
10 Rule 5, Information Technology (Guidelines For Cyber Cafe) Rules, 2011
11Varun Chaudhary V State Of Rajasthan , 2011 (72) ACC 271 (SC)
SUBSTANTIVE SECTION
14. It is humbly submitted that the video which has been alleged to be uploaded on the
website containing the sexual content had a picture of Gyan Baba Ji in the background
and was titled as Baba Ji Blesses Happy Office Couple.
15. It is submitted that the accused had never recorded the video of the deceased and her
husband and further could not have uploaded the same on the internet. The accused
was not at all aware of such video being uploaded or even shot. Therefore, once the
defense has been successful to prove that there was no such video which was
uploaded or not even in the knowledge of the accused, then the offence under section
295A12,which reads as under:- Whoever, with deliberate and malicious intention of
outraging the religious feelings of any class of 273 [citizens of India], 274 [by words,
either spoken or written, or by signs or by visible representations or otherwise], insults
or attempts to insult the religion or the religious beliefs of that class, shall be punished
with imprisonment of either description for a term which may extend to 4[three
years], or with fine, or with both, is not made out.
vi.
The offence under section 295 IPC is not made out against the accused
16. It is humbly submitted that the accused had no knowledge of any such video being in
existence. Motive cannot be established through facts and circumstances of which the
accused himself has no knowledge of. 13She did not upload any video and had no
intention or motive of uploading such video. Therefore she couldnt have insulted any
religion or religious beliefs. The outrage to religious feelings or insult to religion or
religious belief if made unwittingly or carelessly or without any deliberate and
malicious intention, then the same would not come within the purview of Section
295A IPC. The expression 'deliberate and malicious' is indicative of the intention of
the legislature. The conjunction 'and' conjoins both. It must be both deliberate and
malicious i.e. deliberately malicious14. It is submitted that the accused had no
knowledge of such video and thus there was no deliberate or malicious intention.
Where the direct evidence as to commission of the crime is unsatisfactory it would be
12 IPC
13Marler V State . 67 Al 55 : 42 Am Rep 95.
14SujatoBhadraVs State Of West Bengal (2005) 3 CALLT 436 HC
SUBSTANTIVE SECTION
unnecessary for the court to go into the question of motive for the crime. 15 In any case
mere motive cannot be considered at sufficient evidence of the commission of a crime
by a particular person. 16 It is humbly prayed that the prosecution has filed a false
charge against the accused, of which she is not liable under section 295 of the Indian
Penal Code.
15Ghirrao V Emperor ,AIR 1933 Oudh 265 AT 268 ; 35 Cri LJ 1009
16Dila Ram V Emperor , AIR 1932 Lah 195 At 195 : 35 Cri LJ 501
SUBSTANTIVE SECTION
The present issue arises before this Honble Court as the accused Mrs. PiaTandon herein
referred as Accused no.1 has been charged under section 300 of the Indian Penal Code,
1860, for the committing murder of the deceased Ms. Mona, the accused pleads not guilty
and defends the charges against her as hereunder.
A. THE ACCUSED HAS NOT COMMITTED THE MURDER OF THE DECEASED
i. False charge of murder framed against the accused.
17. It is submitted that the accused had been charged with the offence of murder of the
deceased, Ms. Mona. It is submitted that this is clearly a false charge against the
accused with no incriminating evidence on record. It is submitted that the husband of
the accused was having an extra martial affair with the deceased and according to the
case of the prosecution, the Investigating officer on investigation found elements of
foul play in the crime scene. There was a broken glass in the bathroom which had
traces of blood and a single strand of long brown hair which was distinguishable from
the deceaseds hair. It is submitted that in the report of the FSL, it is clearly stated that
the said long hair found from the bathroom and the blood tracers did not match to that
of the deceased17. It is clear that there is nothing to show on record that the accused
was present at the crime scene and cannot be held liable for the offence of murder of
the deceased. It is a basic law that in a criminal case, in which the accused is alleged
to have inflicted physical injury to another person, the burden is on the prosecution to
prove that the accused was present at the scene and has participated in the crime. 18The
prosecution fails to prove so. The accused no.1 was at her fathers house during the
time when the commission of the offence took place. It is further submitted that if the
evidence adduced by the accused is of such a quality and of such a standard that the
court may entertain some reasonable doubt regarding his presence at the scene when
the occurrence took place, the accused would, no doubt, be entitled to the benefit of
that reasonable doubt.19
17 The Factsheet, Page No.11 Statement Of I.O.
18Binay Kumar Singh V. State Of Bihar (1997) 1 SCC 283
SUBSTANTIVE SECTION
ii.
Pancha is a planted witness.

