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TEAM CODE:
IN THE MATTER OF
Vs.
PRADEEP SINGH…………………..............................RESPONDENT
TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………..……………..
STATEMENT OF JURISDICTION…………………………………………………..…….
STATEMENTS OF FACTS…………………………………………………..…………...…
ISSUES RAISED................................................................................................................... .
PRAYER ................................................................................................................................ …
LIST OF ABBREVIATIONS
Ed. Edition
SC Supreme Court
Sec Section
v. Versus
govt. Government
Art. Article
Anr Another
Hon’ble Honorable
TABLE OF AUTHORITIES
LIST OF CASES
BOOKS REFERRED
WEBSITES
www.manupatra.com
www.supremecourtofindia.nic.in
www.lawlive.in
STATEMENT OF JURISDICTION
The respondent humbly submits before the Hon’ble High Court of Delhi, the
memorandum for the respondent in an appeal filed by petitioner under relevant
provision of sec. 438 of the CRPC, 1973, reads as :
The present memorandum sets forth the facts, contentions and arguments in the
present case.
STATEMENTS OF FACTS
On 17th September 2017 Preeti died and offence under section 304-B
IPC added against accused.
On 18th September 2017 after hearing both sides and upon consideration
of statements and witnesses, the judge confirmed the anticipatory bail to
appellants.
State of NCT of Delhi file a petition before HC of Delhi for cancellation
of anticipatory bail.
ISSUES RAISED
SUMMARY OF ARGUMENTS
It is humbly submitted that the instant case is maintainable in the High Court of
Delhi because of cause of action arises in Delhi under the jurisdiction of Section
438 of CRPC, 1973 which lays down the Direction for grant of bail to person
apprehending arrest that states that When any person has reason to believe that
he may be arrested on an accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session for direction
under this section and that court may, if it thinks fit, direct that in the even of
such arrest, he shall be released on bail. Pradeep and his family, the respondent
deserves to continue the anticipatory bail granted as Pradeep and his family
have the reasonable apprehension and their situation doesn’t violate any of the
factors which are to be taken care of and the court has considered and havekept
all the factors in mind while granting an application for anticipatory bail.
It is most humbly submitted before the Hon’able Court that the respondent can’t
be held liable for torturing preeti and demanding dowry. As the circumstances
of the case is not of conclusive nature and chain of circumstances is not
complete to show the guilty of the respondent. The petitioner has failed to prove
the necessity to establish the offence of section 498A of IPC to prove the
charges under section 304B IPC and also has failed to raise the presumption
under section 113B of Evidence Act as it can be drawn only when the
ingredients of Section 304B of IPC are fulfilled.Thus, the petitioner has failed to
establish the ingredient of Dowry Death and was also not able to prove
necessary ingredients to raise the presumption under Section 113B of Indian
Evidence Act.Therefore, accused are not guilty of the offence u/s 498A read
with sec 34 and 304B of IPC.
ARGUMENTS ADVANCED
It is humbly submitted that the instant case is maintainable in the High Court of
Delhi because of cause of action arises in Delhi under the jurisdiction of Section
438 of CRPC, 1973.
1. To the hon’ble HC the respondent has come to this court for the petition
filed against Pradeep and his family for cancellation of anticipatory bail
granted to them.
2. In this case earlier the session court of Saket, the court does not found any
special evidence that proves that Pradeep and his family murdered and
tortured Preeti for dowry.
3. In Savitri Agarwal & Ors. v. State of Maharashtra &Anr1 the leave was
granted by the session court was challenged in the appeal is to the
judgment and order dated 2nd July, 2008 passed by the High Court of
Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Applications,
whereby the said two applications filed by the State and thecomplainant
respectively, have been allowed and the protection granted to the
appellants by the Sessions Judge, Amravati vide order dated 18th
December, 2007 in terms of Section 438of the Code of Criminal Procedure,
1973 has been withdrawn. The appellants herein are the
1
Savitri Agarwal v. State of Maharastra 2009 CrLJ 4290 (4292): AIR 2009 SC
3173(2009) 8SCC 325
the power conferred by Section 438 and regarding the question whether the
conditions mentioned in Section 43712 should be read into Section 438
cannot be treated as conclusive on the point. There is no warrant for reading
into Section 438, the conditions subject to which bail can be granted under
Section 437(1) of the Code and therefore, anticipatory bail cannot be
refused in respect of offences like criminal breach of trust for the mere
reason that the punishment provided for is imprisonment for life.
