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Team Code: RECEPTIVITY

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016


BEFORE THE COURT OF SESSIONS
AT NEW DELHI

S.C. NO. ____ 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 SHYAM SAHU


(DEFENCE)

BEFORE SUBMISSION TO HONBLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... i


List of Abbreviations ............................................................................................................... iii
TABLE OF AUTHORITIES ................................................................................................... vi
[A] INDIAN CASE LAWS ................................................................................................. vi
[B] LEGISLATIONS .........................................................................................................vii
[C] LAW DICTIONARIES / LEXICONS ..................................................................... viii
[D] BOOKS ....................................................................................................................... viii
[E] DATABASES AND WEBSITES .............................................................................. viii
STATEMENT OF JURISDICTION ....................................................................................... ix
SUMMARY OF FACTS ........................................................................................................... x
ISSUES INVOLVED ..............................................................................................................xii
SUMMARY OF ARGUMENTS ............................................................................................ xiv
ARGUMENTS ADVANCED................................................................................................... 1
ISSUE 1: WHETHER CONFESSION OF ACCUSED NO. 3, ADDUCED AS
EVIDENCE, IS
RELIABLEError!
Bookmark not defined.
[1.1] Confession by co- accused is weak evidence. ......... Error! Bookmark not defined.
[1.2] Arguendo, Confession lacks Corroboration .............................................................. 1
[1.3] Evidence from Hostile witness is unreliable and weak.2
ISSUE

2:

WHETHER THE THREE ACCUSED PERSONS ACTED IN

FURTHERANCE OF A COMMON INTENTION TO COMMIT THE CRIME3


[2.1] There was no common intention4

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[2.2] No act was done in furtherance of any 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 evidence6
[3.2] Motive could not be established7
[3.3] There is no evidence to prove the intention of the murder 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
[3.6] Faulty investigation 11

ISSUE 4: WHETHER THE THREE ACCUSED ARE GUILTY UNDER SECTION 120B OF INDIAN PENAL CODE, 1860..................................................................................... 12
[4.1] No Agreement or Understanding between the 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 THREE ACCUSED PERSONS ARE GUILTY BEYOND
REASONABLE DOUBT ..15
PRAYER

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AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

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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AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

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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MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

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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MEMORANDUM ON BEHALF OF THE DEFENCE

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TABLE OF AUTHORITIES

[A] INDIAN CASE LAWS

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


2. Abdul Sayeed v. State of Madhya Pradesh, 2010(10) SCC 259
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 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
15. Hanumant v. State of Madhya Pradesh AIR 1952 SC 343
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 642
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29. Nitin Jairam Gadkari vs State Of Maharashtra, 2004 (4) MhLj 419
30. Pandurang Tukia v. State of Hyderbad, AIR 1955 SC 216.
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
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MEMORANDUM ON BEHALF OF THE DEFENCE

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[C] LAW DICTIONARIES / LEXICONS


1. Blacks Law Dictionary
2. JOWITTS Dictionary of English Law

[D] BOOKS
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 Edition, volume IV
4. Lord Hailshameds, Halsburys Laws of England, Page 44., (4thed. 1987)
5. Nelson R. A., Indian Penal Code, p.2905, (10th Ed. 2008)
6. Justice Khastgir, Criminal Major Acts, 10th Edition, 2014, Page 301-302
7. R A Nelson, Indian Penal Code, (9th ed., 2003), volume I
8. Ratanlal Ranchhoddas., et al. Ratanlal And Dhirajlal's , The Indian Penal Code.
Nagpur: Wadhwa and Co. Law Publishers, 1992.
9. S. C. Sarkar, Law of Evidence, Volume II, 18th Edition, 2013, Page 2764-75

[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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MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF JURISDICTION

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:
177. Ordinary place of inquiry and trialEvery offence shall ordinarily be inquired into and tried by a court within whose
local 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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MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

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 Shobhits 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 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
8. On 23rd May, 2012, police found a decomposed body at Kausani forest and the
skeletal remains were sent to JJ Hospital. However, Trishas 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,
Rekhas driver was arrested on August 21, 2015, in a case related 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
12. On 24th 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 24th evening and consequently, rented an
Opel Corsa for abducting her. Later, on 24th 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 Rekhas residence in
Lajpat Nagar where it was put in a bag and stuffed in the cars 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
16. Further, on 25th 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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MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