18. It is humbly submitted that Mr. HimanshuGarg was the Pancha who accompanied the
police at the crime scene. It is submitted that the deceased was found dead in House
No.5002, sector 21-E, Chandigarh. The I.O states that a neighbor Mr. Garg was
contacted who lived in House No. 6001, Sector 21-D, Chandigarh.
It is submitted that in his statement he said that police also collected a broken whiskey
glass and an empty leaflet of Cipralex as evidence. Further, a fruit knife and a few
pictures of the deceased with an unknown man were also collected as evidence.20
19. It is further submitted that it has come forth in the statement of the brother of the
deceased, PW1, Mr. NitinRastogi that he received a message from the deceased at
around 6:30 pm saying Bhaiya, Im so sorry. I have brought so much shame to
myself and my family. But I am paying for it every day at work and in the society. I
have no friends left. Its all because of that woman, Pia. She has caused me so much
suffering. She along with that stupid website is responsible for all my pain. I barely
have a sane thought anymore. I think itll be better if I just end this here and now.21
on the day of occurrence. The police on reaching the crime scene collected the mobile
phone which was switched off and no report to the CDR has been filed by the
prosecution on record.The prosecution has framed a false case of murder against the
accused. It is submitted that the deceased in her alleged message to PW1, who is her
brother, had put onus of taking this step on the accused of her troubles and PW2 in his
statement under section 161 also accused DW1 capable of doing this as a way of
getting back at him. It is submitted that the mere fact that the accused suspected that
the deceased was having illicit relations with their sister is wholly insufficient by itself
to establish that the deceased was murdered by the accused22.
iii.
The evidence in relation to Brown hair
19Binay Kumar Singh V. State Of Bihar (1997) 1 SCC 283
20 The Factsheet, Page No.9 Statement Of Mr. HimanshuGarg
21 First Information Report
22 Chandigarh Administration V Dharma Singh, AIR 1985 SC 1671.
SUBSTANTIVE SECTION
20. It is submitted that the police has suspected the accused on the basis that she had long
brown hair, which made her a possible suspect. It is submitted that the accused is not
only person in the world to have long brown hair. The police did not match the DNA
of the hair with any other sample and therefore there is nothing to corroborate this fact
with. It is further submitted that in a case based on circumstantial evidence, the mere
presence of the accused in house at the time of the occurrence, or the recovery of hairs
from the fist of the deceased or from the nail clippings of the accused does not
establish the charge of murder.23 Also, the science of comparison of hairs has not yet
reached perfection like the science ofcomparison offingerprints.24
It is submitted that there has been no DNA testing or samples of the hair of the
accused were not taken.
iv.
Conduct of the accused during the investigation

21. It is submitted that during the investigation, the accused made it very clear to the
Investigating Officer, Mr. Shamsher Singh, that she had no knowledge of Monas
death. This conduct of the accused shows that she had no interest in the deceased or
anything to do with it and it can be easily deduced that she is being framed from a
crime she never committed. The evidence and circumstances may conceivably give
rise to the suspicion that the respondent was involved in the incident, but suspicion
cannot serve as evidence.25 The case of prosecution is framing up a false case against
the accused to protect the real culprits.
v.
Message sent by the deceased to her brother

22. It is submitted that if any reasonable explanation is possible, then there is an element
of doubt of which the accused must be given the benefit.26 It is submitted that the true
facts of the case are that when the brother of the deceased came to know about the
alleged affair through the video, which had brought lot of shame to the family made a
23Neeraj V State Of MP, 1991 Cr LJ 2549 (MP) (DB)
24HimangshuPahari V State 1986 Cr LJ 662 (Cal) (DB)
25Chandigarh Administration VsDharam Singh
26 Joseph Alias Avuthakunhi V State Of Kerela; 1963 Ker LT 292 At 302.
SUBSTANTIVE SECTION
call to the boss of her sister, for getting married to the deceased. Thereafter they were
in constant contact, whereas on the fateful day when Mr. Nitin received a message at
around 6.30 pm from his sister where she expressed how much misery and pain she
was in because of the video and the accused no.1. After reading this message, the
brother of the deceased, Mr. NitinRastogi called Mr. SuhasTandon to go and look into
the matter explaining him about the alleged message. He kept trying Monas phone
which was switched off. After trying for quite a while, he got worried and called the
police.
B. MR.SUHAS TANDON HAS COMMITTED THE MURDER OF THE DECEASED
MONA.
i. Mr. SuhasTandon visited the house of the deceased to commit murder
23. It is submitted that Mr. SuhasTandon went to the house of Ms. Mona, who was already
under the influence of medicines and was also intoxicated. It is submitted that he by
taking advantage of her intoxicated state thought of ending this for once and all. In
furtherance of executing and attempting his plan of killing Mona, he mixed a whole
leaflet of Cipralex in her drink which made her unconscious.
Death caused by Asphyxiation
24. It is submitted that asphyxia was the cause of her death. In this case, pillow was
ii.
pushed against her face and she stopped breathing. It is further submitted that Mr.
Tandon had deliberately used a pillow to stop the flow of air, rather than adopting the
throttling of her throat because he wanted to show it as a suicide. The deceased
couldnt resist much since she was under the influence of high dosage of antidepressant medication and was intoxicated. After killing her, he hanged Mona from a
ceiling fan so that it looks like a suicide. He also knew about the message which the
deceased sent to her brother so there was also a probability that the police might
accuse Mrs. Pia of killing Mona. It is submitted that after killing Mona, Mr. Suhas has
left the crime scene and came back home around 7:30pm.
iii.
SuhasTandons absence from the home at the time of murder.

