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TEAM CODE-

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT

COMPETITION, 2014

BEFORE THE COURT OF SESSIONS OF BAMBI, THANE

S.C. No. 123 of 2014

STATE OF BAMBI

(PROSECUTION)

V/S

1.PANNA 2.SABA & 3.JAIMIL

(DEFENCE)

FOR THE OFFENCES CHARGED

UNDER SECTION 120 B READ WITH 34, 501, 502, 227 AND 385 OF BARAT PENAL CODE, 1860

MEMORIAL FOR DEFENCE


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TABLE OF CONTENTS

List of Abbreviations ..................................................................................................................... iv

Index of Authorities ........................................................................................................................ v

Cases ........................................................................................................................................... v

Books ........................................................................................................................................ vii

Lexicon .................................................................................................................................... viii

Online Resources ....................................................................................................................... ix

Statutes ....................................................................................................................................... ix

Statement Of Jurisdiction................................................................................................................ x

Statement of Facts .......................................................................................................................... xi

Statement of Charges .................................................................................................................... xii

Summary of Arguments ............................................................................................................... xiii

Arguments Advanced...................................................................................................................... 1

Issue-1 Respondents are not guilty for the offence of Criminal Conspiracy with common

intention. ..................................................................................................................................... 1

[1.1] Acts of respondents does not amount to criminal conspiracy ........................................ 1

[1.2] Respondents had no common intention to conspire ....................................................... 3

[1.3] Discrediting evidence adduced by the prosecution ........................................................ 5

Issue-2 Respondents are not guilty for defamation of Ms. Naika............................................... 8

[2.1] Respondents are not guilty for publishing film posters in the newspapers .................... 8

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[2.2] Respondents sold the advertisements/posters of alleged movie to

newspapers/magazines. ......................................................................................................... 11

Issue-3 Saba and Jaimil are not guilty for putting Ms.Naika under fear of injury to extort ..... 12

[3.1.1] Saba and Jaimil did not put or attempted to put Ms.Naika in any fear of injury ...... 13

[3.2] Non admissibility of voice record as evidence............................................................. 14

Issue-4 Panna Boy is not guilty to any condition of remission of punishment......................... 14

[4.1] Parole has been rightly granted to Panna Boy.............................................................. 15

[4.2] Arguendo, there has been no violation of conditional remission ................................. 15

Prayer ........................................................................................................................................... xiv

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LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court

Cal Calcutta High Court

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

Del Delhi High Court

DW Defence Witness

Ed. Edition

IPC Indian Penal Code

IC Indian Cases

Mad Madras High Court

Ori Orissa High Court

p. Page No.

P&H Punjab and Haryana High Court

Pat Patna High Court

PW Prosecution Witness

Raj Rajasthan High Court

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

v. Versus

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INDEX OF AUTHORITIES

Cases

Bahal Singh v.State of Haryana, AIR 1976 SC 2032 6

Basharat v. Emperor, AIR 1934 Lah. 813 3

Chattar Singh v. State of Haryana, AIR 2009 SC 378 5

Habeeb Mohammad v. State of Hyderabad, (1954) Cr.LJ 338 SC. 11

Halim Mian v. State of Bihar, AIR 1971 SC 1836. 3

Hardeo Singh v. State of Bihar & Ors., (2000) Cr.LJ 2978 (SC) 3

Hira Pearelal Kirar v. The State, AIR 1960 M.P. 11 13

Jagannath Mishra v State of Orissa, 1974 Cut LT 1253 2

Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083. 4

Jamuna Chaudhary v. State of Bihar, 1974 (3) SCC 774. 7

K.S. Narayan v. S. Gopinathan, 1982 CrLJ 1611 (Mad.) 2

Kashmira Singh v. State, AIR 1965 J&K 37. 6

Kishore Chand v. State of Himachal Pradesh, AIR 1990 SC 2140 5

L.S. Jayappa v. N.S. Shamegowda, (1986) 1 Cr LC 24 (Karn.). 12

Machhi Singh v. State of Punjab, AIR 1983 SC 957. 8

Madanlal vs State Of Punjab, 1967 SCR (3) 439 2

Mahadeo Nath Khetri v. Emperor, AIR 1941 Pat. 550 3

Mahmood v. State of Uttar Pradesh, AIR 1976 SC 69 5

Mohanlal v. State of U.P., AIR1974 SC 1144 2

NCERT v. P.D. Bhatnagar, (1981) Cr.LJ (NOC) 57 (Raj.). 9

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Nemichand v. Khemraj, AIR 1973 Raj 240 9

Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79 5

Prem Pal Singh v. Mohan Lal, (1981) Cr.LJ 1208 9

Queen v. Rowton, (1865) 34 LJ (MC) 57 11

R v. George Walton & Joseph Ogden, (1863) 169 All ER 1399. 13

R.M. Malkhani v. State of Maharashtra, AIR 1973 SC 157 14

Raghubir Dayal v. Emperor, 1936 Cr.LJ 33 11

Raj Kumar Rajwar v. State of Bihar, 1993 (3) PLJR 831. 7

Rajendra Kumar SItaram Pande v. Uttam, AIR 1999 SC 1028. 11

Ramakant Rai v. Madan Rai, (2004) Cr.LJ 36 (SC). 8

Ramashish Yadav v. State of Bihar, 1999(8) SCC 555 3

Rotash v. State of Rajasthan, (2007) Cr.LJ 758 (SC). 4

S.D. Premchand v. M.C. Balu, 1986 Mad LW (Cr) 179 (Mad.). 12

Samanta Biswanath Roy v. Jhari Bewa, (1997) Cut LR (Cr) 53 10

Sanjay Dutt v. State of Maharashtra, Through CBI (STF), Bombay, AIR 2013 SC 11

3687.

Sankaran Chettiar v. K. Ramakrishna Pillai, AIR 1960 Ker.141 9

State (Govt.of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121 15

State (NCT of Delhi) v. Navjot Sandhu, 2005 Cr LJ 3950 SC 2

State of Goa v. Pandurang Mohte, AIR 2009 SC 1066 5

State of Haryana v. Nauratta Singh, 2000 Cri.LJ 1710 15

State v Mohd.Afzal and Ors., 2003 (3) JCC 1669 13

State v. Rakesh Kumar, (1998) Cr.LJ 3604 (SC). 8

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State v. Siddhartha Vashisht alias Manu Sharma, (2001) Cr.LJ 2404 (Del.). 3

Tanumal Udhasingh v. Emperor, AIR 1944 Sind 203 12

Tejichand v. State of UP, 1977 U.P. Cr C (All) 281 (283) 2

Tukaram S. Dikhole v. Manikrao Shivaji Kokate, AIR 2010 SC 965 14

Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 14

Books

1. ADRIANE KEANE, JAMES GRIFFITH AND PAUL MCKEOWN, The Modern Law of Evidence,

8th Ed., 2010, Oxford University Press.

2. B.B. MITRA, Code of Criminal Procedure, 1973, 20th Ed., 2006,

3. B.R.SHARMA, Forensic Science in Criminal Investigation & Trials, 4th Ed., 2005,

Universal Law Publishing Co.

4. BATUK LAL, The Law of Evidence, 18th Ed. 2010, Allahabad Law Agency.

5. COLLIN TAPPER, Cross & Tapper on Evidence, 11th Ed., 2005, Oxford University Press.

6. DR. SARALA GUPTA AND BENI PRASAD AGRAWAL, Forensic Science in Criminal

Investigation & Trial, 1st Ed., 2013, Premier Publishing Co.

7. DR.ASIS MALLICK, Law of Evidence, 1st Ed., 2011, Eastern Law House.

8. M.MONIR, Law of Evidence, Vol.I,II, 15th Ed., 2010, Universal Publishing Co.

9. P.M. BAKSHI, Basu‟s Law of Evidence, 7th Ed., 2003, India Law House.

10. PETER MURPHY, Murphy on Evidence, 11th Ed., 2009, Oxford University Press.

11. PHIPSON ON EVIDENCE, 16th Ed., 2005,(Indian Rep.2007), Sweet & Maxwell.

12. Princep‟s Commentary on the Code of Criminal Procedure, 1973, 18th Ed., 2005, Lexis

Nexis.

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13. R.P. KATHURIA, Supreme Court on Criminal Law, 1950-2002, 6th Ed., 2002, Lexis Nexis

Butterworth‟s Wadhwa.

14. R.V.KELKAR, Criminal Procedure, 5th Ed. 2011, Eastern Book Co.

15. RATANLAL & DHIRAJLAL, Criminal Procedure Code,1973, 2010, Lexis Nexis.

16. RATANLAL & DHIRAJLAL, Indian Penal Code, 33rd Ed. 2010, Lexis Nexis.

17. S.K. SARVARIA, R.A.Nelson‟s Indian Penal Code, Vol.I,IV, 10th Ed., 2008, Lexis Nexis

Butterworths Wadhwa.

18. SHAMSUL HUDA, Principles of Law of Crimes, 3rd Ed., 1993, Easter Book Co.

19. STEPHEN MASON, Electronic Evidence: Disclosure, Discovery and Admissibility, 1st Ed.,

2007, LexisNexis Butterworth Wadhwa.

20. SUDIPTO SARKAR AND VR MANHOHAR, LAW OF EVIDENCE, 17th Ed., 2010, Lexis Nexis

Butterworth Wadhwa.

