Prosecution Mml 114 ( Lawoctopus Task )

IST MMU NATIONAL MOOT COURT COMPETITION, 2016

P-MML114 -

BEFORE THE HON’BLE SESSIONS COURT

IN Case No. SC of 2016

IN THE MATTER OF

STATE

...PROSECUTION

V. RAHUL

...DEFENSE

MEMORANDUM ON BEHALF OF THE PROSECUTION


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TABLE OF CONTENTS

TABLE OF CONTENTS

2

LIST OF ABBREVIATIONS

4

INDEX OF AUTHORITIES

5

STATEMENT OF JURISDICTION

11

STATEMENT OF FACTS

12

ISSUES RAISED

13

SUMMARY OF ARGUMENTS

14

ARGUMENTS ADVANCED ISSUE 1: WHETHER THE ACCUSED IS LIABLE TO BE CONVICTED FOR MURDER UNDER SECTION 302 OF IPC?

15

1.1 THAT THE ACCUSED IS GUILTY OF COMMITTING MURDER

15

1.2 MENS REA TO COMMIT MURDER WAS PRESENT

16

1.3 ACTUS REUS TO COMMIT MURDER WAS PRESENT

17

1.4 CIRCUMSTANTIAL EVIDENCE IS RELIABLE

19

1.4.1. POST MORTEM REPORT

21

1.4.2 PLEA OF ALIBI

22

1.4.3 LAST SEEN THEORY

23

1.5 THAT IT WAS A MURDER AND NOT SUICIDE MEMORANDUM FOR THE PROSECUTION

23 Page 2


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ISSUE 2: WHETHER THE ACCUSED HAS ABETTED THE SUICIDE OF THE DECEASED UNDER SECTION 306 OF IPC?

26

2.1 CHARGES UNDER BOTH SEC 302 AND 306 IPC

26

2.2 THAT THE ACCUSED IS GUILTY OF ABETTING THE DECEASED’S SUICIDE

27

2.3 THAT THERE IS ENOUGH EVIDENCE ON RECORD TO PROVE THAT THE DECEASED COMMITTED SUICIDE 2.4 THAT THE ACCUSED INSTIGATED THE DECEASED TO COMMIT SUICIDE

28 29

ISSUE 3: WHETHER THE ACCUSED HAS CAUSED MISCARRIAGE AND VOLUNTARY HURT?

34

3.1 THAT THE ACCUSED HAS CAUSED MISCARRIAGE

34

3.2 THAT THE ACCUSED HAS CAUSED VOLUNTARY HURT

35

PRAYER

36

MEMORANDUM FOR THE PROSECUTION

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LIST OF ABBREVIATIONS

& ¶ AIR All ALR Anr. Art. Edn. Hon’ble i.e. ILR LW Ltd. Mad M.P. MLJ No Pvt. SC SCC SCR U/S U.P. v. Viz. Vol. www

And Paragraph All India Reporter Allahabad Allahabad Law Reports Another Article Edition Honourable That is Indian Law Reports Law Weekly Limited Madras Madhya Pradesh Madras Law Journal Number Private Supreme Court Supreme Court Cases Supreme Court Reports Under section Uttar Pradesh Versus Namely Volume World Wide Web


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INDEX OF AUTHORITIES CASES CITED

S.NO 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

CASES CITED State of Madhya Pradesh v. Shrideen Chhatri Prasad Suryawanshi, Jetha Ram v. State of Rajasthan, Kailash Baburao Pandit v. State of Maharashtra State of U.P. v. Dr. R.P. Mittal Vithal Tukaram More v. State of Maharashtra Kartik Sahu v. State State of Maharashtra v. Vilas Pandurang Patil Thangaraj v. State by Inspector of Police Prithviraj v. State of Rajasthan Bodh Raj v. State of J&K Dhananjoy Chatterjee v. State of W.B. Sukhram v. State of Maharashtra Peria Rajendran v. State Anant v. State of Bombay Laxman Naik v. State of Orissa Janar Lal Das v. State of Orissa A. Jayaram and Anr. v. State of AP, Mahmood v. State of UP Basu Harijan v. State of Orissa; Pratap Tigga v. State of Bihar State of West Bengal v. Orilal Jaiswal Kunduru Dharua v. State Sheo Govind Bin v. State of Bihar Kehar Singh v. State (Delhi Administration) Govinda Reddy v. State of Mysore Deonandan Mishra v. State of Bihar Rajan Johnsonbhai Christy v. State of Gujarat Alamgir v. State (NCT, Delhi) Reddy Sampath Kumar v. State of A.P Bakshish Singh v. State of Punjab Reddy Sampath Kumar v. State of A.P., Kumaravel v. State State of H.P. v. Diwana Omanakuttan v. State of Kerala Sharad Birdichand Sarda v. State of Maharashtra, Ashok Kumar Chatterjee v. State of M.P. Earabhadrappa v. State of Karnataka MEMORANDUM FOR THE PROSECUTION

CITATION 2012 CrLJ 2106(MP) 2012 CrLJ 2459(Raj) 2011 CrLJ 4044(Bom). AIR 1992 SC 2045 (2002) 7 SCC 20 1994 CrLJ 102 (Ori) 1999 CrLJ 1062 (Bom) 1994 CrLJ NOC 16(Mad) 2004 CrLJ 2190 (Raj) AIR 2002 SC 3164 (1994) 2 SCC 220, 229 (2007) 7 SCC 502, 511 2007 CrLJ 1242 AIR 1960 SC 500 1995 CrLJ 2692 1991 (3) SCC 27 AIR 1995 SC 2128 AIR 1976 SC 69 2003 CrLJ 2270 2004 CrLJ NOC 86(Jhar) AIR 1994 SC 1418 2002 CrLJ 1757 (Ori). 1985 BBCJ 632 AIR 1988 SC 1883 AIR 1960 SC 29 (1955) 2 SCR 570 1997 CrLJ 3702(Guj) AIR 2003 SC 282 (2005) 7 SCC 603 AIR 1971 SC 2016 AIR 2005 SC 3478 2009 CrLJ 262 1995 CrLJ 3002 (hp) 2000 CrLJ 4893 (Ker) 1984 CrLJ 1738 1989 CrLJ 2124 1983 CrLJ 846 Page 5


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38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59..

State of A.P. v. I.B.S.P. Rao Gade Lakshmi Mangraju v. State of A.P Charan Singh v. State of U.P. State of U.P. v. Sukhbasi Hukam Singh v. State of Rajasthan, Mohmood v. U.P Hanumant Govind Nargundkar v. State of M.P Kedarnath Bajoria v. State of West Bengal Kutubal Yadev v. State of Bihar Manak Lal v. Dr. Premchand Ramdas v. State of Maharashtra, Pandu Dhondu v. State of Maharashtra Krishnan Nair v. State of Kerala C.P. Fernandes v. Union Territory of Goa Piyaio v. State, Raghav Prapanna v. State of U.P. M.G. Agarwal v. State of Maharashtra Naunidh v. State of U.P. Sanwat Khan vs State of Rajasthan Ramashraya vs State of Madhya Pradesh Settu vs State of Tamil Nadu Dayanand v. State of Haryana

AIR 1970 SC 648 2001 CrLJ 3317 (SC) AIR 1967 SC 520 AIR 1985 SC 1224 AIR 1977 SC 1063 AIR 1976 SC 69 AIR 1952 SC 343 AIR 1954 SC 660 AIR 1954 SC 720 AIR 1957 SC 425 AIR 1977 SC 1164 (1968) 2 SC WR 363 ILR (1959) Ker 1094 AIR 1977 SC 135 1958 CrLJ 762 AIR 1963 SC 74 AIR 1963 SC 200 AIR 1982 SC 1299 AIR 1956 SC 54 AIR 2001 SC 1129 2006 Cri LJ 3889 (3893) AIR 2008 SC 1823

60.

AIR 1982 PH 1

61.

Commissioner of Income Tax v Patranu Dass Raja Ram Beri, State of Maharashtra v Meyer Hans George

AIR 1965 SC 722

62.