25. It is submitted that Mr. SuhasTandon was missing from his house from 6:30 and he
has been failed to explain about his whereabouts from 6:30 to 7:30 and has very
conveniently ignored to tell the same to the I.O during the questioning. Mr.
SuhasTandon was never really in love with the deceased. He now wanted to do away
with Mona because it was causing disturbance to his family life and his reputation. He
would be free of Mona, who would be dead and also Pia who would ultimately be
implicated in the murder of Mona. It is further submitted that the father of the accused
SUBSTANTIVE SECTION
and the servant have clearly mentioned that the accused was never someone who
could hurt anyone. It is further submitted that the servant stated that the accused No.1
also refused to kill cockroaches in the house. It is submitted that the accused could not
murdered the deceased.
iv. No Motive of killing the deceased
26. It is humbly submitted that the accused did not have the motive to kill the deceased.
The accused no.1 has a young daughter, with whom she could have spent her life and
in addition to that, there was a Pre-Nuptial agreement between her and her husband.
The accused no.1was also discussing about getting a divorce with her father.
v. The Post mortem Report of the deceased.
27. It is humbly submitted that there is no name and time mentioned on the Post mortem
report which indicates that the report is not credible. It is further submitted that in
another case, although the medical evidence spoke about the death of the victim by
strangulation, by manual pressure, in the absence of other cogent and reliable
evidence, and material on the record the accused was given benefit of doubt and
acquitted of the charge of murder. 27
vi. The brown hair and blood on the glass
28. It is humbly submitted that there is no report of the CFSL on record or any other
forensic science agency on record. It is the Investigating officer who states that in the
CFSL report, the blood found on the glass in the bathroom and the long strand of hair
was not Monas. The prosecution did not collect samples of the accused as well as of
the other suspected persons. It is further submitted that finding of some article from
the person or possession of an accused or from the house stained with human blood,
by itself, cannot lead one to a reasonable conclusion that the accused was the author of
the crime of murder. 28 It is submitted that the police intentionally never collected the
samples of the accused as they knew that it would further weaken the case of the
prosecution. In almost all criminal case, the bloodstained earth found from the place
of occurrence is invariably sent to the chemical examiner and his report along with the
27 State Of Assam V Manik Chandra Dey, 1989 Cr LJ 1495 (Gau) (DB)
28LaxmiJani V State , 1986 Cr LJ 513 (Ori) (DB) , Manju V State 1985 (1) Crimes 455 : ( 1985) 59
Cut LT 180
SUBSTANTIVE SECTION
earth is produced in the court. If this procedure is departed from for reasons best
known to the prosecution it indicates that the defense version may be true. 29It is
further submitted that the police did not display the promptitude and efficiency which
the investigation of the case required. 30 It is further submitted that blood sample of
PW2 was also never collected. The prosecution has pre decided that the death of the
deceased was caused by the accusedno.1 without any evidence on record.
It is clearly a false case against the accused to cover up the flaws in the investigation.
It is submitted that where the case depends on circumstantial evidence, at the outset
the well-established principle governing the appreciation of the evidence in the case
dependent upon circumstantial evidence may be borne in mind. Briefly the principles
are that each circumstance relied upon by the prosecution must be established by
cogent, succinct andreliable evidence, that the circumstance relied upon must be such
as cannot be explained on any hypothesis except the guilt of the character.31
vii.
No Fingerprints taken from the crime scene

29. It is submitted that the police has not even collected the finger prints from the crime
scene. The case would have been crystal clear if the police had collected the
fingerprints from the spot. The police did not intentionally collect the same to protect
the real culprit and to falsely frame the accused in this heinous case of murder. It is
generally known that false criminal cases are sometimes engineered merely for the
sake of making arrests to humiliated and embarrass some specified enemies of the
complainant, in league with the police for corrupt reasons32. The investigation of the
police is faulty in nature. It is further submitted that there is no information or report
as to the whose fingerprints were present on the empty whiskey bottle, the empty
29 Lakshmi Singh V State Of Bihar , AIR 1976 SC 2263
30Bhagwat Singh V Commisioner Of Poilce, Delhi (1983) 3 SCC 344; 1983 SCC (Cri) 637
31PohalyaMotya Valve V State Of Maharashtra AIR 1979 SC 1949 At 1950 ; HANUMANT V