21. THOMAS A. MAUET AND WARREN D. WOLFSON, Trial Evidence, 4th Ed., 2009, Aspen

Publishers- Wolters Kluwer.

22. VEPA P.SARATHI, Law of Evidence, 6th Ed., 2006, (Rep.2010), Eastern Book Company.

23. VINAYAK KAKDE, Criminal Trials, 2nd Ed., 2011, Universal Law Publishing Co.

Lexicon

1. BRYAN A.GARNER, Black‟s Law Dictionary, 9th Ed., 2010, West Publications, Thomson,

Reuters.

2. DANIEL GREENBERG, Stroud‟s Judicial Dictionary, 7th Ed., 2008, Sweet & Maxwell.

3. J.E. PENNER,Mozley & Whitley‟s Law Dictionary, 12th Ed., 1984, (Rep.2010), Oxford

University Press.

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4. P.RAMANATHA AIYAR, The Major Law Lexicon, 4th Ed., 2010, Lexis Nexis.

Online Resources

1. AIR Online.

2. WestLaw India.

3. Manupatra.

4. SCC Online.

5. AdvocateKhoj.

Statutes

1. The Code of Criminal Procedure, 1973.

2. The Indian Evidence Act, 1872.

3. The Indian Penal Code, 1860.

4. Prison (Bombay Prison and Furlough) Rules, 1959.

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STATEMENT OF JURISDICTION

The Hon‟ble Court has jurisdiction to try the instant matter under Section 177 and 209 of Code

of Criminal Procedure, 1973.

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STATEMENT OF FACTS

On 3rd February,2014, Panna Boy was again granted parole citing the same reason to take care of

his ailing wife. There were following chain of events that transpired the controversy;

a) Panna Boy visited Star Hospital where his ailing wife was undergoing treatment for some

serious illness.

b) Mr. Jaimil was also admitted in the same hospital as he was asked to take complete bed rest

for 2 weeks. At the same time cameras and other equipment were also installed for shooting

supposedly some new project.

c) After one hour he was found in another room which was being ready for the shoot, Hero

Panna was sitting next to an old lady, Mrs. Mashaal, in the role of mother. On the other side of

the bed, Ms. Poonam, who is a look alike of Ms. Naika and usually acts for stunts and intimate

scenes as her body double.

d) In the evening Hero Panna was found in the central mall along with his daughter in a colorful

outfit. Later it was found that there were some hidden cameras and other equipment being ready

for shoot and Ms. Poonam entered the Mall with some other people.

e) On 14th February,2014, the posters of the film “ The Hit Factory- An explosive love story”

with tags of being released shortly were released in the newspapers and magazines.

On account of following events, on 16th February,2014, Ms. Poonam filed a suit of permanent

injunction of the movie, in the High Court Of Bambi citing that she had disassociated herself

with the movie and even had returned the advance payment regarding the same. By allowing

screening of the movie the directors are trying to tarnish her reputation. Secondly in the evening

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she received two phone calls within 15 minutes of gap between the two from unknown numbers

that threatened her to take the case back.

STATEMENT OF CHARGES

 Panna Boy has been charged with Section 120 B read with Sections 34, 227, 501& 502 of

Indian Penal Code, 1860 for the crime of criminal conspiracy along with Saba and Jaimil,

for violation of any condition during remission of punishment and defamation,

respectively.

 Saba and Jaimil has been charged with Section 120 B read with Sections 34, 385, 501&

502 of Indian Penal Code, 1860 for the crime of criminal conspiracy along with Panna

Boy, for putting person in fear of injury to commit extortion and defamation,

respectively.

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SUMMARY OF ARGUMENTS

Issue-1 Respondents are not guilty for the offence of Criminal Conspiracy with common

intention to defame Ms.Naika

It is most humbly submitted that the respondents are not guilty for the crime of criminal intention

with common intention to defame Ms.Naika as there has been no agreement to do such illegal act

and also there has been no establishment of mens rea to prove the respondents guilty beyond

reasonable doubt.

Issue-2 Respondents are not guilty for defamation of Ms.Naika

It is most humbly submitted that the respondents have not made any imputation in order to harm

the reputation of Ms.Naika by portraying her along with Mr.Panna Boy as the very act has been

done in good faith and cannot be alleged to be defamatory in the public.

Issue-3 Saba and Jaimil are not guilty for putting Ms.Naika under fear of injury to extort

It is most humbly submitted that Saba and Jaimil are not guilty of putting any kind of fear of

injury to Ms. Naika contrary to the allegations made by her. The prosecution has not dwelled into

the realms of reality to prove the respondents guilty and hence their accusation is seen with the

benefit of doubt.

Issue-4 Panna Boy is not guilty to violate any condition of remission of punishment

It is humbly submitted that Panna Boy has not violated any condition of remission of punishment

as at the threshold there has been no proof to show the same and secondly, parole cannot be

equated with remission as there lies a scope of distinction between the two

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ARGUMENTS ADVANCED

Issue-1 Respondents are not guilty for the offence of Criminal Conspiracy with common

intention.