State v. Dinakar Bandu

(1951) 3 Pepsu LR 635

63.

Santosh v. State of Madhya Pradesh

1975 Cri LJ 602 (SC)

64. 65. 66. 67. 68. 69. 70. 71. 72.

Son Lal v State of Uttar Pradesh Chhotka v State of WB State v Dinakar Bandu Bakhtawar vs State of Haryana State of Punjab v Sucha Singh Mulakh Raj v. Satish Kumar State of Madhya Pradesh v. Digvijay Singh Naseem Ahmed v. Delhi Administration Sharad Birdhich and Sarda v. State of Maharashtra,

AIR 1978 SC 1142 AIR 1958 Cal 482 (1969) 72 Bom LR 905 AIR 1979 SC 1006 AIR 2003 SC 1471 AIR 1992 SC 1175 1981 Cri. LJ 1278 (SC) AIR 1974 SC 691 AIR 1984 SC 1622.

73. 74. 75. 76. 77. 78. 79.

State of UP v Ashok Kumar Srivastava, Bakshish Singh v State of Punjab, V. Vijaykumar vs State of Kerala Asokan vs State Nemichand v. State of Rajasthan Ravinder Singh v. Govt of NCT Delhi Sanwat Khan vs State of Rajasthan AIR 1956 SC 54

AIR 1992 SC 840 AIR 1971 SC 2016 AIR 2000 SC 586 AIR 2000 SC 3444 2015 SCC Online Raj 9391 2008 (101) DRJ 61 (DB) AIR 1956 SC 54


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80. 81.

Ramashraya vs State of Madhya Pradesh Vaman Jaidev Raval v. State of Goa

82. 83.

Munshi Prasad v. State of Bihar State of Haryana v. Ram Singh,

AIR 2001 SC 1129 2007 CrLJ 431(NOC) (Bom) (2002) 1 SCC 351 (2002) 2 SCC 426

84. 85. 86. 87.

Subhash Chand v. State of H.P. Radha Kant Yadav v. State of Jharkhand Kehar Singh v. State (Delhi Administration) Yusuf S.K. v. State

1995 CrLJ 3460 2003 CrLJ NOC 13(Jhar) AIR 1988 SC 1883 AIR 1954 Cal 258

88. 89. 90. 91.

State v. Sashibhushan State of Haryana v. Sher Singh Dalel Singh v. Jag Mohan Bihar State of U.P. v. Sughar Singh

(1963) 1 CrLJ 550(Ori) AIR 1981 SC 1021 1981 CrLJ 667(Del) AIR 1978 SC 191

92. 93. 94. 95.

Chandrika Prasad Singh v. State of Bihar D.B. Deshmukh v. State Ramakant Rai v. Madan Rai Yaduram v. State

AIR 1972 SC 109 AIR 1970 Bom 438 Cr LJ 2004 36 1972 CrLJ 1464(J&K)

96. 97. 98. 99. 100.

Sarat Chandra v. Emperor Parbhoo v. Emperor Amir Hossain v. State of Tripura State v. Murugan, Rajendra Singh v. State of U.P.

AIR 1934 Cal 719 AIR 1941 All 402 1998 CrLJ 4315 (Gau) 2002 CrLJ 670 (Mad) (2007) 7 SCC 378

101.

Gurcharan Singh v. State of Punjab

AIR 1956 SC 460

102. 103. 104. 105. 106 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120.

Narendra Singh v. State of M.P. State of U.P. v. Snghar Singh Satyovir v. State,; Bindeshwari Singh v. State Sarat Chandra v. Emperor Uda alias Suda v. The State of Rajasthan Vikas v. State of Rajasthan Ravindra Shantaram Sawant v. State of Maharashtra Bhayani Luhana Radhabai vs State of Gujarat Surinder Kumar vs State (Delhi Administration) Bhupinder Singh vs State of Punjab Subedar Tewari vs State of U.P State of U.P. vs Narendra Nath Tewari Prabhudayal vs State of Maharashtra Surender vs State of Haryana State of Tamil Nadu vs P. Muniappan Sharad Birdhichand Sarda vs State of Maharashtra State of West Bengal vs Sampat Lal R. Puthunainar Alhithan v. P.H. Pandari

(2004) 10 SCC 699 AIR 1978 SC 191 AIR 1958 All 746 AIR 1958 Pat 12 AIR 1934 Cal 719 2001 CrLJ NOC 28(Raj) (2002) 6 SCC 728 AIR 2000 SC 2461 1977 SCC (Cr) 181 AIR 1987 SC 692 AIR 1988 SC 1011 AIR 1989 SC 733 AIR 1989 SC 733 AIR 1993 SC 2164 2007 Cri LJ 779 (782) AIR 1998 SC 504 AIR 1984 SC 1622 AIR 1985 SC 195 AIR 1996 SC 1599


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121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162.

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Charan Singh v. State of U.P. Virendra Kumar vs State of U.P Dalbir Singh vs State of U.P K Prema Rao v. Yadla Srinivasa Rao Hira Lal v. State (Govt of NCT), Delhi Kaliyaperumal v. State of Tamil Nadu Lakhjit Singh v. State of Punjab Bimla Devi v. State of Jammu & Kashmir Bindyan Pramanik v. The State Birendra Kumar v. State of U.P. Ramesh Kumar vs State of Punjab State of Punjab v. Iqbal Singh Kishori Lal v. State of M.P. Sonti Rama Krishna v. Sonti Shanti Sree Satvir Singh vs State of Punjab Wazir Chand v. State of Haryana Ramesh Chandra Mondal v. State of W.B. M. Mohan v. State, Represented by the Deputy Superintendent of Police Amalendu Pal v. State of West Bengal Rakesh Kumar v. State of Chhattisgarh. Gangula Mohan Reddy v. State of Andhra Pradesh Thanu Ram v. State of M.P. S.S. Chheena v. Vijay Kumar Mahajan & Anr. Sohan Raj Sharma v. State of Haryana, Dammu Sreenu v. State of A.P. State of West Bengal v. Orilal Jaiswal Kunduru Dharua v. State Ramesh Kumar vs State of Punjab Parimal Chatterji v. Emperor Asha Shukla v. State of U.P. Goura Venkata Reddy v. State of A.P. Kishangiri Mangalgiri Goswami v. State of Gujarat, Rajib Neog v. State of Assam Gangula Mohan Reddy Vs. State of Andhra Pradesh

AIR 1967 SC 520 2007 Cri LJ 1435 (1438) AIR 2004 SC 1990 AIR 2003 SC 11 AIR 2003 SC 2865 AIR 2003 SC 3828 (1994) Supp 1 SCC 173 AIR 2009 SC 2387 2010 4 Cal LT 156 2007 Cr LJ 1435 SC AIR 1994 SC 945 AIR 1991 SC 1532 AIR 2007 SC 2457 AIR 2009 SC 923 AIR 2001 SC 2828 AIR 1989 SC 378 1991 Cr LJ 2520Cal (2011) 3 SCC 626

Didigam Bikshapathi v. State of A.P. Brij Lal v. Prem Chand Sohan Raj Sharma v. State of Haryana State of Madhya Pradesh v. Shrideen Chhatri Prasad Suryawanshi R vs Bourne People vs Gallardo Mandira Nandi v. Dilip Kumar Baruah, Bandela Daveedu v. State of A.P

AIR 2008 SC 527 AIR 1989 SC 1661 AIR 2008 SC 2108 2012 CrLJ 2106(MP)


(2010) 1 SCC 707 ,(2001) 9 SCC 618 (2010) 1 SCC 750 2010 (10)SCALE 557 (2010) 12 SCC 190 AIR 2008 SC 2108 AIR 2009 SC 3728 AIR 1994 SC 1418 2002 CrLJ 1757 (Ori) AIR 1994 SC 945 140 Ind. Cas.787. 2002 CriLJ 2233 (2003) 12 SCC 469 (2009) 4 SCC 52 2011 CrLJ 399(Gau) 2010 Cr.L.J. 2110 (SC)

(1938) 3 All ER 615 41 Cal 2d 54 2012 CrLJ 2567(Gau) 2011 CrLJ 4257(AP)

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STATUTES REFERRED 1.

THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974)

2.

THE GENERAL CLAUSES ACT, 1897 (10 OF 1897)

3.

THE INDIAN EVIDENCE ACT, 1872 (1 OF 1872)

4.

THE INDIAN PENAL CODE, 1860 (45 OF 1860)

JOURNALS REFEERED S.NO

NAME

1.

All India Reporter

2.

Supreme Court Cases

3.

Manupatra

4.

Supreme Court Reporter

5.

CDJ Law Journal

1.

2.

BOOKS REFERRED: Batuk Lal, “Commentary on the Indian Penal Code, 1860”, Ed. R. P. Kataria and S. K. A. Naqvi, Vol-I, (Section 1 to 300), (Orient Publishing Company, 1st Edn. New Delhi) (2006-07). Dr. Hari Singh Gour, “The Penal Law of India”, Vol-I, (Section 1 to 120), (Law Publishers (India) Pvt. Ltd., 11th Edn.) (2006).

3. Field’s “Commentary on Law of Evidence”, Ed Gopal S. Chaturvedi, Vol-I & II, (Delhi Law House, 12th Edn.) (2006). 4.

Halsbury’s Laws of India, Vol-32, “Criminal Procedure – I & II”, (Lexis Nexis Butterworths, New Delhi) (2007).

5. Nelson R. A. Indian Penal Code, 10th Ed. (2008) 6.

Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

7. Princep’s Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)


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8.

Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

9.

K. D. Gaur, “Commentary on Indian Penal Code”, (Universal Law Publishing Co. Pvt. Ltd., New Delhi) (2006).

10. Ratanlal and Dhirajlal, “Commentary on the Code of Criminal Procedure”, VolI & II, (Wadhwa and Company, 18th Edn., Nagpur) (2006). 11.

Ratanlal and Dhirajlal, “Law of Crimes”, Vol-I & II, Ed. Justice C. K. Thakkar, (Bharat Law House, 25th Edn., New Delhi) (Reprint 2006).

LEGAL DICTIONARIES

S.NO

NAME

1.

BLACKS LAW DICTIONARY, (WEST PUBLISHING GROUP 7TH EDN.) (1999)

2.

P. RAMANATHA AIYAR’S, “ADVANCED LAW LEXICON”, VOL-I TO IV, (WADHWA AND COMPANY, 3RD EDN., NAGPUR) (2005).

3.

STROUD’S JUDICIAL DICTIONARY OF WORDS AND PHRASES, VOL-I TO III, EDITOR DANIEL GREENBERG, (SWEET AND MAXWELL LTD., 7TH EDN., 2006, REPRINT 2008) LONDON.

4.

WHARTON’S LAW LEXICON, BY A. S. OPPE, (SWEET AND MAXWELL UNIVERSAL LAW PUBLISHING CO. PVT. LTD.,14TH EDN., 1997).


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STATEMENT OF JURISDICTION

THE PROSECUTION HAS APPROACHED THIS HON’BLE SESSIONS COURT UNDER SECTION 26 R/W SECTION 28 R/W SECTION 177 R/W SCHEDULE I OF THE CODE OF CRIMINAL PROCEDURE, 1973, WHICH READS AS HEREUNDER: S. 26. Courts by which offences are triable: Subject to the other provisions of this Code,(a) Any offence under the Indian Penal Code (45 of 1860) may be tried by(i) … (ii) The Court of Session (iii)… S. 28. Sentences which High Courts and Sessions Judges may pass: (1) … (2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High court (3) … S. 177. Ordinary place of inquiry and trial Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.


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STATEMENT OF FACTS

1. February, 2013: Priya, aged 24, completed her education in mass communication from Dehradun. was a 24 year old girl. She moved to Delhi for better career opportunities but struggled to settle there. 2. May, 2013: Priya met Rahul who was running a production agency. They both shared common interests and became close friends. 3. July,2013: Rahul helped her to find a good job and also arranged an apartment for her. Rahul was a big support for Priya in Delhi. 4. December, 2013: They decided to live in together and lived happily for two years. 5. January, 2016: Priya suspected Rahul of having physical relations with Pooja. Rahul said Pooja was her client and tried to convince Priya that he re is nothing going on between him and Pooja. Priya was mentally upset and went to depression. 6. February, 2016: Things were not going good in between Rahul and Priya. They were spotted often fighting with each other even at public places. Once Rahul said that its better to get separated and move on life but Priya was not convinced. 7. 15th May, 2016: Pooja visited their apartment and which Priya got offended. Rahul asked Pooja to leave the apartment. Priya accused Rahul for bad character. Rahul tried to convince Priya but became frustrated as things didn’t get resolved. 8. 16 May, 2016: He left the apartment when she was asleep without informing her. When she woke up, she tried calling her but he didn’t pickup her call and instead switched off his phone. She found herself lonely and alone.When he came back, he found her body hanging from the ceiling fan. He gathered some neighbours and her body was taken to hospital where she was declared brought dead. 9. According to her mother, she was two months pregnant and proposed Rahul for marriage but he refused to marry and compelled her to abort the child. The doctors have also confirmed that Priya was pregnant and had undergone abortion not long before her demise. There was no suicide note found. 10. Rahul has been arrested on the complaint of Priya's mother. The Police registered a case against Rahul u/s 302 IPC,306 IPC, 312 IPC, 313 IPC, 323 IPC and 376 IPC.


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ISSUES RAISED

ISSUE 1: WHETHER THE ACCUSED IS LIABLE TO BE CONVICTED FOR MURDER UNDER SECTION 302 OF IPC? ISSUE 2: WHETHER THE ACCUSED HAS ABETTED THE SUICIDE OF THE DECEASED UNDER SECTION 306 OF IPC? ISSUE 3: WHETHER THE ACCUSED HAS CAUSED MISCARRIAGE AND VOLUNTARY HURT?


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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE ACCUSED IS LIABLE TO BE CONVICTED FOR MURDER UNDER SECTION 302 OF IPC? Yes, Rahul is liable to be convicted for the murder of Priya. The two ingredients of murder i.e. mens rea and actus reus are fulfilled in the current case. Circumstantial evidence points out to the fact that it could not have been a case of suicide but murder itself. ISSUE 2: WHETHER THE ACCUSED HAS ABETTED THE SUICIDE OF THE DECEASED UNDER SECTION 306 OF IPC? Yes, Rahul has abetted the suicide of Priya. The deceased committed suicide to the acts of the accused and clearly both the conditions of abetment under Section 306 of IPC are satisfied. Direct involvement by the accused in such abetment or instigation is clear from the circumstantial evidence. ISSUE 3: WHETHER THE ACCUSED HAS CAUSED MISCARRIAGE AND VOLUNTARY HURT? The accused, compelled the deceased to abort her child and also inflicted voluntary hurt upon her. This is evident from the post mortem report of the deceased. So the accused should be held guilty for the said offences.