STATE OF MADHYA PRADESH,, AIR 1952 SC 343 : 1952 SCR 1091: DEVANANDAN MISHRA
V State Of Bihar, (1955) 2 SCR 570: AIR 1955 SC 801; Charan Singh V State Of UP, AIR 1967 SC ,
BAKSHISH SINGH V STATE OF PUNJAB; AIR 9171 SC 2016 ; AWADHI YADAV V STATE OF
BIHAR AIR 1971 SC 69, RAHMAN V STATE OF UP, AIR 1972 SC 110, UDAIPAL SINGH V
UTTAR PRADESH AIR 1972 SC 54 , NIKA RAM V STATE OF HIMACHAL PRADESH AIR 1972
SC 2077, CHAND MAL V STATE OF RAJASTHAN AIR 1967 SC 917
SUBSTANTIVE SECTION
leaflet, stool, nylon rope, deceaseds mobile phone, knob of the main door which was
unlocked by the police, kitchen knife and the photographs. It is a fit case to draw an
adverse inference against the prosecution under Section 114 (g) of the Evidence Act
that the prosecution withheld the same as it would be unfavorable to them had it been
produced.33
viii.
Alibi: The accused was with her father at the time of the Murder.
30. It is further submitted that the father of the accused Mr. Aniruddh Sethi has confirmed
that she was with him the entire time from 6PM to 8PM discussing about her divorce
on 14thMarch16 and could not have killed the deceased. It is submitted that the
whereabouts of SuhasTandonfrom 6pm to 8pm on 14th March16 are not known to
anyone.
31. It is further submitted that homicidal strangulation is sometimes feigned by an
individual, who wishes to bring a false charge against his enemy34. It is submitted that
no reliance can be placed on the testimony of SuhasTandon because it does not inspire
any confidence. If an accused person puts forward a reasonable defence which is
likely to be true, and in addition is supported by two prosecution witnesses, then the
burden on the other side becomes all the heavier because a reasonable and probable
story likely to be true when pitted against a weak and vacillating case is bound to raise
reasonable doubts of which the accused must get the benefit.35Reasonableness of the
doubt must be commensurate with the nature of the offence to be investigated. 36It was
held that motive cannot be established through facts and circumstances of which the
32Part-I GOVERNMENT OF India, LAW COMMISSION OF India ,ONE HUNDRED AND SEVENTY
SEVENTH REPORTONLAW RELATING TO ARRESTDecember 2001 (D.O. No. 6(3)(63)/99-L.C.(LS)
33Tomaso Bruno &Anr. V State Of U.P ( SC)
34Modi Medical Jurisprudence.
35 Hate Singh Bhagat Singh V State Of MP, AIR 1953 SC 468 ; 1953 Cri LJ 1933 (SC)
36Gurbachan Singh V Satpal Singh ; 1990 (1) Cr LC 409 At 421 (SC)
SUBSTANTIVE SECTION
accused himself has no knowledge of. 37 It is submitted that where the charge against
the accused is one for murder it is not safe to convict the accused on circumstantial
evidence alone without adducing direct evidence that cannot be given by the eye
witness. If any of the circumstances brought out makes it probable that somebody else
might have committed the crime then there will be an element of doubt the benefit of
which, no doubt must go to the accused.38The circumstances from which an inference
as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal fact sought to be inferred
from those circumstances.39
i.
C. PROSECUTION HAS FAILED TO FORM A COMPLAINT CHAIN OF EVENTS.