It is most humbly contended that the respondents are not guilty for committing the crime of

criminal conspiracy with a common intention to defame the complainant, Ms. Naika (herein after

as “PW4”). It is pertinent to note that the punishment for committing criminal conspiracy is

mentioned in Section120 B, Indian Penal Code (herein after referred as “IPC”) and has to fulfill

essentials of Sec.120A,IPC .Thus this will be shown by looking at the actus reus[1.1] and no

intention to conspire[1.2] by the respondents. Furthermore there lies a presumption of innocence

on the part of complainant, until and unless the guilt is proved beyond reasonable doubt.

[1.1] Acts of respondents does not amount to criminal conspiracy

Under Sec.120A, IPC, Criminal conspiracy is defined as when two or more persons agree to do

or cause to do;

a) There must be an agreement between the persons who are alleged to conspire[1.1.1];

and

b) That agreement should be for doing;

 An illegal act, or

 An act which is not illegal by illegal means [1.1.2], then such an agreement is

designated to be criminal conspiracy.1

1
Section 120A, Indian Penal Code,1860 (herein after referred as “IPC”).

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This is an irrefutable position that under the criminal law, bare intention is no crime there must

be a nexus to acts to show intention to commit an offence. The next part will be dealing with the

criminal conspiracy in order to show that there were transactions which infer the conduct of

respondents for the same.2

[1.1.1] There is no agreement between two or more persons who are alleged to conspire

The very essential ingredient of proving criminal conspiracy is to show agreement between two

or more persons who were alleged to conspire, and this is irrespective of further consideration

whether or not the offence is actually committed as the very fact of conspiracy constitutes the

offence.3 “Agreement” is the rock bottom of the offence of criminal conspiracy under Sec.120A,

without which no charge of criminal conspiracy can succeed.4

Saba (herein after referred as “A2”) and Jaimil (herein after referred as “A3”) decided to

complete the movie as there was a lot of financial burden on them5, but nowhere it could be

asserted that the acts of the respondents were to plot a conspiracy in order to defame

Ms.Naika(herein after referred as “PW4”), as there has been no agreement to do any act

illegally.

The prosecution did not show direct evidence against the conspiracy but merely circumstantial6

and the word of caution lies in the matter is that too much of reliance could not be put on the

circumstantial evidence.7

2
Madanlal vs State Of Punjab, 1967 SCR (3) 439.
3
K.S. Narayan v. S. Gopinathan, 1982 CrLJ 1611 (Mad.)
4
Jagannath Mishra v State of Orissa, 1974 Cut LT 1253; Tejichand v. State of UP, 1977 U.P. Cr C (All) 281 (283).
5
Para 5, p.1, Moot Proposition.
6
State (NCT of Delhi) v. Navjot Sandhu, 2005 Cr LJ 3950 SC.
7
Mohanlal v. State of U.P., AIR1974 SC 1144.

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[1.1.2] There is no illegal act to be done upon agreement.

An act is said to be illegal which amounts to an offence, prohibited by law.8 The charge of

conspiracy cannot be merely made on the basis of inferences and has to be backed by the cogent

evidence to show that there was meeting of minds for commission of illegal act 9 or to achieve a

particular object.10

The act done by A2 and A3 to complete the movie by using technological camera effects by

using the scenes of the movie which were previously acted by the complainant11 was not to be

confused to be done with an intent to conspire against her, in order to defame her.

[1.2] Respondents had no common intention to conspire

Common intention under Sec.34 refers to the ultimate criminal act with which the accused is

charged.12 There must be a link which needs to be shown that the acts were done in furtherance

of common intention of all involved per se.13

[1.2.1] Respondents did not participate in order to commit crime

Mere presence without proof of any act or omission done to facilitate the offence or at least

without proof of the existence of common intention will not be sufficient to convict under

Sec.34.14 The respondents had no common intention to act in order to defame the complainant as

the prosecution has merely relied on circumstantial evidence and have not corroborated for the

8
Sec.43, IPC.
9
Hardeo Singh v. State of Bihar & Ors., (2000) Cr.LJ 2978 (SC).
10
State v. Siddhartha Vashisht alias Manu Sharma, (2001) Cr.LJ 2404 (Del.).
11
Annexure 3, Para 11,p.12, Moot Proposition
12
Halim Mian v. State of Bihar, AIR 1971 SC 1836.
13
Ramashish Yadav v. State of Bihar, 1999(8) SCC 555.
14
Mahadeo Nath Khetri v. Emperor, AIR 1941 Pat. 550; Basharat v. Emperor, AIR 1934 Lah. 813.