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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE ACCUSED IS LIABLE TO BE CONVICTED FOR MURDER UNDER SECTION 302 OF IPC? 1.1 THAT THE ACCUSED IS GUILTY OF COMMITTING MURDER It is humbly submitted that the accused is guilty of murder. Under S.300(2), a person is guilty of committing murder if he acts with the intention of causing such bodily injury which he knows to be likely to cause the death of the person to whom such harm is caused. It is he felonious killing of another human being with malice aforethought.1 A person is guilty of murder if he intentionally causes the death of a person 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 person2. Whether the offence falls under S. 302, I.P.C. or S. 304, I.P.C., the nature of the injuries sustained by the deceased and the circumstances under which the incident took place are relevant factors. From the nature of the injuries and the origin and genesis of the incident, it could be spelt out that all the ingredients of the offence of murder defined under S. 300, I.P.C are made out and it is not possible to bring the offence within any of the five exceptions of S. 300, I.P.C.3 Under clause third of S. 300, IPC, culpable homicide is murder, if both the following conditions are satisfied; i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury, which in the ordinary curse of nature, was sufficient to cause death, viz., that the injury found to be present the injury that was intended to be inflicted. Even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did

1

Sanwat Khan vs State of Rajasthan AIR 1956 SC 54 Sec 300, IPC 3 Ramashraya vs State of Madhya Pradesh AIR 2001 SC 1129 2


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not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to S. 300 clearly brings out this point4. In the present case, the accused compelled the deceased for aborting their child and refused to marry. The accused wanted to get rid away of the deceased while the deceased loved the accused truly and she tried to make their relationship better. Therefore, the accused planned everything and murdered the deceased. 1.2 MENS REA TO COMMIT MURDER WAS PRESENT In the absence of any circumstances to show that injury was caused accidentally or unintentionally, it is presumed that there was intention to cause the inflicted injury. 5 Mens rea is considered as guilty intention6, which is proved or inferred from the acts of the accused7. In the present case, there is no doubt that the death of deceased is non-natural death. It cannot be accidental or intentional also. This indicates that the accused has some active part in the death of the deceased which makes a strong case against the accused for murder. It is presumed that every sane person intends the result that his action normally produces and if a person hits another on a vulnerable part of the body, and death occurs as a result, the intention of the accused can be no other than to take the life of the victim and the offence committed amounts to murder8. Moreover, the intention to kill is not required in every case, mere knowledge that natural and probable consequences of an act would be death will suffice for a conviction under s. 302 of IPC9. Sec 8, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or preparation for any fact in issue or relevant fact. Thus, previous threats or altercations between parties are admitted to show motive10. It is further pertinent to note that if there is motive in doing an act, then the adequacy of that motive is not in all cases necessary. Heinous offences have been committed for very slight motive.11 For the commission of the offence of murder, it is not necessary that the accused should have the intention to cause death. It is now well settled that if it is proved that the accused had the 4

Settu vs State of Tamil Nadu 2006 Cri LJ 3889 (3893) Dayanand v. State of Haryana, AIR 2008 SC 1823. 6 Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4 7 State of Maharashtra v Meyer Hans George, AIR 1965 SC 722 8 (1951) 3 Pepsu LR 635 9 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC) 10 Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482 11 State v Dinakar Bandu (1969) 72 Bom LR 905 5


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intention to inflict the injuries actually suffered by the victim and such injuries are found to be sufficient in ordinary course of nature to cause death, the ingredient of clause 3rdly of S. 300 of the I.P.C are fulfilled and the accused must be held guilty of murder punishable under S. 302 of the I.P.C.12 Arguendo, Absence of motive is irrelevant Assuming for the sake of argument that the accused had no motive, it is humbly contended that absence of motive is no ground for dismissing the case. Motive is immaterial so far as the offence is concerned, and need not be established13 as the mere existence of motive is by itself, not an incriminating circumstance and cannot take the place of a proof.14 Therefore, absence of proof of motive, does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case and is not fatal as a matter of law.15 When the circumstantial evidence on record is sufficient to prove beyond any doubt to prove that it was the accused and no one else, who intentionally caused the death of the accused then, motive of the crime need not be proved 16, as in the current case.

1.3 ACTUS REUS TO COMMIT MURDER WAS PRESENT Actus reus is any wrongful act17. It is the conduct that constitutes a particular crime.18 Every criminal act is based on actus reus and mens rea. The word "actus reus" connotes an overt act. This is a physical result of human conduct, and therefore, an event which is distinguished from the conduct which produced the result. In a murder case, it is the victim's death which is an event and, therefore, is an actus reus.19 The circumstantial evidence in a case where there is a link of causation, if established, proves that the act was committed by the person so accused.20

12

Bakhtawar vs State of Haryana AIR 1979 SC 1006 Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011) 14 State of Punjab v Sucha Singh, AIR 2003 SC 1471 15 Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175 74 16 State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC) 17 Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006) 18 Gul Mohummed vs King Emperor AIR 1947 Nag 121; Chander Bahadur Suha vs State 1978 Cr LJ 942 (Sikkim). 19 Haughton vs Smith (1973) 3 All ER 1109 20 Naseem Ahmed v. Delhi Administration, AIR 1974 SC 691; Sharad Birdhich and Sarda v. State of Maharashtra, AIR 1984 SC 1622. 13


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Bearing in mind that it is not for the prosecution to meet any and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be21, it is humbly submitted before this Hon’ble Court that the circumstantial evidence in the instant matter shows that within all human probability, the act must have been done by the accused22. PW-26 and PW-27 did not rule out the possibility of suicidal hanging altogether, but certain injuries found on the deceased being ante-mortem in nature and since hairs were seen projecting from the knot, both the witnesses who conducted the autopsy, came to the conclusion that possibly the death was homicidal. It would, thus, appear that the medical evidence was not very categorical about the homicidal nature of death.23

In a similar case, the Doctor, PW-5, who conducted the post-mortem examination, found two injuries and there was no evidence of any ligature mark around the neck. He gave the opinion that the deceased died of asphyxia due to manual strangulation (throttling) and death must have been almost instantaneous. After receipt of the post-mortem report, Ex P-4 and on completion of investigation, the investigating agency altered the case to one under Ss. 498-A and 302, I.P.C.24

It is submitted that the post mortem report suggests strangulation marks on the neck & other mild injuries, scratches and scars on the body. The phrase “other mild injuries, scratches and scars on the body” signifies that there was some physical spat between the accused and the deceased. It means that the deceased resisted the accused while he was using force. Therefore, it is established that there was actus reus. In the post mortem report, the cause of death was stated as strangulation. There is nothing given as to signify homicidal death. There is no oral or documentary evidence present to prove the actus reus. In various cases, courts have given the different meanings of strangulation25 but usage of such a general term in the post mortem does not lead to any conclusive proof26. So hence there is no clarity as to whether the death was suicidal or homicidal.

21

State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840 Bakshish Singh v State of Punjab, AIR 1971 SC 2016 23 V. Vijaykumar vs State of Kerala AIR 2000 SC 586 24 Asokan vs State AIR 2000 SC 3444: 2000 SCC (Cr) 749 25 Nemichand v. State of Rajasthan 2015 SCC Online Raj 9391; Ravinder Singh v. Govt of NCT Delhi 2008 (101) DRJ 61 (DB) 26 Ravinder Singh v. Govt of NCT Delhi 2008 (101) DRJ 61 (DB) 22


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1.4 CIRCUMSTANTIAL

EVIDENCE

PROVES

THE

MURDER

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REASONABLE DOUBT Essential ingredients to prove guilt by circumstantial evidence are: (1) Circumstances from which conclusion is drawn should be fully proved. (2) Circumstances should be conclusive. (3) All facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence of the accused. (4) Circumstances should exclude the possibility of guilt of a person other than the accused.27 The Supreme Court, in Bodh Raj v. State of J&K,28 added one more point to the above four, viz., there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These conditions being satisfied circumstantial evidence can be the sole basis for conviction. Justice Hidayatullah observed "Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt."29 When attempting to convict on circumstantial evidence alone the Court must be firmly satisfied of the following three things30: i. The circumstances from which the inference of guilt is to be drawn, must have fully been established by unimpeachable evidence beyond a shadow of doubt ii. The circumstances are of determinative tendency, unerringly pointing towards the guilt of the accused iii. The circumstances taken collectively, are incapable of explanation on any reasonable hypothesis except that of the guilt sought to be proved against him