Circumstances speak of innocence of the accused.
32. It is submitted that when the case is based on circumstantial evidence, the settled law
is that the circumstances from which the conclusion of guilt is drawn should be fully
proved and such circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete and there should be no gap left in the chain of
evidence. Further, the proved circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally inconsistent with his innocence.40 It
is further submitted that where circumstances are susceptible of two equally possible
inferences, the court should accept that inference which favors the accused rather than
an inference which goes in favor of the prosecution. 41
In the present matter, there is no chain to establish the guilt of the accused for
committing the murder of the deceased and the prosecution has miserably failed to
37Marler V State . 67 Al 55 : 42 Am Rep 95.
38KadungothAlavi V State Of Kerela 1982 Cr LJ 94 (Ker) (DB)
39Adil, Irfan And Abdul Tahir Vs State Of U.P
40 C. Chenga Reddy V. State Of A.P
41 Ram Das V. State Of Maharashtra (1977) 2 SCC 124 , 1977 SCC (Cri) 254
SUBSTANTIVE SECTION
prove the case against the accused beyond reasonable doubt. The real culprit has gone
scot free. The court in a series of decisions has consistently held that when a case rests
upon circumstantial evidence, such evidence must satisfy the following tests:42 Firstly,
the circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established; Secondly, those circumstances should be of definite
tendency unerringly pointing towards guilt of the accused; Thirdly, the circumstances,
taken cumulatively , should form a chain so complete that there is no escape from the
conclusion that with all human probability the crime was committed by the accused
and none else; and lastly, the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any hypothesis than that of the guilt
of the accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence43. The information or the
reports furnished by the prosecution contain no substantial proof and does not prove
the accused to be guilty of the above mentioned offences beyond reasonable doubt.
The circumstance, taken cumulatively, should form a chain so complete that there is
no escape from the conclusion that within all human probability the crime was
committed by the accused and none else44 which cannot be established in the present
matter. It has been consistently laid down by the supreme court of India that where a
case rests squarely on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found to be incompatible
with the innocence of the accused or the guilt of any other person45 and that where the
case depends upon the conclusion drawn from circumstances, the cumulative effect of
the circumstances must be such as to negative the innocence of the accused and bring
42 Krishnan V State ; 2001 (64) ACC 288 (SC)
43Gambhir V State Of Maharashtra AIR 1982 SC 1157
44PadalaVeera Reddy V. State Of A.P
45Hukam Singh V. State Of Rajasthan, (1977) 2 SCC 99; Eradu V. State Of Hyderabad (AIR 1956
SC 316), Earabhadrappa V. State Of Karnataka (1983) 2 SCC 330, State Of U.P. V. Sukhbasi (1985
(Supp.) SCC 79), Balwinder Singh V. State Of Punjab (1987) 1 SCC 16 And Ashok Kumar Chatterjee
V. State Of M.P (1989 Supp. (1) SCC 560)
SUBSTANTIVE SECTION
home the offencesbeyond any reasonable doubt46. The prosecution has failed to
establish the commission of the offence beyond any reasonable doubt. Also, it was
pointed out that great care must be taken in evaluating circumstantial evidence and if
the evidence relied on is reasonably capable of two inferences; the one in favor of the
accused must be accepted47. It is submitted that there are a lot of discrepancies in the
statements, no complete chain of events is formed and the investigation was shabby,
biased and faulty. The statements given by the prosecution witnesses have been
concocted with a view to falsely implicate the accused in this case.It is further
submitted that murder was not committed by the accusedno.1 as there was no
intention and no evidence has been collected against her, it can be said that an
important link in the chain of circumstantial evidence is missing. The benefit of doubt
must go to the accused. It is a well settled principle of criminal jurisprudence that
suspicion howsoever strong cannot take the place of proof48 and there is no proof
against the accused no.1 in the present case. The circumstances should be of a
conclusive nature and tendency. 49 Hence, the Accused Ms. Pia Tandon cannot be
charged under section 302, 292 and 295A as the prosecution has failed beyond
reasonable doubt to prove the guilt of the accused.
WHETHER THE ACCUSED NO. 1 IS LIABLE UNDER SECTION 67A & 67 OF THE
INFORMATION TECHNOLOGY ACT, 2000?
The present issue arises before this Honble Court as the State herein referred as the
Prosecution charges against the DW1,Mrs. PiaTandon, herein referred as accused No.1 for
offences committed under section 67A & 67 of the Information Technology Act, 2000.
A. CHARGE UNDER SECTION 67 IS NOT MADE OUT AGAINST THE ACCUSED
46Bhagat Ram V. State Of Punjab, AIR 1954 SC 621, PadalaVeera Reddy V. State Of A.P. And Ors.,
1989 Supp. (2) SCC 706
47State Of U.P. V. Ashok Kumar Srivastava
48Adil, Irfan And Abdul Tahir Vs State Of U.P
49Paramjeet Singh V State Of Uttarakhand , 2011 Cri LJ 663

