You are on page 1of 13

SEEDLING SCHOOL OF LAW AND GOVERNANCE

IN THE HONBLE COURT OF SESSION, JAIPUR

Case concerning for the

State of Rajasthan V. Karan Kumar and Ors.

Memorandum on behalf of the Petitioner

Submitted To- Mr. Dharam Pal Poonia Submitted By- Mr. Darsh Pareek (Ll.B. 3 yrs. course)

TABLE OF CONTENTS

INDEX OF AUTHORITIES............................................................................................. 3 Table of cases......................................................................................................... 3 Bhubneshwar Mandal vs The State Of Bihar ......................................................3 - Books.................................................................................................................. 3 Indian Penal Code 1860 Universal Legal Manual..................................................3 STATEMENT OF JURISDICTION................................................................................... 4 STATEMENT OF FACTS............................................................................................... 5

INDEX OF AUTHORITIES Table of cases

Anil Phukan v State of Assam 1993 AIR 1462

Bhubneshwar Mandal vs The State Of Bihar Subash S/O Sipahi Lal vs State Of U.P.
Shanker vs State Of U.P. on 29 January, 1975 Abdul Aziz vs State Of Rajasthan Niranjan Singh And Ors. vs State Of U.P. And Ors. 'Mohammada v. Emperor' 'Queen v. Lukhun Doss 'Faiz Bakhsh v. Emperor'

- Books

Indian Penal Code 1860 Universal Legal Manual Idian Penal Code 1860 S.N. Misra Criminal Procedure Code 1973 Universal Legal Manual
The Indian Penal Code - Ratanlal and Dhirajlal Indian Penal Code - S. K. Sarvaria

STATEMENT OF JURISDICTION

In the matter of schedule 1 of Cr.P.C., 1973. In the matter of section 26 of Cr.P.C., 1973 which describes Courts by which offences are triable.any offence under the Indian Penal Code (45 of 1860 ), may be tried the High Court, or the Court of Session, or any other Court by which such offence is shown in the First Schedule to be triable; any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by the High Court, or any other Court by which such offence is shown in the First Schedule to be

STATEMENT OF FACTS

That on 05.05.2001, HC. Rohit, who was posted in the PCR Chetak No.5, received information at about 10.35 PM that firing was taking place at Bhopal Nagar near a sweet shop. Accordingly, he along with other police personnel reached the said place and saw that a crowd had gathered near an STD booth where blood was splattered and some articles were lying scattered in broken condition. The STD booth belonged to one Raj Kumar of Malik Communications, who having been injured in the firing had already been removed to the hospital. That the said information was passed on to the local police station which duly recorded it in the Daily Diary of the Police Station and marked to SI Pratap who along with Constable- Karni reached the place of occurrence. On reaching the said place the police party could come to know that the injured Raj Kumar had already been declared brought dead to the hospital. That furthermore, according to the prosecution, one Salman was an eye witness to the occurrence. Accordingly, his statement was recorded in which he stated that on 05.05.2001 at about 10.20 P.M. when he was sitting outside his STD booth and sweet shop at J-200, Bhopal Nagar, he noticed a white Maruti Car stopping on the other side of the road. He further stated that two men alighted from the vehicle and entered the STD booth whereafter they started firing at his maternal uncle, Raj Kumar. According to Salman he tried to intervene and in fact had brought a Palta from the nearby sweet shop but his uncle told him to run away from the place and save his life. He further stated that blood was oozing out from the injuries suffered by his uncle and he ran towards his house No.24D shouting for help. According to him, thereafter, the assailants fled away and he had along with his younger brother Bhanu Kumar and another maternal uncle Ravi Kumar had the injured to the hospital. In his statement, Salman categorically stated that one Karan Kumar who had killed his father but who had been acquitted about a month ago was one of the assailants. The second assailant was about 25-26 years of age and was a well-built person. That on the basis of the aforesaid statement made by Salman, an FIR was lodged at Police Station Malviya Nagar. Three live cartridges cage of 0.380 bore; one empty cartridge of 0.380 bore and four lead pieces of fired bullets were seized from the scene of crime by SI Pratap. The blood-stained vest of deceased and blood stained earth etc. were also seized from the place of occurrence by the Investigating Team. That the further case of the prosecution is that on the next day, i.e. on 06.05.2001, Dr. A. Khan conducted the post-mortem on the body of the deceased in the course of which nine antemortem bullet injuries were noted and four bullets had been extracted from the body which along with one cotton underwear; one cotton vest, one pair of long pants were handed over to the Investigating Officer, SI- Pratap. The cause of death was, however, identified as the injuries
5