27

State of U.P. v. Dr. R.P. Mittal, AIR 1992 SC 2045, applied in Vithal Tukaram More v. State of Maharashtra, (2002) 7 SCC 20, (para 11). Also see Kartik Sahu v. State, 1994 CrLJ 102 (para 6) (Ori); State of Maharashtra v. Vilas Pandurang Patil, 1999 CrLJ 1062, 1065 (Bom); Thangaraj v. State by Inspector of Police, 1994 CrLJ NOC 16(Mad) ; Prithviraj v. State of Rajasthan, 2004 CrLJ 2190, 2196 (paras 25 & 26) (Raj) : 2004 CrLR 598(Raj) : 2004 (2) Raj CrC 552. 28 AIR 2002 SC 3164, para 17 : (2002) 8 SCC 45. See also Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220, 229, para 7 : (2002) 8 SCC 45; Sukhram v. State of Maharashtra, (2007) 7 SCC 502, 511 (para 20); Peria Rajendran v. State, 2007 CrLJ 1242, 1245 (para 9) (Mad). 29 Anant v. State of Bombay, AIR 1960 SC 500 at page 523. See also Laxman Naik v. State of Orissa, 1995 CrLJ 2692 (para 11) : AIR 1995 SC 1387. 30 Mahmood v. State of UP AIR 1976 SC 69


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It is humbly submitted before this Hon’ble Court that evidence of the suicide has to be drawn from the post-mortem report of the victim and the mental condition of the victim. It is humbly submitted that as per Section 3 of the Indian Evidence Act, Evidence includes all documents produced for the inspection of the Court31. These documents are admissible in court as expert opinion under Section 45 of the I.E.A. It is respectfully submitted that the post mortem report submitted by the doctor conducting autopsy of the dead body is admissible in evidence even without examining the doctor in court32. The Apex Court has admitted as evidence and relied on post mortem reports in a catena of cases33. The standard of proof required to convict a person on circumstantial evidence is wellestablished by a series of decisions of the Supreme Court. According to that standard the circumstances relied upon in support of the conviction must be fully established34 and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused35 and further it must be such as to show that within all human probability the act must have been done by the accused36 and, if two views are possible on such evidence, the view pointing towards the innocence of the accused is to be adopted.37 However, this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however extravagant and fanciful it might be. Further, it is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to this guilt. Therefore, when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts each one of which re-enforces the conclusion of 31

"Evidence" means and includes-- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. 32 Basu Harijan v. State of Orissa 2003 CrLJ 2270; Pratap Tigga v. State of Bihar 2004 CrLJ NOC 86(Jhar). 33 State of West Bengal v. Orilal Jaiswal AIR 1994 SC 1418, Kunduru Dharua v. State 2002 CrLJ 1757 (Ori). 34 Govinda Reddy v. State of Mysore, AIR 1960 SC 29 35 Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570. Chain of circumstancial evidence complete, conviction for murder proper, Rajan Johnsonbhai Christy v. State of Gujarat, 1997 CrLJ 3702(Guj) ; Alamgir v. State (NCT, Delhi), AIR 2003 SC 282, (paras 10-13); Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603, 604 (para 7). 36 Bakshish Singh v. State of Punjab, AIR 1971 SC 2016. See also Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603, 604 (para 7) : AIR 2005 SC 3478; Kumaravel v. State, 2009 CrLJ 262, 266-67 (para 12.4). 37 State of H.P. v. Diwana, 1995 CrLJ 3002 (paras 10 and 11) (HP). See also Omanakuttan v. State of Kerala, 2000 CrLJ 4893 (paras 5 and 6) (Ker), relying on Earabhadrappa v. State of Karnataka, 1983 CrLJ 846 : AIR 1983 SC 446; Sharad Birdichand Sarda v. State of Maharashtra, 1984 CrLJ 1738 : AIR 1984 SC 1622 and Ashok Kumar Chatterjee v. State of M.P., 1989 CrLJ 2124 : AIR 1989 SC 1890.


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guilt.38It is the cumulative result of all the circumstances which must unerringly point to the guilt of the accused and not one circumstance by itself.39 It is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest.40

1.4.1 Post Mortem Report The post-mortem report submitted by the doctor conducting autopsy of the dead body is admissible in evidence even without examining the doctor in Court.41 However, the Bombay High Court has held that the post-mortem report or the medical certificate is not substantive evidence.42 The post-mortem report is a document which by itself is not a substantive evidence. It is the doctor's statement in Court, which has the credibility of a substantive evidence and not the report, which in normal circumstances ought to be used only for refreshing the memory of the doctor witness or to contradict whatever he might say from the witness box43, and the significance of the evidence of the doctor lies vis--vis the injuries appearing on the body of the deceased person and likely use of the weapon therefore and it would then be prosecutor's duly and obligation to have the corroborative evidence available on the record from the other prosecution witnesses.44 Mere presence of ligature mark is not sufficient to prove death by strangulation. Evidence as to the effects of violence in underlying tissues is necessary.45 Where post-mortem report and evidence of doctor shows that the death of the deceased was caused due to strangulation and that was homicidal and could not have been done by the deceased herself, it was held to be proved beyond doubt that the death was homicidal not a suicidal one.46

38

State of A.P. v. I.B.S.P. Rao, AIR 1970 SC 648. Gade Lakshmi Mangraju v. State of A.P., 2001 CrLJ 3317 (para 23) (SC) : AIR 2001 SC 2677 40 Naunidh v. State of U.P., AIR 1982 SC 1299 41 Basu Harijan v. State of Orissa, 2003 CrLJ 2270, 2272 (para 12) (Ori) : 2003 (95) Cut LT 477, Contra ; Pratap Tigga v. State of Bihar, 2004 CrLJ NOC 86(Jhar) : 2004 AIR Jhar HCR 563. 42 Vaman Jaidev Raval v. State of Goa, 2007 CrLJ 431(NOC) (Bom) 43 Munshi Prasad v. State of Bihar, (2002) 1 SCC 351 (para 6) : AIR 2001 SC 3031 : 2001 CrLJ 4708, approving Ramaswami, Re AIR 1938 Mad 336 44 State of Haryana v. Ram Singh, (2002) 2 SCC 426 (para 1) 45 Subhash Chand v. State of H.P., 1995 CrLJ 3460 (para 21) (HP). 46 Radha Kant Yadav v. State of Jharkhand, 2003 CrLJ NOC 13(Jhar) : 2003 AIR Jhar HCR 5 : 2003 (1) DMC 7 39


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The post-mortem report is an extremely relevant and important document, in cases brought under Sec.302, of the Indian Penal Code.47 The post mortem report becomes important in cases where the cause of death is to be established and is a matter of controversy48. The chain of link starts from the fact that they both fell in love. Later on, they started living in together. The accused had illicit relationship with Priya. Meanwhile, the deceased aborted their child because the accused forced her to do so. Moreover, the accused refused to marry her but she had faith in her love. When the deceased came to know about the illicit relationship, the accused got an intention to remove her from his life. On 15th May the accused came to know about the character of the accused and on 16th May, the deceased died. There was no one else in the apartment apart from the accused and the deceased. The presence of injuries on the deceased body indicates that there was use of force on her body. The above mentioned chain of link is complete and prove the guilt of the accused beyond reasonable doubt.

1.4.2 Plea of Alibi Section 103 of IEA, 1872 talks about plea of alibi and provides that it is for the accused who pleads alibi to prove it.49 Burden to prove plea of alibi is on accused pleading it.50 Burden is on the accused who is setting up defence of alibi to prove it but even so, the burden of proving the case against the accused is on the prosecution irrespective of whether or not the accused have made out plausible defence.51 Onus is on accused to substantiate plea of alibi and make it reasonably probable.52 Where the accused pleads that he was elsewhere at the time of incident, the burden to prove the same lies on him. Though burden is not as heavy as on the prosecution to prove its case 47