2011 (3) AIR Ker R 476 ; AIR 2009 SC 2558
SUBSTANTIVE SECTION
33. It is humbly submitted that according to Section 67 of Information Technology Act,
2000,Whoever publishes or transmits or causes to be published or transmitted in the
electronic form, any material which is lascivious or appeals to the prurient interest or
if its effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it, shall be punished on first conviction with imprisonment of either
description for a term which may extend to three years and with fine which may
extend to five lakh rupees and in the event of second or subsequent conviction with
imprisonment of either description for a term which may extend to five years and also
with fine which may extend to ten lakh rupees and
34. According to section 67A of Information Technology Act, 2000, Whoever publishes
or transmits or causes to be published or transmitted in the electronic form any
material which contains sexually explicit act or conduct shall be punished on first
conviction with imprisonment of either description for a term which may extend to
five years and with fine which may extend to ten lakh rupees and in the event of
second or subsequent conviction with imprisonment of either description for a term
which may extend to seven years and also with fine which may extend to ten lakh
rupees.
35. It is submitted that in the present matter, accused no.1 has been falsely accused of
publishing a video containing sexual activity on the website www.sell-it.com. Accused
no. 1 has neither published or transmitted or caused any material which contains
sexually explicit act to be published or transmitted. She never had any video with her
to be published. The prosecution has not been able to establish any guilty intention.
Accused no.1 has clearly in her statement stated she never wanted anyone to know
about his husbands infidelity and therefore, she never had the mensrea to publish the
video even if she had it. It is submitted that the accused would have no reason to post
the video on the internet of her own husband and bring bad name and shame to the
whole family. It is further submitted that she was also considering divorce with her
husband. Hence, accused no.1 cannot be booked under section 67 and 67A of
Information technology Act, 2000.
SUBSTANTIVE SECTION