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same. There has been no establishment of the fact that there was active participation in such

alleged crime of defamation.15

Statements made by Ms. Mashaal (herein after referred as “DW5”) and Ms. Poonam (herein after

referred as “DW4”) shows that there had been mere presence of A1 at the Star Hospital as he

came out on parole to take care of his wife who had been suffering from serious illness.16

[1.2.2] Common intention not to be inferred from separate acts that does not lead to

ultimate act.

There must be a pre mediation or previous meeting of minds for the acts to be done with a

common intention to defame the complainant.17 The following statements which have been made

by prosecution witness does not show that the acts were done in any furtherance of common

intention to defame PW4;

 Presence of A1 at the gate of Star Hospital and Central Mall does not show that he had

any intention to go for any kind of shoot.

 The prosecution has alleged that A1 came out on parole as he knew the plot to shoot for

incomplete scenes with dupe.18

 A1 met DW4 and DW5 in due course of hospital visit and took some photographs as

well.

These acts were considered to be done in furtherance of common intention but none of these acts

were corroborated by the prosecution. Hence, these acts do not form any part as a matter of

relevancy in order to show common intention of the respondents.


15
Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083.
16
Annexure 1, Para 8, p.7, Moot Proposition.
17
Rotash v. State of Rajasthan, (2007) Cr.LJ 758 (SC).
18
Annexure 1, Para 3, p.5, Moot Proposition.

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[1.3] Discrediting evidence adduced by the prosecution

The prosecution did not prove the charges against the respondents and are hence under the

burden of proving it, beyond reasonable doubt. There are various discrepancies that if admitted

will be prejudicial to the status of respondents.

[1.3.1] Circumstantial evidence is unreliable

When the prosecution relies on the circumstantial evidence then all the links in the chain of

circumstances must be complete and should be proved through cogent evidence. 19 When a link

breaks away the chain of circumstances get snapped and then other circumstances fail to prove

guilty beyond reasonable doubt.20 The evidence which has been relied upon must fulfill

following essentials;

a) The circumstances from which an inference of guilt is sought to be drawn must be

cogently and firmly established towards the charges alleged21;

b) The circumstantial evidence in order to sustain conviction must be complete and

incapable of explanation of any other 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 the innocence.22

The following statements by prosecution witness show that there has been no establishment of

proper chain of facts in order to form it part of same transaction;

19
State of Goa v. Pandurang Mohte, AIR 2009 SC 1066.
20
Kishore Chand v. State of Himachal Pradesh, AIR 1990 SC 2140.
21
Mahmood v. State of Uttar Pradesh, AIR 1976 SC 69.
22
Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79.

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 Mr.Williams (herein after referred as “PW1”) stated that he knew that Star Hospital was

booked for shooting from 5th to 7th February,2014 but he did not knew full details

regarding who booked the same.23

This statement is not admissible as it being merely an hearsay evidence24 and does not

form part of „res gestae‟, thus being barred by Sec.60, Indian Evidence Act, 1872 (herein

after referred as “IEA”).

 Ms. Khushboo (herein after referred as “PW3”, admitted that she has seen A1 at the gate

of Star Hospital on 8th Febrauary,2014 and later in the evening she saw him at Central

Mall, which was readied for shoot.25

This statement is not admissible as PW3 being a „chance witness‟, who happened to be at

the alleged sites by chance26, but she does not make any statement with regard to the

participation of the respondents in any kind of shoot. Thus such statement is not found to

be relevant nor admissible as being „res gestae‟.27

Thus these statements mark that the prosecution have been trying to falsely implicate against the

respondents.

[1.3.2] Statement given by Ms.Khushboo being an eye witness is not credible

PW3 has stated that she had been suffering from a small bout of Anomalous trichromacy (of

nature of Protanomaly and Deuteranomaly) in 2003, but has been cured now. 28 In cases of

23
Annexure 1, Para 1,p.5, Moot Proposition.
24
Kashmira Singh v. State, AIR 1965 J&K 37.
25
Annexure 1, Para2, p.5, Moot Proposition.
26
Bahal Singh v.State of Haryana, AIR 1976 SC 2032.
27
Sec.6, IEA.
28
Annexure 1, Para 2, p.5, Moot Proposition.

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anomalous trichromacy, the patient suffers from an acute kind of color blindness and cannot

make distinction between colors.29 Thus the statement given by her must be used with utmost

care and caution and must be corroborated with a fitness statement by a medical expert in order

to be deemed to be accepted.

[1.3.3] Faulty investigation by the Police officer

The investigation report given by the inspector, Mr.Sundar(herein after referred as “PW2”) has

been biased on the part that it gives prosecution as it has not been examined and this will be

prejudicial to the respondents.30 The police officer needs to bring the unvarnished truth of the

case and not merely base his repot on gamut of witness statements without dwelling into the

credibility of the same.31 There have been following inconsistencies in the investigation report;

 CCTV footage discloses mere presence of A1 at Star Hospital and Central Mall 32, but

there is no disclosure about the alleged scenes by way of any corroborative evidence for

the same.