Sheo Govind Bin v. State of Bihar, 1985 BBCJ 632. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 49 Yusuf S.K. v. State, AIR 1954 Cal 258; State v. Sashibhushan, (1963) 1 CrLJ 550(Ori) 50 State of Haryana v. Sher Singh, AIR 1981 SC 1021; Dalel Singh v. Jag Mohan Singh, 1981 CrLJ 667(Del) ; State of U.P. v. Sughar Singh, AIR 1978 SC 191; Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109; D.B. Deshmukh v. State, AIR 1970 Bom 438; Yaduram v. State, 1972 CrLJ 1464(J&K) ; relying on Sarat Chandra v. Emperor, AIR 1934 Cal 719; Parbhoo v. Emperor, AIR 1941 All 402. Also see Amir Hossain v. State of Tripura, 1998 CrLJ 4315, at page 4323 (Gau); Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109; State v. Murugan, 2002 CrLJ 670, 673 (para 19) (Mad) : 2001 (2) Mad LW (Cri) 815; Rajendra Singh v. State of U.P., (2007) 7 SCC 378, 385-86 (para 8) : AIR 2007 SC 2786. Page 1447 51 Gurcharan Singh v. State of Punjab, AIR 1956 SC 460; Narendra Singh v. State of M.P., (2004) 10 SCC 699, 708 (para 31) 52 State of U.P. v. Snghar Singh, AIR 1978 SC 191; Chandrika v. State, AIR 1972 SC 109; Satyovir v. State, AIR 1958 All 746; Bindeshwari Singh v. State, AIR 1958 Pat 12. 48


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beyond reasonable doubt, the defence of alibi can be probabilised also. The false plea of alibi cannot destroy the prosecution case which is supported by direct and unshaken evidence of the eye-witnesses. The false plea of alibi cannot destroy the prosecution case which is supported by direct and unshaken evidence of the eye-witnesses.53 From the above authorities, it is clear that the burden is on the accused to prove that he was not present at the apartment when the deceased died. On 16th May morning , the deceased trying calling accused but the accused didn’t picked her call. After that, the accused switched off his mobile phone. The accused switched off his mobile phone so that his location cannot be traced out and used as an evidence against him. 1.4.3 Last seen evidence The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of the other persons coming in between exists.54 Last seen together evidence cannot be discarded merely on the grounds of discrepancy in the statement of the witness, who was a rustic village woman, about the day and time of the occurrence in the FIR as she could not be expected to have remembered the incident, after a lapse of four years. However, the witness reaffirmed that she last saw the deceased and the accused talking to each other sitting at the place. Her statement could be relied upon.26The deceased wife was last seen with her husband on a motorbike. It was held to be not essential for the accused to be the owner of the vehicle.55. It is submitted that the deceased was last seen together with the accused. There is a strong case against the accused as there was no one else in the apartment that morning.

53

State of Haryana v. Sher Singh, AIR 1981 SC 1021; Dalel Singh v. Jag Mohan Singh, 1981 CrLJ 667(Del) ; State of U.P. v. Sughar Singh, AIR 1978 SC 191; Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109; D.B. Deshmukh v. State, AIR 1970 Bom 438; Yaduram v. State, 1972 CrLJ 1464(J&K) ; relying on Sarat Chandra v. Emperor, AIR 1934 Cal 719; Parbhoo v. Emperor, AIR 1941 All 402. Also see Amir Hossain v. State of Tripura, 1998 CrLJ 4315, at page 4323 (Gau); Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109; State v. Murugan, 2002 CrLJ 670, 673 (para 19) (Mad) : 2001 (2) Mad LW (Cri) 815; Rajendra Singh v. State of U.P., (2007) 7 SCC 378, 385-86 (para 8) 54 Uda alias Suda v. The State of Rajasthan, 2001 CrLJ NOC 28(Raj) 55 Vikas v. State of Rajasthan, (2002) 6 SCC 728, para 13 : AIR 2002 SC 2830


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1.5 NOT A CASE OF SUICIDE BUT MURDER The post-mortem report is an extremely relevant and important document, in cases brought under Sec.302, of the Indian Penal Code.56 The post mortem report becomes important in cases where the cause of death is to be established and is a matter of controversy57. Moreover, it is not possible for the Prosecution in to explain each and every injury suffered by the deceased.58 There was no suicide note found and the injuries found on the deceased body indicates its not a suicide but murder. In Bhayani Luhana Radhabai vs State of Gujarat59, it was stated, “Mukta was at the time of her death carrying a foetus four and a half months old. This was first conception. It is difficult to believe that in this condition Mukta would ever think of committing suicide.”60 Since there is no evidence that there was any proximate cause for her to attempt to end her life on that morning so the theory of suicide is not sustainable.61 The post-mortem report giving the description of injuries found on the body of the deceased would also defy all doubts about the theory of suicide. She had contusion on the front of right leg. Abrasion on the front of the left leg just below the knee joint. Linear abrasion on the back of the right hand. Linear abrasion on the anterolateral aspect of left fore-arm in its middle. And contusion on the back of right elbow joint. These injuries, as the Courts below have observed, could have been caused while Gian Kaur resisted the poison being administered to her. Appeal was dismissed.62 It is extremely unlikely that an educated woman of this academic distinction who was prepared to face her problems and was optimistically looking forward to the future beyond her marital home would be inclined to commit suicide by burning herself. It was held that there was no question of her being broken-hearted and frustrated so as to resolve to commit suicide. The State appeal was accepted. The accused was convicted for murder.63

56

Sheo Govind Bin v. State of Bihar, 1985 BBCJ 632. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 58 Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461 59 1977 SCC (Cr) 181 60 Bhayani Luhana Radhabai vs State of Gujarat 1977 SCC (Cr) 181 61 Surinder Kumar vs State (Delhi Administration) AIR 1987 SC 692 62 Bhupinder Singh vs State of Punjab AIR 1988 SC 1011 63 Subedar Tewari vs State of U.P. and State of U.P. vs Narendra Nath Tewari AIR 1989 SC 733 57


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Sangita at the time of incident, as per the post-mortem report, was having a pregnancy of 3-4 months and this is also not in tune with the act of commission of suicide.64 A young pregnant woman having a child in the womb would not ordinarily commit suicide unless she was compelled to do so.65 The sequence of events does not lead to any inference that something happened during the night which made her commit suicide immediately.66 That constant fact of wailing and weeping is one of the important symptoms of an intention to commit suicide as mentioned by George W. Brown and Tirril Harris in their book " Social Origins of Depression"67 Normally, one would not commit suicide unless there are strong and compelling reasons for it. Thus, ordinarily there has to be a very pressing motive behind every case of suicide.68 The inference of proof of a fact in dispute, having been established, can be drawn from the given objective facts, direct or circumstantial.69 It is the say of the deceased that she was 'madly in love' with the accused. If deceased was really in love, she would not have committed suicide – her faith in her love would have restrained her from taking refusal of accused to marry, in literal sense. Further, the person in love would not express oneself by urging that the action as strong as possible should be taken against his or her beloved. Love never demands, it only gives. It is certainly doubtful that language of nature used in the suicide note would ever be used by one for the person with whom one claimed to be in love. The learned trial court has rightly raised the doubt about genuineness of the suicide.70

64

Prabhudayal vs State of Maharashtra AIR 1993 SC 2164 Surender vs State of Haryana 2007 Cri LJ 779 (782) 66 State of Tamil Nadu vs P. Muniappan AIR 1998 SC 504 67 Sharad Birdhichand Sarda vs State of Maharashtra AIR 1984 SC 1622 68 State of West Bengal vs Sampat Lal AIR 1985 SC 195 69 R. Puthunainar Alhithan v. P.H. Pandari, AIR 1996 SC 1599 (paras 7 and 8). 70 Charan Singh v. State of U.P., AIR 1967 SC 520. 65


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ISSUE 2: WHETHER THE ACCUSED HAS ABETTED THE SUICIDE OF THE DECEASED UNDER SECTION 306 OF IPC? 2.1 CHARGES UNDER BOTH SEC 302 AND 306 IPC Where the accused is charged under S. 302 IPC, he can be convicted under S. 306 for abatement of suicide if the evidence and circumstances establish offence under S. 306 IPC, even if no specific charge under S. 306 IPC has been framed.71 In the current case, the accused is also charged under both sections. Mere omission or defect in framing charges does not disable the criminal court from convicting the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure 1973 has ample provisions to meet with such situations.72 A two judge bench of the Supreme Court has held in Lakhjit Singh v. State of Punjab 73 that if a prosecution has failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the court to convict the accused of the latter offence. In Bimla Devi v. State of Jammu & Kashmir74, the accused charged under Section 302 but convicted under Section 306. In the case of Bindyan Pramanik v. The State75, the appellant faced trial in respect of both counts of charges, i.e., under Sections 306/498 IPC as well as under Sections 302/34 IP4 IPC to Section 306 IPC and was finally convicted on Sec306 IPC. But even if the position was otherwise and the appellants were not charged under Section 306 IPC and tried only under Sections 302/34 IPC there would not have been any legal bar in altering the conviction from Setion 302.76