by sharped edged weapon. According to the prosecution on 17.12.2001, the IO- SI Pratap arrested accused Karan Kumar who was already arrested by the Panipath police in connection with some other offence under Section 25 of the Arms Act. The prosecution has alleged that Karan Kumar made a confessional statement in the instant case and also disclosed about the involvement of two other persons in the offence, i.e. one Mohinder and the other Raju. On the basis of the said statement made by accused Karan, a .30 pistol along with 3(three) .30 calibre live cartridges were recovered by the police in absence of any independent witness. Thereafter, on 10.02.2002, SI Pratap arrested Mohinder who had already been arrested on 06.02.2002 in a separate case under the Arms Act. Three sealed parcels containing the .30 calibre pistol with three 7.62mm/.30 live cartridges recovered at the instance of accused Karan, the three .380 live cartridges; one .380 cartridge cage, two bullets and two defused bullets recovered from the place of occurrence and the four bullets recovered from the dead body in the course of postmortem examination were all sent to the Forensic Science Laboratory, Chandigarh, on 04.03.2002. Thereafter, the report of one Abdul khan, Senior Scientific Officer, FSL, Chandigarh was received to the effect that the bullets had been discharged through a standard . 380 calibre firearm. But Abdul Khan was not examined as witness. On these facts, the two apprehended accused Karan and Mohinder were sent for trial. The two accused persons denied the charges levelled against them. The third accused was neither identified nor traced out at that stage. That the Learned Additional District and Sessions Judge dated 11.04.2005 charges under Sections 302 and 460 of the IPC read with Section 34 were framed against the accused in the present case. A separate charge under Section 25 of the Arms Act was also framed.

LEGAL ISSUES

That the conviction of the appellant under Sections 302 and 460 read with Section 34 of the IPC as well as under Section 25 of the Arms Act has been affirmed. That the appellant has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 read with Section 34 IPC which says Central Government Act Section 302 in The Indian Penal Code, 1860 302. Punishment for murder.-- Whoever commits murder shall be punished with death, or 1[ imprisonment for life], and shall also be liable to fine That the offence under Section 460 read with Section 34 IPC which says All persons jointly concerned in lurking house- trespass or house- breaking by night punishable where death or grievous hurt caused by one of them.-- If at the time of the committing of lurking housetrespass by night or house- breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house- trespass by night or house- breaking by night, shall be punished with 1[ imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine sentence of seven years rigorous imprisonment has been imposed.

SUMMARY OF ARGUMENTS

That the conviction of the respondent under Sections 302 and 460 read with Section 34 of the IPC as well as under Section 25 of the Arms Act has been affirmed. Insofar as the offence under the Arms Act is concerned, the accused-appellant has been sentenced to undergo rigorous imprisonment for one year. All the sentences have been directed to run concurrently. That the State has contended that inasmuch as in the present case the prosecution has succeeded in proving, beyond all reasonable doubt, that the weapon recovered at the instance of the accused-respondent from Apartment was used to fire upon the deceased. It is contended that the three bullets recovered from the spot have been fired from the said weapon. The said circumstance, according to the learned State counsel, clinches the issue beyond all reasonable doubt. It is argued that a firm conclusion with regard to the culpability of the accused can be reasonably drawn from the aforesaid circumstance proved in the present case. . Our above finding would render the conviction of the accused- respondent under Section 25 of the Arms Act wholly justified. However, insofar as the charges under Section 302 and Section 460 read with Section 34 of the IPC is concerned, there are certain other connected facts and circumstances proved by the evidence on record which will have to be weighed by us in order to determine the consequence(s) that can be attributed to the accused from the recovery of the weapon in question. That before the recovery of the .380 calibre revolver. After the recovery of the weapon said was made, the weapon itself along with the cartridges (live and empty) as well as the four bullets recovered from the place of occurrence was sent to the FSL Chandigarh and is covered by the report. This is evident from the evidence of SI- Pratap. No explanation for what appears to us to be a serious lapse on the part of the prosecution is forthcoming. The accused, as noticed hereinbefore, the was Penal charged Code not but