 The report says that there is a chance of A2 and A3 to influence A1 in order to take

parole from the Jail33, but on the contrary his wife was ailing with serious illness and this

was the sole reason he was granted parole.

 The report says that there may be threat to be induced by A2 and A3 to PW434, but there

has been no corroboration for the same and hence they have been falsely charged for the

same.

29
MARTIN NIXON, Oxford Dictionary, 5th Ed., 2000, Oxford University Press.
30
Raj Kumar Rajwar v. State of Bihar, 1993 (3) PLJR 831.
31
Jamuna Chaudhary v. State of Bihar, 1974 (3) SCC 774.
32
Annexure 3, Para 3, p.10, Moot Proposition.
33
Annexure 3, Para 12, p.11, Moot Proposition.

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By looking at infirmities in the witness statements and the faulty investigation report, it raises a

benefit of doubt to the respondents.35 When a piece of evidence introduced and relied upon by

the prosecution itself creates a reasonable doubt as regards to the complicity of the accused, even

if there are no infirmities in other evidence then the doctrine of benefit of doubt must be invoked

by the court in the favour of the accused.36 Secondly, such reasonable doubt creates a gap

between the fact that the respondents “may have committed the crime” and not give a conclusive

proof regarding the crime to be “must to be committed”. 37Hence it is humbly submitted that the

respondents cannot be convicted for crime for the very reason.

Issue-2 Respondents are not guilty for defamation of Ms. Naika

It is most humbly submitted that the accused are not liable for defamation of Ms. Naika by the

act of shooting some intimate scenes and releasing the advertisement by way of film posters of

“Hit Factory”, by using a look alike. The very act of completing the movie by A2 and A3 was a

matter of necessity and was done under good faith.

[2.1] Respondents are not guilty for publishing film posters in the newspapers

The complainant has accused the respondents to be defaming her by publishing her along with

A1 under Sec.501. The ingredients of Sec.501 are as follows;

 There shall be printing or engraving of any matter.

 Knowledge or reason to believe that such matter is defamatory

34
Annexure 3, Para 12, p.12, Moot Proposition.
35
State v. Rakesh Kumar, (1998) Cr.LJ 3604 (SC).
36
Machhi Singh v. State of Punjab, AIR 1983 SC 957.
37
Ramakant Rai v. Madan Rai, (2004) Cr.LJ 36 (SC).

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In order to show that a printer or engraver of a defamatory matter may be liable, it is essential

that he should have the mens rea defined in this section, i.e. knowledge or reason to believe that

the matter printed or engraved is defamatory of some person apart from the person who has been

defamed.38

[2.1.1] There was no knowledge or reason to believe that the matter is defamatory

In order to prove the charges of defamation under Sec.501, IPC, it is pertinent to note that the

essentials of Sec.499 must be satisfied, which are as follows;

 There must be making or publishing of an imputation concerning a person;

 Such imputation must be made by way of words, either spoken or intended to be read or

by signs or by visible representations;

 Such imputation must have been made with the intention to harm or with knowledge or

reasonable believe to harm, the reputation of the person.

The complainant has not proved either of the facts that there has been imputation nor such

imputation have been made to harm the reputation of the person.

[2.1.2] There were no imputation made by respondents concerning Ms. Naika

Imputation ordinarily implies an accusation or something more than an expression of suspicion.39

It refers to the accusation of fact made against such person in order to lower her image amongst

the public.40 It has been alleged that releasing poster alongside A1 there has been serious

imputation against reputation of PW4. There has been no imputation made against PW4 as the

act of printing poster was done in good faith [2.1.3], A1 was a person with previously good

38
Nemichand v. Khemraj, AIR 1973 Raj 240; Sankaran Chettiar v. K. Ramakrishna Pillai, AIR 1960 Ker.141.
39
Prem Pal Singh v. Mohan Lal, (1981) Cr.LJ 1208.
40
NCERT v. P.D. Bhatnagar, (1981) Cr.LJ (NOC) 57 (Raj.).

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character who had been embroiled with anti social elements but was now transformed into a kind

hearted person and lastly, the fact that A1 and PW4 were acting together, there was no harm to

her reputation [2.1.4].