Circumstances may broadly justify the grant of bail in such cases too,
though of course, the Court is free to refuse anticipatory bail in any case if
there is material before it justifying such refusal.
Court of Session for a direction under this section that in the event of such arrest
he shall be released on bail; and that Court may,
where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested,either reject the
application forthwith or issue an interim order for the grant of anticipatory
bail
Provided that, where the High Court or, as the case may be, the Court of Session,
has not passed any interim order under this Sub-Section or has rejected the
application for grant of anticipatory bail, it shall be open to an officer in-charge
of a police station to arrest, without warrant the applicant on the basis of the
accusation apprehended in such application.
2
Balchand jain v. State of M.P AIR 1980 SC 366
3
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632
1A. Where the Court grants an interim order under Sub-Section(1), it shall
forthwith cause a notice being not less than seven days notice, together with a
copy of such order to be served on the Public Prosecutor and the Superintendent
of Police, with a view to give the Public Prosecutor a reasonable opportunity of
being heard when the application shall be finally heard by the Court,
1B. The presence of the applicant seeking anticipatory bail shall be obligatory at
the time of final hearing of the application and passing of final order by the Court,
if on an application made to it by the Public Prosecutor, the Court considers such
presence necessary in the interest of justice.
Thus, Respondent’s situation doesn’t violate any of the factors that are to be
considered before
granting anticipatory bail to Pradeep and his family.
DYING DECLARATION
This is a clear case of Dying Declaration4. Acc to Sec.32 in The Indian Evidence
Act 1872, Cases in which statement of relevant fact by person who is dead or
cannot be found, etc ., is relevant. Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be found, or who has become
incapable of giving evidence, or whose attendance cannot be procured without an
amount of delay or expense which, under the circumstances of the case, appears
to the Court unreasonable, are themselves relevant facts
in the following cases:—
4
The law of Evidence 24th edition Dying Declaration recorded by doctor pg. 276
2. Acc. to the facts, father of Preeti lodged a complaint with Police against
Pradeep his father(Ram Singh)mother (Devi Singh) and brother (Shiv
Singh), inter alia, alleging that after the marriage of his daughter, Pradeep
and his family were torturing her for not meeting dowry demand of Rs10
lakhs and on 15th July, 2012, due to torture she had left the matrimonial
home, intending to commit suicide but due to intervention of the relatives,
she returned back. On the said complaint, the police registered an FIR
(183/17) against Pradeep and his family for offences under Section 498A
read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition
Act, 1961.In initial investigation of police it was found that both Pradeep
and Preeti use to fight on petty issues and no angle of dowry came into
picture till now which also proves that Pradeep and his family were not
torturing Preeti for dowry or for anything else.
3. As the statement given by Preeti to the doctor she stated that “she and her
son caught fire when she was pouring kerosene oil in the lamp which
accidentlly fell down;the oil got spilled over and both of them got burnt”.
The statement given by Preeti signifies that it was an accident that caused
him and there was nothing done by Pradeep and his family.
4. And death of his son (Shyam Singh) also signifies that why would they try
to kill Shyamwhats the advantage they will get by killing Shayam. This
justifies that it was just an accident nothing more.
5. The important point arises that why Father in law of Preeti would try to
save him if he wanted to kill Preeti, he must have left Preeti& her son
buring and let them die but he saved them and rushed took him to the
hospital. Hence Pradeep’s fathers’ action shows that he really cared for
them and has no intention of killing them.
6. As it is stated in facts that at the time when the incident was happened
there was only father in law present at the home ,when , Ram Singh (father-
in-law) has heard the cries of Preeti and when he rushed to the second floor
of the house, he saw her burning. He tried to douse the fire. Preeti told him
that her son Shyam is lying in the bathroom. He rushed to the bathroom
and found that the child also had burns at that particular moment he
managed take them to the hospital. It ia pertinent here to stated that the
deceased before dying given her statement to doctor “wherein she stated
that she and her son caught fire when she was pouring kerosene oil in the
lamp which accidentally fell down; the oil got spilled over and both of them
got burnt”
it can be easily be deduced from the given statement by the deceased no
instances of cruelty and dowry comes into existence.