only under Section 302 read with Section34 of

also under Section 302 read with Section 120-B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved. The learned trial Judge himself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence, connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not
8

possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code. Consequently, we hold that while the conviction of accused-appellant under Section 25 of the Arms Act and the sentence imposed is justified, the accused-appellant is entitled to the benefit of our doubts with regard to the offences under Section 302 and section 460read with section 34 of the IPC.

STATEMENT OF ARGUMENTS
That the conviction of the respondent under Sections 302 and 460 read with Section 34 of the IPC as well as under Section 25 of the Arms Act has been affirmed. Insofar as the offence under the Arms Act is concerned, the accused-appellant has been sentenced to undergo rigorous imprisonment for one year. All the sentences have been directed to run concurrently. 1 The short case of the prosecution is that on 05.05.2001, H.C. Rohit, who was posted in the PCR, received information at about 10.35 PM that firing is taking place at Bhopal Nagar near a sweet shop. Accordingly, along with other police personnel he reached the said place and saw that a crowd had gathered near a STD booth where blood was splattered and some articles were lying scattered in broken condition. The STD booth belonged to one Raj Kumar of Malik Communications, who having been injured in the firing had already been removed to the hospital. The said information was passed on to the local police station which was duly recorded in the Daily Diary of the Police Station and marked to SI Pratap, who along with Constable- Karni reached the place of occurrence. On reaching the said place the police party could come to know that the injured Raj Kuamr had already been declared brought dead to the hospital. Further more, according to the prosecution, one Salman was an eye witness to the occurrence. Accordingly, his statement was recorded where he had stated that on 05.05.2001 at about 10.20 P.M. when he was sitting outside his STD booth and sweet shop at J-200, Bhopal Nagar, he had noticed a white Maruti Car stopping on the other side of the road. In the statement recorded by the police, Salman has stated that two men alighted from the vehicle and entered the STD booth where after they started firing at his maternal uncle, Raj Kumar. According to Salman he tried to intervene and in fact had brought a palta from his nearby sweet shop but his uncle told him to run away from the place and save his life. PW 1 had further stated that blood was oozing out from the injuries suffered by his uncle and he ran towards his house No.24D shouting for help. According to Salman, thereafter, the assailants fled away and he had along with his younger brother Bhanu Kumar and another maternal uncle Ravi Kumar had removed the injured to the hospital. In his statement, Salman had categorically stated that one Karan Kumar who had killed his father and who had been acquitted about a month ago in the case arising from the said incident was one of the assailants whereas the other/second assailant was about 25-26 years of age and was a well built person. On the basis of the aforesaid statement made by Salman, the FIR was lodged in Police Station, Malviya Nagar (hereinafter referred to as the present case) was registered. Three live cartridges cage of 0.380 bore; one empty cartridge of 0.380 bore and four lead pieces of fired bullets were seized from the place of occurrence by S.I. Pratap. The blood stained baniyan of deceased; blood stained earth etc. were also seized from the place of occurrence by the Investigating Team.