[2.1.3] Advertisements and posters were released in good faith

Good faith must be interpreted in reference to Sec.54 I.P.C which means that there must be no

act be done or believed in good faith without due care and attention.41 So the due care and

attention

has been taken in order to establish the statement as a reasonable man to be of true

construction.42

PW4 knew about the ongoing case filed against A1 in 1993 under the charges of TADA Act for

illegal possession of arms, way before she decided to do movie with him.43 Later after conviction

under the Arms act, PW4 refused to act for some incomplete scenes, which was decided to be

completed by super imposing her images from the previous scenes.44

Secondly, A1 and A3 were rightful owners over the movie by virtue of copyright act as they

being cinematographer.45 The rights of the movie was about to be assigned by way of assignment

to Mr.Shaikh, upon completion of the movie and due to financial burden upon them.46 Exception

8 of S.499 clearly mentions that it is not a defamation to prefer in good faith an accusation

41
Sec.54, IPC.
42
Samanta Biswanath Roy v. Jhari Bewa, (1997) Cut LR (Cr) 53.
43
Para1, p.1, Moot Proposition.
44
Annexure 3, Para 9, p.6, Moot proposition.
45
Sec.2(f), Copyright Act,1957.
46
Para 7, p.2, Moot Proposition.

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against any person to any of those who have lawful authority over that person with regard to the

subject matter of accusation.47Hence, they acted in good faith to complete the movie.

[2.1.4] No harm to reputation of Ms. Naika was done by portraying along Panna Boy

A1 was even though convicted under the Arms Act,1959 but in the society he had good character

as he transformed in the prison and was follower of Bapu Ji, who was father of the nation.48 So

the relevancy in the character of A1 is an important factor to show that there was no harm done

by acting along with him.49 The evidence can be given of general reputation and general

disposition only and not of particular facts, since isolated incidents afford no presumption of a

man‟s general character.50 Reputation must be distinguished from rumour.51 Evidence of rumour

is mere hearsay and evidence of general repute does not offend against the rule of hearsay, but is

direct evidence of a man‟s character.52 Hence A1 was transformed to be a person with good

character and was rumoured to be of that of involved with anti-social element but was proved not

to be a terrorist convict under TADA.53

[2.2] Respondents sold the advertisements/posters of alleged movie to newspapers/magazines.

As per Sec.502,IPC, sale of printed or engraved substance containing defamatory matter

knowing that it contains such matters is punishable.54 There must be something more than mere

47
Rajendra Kumar SItaram Pande v. Uttam, AIR 1999 SC 1028.
48
Para 2, p.1, Moot Proposition.
49
Habeeb Mohammad v. State of Hyderabad, (1954) Cr.LJ 338 SC.
50
Queen v. Rowton, (1865) 34 LJ (MC) 57.
51
M.MONIR, Textbook on the Law of Evidence, p.227,8 th Ed., 2010, Universal Law Publishing Co.
52
Raghubir Dayal v. Emperor, 1936 Cr.LJ 33.
53
Sanjay Dutt v. State of Maharashtra, Through CBI (STF), Bombay, AIR 2013 SC 3687.
54
Sec.502, IPC.

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abuses from which it could be possible to infer that the imputations were made with such

intention of defaming directly or indirectly the person complaining of, such as to constitute an

offence of the defamation punishable under Sec.502.55

The evidence adduced in the case does not show that the respondent has the required mens rea, in

the absence of evidence proving the mens rea on the part of the respondent, the respondent

cannot be convicted for the offence.56

Issue-3 Saba and Jaimil are not guilty for putting Ms.Naika under fear of injury to extort

It is humbly contended that A2 and A3 are have been falsely charged under Sec.385 as the

prosecution has failed to prove them guilty beyond reasonable doubt. In order to convict an

accused under Sec.385 following essentials have to be shown;

 the accused put or attempted to put any person in fear of any injury[3.1.1]; and that
 such act of the accused was in order to commit extortion[3.1.2].

The offence under this section is an aggravated form of offence defined under Sec.383 and must

be read in conjunction with it.57 Extortion has been defined as intentionally putting a person in

fear of injury to himself or another by way of dishonestly inducing such person.58

55
L.S. Jayappa v. N.S. Shamegowda, (1986) 1 Cr LC 24 (Karn.).
56
S.D. Premchand v. M.C. Balu, 1986 Mad LW (Cr) 179 (Mad.).
57
Tanumal Udhasingh v. Emperor, AIR 1944 Sind 203.
58
Sec.383,IPC.

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[3.1.1] Saba and Jaimil did not put or attempted to put Ms.Naika in any fear of injury

The fear of injury must be in such a way that it unsettle the mind of the person upon whom it is

exercised is not voluntary.59 The injury need to be physical injury and may be to malign one‟s

character.60 The statement of PW4 shows that her personal mobile number was known to few

and A2 and A3 were amongst them.61 But this statement does not prove that the voice was that of

them. Secondly despite of repeated refusal by PW4 to co-operate for incomplete shoot there has

been no effort to ask her again which shows that the only resort was to complete the movie by

using editing techniques.