The present issue arises before this Honble Court as the State herein referred as the
Prosecution charges against the DW2 , Mr. Farhan Qureshi , herein referred as accused No.2
for offences committed under section 67A, 67 & 85 of the Information Technology Act, 2000
and u/s 354C, 292, 295A of Indian Penal Code, 1860.
A. THE ABOVEMENTIONED CHARGES ARE NOT MADE OUT AGAINST MR.
FARHAN QURESHI
36. It is humbly submitted that accused no.2; Mr. Farhan Qureshi is the CEO of Buy It
Sell It and Co. and also owns the website, www.sell-it.com. The website is a platform
where buyers may contact the sellers and the revenue generation is based on the
advertisement and sponsored products. The website also has filters applied to prevent
the sale of any kind of weapons, restricted goods, goods requiring specific license and
pornographic material.
37. It is further submitted that the video of the alleged video of the deceased and Mr.
SuhasTandon; engaged in a sexual activity was posted on this website and the onus
and blame for uploading the same was put forth on accused no.1. The alleged
pornographic video was titled as Baba Ji Blesses Happy Office Couple and the title
was so to evade all the filters.
38. It is submitted that to make out the said offences against accused no.2 under Section
67 and 67A of the Information Technology Act, it should be established that the
publication or transmission was made by him but It has not been established by the
prosecution from the evidence that any publication or transmission took place by the
accused no 2, directly or indirectly.The offence is normally committed only by the
sender of the material, which suggests that an intermediary which merely transmits
packets originating outside its systems will not be liable.50
39. It is further submitted that the actual obscene recording/clip cannot be viewed on the
portal of sell-it.com and it had endeavoured to plug the loopholes. 51 The evidence that
has been collected indicates only that the obscene material may have been unwittingly
50
Chris Reed, Internet Law, 2nd Ed. 2010
SUBSTANTIVE SECTION
offered for sale on the website and that the heinous nature of the alleged crime may be
attributable to some other person as well. The website is merely a platform for the
sellers and buyers to interact and has no say in the products that are placed for sale or
profits. The user is controlling the software running on the intermediarys system & is
thus responsible for the transmission. 52
40. The accused no.2 was never in possession of the alleged obscene video clip or
obscene listing. He did not perform any act that had allowed anyone to advertise or
make known by any means as to the sale of the video clip.53 The video clip was
transferred directly between the seller and buyer without the intervention of the
website and does not attract the offence under Section 292 of IPC or Section 67 and
67A of IT Act. Reasonable care was taken by the website to immediately remove the
video clip once it was brought to its knowledge that it was objectionable. Therefore
the website acted diligently and did not commit any illegality.54
41. It is further submitted that to prove the offence under Section 292 Indian Penal Code,
two elements are to be satisfied .The first is that the person accused of the offence
should have the knowledge that what was being offered for sale or exhibited or
possessed was obscene. The second is that such person had the intention to commit
any of the acts mentioned in Section 292 IPC. In the present matter, accused no.2
neither had any knowledge nor the intention to offer such sale. This has been clearly
stated by the accused no.2. Accused no.2 had no relationship with the people in the
video and therefore, no mensrea can be proven on the account of the accused no.2 in
the present case by the prosecution.
B. THE OFFENCE UNDER SECTION 85 IS NOT MADE OUT AGAINST
MR.QURESHI
51
Avnish Bajaj Case
52
Chris Reed, Internet Law, 2nd Ed. 2010
53
SharatBabuDigumartiVs State, Govt. Of Nct Of Delhi On 31 August, 2015
54
Bazee.Com Case
SUBSTANTIVE SECTION
42. It is submitted that according to Section 85 of Information Technology Act states that
where a person committing a contravention of any of the provisions of this Act or of
any rule, direction or order made thereunder is a company, every person who, at the
time the contravention was committed, was in charge of, and was responsible to, the
company for the conduct of business of the company as well as the company, shall be
guilty of the contravention and shall be liable to be proceeded against and punished
accordingly: Provided that nothing contained in this sub-section shall render any such
person liable to punishment if he proves that the contravention took place without his
knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where a contravention of
any of the provisions of this Act or of any rule, direction or order made thereunder has
been committed by a company and it is proved that the contravention has taken place
with the consent or connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officer of the company, such director, manager,
secretary or other officer shall also be deemed to be guilty of the contravention and
shall be liable to be proceeded against and punished accordingly..
43. In the present matter, the act was committed without his knowledge and after he
gained knowledge,due diligence was exercised. The video was titled as Baba Ji
blesses the happy office couple. The title was such that it could have evaded all the
filters and wasnt obscene in nature. It is because of this that when the video was
being posted on the website, no alarming notification was received. It is not at all
reasonable to charge accused no.2 with the above mentioned sections.
C. MR. FARHAN QURESHI WAS AN INTERMEDIARY
44. It is humbly submitted that according to Rule 4 of the Information Technology
(Intermediaries Guidelines) Rules, 2011, The intermediary, on whose computer
system the information is stored or hosted or published, upon obtaining knowledge by
itself or been brought to actual knowledge by an affected person in writing or through
email signed with electronic signature about any such information as mentioned in
sub-rule (2) above, shall act within thirty six hours and where applicable, work with
user or owner of such information to disable such information that is in contravention
of sub-rule(2). Further the intermediary shall preserve such information and associated
records for at least ninety days for investigation purposes.
45. In the present matter, PW1 in his own statement has stated that the video was taken
down in 3 hours which is within the time given as per the guidelines. Immediate
action was taken by the company and video was taken down without any delay on
SUBSTANTIVE SECTION
being informed. Hence, the acts were carried with due diligence. Accused no.2 also
sent a mail to his junior to immediately remove the video from the website. It is
submitted that in the present case, accused no. 2 is an intermediary and according to
Section 79 of the Information Technology Act, intermediaries will not to be liable in
certain cases where
(c) the intermediary observes due diligence while discharging his duties under this Act
and also observes such other guidelines as the Central Government may prescribe in
this behalf.
3) The provisions of sub-section (1) shall not apply if
(b) upon receiving actual knowledge, or on being notified by the appropriate
Government or its agency that any information, data or communication link residing
in or connected to a computer resource controlled by the intermediary is being used to
commit the unlawful act, the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating the evidence in any manner.
46. In the present matter, all the guidelines were observed and access to the material was disabled
without vitiating the evidence in any manner. It is further submitted that simply providing
access may not constitute the possession offence. If the internet service provider has not
examined the obscene article and has had no reasonable cause to suspect that it was obscene
material, it will not be guilty of the offence55which is the case in the present matter. The
company was a mere network service provider and was protected under section 79 of the
Information Technology act from prosecution. 56
D. SECTION 295A AND 354 C OF THE INDIAN PENAL CODE NOT MADE OUT
AGAINST THE ACCUSED.
i. Essential ingredients of Section 295A is not made out against the accused.
47. It is humbly submitted that in the present matter, the accused no.2, who was can also
not be charge under section 295A. The prosecution has failed to establish any
deliberate intention on the part of the accused no. 2 to insult any religion or religious
beliefs. Also, no connection has been shown anywhere between the accused no.2 and
55
Michael ChissicaAlistaer, Electronic Commerce Law & Practice Edi. 1999, Pp. 41-42
56
Sanjay Kumar Kedia V Narcotics Control Bureau And Another , (2008) 2 SCC 294
SUBSTANTIVE SECTION
Baba Ji. The essential ingredient of the section is the deliberate intention and that is
clearly missing in the present matter.
Hence, the accused no.2 cannot be charged under section 295A.
ii. Section 354 IPC is not made out against the accused.
48. The accused no.2 has also been charged under section 354C57 i.e. voyeurism.
According to the section, Any man who watches, or captures the image of a woman
engaging in a private act in circumstances where she would usually have the
expectation of not being observed either by the perpetrator or by any other person at
the behest of the perpetrator or disseminates such image shall be punished on first
conviction with imprisonment of either description for a term which shall not be less
than one year, but which may extend to three years, and shall also be liable to fine,
and be punished on a second or subsequent conviction, with imprisonment of either
description for a term which shall not be less than three years, but which may extend
to seven years, and shall also be liable to fine. In the present matter, accused no.2
neither watched nor did he capture the image of the deceased engaging in a private
act. There is no basis for this section to be charged against the accused no.2.
49. It is therefore submitted before this court that the prosecution has failed to establish
the above mentioned charges in this case.
57
Section 354C IPC
SUBSTANTIVE SECTION
PRAYER
It is humbly prayed in the light of the above facts of the case, statues referred, authorities
cited and arguments advanced, this Honble Court may graciously pleased to:
i.
Acquit the accused persons under Section 292 (Sale, etc. of obscene books,
etc.) and Section 295A (Deliberate and Malicious acts intended to outrage
religious feelings) of the Indian Penal Code, 1860.
ii.
Acquit the accused under Section 302 (Murder) of the Indian Penal Code,
1860.
iii.
Acquit Accused No. 2 under Section 354C (Voyeurism) of the Indian Penal
Code, 1860.
iv.
Acquit the Accused persons under Section 67 (Publishing or transmitting

