Вы находитесь на странице: 1из 23

-NATIONAL MOOT COURT COMPETITION, 2019-

-NATIONAL MOOT COURT COMPETITION, 2019-

TEAM CODE:

BEFORE THE HON’BLE HIGH COURT OF DELHI

CRIMINAL APPEAL NO.****/2019

CASE CONCERNING OFFENCES UNDER SECTION438 OF CRIMINAL


PREOCEDURE CODE, 1973

IN THE MATTER OF

THE STATE OF NCT


DELHI…………………….....................PETITIONER

Vs.
PRADEEP SINGH…………………..............................RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

SUBMITTED TO- SUBMITTED BY-

MEMORIAL ON BEHALF OF RESPONDENT Page 1


-NATIONAL MOOT COURT COMPETITION, 2019-

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................

INDEX OF AUTHORITIES…………………………………………………..……………..

STATEMENT OF JURISDICTION…………………………………………………..…….

STATEMENTS OF FACTS…………………………………………………..…………...…

ISSUES RAISED................................................................................................................... .

SUMMARY OF ARGUMENTS ............................................................................................

ARGUMENTS ADVANCED ..................................................................................................

PRAYER ................................................................................................................................ …

MEMORIAL ON BEHALF OF RESPONDENT Page 2


-NATIONAL MOOT COURT COMPETITION, 2019-

LIST OF ABBREVIATIONS

AIR All India Reporter

CRPC Code of Criminal Procedure

Del Delhi High Court

Ed. Edition

IPC Indian Penal Code

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

Sec Section

v. Versus

govt. Government

Art. Article

Anr Another

Hon’ble Honorable

MEMORIAL ON BEHALF OF RESPONDENT Page 3


-NATIONAL MOOT COURT COMPETITION, 2019-

TABLE OF AUTHORITIES

LIST OF CASES

 Shanti vs State of Haryana

 Gurbaksh Singh vs State of Punjab AIR 1980 SC 1632

 Sunita devi vs State of BiharAiR 2005 SC 498

 Balchand Jain v State of MP (1976) 4 SCC 572

 Savitri Agarwal &Ors v State of Maharashtra &Anr2009

 Puran vs Rambilas and Anr. AIR 2001 SC

 Gurbaksh Singh vs state of Punjab AIR 1978 P&H 1

 Adri Dharan Das vs State of West Bengal AIR 2005 SC 1057

 Dolat Ram and ors. vs State of Haryana 1995(1) ALT(Cri)379

 BS joshi vs State of Haryana

 Bansi lal vs State of Haryana

 Devi lal v. State of Rajasthan

MEMORIAL ON BEHALF OF RESPONDENT Page 4


-NATIONAL MOOT COURT COMPETITION, 2019-

BOOKS REFERRED

 Indian Penal Code, K.D Gaur (Fifth Edition)

 Law Of Evidence, Ratan Lal and Dhiraj Lal

 Code of Criminal Procedure

WEBSITES
 www.manupatra.com

 www.supremecourtofindia.nic.in

 www.lawlive.in

MEMORIAL ON BEHALF OF RESPONDENT Page 5


-NATIONAL MOOT COURT COMPETITION, 2019-

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 :

Direction of grant of bail to person apprehending arrest.

 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 a direction under this section,
and that Court may, if it thinks fit, direct that in the event of such arrest,
he shall be released on the bail.

The present memorandum sets forth the facts, contentions and arguments in the
present case.

MEMORIAL ON BEHALF OF RESPONDENT Page 6


-NATIONAL MOOT COURT COMPETITION, 2019-

STATEMENTS OF FACTS

 Pradeep Singh and Preeti Singh (deceased),belonged to Lucknow in the


state of Uttar Pradesh and marriage of her was solemnized with Pradeep
on 23.10.2013 at farm house in New Delhi.
 In oct. 2011 they shifted to New Delhi along with their parents Ram
Singh, father-in-law of deceased, Devi Singh - mother in law of deceased,
Shiv Singh brother in law.
 On 12th June 2012 they were blessed with a baby boy (Shyam Singh).
 On 15 July 2012 she had left the matrimonial house due to torture of not
meeting dowry demand of Rs 10 Lakh intending to commit suicide but
due to intervention of relatives she returned back.
 On 1st September 2017 at about 4:30pm, Father-in-law heard the cries of
deceased and rushed to 2nd floor where he saw her burning and found
that child also had burns.
 On 6:40pm statement was recorded by doctor where she stated that she
and her son caught fire when she was pouring kerosene oil in the lamp
which accidently fell down.
 Father of deceased (Yogesh Kumar) reached hospital on same night.
 At 10:55pm minor child expired.
 In the initial investigation, Police found that they use to fight on petty
issues but no angle of dowry came into picture.
 On 7th September 2017 the applicants applied for grant of anticipatory
bail.
 On 10th September 2017 session judge initially granted anticipatory bail
to them from arrest till the next hearing.

MEMORIAL ON BEHALF OF RESPONDENT Page 7


-NATIONAL MOOT COURT COMPETITION, 2019-

 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.

MEMORIAL ON BEHALF OF RESPONDENT Page 8


-NATIONAL MOOT COURT COMPETITION, 2019-

ISSUES RAISED

I. WHETHER THE ANTICIPATORY BAIL GIVEN TO ALLEGED


ACCUSED SHOULD BE CANCELLED OR NOT?

II. WHETHER THE DYING DECLARATION SUBMITTED BY THE DECEASED


CAN BE SOLELY RELIABLE?

MEMORIAL ON BEHALF OF RESPONDENT Page 9


-NATIONAL MOOT COURT COMPETITION, 2019-

SUMMARY OF ARGUMENTS

I. WHETHER THE ANTICIPATORY BAIL GIVEN TO ALLEGED


ACCUSED SHOULD BE CANCELLED OR NOT?