In the present matter the FIR is logged against Pradeep Singh and other members
of the family on the following grounds-
offences under Section 498A read with Section 34, IPC
(a) any willful conduct which is of such a nature as is likely to drive the woman
to commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman;
(b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property
or valuable security or is on account of failure by her or any person related to
her to meet such demand.
Sec.34 IPC
In the case of Devi Lal vs. State of Rajasthan5 Hon'ble Supreme Court has
observed that the ingredients of provisions of section 304 B IPC are
(1) that the death of the woman was caused by any burns or bodily injury or in
some circumstances which were not normal
(2) such death occurs within 7 years from the date of her marriage
(3) that the victim was subjected to cruelty or harassment by her husband or
any relative of her husband
(4) such cruelty or harassment should be for or in connection with the demand
of dowry.
(5) it is established that such cruelty and harassment was made soon before her
death.
Necessary ingredients of dowry death as provided under Section 304B of IPC are
:
(i) Deceased was the subject matter of cruelty on account of dowry and
culminates into guilt of accused under Section 498A IPC;
(ii) The death should have taken place due to bodily injuries other than
normal circumstances
(iii) Such death was the subject matter of cruelty soon before death.
5
Devi Lal v. State of Rajasthan on 12 October, 2007
As far as death of the deceased is concerned, she even stated herself that it was
merely an accident which shows that the death of the deceased was under normal
circumstances and was due to an accident. Hence it does not fulfill the above
stated (1) condition commission of offence under Section 304B IPC.
Unfortunately death of the deceased had taken place within seven years of her
marriage with the respondent established from the evidence, but the next and the
most important ingredient required to be proved from the evidence is that whether
the deceased was subjected to cruelty and harassment on account of demand of
dowry by herhusband or any relative of her husband and that was done soon
before her death. But the petitioner has failed to proof beyond reasonable doubt
the guilt of alleged accused and no evidence on record which points out the gulit
of the accused.It is pertinent here to state that in last 7 years of marriage not a
single accident has come out against respondent regarding any kind of cruelty
against the deceased, and the facts and allegations are framed against respondent
under sec.498A with read sec.34 of IPC which appears vague and baseless at
prima facia. The allegations are false and frivolous.
The last ingredient is based upon the commission of offence under Section
498A IPC and while committing the offence under Section 498A IPC, if it
connects with the death, then it would be an offence punishable under Section
304B IPC. In the earlier hearing court has fail miserably to establish beyond
reasonable doubt that any cruelty or harassment was meted out to the deceased
by the respondent, let alone soon before her death.
As the petitioner failed to establish that after the marriage of the deceased, there
were circumstances of harassment or cruelty that took place on account of
demand of dowry which could connect with the death of the deceased.
The presumption under Section 113B of the Evidence Act can be drawn only
where the ingredients of Section 304B IPC are fulfilled.
The petitioner has failed to establish the ingredient of dowry death i.e. cruelty or
harassment meted out to the deceased by the appellant what to say soon before
her death. As mentioned above, the petitioner has failed to prove the chain of
necessary ingredients to raise the presumption under Section 113B of the Indian
Thus, the petitioner has failed to prove the necessity to establish the offence of
section 498A of IPC to prove the charges under section 304B IPC and also has
failed to raise the presumption under section 113B of Evidence Act as it can be
drawn only when the ingredients of Section 304B of IPC are fulfilled. Thus, the
petitioner has failed to establish the ingredient of Dowry Death and was also not
able to prove necessary ingredients to raise the presumption under Section 113B
of Indian Evidence Act. Therefore, accused are not guilty of the offence u/s
498A read with sec 34 and 304B of IPC.
PRAYER
In the lights of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Hon’ble Court, that
it may be graciously pleased to adjudge and declare that anticipatory bail remains
sustain.
AND/OR
Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests
of Justice, Fairness, Equity & Good Conscience.
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray
PLACE: SD/-