ISSUES INVOLVED

ISSUE I

WHETHER THE CONFESSION OF ACCUSED NO. 3, ADDUCED AS EVIDENCE, IS


RELIABLE

[I.1.] Confession by co-accused is weak evidence


[I.2.] Arguendo, Confession lacks Corroboration
[I.3.] Evidence from Hostile witness is unreliable and weak

ISSUE II

WHETHER THE THREE ACCUSED PERSONS ACTED IN FURTHERANCE OF A


COMMON INTENTION TO COMMIT THE 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

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, INDIAN
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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AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

[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
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

ISSUE VI

WHETHER A-1 IS GUILTY OF CAUSING MISCARRIAGE UNDER SECTION


313 OF THE INDIAN PENAL CODE, 1860

ISSUE VII

WHETHER THE THREE ACCUSED PERSONS ARE GUILTY BEYOND


REASONABLE DOUBT

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MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

SUMMARY OF ARGUMENTS

ISSUE I WHETHER THE CONFESSION OF ACCUSED NO. 3, ADDUCED AS


EVIDENCE, IS 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 THE THREE ACCUSED PERSONS ACTED IN FURTHERANCE


OF A COMMON INTENTION TO COMMIT THE 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

ISSUE III 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, INDIAN 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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MEMORANDUM ON BEHALF OF THE DEFENCE

AURO UNIVERSITY 2ND NATIONAL MOOT COURT COMPETITION, 2016

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 THREE ACCUSED ARE LIABLE 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


DISAPPEARNCE OF OFFENCE OR GIVING FALSE INFORMATION TO SCREEN
OFFENDER PUNISHABLE UNDER SECTION 201 OF THE INDIAN PENAL 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 hasnt be proven to have committed beyond reasonable doubt.
Moreover, no false evidence was given by the 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 IS GUILTY OF CAUSING MISCARRIAGE UNDER
SECTION 313 OF THE INDIAN PENAL CODE, 1860
It is humbly submitted that A-1 is guilty of causing miscarriage without the victims 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 A1s
pressure. Hence, the offence under Sec 313 cannot stand.

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MEMORANDUM ON BEHALF OF THE DEFENCE

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ISSUE VII WHETHER THE THREE ACCUSED PERSONS ARE GUILTY 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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MEMORANDUM ON BEHALF OF THE DEFENCE

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ARGUMENTS ADVANCED
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-3) is not 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 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 Honble 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-3s confession cannot be relied upon as the confession by a coaccused is considered as a very weak form of evidence which is on a very low footing3

1.2 Arguendo, Confession lacks 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

Badal Sheik v. State 1986 (2) Crimes- 316


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

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iii.

Showing direct or circumstantial evidence linking the accused with the crime5

In the present case, substantial parts of A-3s 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-3s 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 Mahto v. State of Bihar ,the court held that since the two sole eye
witnesses were hostile and no longer supported the prosecutions 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.

Ratanlal, Dhirajlal, Law of Evidence, p. 801(24th Ed. 2011)


Baikunth Mahto v. State of Bihar, 2003 Cri LJ 2135
7
G.S.Bakshi v. State, A.I.R. 1979 S.C. 569
6

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MEMORANDUM ON BEHALF OF THE DEFENCE

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2. 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 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 offence 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

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

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MEMORANDUM ON BEHALF OF THE DEFENCE

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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 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 intention14. It is also not necessary that the
persons always share the common intention and commit crime. In the present matter 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 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, 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, 1970 Cr.L.J. 653
15
Mahaboob Shah v. King Emperor, AIR 1945 PC 118.
16
Mithu Singh v. State of 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 Honble court that the accused to this case should be acquitted on the
ground of lack of circumstantial evidences and reasonable doubt against them.