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.

II. WHETHER PRADEEP ANDHIS FAMILY WERE DEMANDING


FOR DOWRY AND TORTURING PREETI?

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

MEMORIAL ON BEHALF OF RESPONDENT Page 10


-NATIONAL MOOT COURT COMPETITION, 2019-

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.

MEMORIAL ON BEHALF OF RESPONDENT Page 11


-NATIONAL MOOT COURT COMPETITION, 2019-

ARGUMENTS ADVANCED

I. ANTICIPATORY BAIL GIVEN TO ALLEGED ACCUSED


SHOULD BE CANCELLED OR NOT.

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

MEMORIAL ON BEHALF OF RESPONDENT Page 12


-NATIONAL MOOT COURT COMPETITION, 2019-

mother-in-law, father-in-law, husband and the younger brother of the


father-in-law of the deceased-Laxmi.

They are accused of having committed offences punishable under Sections


498A, 304-B read with Section 34 of the Indian Penal Code, 1860 and
Sections 3 and 4 of the Dowry Prohibition Act, 1961.
4. In the case Balchand Jain’s2 case the observations regarding the nature of

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.

5. In Gurbaksh Singh Sibbia3, the Constitution Bench was called upon to


consider correctness or otherwise of principles laid down by the Full Bench
of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of
Punjab. The Full Bench of the High Court summarized the law relating to
anticipatory bail as reflected in Section 438 of the Code and laid down
eight principles which were to be kept in view while exercising
discretionary power to grant anticipatory bail.

Section 438 – Direction for grant of bail to person apprehending arrest


Where any person has reason to believe that he may be arrested on accusation of
having committed a non-bailable offence, he may apply to the High Court or the

MEMORIAL ON BEHALF OF RESPONDENT Page 13


-NATIONAL MOOT COURT COMPETITION, 2019-

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,

after taking into consideration, inter-alia, the following factors, namely-

 the nature and gravity of the accusation;

 the antecedents of the applicant including the fact as to whether he has


previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence;

 the possibility of the applicant to flee from justice;

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

MEMORIAL ON BEHALF OF RESPONDENT Page 14


-NATIONAL MOOT COURT COMPETITION, 2019-

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

MEMORIAL ON BEHALF OF RESPONDENT Page 15


-NATIONAL MOOT COURT COMPETITION, 2019-

When it relates to cause of death. —When the statement is made by a


person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death,in cases in which the cause of that
person's death comes into question. Such statements are relevant whether
the person who made them was or was not, at the time when they were
made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

II. PRADEEP AND HIS FAMILY WERE NOT DEMANDING FOR


DOWRY AND WERE NOT TORTURING PREETI .

1. It is humbly submitted before Hon’ble HC that the FIR lodged by the


Yogesh Kumar against Pradeep and his family was not completely
investigated by the police.

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

MEMORIAL ON BEHALF OF RESPONDENT Page 16


-NATIONAL MOOT COURT COMPETITION, 2019-

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

MEMORIAL ON BEHALF OF RESPONDENT Page 17


-NATIONAL MOOT COURT COMPETITION, 2019-

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

 Sections 3 and 4 of the Dowry Prohibition Act, 1961.

 Section 304-B IPC

Section 498A in The Indian Penal Code

498A. Husband or relative of husband of a woman subjecting her to cruelty.—


Whoever, being the husband or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine. Explanation—For the
purpose of this section, “cruelty” means—

(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.

MEMORIAL ON BEHALF OF RESPONDENT Page 18


-NATIONAL MOOT COURT COMPETITION, 2019-

Sec.34 IPC

Acts done by several persons in furtherance of common intention.—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.

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

MEMORIAL ON BEHALF OF RESPONDENT Page 19


-NATIONAL MOOT COURT COMPETITION, 2019-

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.

Another thing, which is to be kept in mind and is necessary is to establish the


offence of Section 498A IPC to prove the charges under Section 304B IPC.
Discussion made above shows that the Petitioner side has failed to lead
sufficient evidence to prove the guilt of the respondent under Section 498A
IPC, whichtantamount to not proving the commission of offence under Section
304B IPC earlier.

MEMORIAL ON BEHALF OF RESPONDENT Page 20


-NATIONAL MOOT COURT COMPETITION, 2019-

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.

Section 113B of the Indian Evidence Act reads as under:

“ Presumption as to dowry death— When the question is whether a person has


committed the dowry death of a woman and it is shown that soon before her
death such woman has been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry, the Court shall presume that
such person had caused the dowrydeath.”

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

MEMORIAL ON BEHALF OF RESPONDENT Page 21


-NATIONAL MOOT COURT COMPETITION, 2019-

Evidence Act.From no stretch of imagination, the evidence led by the court in


the present case could culminate into conviction of the alleged accused under
Section 304-B read with 34 IPC.

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.

Petitioners are falsely prosecuting the Respondents. Therefore, in light of the


above discussion and material on record clearly shows that in the present case
the petitioner’s story paid heavy reliance on unreliable evidence, discrepancy in
statements. Moreover, the accused is falsely being framed by the prosecution
which created a large cloud of reasonable doubt which shall only be considered
as a false allegation against the accused. The judgment and order of conviction
passed by the Session Court was based upon proper appreciation of evidence,
the circumstances found established by court in the instant case have been
unnecessarily doubted.

MEMORIAL ON BEHALF OF RESPONDENT Page 22


-NATIONAL MOOT COURT COMPETITION, 2019-

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/-

DATE: - COUNSELS FOR THE PETITIONER

MEMORIAL ON BEHALF OF RESPONDENT Page 23

Вам также может понравиться