[3.1.2] There has been no dishonest inducement by A2 and A3

The charge of extortion is established when the accused put the complainant or to any other

person in fear of an injury and then dishonestly induced her to deliver any valuable security.62

Prosecution has failed to show that there has been any act by A2 and A3 that has resulted in

inducement of PW4 in order to dishonestly make her act in the movie. The evidence provided as

a voice recording with transcript does not prove the accused guilty. Evidence should not only be

consistent with the guilt of the accused but should in addition be inconsistent with his

innocence.63 The standard of proof required is that the Court must be satisfied that the

prosecution must (and not may) be true.64

59
R v. George Walton & Joseph Ogden, (1863) 169 All ER 1399.
60
K.D. GAUR, Textbook on The Indian Penal Code, 4th Ed.,2012, Universal Law Publishing Co.
61
Annexure 1, Para 3, p.6, Moot Proposition.
62
Sec.383, IPC.
63
State v Mohd.Afzal and Ors., 2003 (3) JCC 1669.
64
Hira Pearelal Kirar v. The State, AIR 1960 M.P. 11.

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[3.2] Non admissibility of voice record as evidence

The identification of the taped voices is a crucial matter and proper identification is the sine qua

non. The time and place and accuracy of the recording must be proved by a competent witness

and the voices must be properly identified.65 Tape recorded conversation is admissible in

evidence provided;

 conversation is relevant to the matters in issue;

 there is identification of voice;

 the accuracy of the tape is proved by eliminating the possibility of tampering of

erasing the tape record.66

There lies a higher standard of proof to show that the voice recording is accurate and authentic.67

Since there has been no certificate of authenticating the use of such audio records as an evidence,

then such admission should be prima facie discredited to be admissible in the Hon‟ble Court.

Hence it is humbly submitted that A2 and A3 are deemed to be innocent and not guilty for

accusation of threat.

Issue-4 Panna Boy is not guilty to any condition of remission of punishment

The complainant has alleged the charge under Sec.227, IPC by questioning the propriety of A1

to act in movies at the time of parole.68 In order to make out an offence under this section, it must

be proved not only that the accused was granted a conditional remission of punishment, that he

65
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147.
66
R.M. Malkhani v. State of Maharashtra, AIR 1973 SC 157.
67
Tukaram S. Dikhole v. Manikrao Shivaji Kokate, AIR 2010 SC 965.
68
Para 19, p.3, Moot Proposition.

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accepted the conditions of the remission and that he violated one or more of those conditions,

knowingly.69 There has been no proof with regard to the misuse of condition of parole as it has

been established that A1 came out on parole citing his wife‟s illness.

[4.1] Parole has been rightly granted to Panna Boy.

Parole is “a conditional release of a prisoner, generally under the supervision of a Parole Officer,

who has served part of the term for which he was sentenced to prison.” 70 During parole period

there is no suspension of sentence but the sentence is actually continuing to run during that

period as well.71 Remission is distinct from parole72, as it is reduction of the amount of a

sentence without changing its character.73 Secondly, parole being an administrative action is

decided by the executive as a matter of discretion and is given in condition of illness of near

relative, spouse etc.74 Hence it has been rightly granted for citing his wife‟s illness.75

[4.2] Arguendo, there has been no violation of conditional remission.

There is a distinction between remission and parole but if it has to be construed that parole is

supposed to be conditional remission, still there has been no violation of condition as citing

illness of wife, as he used to visit Star Hospital to meet his wife which has been corroborated

with CCTV footage of the same and had not been indulged in alleged shoot. Hence, A1 is not to

be convicted guilty for violating any condition per se and prosecution has failed to prove him

guilty.
69
S.K.SARVARIA, R.A. Nelson‟s Indian Penal Code, Vol.2, 10th Ed., 2008, Lexis Nexis.
70
BRYAN D.GARNER, Black‟s Law Dictionary, 9th Ed., 2009, Thomson Reuters Publishers.
71
State of Haryana v. Nauratta Singh, 2000 Cri.LJ 1710.
72
Rule 20, Prison (Bombay Parole & Furlough) Rules, 1959 (hereinafter referred as “Prison Rules”).
73
State (Govt.of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121, para 10.
74
Rule 19, Prison Rules
.
75
Rule 10, Prison Rules.

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xiv

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon„ble Court be pleased to:

a) Acquit Panna Boy, Saba and Jaimil for offence of criminal conspiracy coupled with

common intention and defamation vis-à-vis Sections 120B, 34, 501 and 502, respectively.

b) Acquit Panna Boy for offence of violation of condition of remission under Section 227 of

IPC,1860.

c) Acquit Saba and Jaimil for offence of putting fear in Ms. Naika in order to extort her

under Section 385 of IPC, 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

Sd/-

Public Prosecutor

MEMORIAL ON BEHALF OF THE DEFENCE