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
It is humbly contended before this Honble 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 murder22, 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 murdered23

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, 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
R A Nelson, Indian Penal Code, (9th Ed., 2003), Vol I
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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 Prosecutions 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 the actus 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 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 Pradesh25, The Honble Supreme Court observed,
In dealing with circumstantial 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
25

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

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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
Kumars mobile location at Kausani forest, 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,
..where there was not an iota of evidence as to any reason for the accused to do away with
the deceased, the accused cannot be pinned down to charge under Section 364, I.P.C29
26

Tahsildar Singh And Another vs The State Of Uttar Pradesh, AIR 1959 SC 1012
State of Himachal Pradesh v. Kant Shekhari, AIR 2004 SC 4404; Soni v. State of Gujarat, AIR 1991 SC 917;
Balvinder Singh v. State of Punjab, 1987 Cri LJ 33 (SC); Gambir v. State of Maharashtra, 1982 Cri LJ
1243(SC); Gian Singh v. State of Punjab, 1987 Cri LJ 1918
28
Wakkar & Anr 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 Prosecutions 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 victims pregnancy was the immediate 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 prosecutions
story is to be believed then it would seem that Rekha was infuriated with the victims
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 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, 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 24th 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 Trishas
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
34

Indian Penal Code, Section 362


Sahadevan & ANR. Vs. State of Tamil Nadu, (2012) 6 SCC 403

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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 Singh41 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, the alleged abortion, the victims 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, AIR 1974 SC 1144


C. Chenga Reddy and Others vs. State of Andhra Pradesh, AIR 1996 SC 3390
37
Janar Lal Das v. State of Orissa, 1991 (3) SCC 27; A. Jayaram and Anr v. State of AP, AIR 1995 SC 2128
38
Tondil v. State of Uttar Pradesh, 1975 Cr.L.J. 950 at pp. 951, 952 (All.)
39
Kantipal alias K.L Gordhandas Soni v. State,2003 (2) GCD 1427 (SC)
40
Justice Khastgir, Criminal Major Acts, 10th Edition, 2014, Page 301-302
41
AIR 2005 SC 2439
42
Ibid.
43
Tarseem Kumar 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 victims disappearance and the
disposal of the body along with the identification of the skeletal remains went unreported for
40 months until August, 201546, shows that the case was improperly handled and there is a
grave possibility that vital evidences such as residue on victims 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 alleged abortion.
Furthermore, the investigative authorities have failed to provide any evidence to support
Sahus claim of renting of an Opel Corsa. This is a very valuable piece in the chain of events
proposed by the prosecution. Without confirmation of the same, an essential 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 24th 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 Trishas 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 victims phone is
trying to set up Rekha as he/she stopped using the phone as soon as Rekha got arrested.

44

State of AP v. Kowthalam 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-3s 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, Halsburys Laws of
England, Page 44., (4thed. 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 Evidence Act (Act 1 of 1872);Kehar Singh v. State (Delhi Administration), AIR 1988 SC
1883
51
Abdul Sayeed v. State of Madhya 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.
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

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 that the offence has been committed,
3. the accused must either cause any 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 screen 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-3s confession which is highly unreliable, uncorroborated
and weak as contended in the first issue. Hence, the first ingredient itself fails to establish the
Prosecutions 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 Markose55that 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 Of 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 PW6s insistence, the police visited A-1s Lajpat Nagar Residence to
obtain further information about Rekhas 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 IS LIABLE OF CAUSING MISCARRIAGE 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
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 or with imprisonment of either description for a term which may extend 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 U.P.& Ors, (2008) 7 SCC 164
59
Sukh Ram v. State of 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 woman60
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 A1s 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 prosecutions claim 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 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.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 24th 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 Prosecutions 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 the crime and must have committed the crime and that gap must be filled
by the Prosecution by legal, reliable and unimpeachable evidence before a conviction can be
sustained.64
60

Prabhu and Ors. v. 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, Cr LJ 2004 SC 36
64
IV. Nelson R. A., Indian Penal Code, p.2905, (10th 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

Wherefore, in light of the Issues Raised, Authorities Cited and Arguments Advanced, it is
most humbly and respectfully requested that the Honble High Court 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 of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted.

Date:_________, 2016
COUNSEL ON BEHALF
OF THE DEFENCE

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