71

Virendra Kumar vs State of U.P 2007 Cri LJ 1435 (1438) (SC); Dalbir Singh vs State of U.P AIR 2004 SC 1990 72 K Prema Rao v. Yadla Srinivasa Rao AIR 2003 SC 11; Hira Lal v. State (Govt of NCT), Delhi AIR 2003 SC 2865; Kaliyaperumal v. State of Tamil Nadu AIR 2003 SC 3828; Lakhjit Singh v. State of Punjab (1994) Supp 1 SCC 173 73 1994 Supp (1) SCC 173 74 AIR 2009 SC 2387 75 2010 4 Cal LT 156 76 Birendra Kumar v. State of U.P. 2007 Cr LJ 1435 SC


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2.2 THAT THE ACCUSED IS GUILTY OF ABETTING PRIYA’S SUICIDE It is most deferentially submitted before this Hon’ble Court that for a person to be convicted of abetment of suicide under Section 306 of the Indian Penal Code77, two essential ingredients must be established: 1. The deceased committed suicide 2. The accused abetted her in committing suicide. 3. Direct involvement by the accused in such abetment or instigation is necessary The first has already been established above. Abetment contemplated in section 306 must conform to the definition given in section 107 of the Indian Penal Code, according to which abetment can be brought about in three ways: by instigation, conspiracy or intentional aid to the deceased. Be that as it may, in a case of this nature, where a plea of suicide has been put forward, the Courts below should examine whether such a plea is altogether untenable and whether suicide is ruled out.78 The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC.79 S. 306, I.P.C. penalises abetment of suicide. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence. The person who attempts to commit suicide is guilty of the offence under S. 309, I.P.Code whereas the person who committed suicide cannot be reached at all. S. 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that suicide should necessarily have been committed. It is possible to abet the commission of suicide. But nobody would abet a mere attempt to commit suicide. It would be preposterous if law could afford to penalise an abetment to the offence of mere attempt to commit suicide. Learned Sessions Judge went wrong in convicting the appellants under under S. 116 linked with S. 306, I.P.C. The former is "abetment of offence punishable with imprisonment--if offence be not committed". But the crux of the offence under S. 306 itself is abetment. In other words, if there is no abetment, there is no question of the offence under S. 306 coming into play. It is 77

306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 78 Ramesh Kumar vs State of Punjab AIR 1994 SC 945 79 State of Punjab v. Iqbal Singh, AIR 1991 SC 1532; Surender v. State of Hayana, (2006) 12 SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC 2457; and Sonti Rama Krishna v. Sonti Shanti Sree, AIR 2009 SC 923.


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inconceivable to have abetment of an abetment. Hence, there cannot be an offence under S. 116 read with S. 306, I.P.C.80 The Supreme Court has reiterated that before anybody can be punished for abetment of suicide, it must be proved that the death in question was a suicidal death.81 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.82

Deceased committed suicide by

hanging himself because of alleged illicit relationship between his wife and the accused. Accused took the wife of deceased away from house of her brother and kept her with him for 4 days. There is definitely a proximity and nexus between the conduct and behaviour of accused and wife of deceased with that of suicide committed by the deceased.83

2.3 THAT THERE IS ENOUGH EVIDENCE ON RECORD TO PROVE THAT THE DECEASED COMMITTED SUICIDE It is humbly submitted before this Hon’ble Court that evidence of the suicide has to be drawn from the post-mortem report of the victim and the mental condition of the victim. It is humbly submitted that as per Section 3 of the Indian Evidence Act, Evidence includes all documents produced for the inspection of the Court84. These documents are admissible in court as expert opinion under Section 45 of the I.E.A. It is respectfully submitted that the post mortem report submitted by the doctor conducting autopsy of the dead body is admissible in evidence even without examining the doctor in 80

Satvir Singh vs State of Punjab AIR 2001 SC 2828 Wazir Chand v. State of Haryana, AIR 1989 SC 378 : 1989 Cr LJ 809 : (1989) 1 SCC 244. Where the charge was under s. 148/304 but was discharged and the accused persons were convicted under s. 304/107, this was held to be wrong. Section 221(2) of CrPC can be invoked only in cases of cognate offences and not distinct ones. Ramesh Chandra Mondal v. State of W.B., 1991 Cr LJ 2520Cal . 82 M. Mohan v. State, Represented by the Deputy Superintendent of Police (2011) 3 SCC 626 : 2011(3) SCALE 78 : AIR 2011 SC 1238 : 2011 0 Cri.L.J 1900; Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707; Rakesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750; Thanu Ram v. State of M.P., 2010 (10) SCALE 557 : (2010) 10 SCC 353 : (2010) 3 SCC 1502(Cri) ; S.S. Chheena v. Vijay Kumar Mahajan & Anr., (2010) 12 SCC 190 : (2010 0 AIR SCW 4938); Sohan Raj Sharma v. State of Haryana, AIR 2008 SC 2108 : (2008) 11 SCC 215. 83 Dammu Sreenu v. State of A.P., AIR 2009 SC 3728; (2009) 14 SCC 249. 84 " Evidence" means and includes-- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. 81


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court85. The Apex Court has admitted as evidence and relied on post mortem reports in a catena of cases86.

2.4 THAT THE ACCUSED INSTIGATED THE DECEASED TO COMMIT SUICIDE It is submitted before the Hon’ble Court that the accused ‘abetted’ the suicide of the deceased by instigating her to commit suicide. As per Section 14 of the I.E.A 87, facts showing the existence of a state of mind such as intention are relevant when the existence of such a state of mind is in issue or relevant. Therefore certain acts of the accused, which clearly indicate his intention to instigate the victim to commit suicide, are relevant in the present case. Abetment contemplated in section 306 must conform to the definition given in section 107 of the Indian Penal Code, according to which abetment can be brought about in three ways: by instigation, conspiracy or intentional aid to the deceased. Be that as it may, in a case of this nature, where a plea of suicide has been put forward, the Courts below should examine whether such a plea is altogether untenable and whether suicide is ruled out.88 It is humbly submitted that the law regarding offence of abetment to commit suicide is clear. A person can be said to instigate another when he incites or otherwise encourages another, directly or indirectly, to commit suicide89. The word ‘instigate’ means to goad or urge forward or provoke, incite, urge or encourage to do an act.90 Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, "instigation" may have to be inferred. A word uttered in a fit 85

Basu Harijan v. State of Orissa 2003 CrLJ 2270; Pratap Tigga v. State of Bihar 2004 CrLJ NOC 86(Jhar). State of West Bengal v. Orilal Jaiswal AIR 1994 SC 1418, Kunduru Dharua v. State 2002 CrLJ 1757 (Ori). 87 14. Facts showing existence of state of mind, or of body, of bodily feeling - Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill- will or good- will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant. 88 Ramesh Kumar vs State of Punjab AIR 1994 SC 945 89 Asha Shukla v. State of U.P. 2002 CriLJ 2233 90 Parimal Chatterji v. Emperor 140 Ind. Cas.787. 86


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of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. Thus, to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or 'urging forward'. The dictionary meaning of the word "goad" is "a thing that stimulates someone into act ion; provoke to action or reaction.....to keep irritating or annoying somebody until he reacts.91 The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do anything. The abetment may be by inaligation, conspiracy or intentional aid as provided in the three clauses of the section.92 Instigate means the active role played by a person with a view to stimulate another person to do the thing. In order to hold a person guilty of abetting it must be established that he had intentionally done something which amounted to instigating another to do a thing.93 The Supreme Court has observed in the case of Gangula Mohan Reddy Vs. State of Andhra Pradesh94, that: "20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. It is submitted that there is no instigation by the accused. There are problems in every relationship but that cannot be concluded as instigation under abetment. As to what would constitute instigation for the commission of an offence would depend upon the facts of each case. Therefore, in order to decide whether a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation.95 The Supreme Court has reiterated that before anybody can be punished for abetment of suicide, it must be proved that the death in question was a suicidal death.96 Therefore, in order to decide whether a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire 91