obscene material in electronic form) and Section 67A (Publishing or
transmitting sexually explicit content over electronic form) of the
Information Technology Act, 2000.
v.
Acquit the accused persons under Section 85 (Offence by Companies) of the

Information Technology Act, 2000.
vi.
May pass any order or directions or judgments this Honble Court may
deem fit and proper in the facts of the present case and in the interest of
justice.
DATED:
FILED BY:
AT CHANDIGARH (UNION TERRITORY)
COUNSEL(S) FOR THE DEFENSE

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TEAM CODE: T-1

UNIVERSITY INSTITUTE OF LEGAL STUDIES

BEFORE THE COURT OF SESSIONS

THE STATE (UNION TERRITORY OF CHANDIGARH)

UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE

MEMORIAL FOR THE DEFENSE

SHE NEVER INSULTED ANY RELIGION OR RELIGIOUS BELIEFS.

UNIVERSITY INSTITUTE OF LEGAL STUDIES, 2ND UILS NATIONAL TRIAL

MEMORIAL FOR THE DEFENSE

False charge of murder framed against the accused.

B. MR.SUHAS TANDON HAS COMMITTED THE MURDER OF THE DECEASED

WHETHER THE ACCUSED NO.2 BE CHARGED FOR SECTION 67A, 67 & 85 OF

Section 354 IPC is not made out against the accused.

MEMORIAL FOR THE DEFENSE

Name Of The Books

Prof. N.V. PARANJAPE , INDIAN PENAL CODE ( 2nded. 2013)

S.N.MISRA , THE CODE OF CRIMINAL PROCEDURE , 1973 (18th ed.

GLANVILLE WILLIAMS, TEXT BOOK OF CRIMINAL LAW (2nd ed.)

P S A PILLAIS , CRIMINAL LAW (12TH ed. 2014)

RATANLAL & DHIRAJLAL , LAW OF CRIMES , VOLUME 2 (26th ed.

B.M.GANDHI, INDIAN PENAL CODE (3rd ed. 2010)

MEMORIAL FOR THE DEFENSE

WOODROFFE , COMMENTARIES ON CODE OF CRIMINAL

12 PROCEDURE, VOLUME 2 (3rd ed. 2009)

Name of the Statues

INDIAN PENAL CODE , 1860

THE CONSTITUTION OF INDIA, 1950

INDIAN EVIDENCE ACT, 1872

MEMORIAL FOR THE DEFENSE

INFORMATION TECHNOLOGY ACT, 2000

Name Of The Reporters

Ed. (1891 1991)

Sharat Babu Digumarti V State of Govt. Of

Paramjeet Singh V State Of Uttarakhand

2011 Cri LJ 663

Varun Chaudhary V State Of Rajasthan

2011 (72) ACC 271 (SC)

Adil, Irfan and Abdul Tahir v State of UP

19th April, 2008

Criminal Appeal no. 142 of 2015, (Arising ou

MEMORIAL FOR THE DEFENSE

Sanjay Kumar Kedia V Narcotics Control

(2008) 2 SCC 294

Bureau And Another

(2005) 3 CALLT 436 HC

Avnish Bajaj V State

(2005) 3 CompLJ 364 Del

2001 (64) ACC 288 (SC)

Binay Kumar Singh V. State Of Bihar

(1997) 1 SCC 283

C. Chenga Reddy V. State Of A.P

(1996) 10 SCC 193

State Of U.P. V. Ashok Kumar Srivastava

1991 Cr LJ 2549 (MP) (DB)

Gurbachan Singh V Satpal Singh

1990 (1) Cr LC 409 At 421 (SC)

Padala Veera Reddy V. State Of A.P. And Ors.

1989 Supp. (2) SCC 706

Ashok Kumar Chatterjee V. State Of M.P

1989 Supp. (1) SCC 560

State Of Assam V Manik Chandra Dey

1989 Cr LJ 1495 (Gau) (DB)

Chandigarh Administration V Dharma Singh

AIR 1985 SC 1671.