10

2. The further case of the prosecution is that on the next day, i.e. on 06.05.2001, Dr. A. Khan conducted the post-mortem on the body of the deceased in the course of which nine antemortem bullet injuries were noted and four bullets had been extracted from the body which along with one cotton underwear; one cotton vest, one pair of long pants were handed over to the Investigating Officer, SI- Pratap. The cause of death was, however, identified as the injuries by sharped edged weapon. 3. According to the prosecution on 17.12.2001, the IO- SI Pratap arrested accused Karan Kumar who was already arrested by the Panipath police in connection with some other offence under Section 25 of the Arms Act. The prosecution has alleged that Karan Kumar made a confessional statement in the instant case and also disclosed about the involvement of two other persons in the offence, i.e. one Mohinder and the other Raju. On the basis of the said statement made by accused Karan, a .30 pistol along with 3(three) .30 calibre live cartridges were recovered by the police in absence of any independent witness. Thereafter, on 10.02.2002, SI Pratap arrested Mohinder who had already been arrested on 06.02.2002 in a separate case under the Arms Act. Three sealed parcels containing the .30 calibre pistol with three 7.62mm/.30 live cartridges recovered at the instance of accused Karan, the three .380 live cartridges; one . 380 cartridge cage, two bullets and two defused bullets recovered from the place of occurrence and the four bullets recovered from the dead body in the course of post-mortem examination were all sent to the Forensic Science Laboratory, Chandigarh, on 04.03.2002. Thereafter, the report of one Abdul khan, Senior Scientific Officer, FSL, Chandigarh was received to the effect that the bullets had been discharged through a standard .380 calibre firearm. But Abdul Khan was not examined as witness. On these facts, the two apprehended accused Karan and Mohinder were sent for trial. The two accused persons denied the charges levelled against them. The third accused was neither identified nor traced out at that stage. 4. S.I. Pratap, also the IO of the case, in his deposition, as already noted, had deposed about the recovery of three live cartridges, one empty cartridge and 4 bullets ( all of 0.380 calibre) from the place of occurrence. He has also deposed about the receipt of four bullets which were extracted from the body of the deceased at the time of post-mortem. According to I.O. the cartridges and bullets recovered from the spot were sealed whereas the bullets recovered from the dead body were sealed with the seal of Forensic Science Laboratory, Chandigarh, on 04.03.2002. I.O. has also deposed with regard to the arrest of accused Karan; the disclosure statement made by him and the recovery of one pistol of .30 calibre alongwith three live cartridges. In his cross-examination, he has stated that in the course of interrogation it was revealed that the .380 calibre revolver was with the accused Karan and the .30 calibre pistol was with accused Mohinder. 5. From the evidence of it is evident that along with the .30 calibre pistol and the three .30 calibre live cartridges, the .380 cartridges(3 in No.), one .380 cartidge cage and the four bullets

11

recovered from the spot along with the four bullets recovered from the body of the deceased were sent for the examination

6. That as per the section 302 of IPC whoever commits murder shall be punished with death or life imprisonment and shall also be liable to fine the conviction can be based on the testimony of a single eye witness provided his testimony is found reliable and inspires confidence. As such can be finding in the similar case of Anil Phukan vs State Of Assam This case primarily hinges on the testimony of a single eye witness. Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then, the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of Salman.
7 In support, reliance has been placed on the judgment of this court in case of Abdul

Aziz vs State Of Rajasthan In such a case it cannot be said that any particular person committed those acts and it might be possible, as held in -- 'Mohammada v. Emperor', AIR 1936 Lah 911 (B), that all of them be liable to conviction under Section 460, I. P. C. of the cases referred to, the actual person, who while committing lurking house- trespass also caused or attempted to cause death or grievous hurt, was convicted in -- 'Queen v. Lukhun Doss, (1865) 2 WR Crl. 52 (A)' and in -- 'Faiz Bakhsh v. Emperor', 48 Cr.L.J. 269, without any discussion as to whether his case really came within that section or not.

PRAYER FOR RELIEF

It is most humbly prayed before this Honble Court, in the light of the issues raised, arguments advanced and authorities cited, the court may adjudge and declare that: That the accused is a dangerous personal and should be held liable for murder and various other crimes as committed by them.

12

The appellant has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 read with Section 34 IPC whereas for the offence under Section 460 read with Section 34 IPC sentence of seven years rigorous imprisonment has been imposed. Insofar as the offence under the Arms Act is concerned, the accusedappellant has been sentenced to undergo rigorous imprisonment for one year. All the sentences have been directed to run concurrently.

Or pass any other judgment, order or decree in the light of justice equity and good conscience.

All of which is respectfully submitted. Darsh Pareek

Counsel for Petitioner

13