Chitresh Kumar Chopra v. State (Government of NCT of Delhi), AIR 2010 SC 1446; Kishangiri Mangalgiri Goswami v. State of Gujarat, (2009) 4 SCC 52 : (2009) 1 SCR 672 : AIR 2009 SC 1808 : 2009 0 Cri.L.J 1720. 92 Goura Venkata Reddy v. State of A.P., (2003) 12 SCC 469. 93 Rajib Neog v. State of Assam, 2011 CrLJ 399(Gau) . 94 2010 Cr.L.J. 2110 (Supreme Court) 95 Brij Lal vs Prem Chand AIR 1989 SC 1661 96 Wazir Chand v. State of Haryana, AIR 1989 SC 378 : 1989 Cr LJ 809 : (1989) 1 SCC 244. Where the charge was under s. 148/304 but was discharged and the accused persons were convicted under s. 304/107, this was held to be wrong. Section 221(2) of CrPC can be invoked only in cases of cognate offences and not distinct ones. Ramesh Chandra Mondal v. State of W.B., 1991 Cr LJ 2520Cal .


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evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation.97 It is humbly submitted that the law regarding offence of abetment to commit suicide is clear. A person can be said to instigate another when he incites or otherwise encourages another, directly or indirectly, to commit suicide98. The word ‘instigate’ means to goad or urge forward or provoke, incite, urge or encourage to do an act.99 It is respectfully submitted that the Supreme Court upheld conviction under section 306 of Indian Penal Code when the accused by his acts produced an atmosphere which forced the deceased to commit suicide.100 The Supreme Court in Chitresh Kumar Chopra v. State held that “Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and selfrespect. Therefore, it is impossible to lay down any strait-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.”101 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.102 In a noted case, deceased committed suicide by hanging himself because of alleged illicit relationship between his wife and the accused. Accused took the wife of deceased away from house of her brother and kept her with him for 4 days. There is definitely a proximity and nexus between the conduct and behaviour of accused and wife of deceased with that of suicide committed by the deceased.103 Mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107, IPC.104

97

Brij Lal vs Prem Chand AIR 1989 SC 1661 Asha Shukla v. State of U.P. 2002 CriLJ 2233 99 Parimal Chatterji v. Emperor 140 Ind. Cas.787. 100 State of Punjab v. Iqbal Singh AIR 1991 SC 1532. 101 Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605. 102 M. Mohan v. State, Represented by the Deputy Superintendent of Police (2011) 3 SCC 626 : 2011(3) SCALE 78 : AIR 2011 SC 1238 : 2011 0 Cri.L.J 1900; Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707; Rakesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750; Thanu Ram v. State of M.P., 2010 (10) SCALE 557 : (2010) 10 SCC 353 : (2010) 3 SCC 1502(Cri) ; S.S. Chheena v. Vijay Kumar Mahajan & Anr., (2010) 12 SCC 190 : (2010 0 AIR SCW 4938); 103 Dammu Sreenu v. State of A.P., AIR 2009 SC 3728; (2009) 14 SCC 249. 104 Sohan Raj Sharma v. State of Haryana, AIR 2008 SC 2108 : (2008) 11 SCC 215. 98


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It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.105 In Didigam Bikshapathi v. State of A.P.106 mental harassment and pressure put on the deceased were held to be amounting to instigation to commit suicide. In Brij Lal v. Prem Chand107, where the deceased stated in despair that she had enough of torment and that she preferred death to living, the acts of the accused later on were held to be instigation. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)108, Supreme Court re-iterated the legal position laid down in its earlier three judge bench judgment in the case of Ramesh Kumar v. State of Chhattisgarh, 35 and held that where the accused by his acts or continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an instigation may be inferred. In order to prove that the accused abetted commission of suicide by a person, it has to be established that:(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.109 Reflecting all of the above, it is clear that the accused instigated the deceased to commit suicide. The constant acts by the accused led the deceased into a state of frustration and depression. They kept quarrelling and one day the accused finally declared that if things are not sorted out, then, it is better for both of them to get separated and to move on in life. The 105

S. S. Chheena v. Vijay Kumar Mahajan and Another, 2010 (12) SCC 190 : 2010 AIR SCW 4938 Didigam Bikshapathi v. State of A.P. AIR 2008 SC 527; Prema Rao v. Yadla Rao AIR 2003 SC 11. 107 Brij Lal v. Prem Chand AIR 1989 SC 1661. 108 2009 (16) SCC 605 : AIR 2010 SC 1446 109 State of Madhya Pradesh v. Shrideen Chhatri Prasad Suryawanshi, 2012 CrLJ 2106(MP) ; Jetha Ram v. State of Rajasthan, 2012 CrLJ 2459(Raj) ; Kailash Baburao Pandit v. State of Maharashtra, 2011 CrLJ 4044(Bom). 106


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accused also compelled the deceased to abort and even refused to marry her. The night before the suicide, Pooja visited the apartment which led the deceased to doubt the accused more. All these instances by the accused instigated the deceased to commit suicide.


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ISSUE 3: WHETHER THE ACCUSED HAS CAUSED MISCARRIAGE AND VOLUNTARY HURT? 3.1 THAT THE ACCUSED HAS CAUSED MISCARRIAGE Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child,3shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.110 The term "miscarriage" is synonymous with "abortion".

The unborn child in the womb must not be destroyed unless the destruction of that child is for purpose of preserving the yet more precious life of the mother.111 Good faith by itself is not enough. It has to be good faith for the purpose of saving the life of the mother or the child and not otherwise. A woman had pregnancy of 24 weeks out of illicit relations and a doctor administered an injection for determination of the pregnancy but the woman died the next day without miscarriage. It was held that the act of the doctor amounted to 'voluntarily causing miscarriage' within the meaning of section 312 read with section 511, as the doctor was presumed to know the possible effects of the medicine.59 Deceased, an unmarried girl was pregnant from accused, she died while causing mis-carriage due to perforation of uterus following abortion. It is a clear case that accused was an instrumental in causing the woman to miscarry and obviously it was not done in good faith for purpose of saving life of deceased. Miscarriage was with a view to wipe out evidence of deceased being pregnant. Accused liable to be convicted under Sections 312, 315, 316 and 201 of I.P.C. 60 It is submitted that the accused compelled the deceased for abortion. The doctors have confirmed that the deceased had gone for abortion before her demise. Therefore, the accused is guilty under S.312 of IPC.

110 111

S 312 IPC R vs Bourne (1938) 3 All ER 615


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The burden is on the prosecution to prove that the procuring of the miscarriage was not necessary to save life.112There was no danger to the deceased life but the accused forced her to abort. Therefore, the accused is guilty.

3.2 THAT THE ACCUSED HAS CAUSED VOLUNTARY HURT

Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Where accused caused simple injuries to victim and not grievous injuries still accused are guilty for offence under section 323.113 Therefore in the current case, accused must be held guilty for causing hurt.

112

People vs Gallardo 41 Cal 2d 54; 52 Cal 2d 95: 48 Wash 2d 616. Mandira Nandi v. Dilip Kumar Baruah, 2012 CrLJ 2567(Gau) ; Bandela Daveedu v. State of A.P., 2011 CrLJ 4257(AP) 113


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PRAYER Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly and respectfully submitted that this Honourable Court may be pleased to: 1. Convict the accused for muder under Section 306 of IPC 2. Convict the accused for abetment of suicide under Section 306 of IPC 3. Convict the accused for causing miscarriage and voluntarily causing hurt under Sections 312 and 323 respectively.

And pass any other order that this Honourable Court may deem fit in the interests of justice, equity and good conscience.

All of which is humbly prayed, MML-114, Counsels for the Prosecution


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Prosecution Mml 114 ( Lawoctopus Task )

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