1

TEAM CODE:

BEFORE THE HONBLE

COURT OF SESSIONS
DURG

CASE NUMBER: _____/2014

STATE OF XANADU
(PROSECUTION)
VS.
MANOHAR & RAHUL
(DEFENCE)

FOR OFFENCES CHARGED UNDER THE SECTIONS 302, 465 r/w 34, 120B and 109 OF
THE INDIAN PENAL CODE, 1860 & SECTIONS 66 & 66C OF THE INFORMATION
TECHNOLOGY ACT, 2000 ( AS AMENDED BY THE IT AMENDMENT ACT, 2008)

MEMORIAL FOR THE DEFENCE

Contents
LIST OF ABBREVIATIONS................................................................................................................3
INDEX OF AUTHORITIES..................................................................................................................5
BOOKS AND COMMENTARIES REFERRED...............................................................................5
CASES CITED..................................................................................................................................7
ACT, RULES AND INSTRUCTIONS..............................................................................................9
STATEMENT OF JURISDICTION....................................................................................................10
STATEMENT OF FACTS...................................................................................................................11
STATEMENT OF CHARGES.............................................................................................................12
SUMMARY OF ARGUMENTS.........................................................................................................13
ARGUMENTS ADVANCED..............................................................................................................15
ISSUE.1. MANOHAR AND RAHUL ARE NOT CULPABLE UNDER SECTION 66 AND
SECTION 66C OF THE INFORMATION TECHNOLOGY ACT (IT ACT), 2000........................15
ISSUE.2.

WHETHER MANO IS LIABLE FOR THE MURDER OF KARAN?........................19

ISSUE.3.

WHETHER THE PRESCRIPTION HAS BEEN FORGED?......................................21

ISSUE.4.

WHETHER MANO AND RAHUL ARE LIABLE FOR CRIMINAL CONSPIRACY?

24

ISSUE.5. WHETHER MANO AND RAHUL HAD A COMMON INTENTION TO COMMIT

THE CRIMES.................................................................................................................................26
ISSUE.6.

WHETHER RAHUL IS LIABLE FOR ABETMENT.................................................28

PRAYER.............................................................................................................................................30

LIST OF ABBREVIATIONS
&
A.P.
AIR
All.
Art.
Bom.
Cal.
Co.
Corp.
Cri.
Cri. L.J./ Cr L.J.
Cri.
CrPC
Del.
Dr.
Ed. / Edn.
Etc.

And
Andhra Pradesh
All India Reporter
Allahabad
Article
Bombay
Calcutta
Company
Corporation
Criminal
Criminal Law Journal
Criminal
Code of Criminal Procedure
Delhi
Doctor
Edition
Et cetera

Evidence Act

Indian Evidence Act, 1872

Guj.
HC
Honble
IPC
Kar.
Ker
Ltd.
M. P.
Mad.
No.
NOC
Ors.
p.
pp.
Punj.
Pvt.
Raj.
SC

Gujarat
High Court
Honorable
Indian Penal Code, 1860
Karnataka
Kerala
Limited
Madhya Pradesh
Madras
Number
Notes on cases
Others
Page
Pages
Punjab
Private
Rajasthan
Supreme Court

SCC
SCR
Sec.
T.N
U.P.
US/USA

Supreme Court Cases

Supreme Court Reports
Section
Tamil Nadu
Uttar Pradesh
United States of America

v
Vol.

Versus
Volume

INDEX OF AUTHORITIES
BOOKS AND COMMENTARIES REFERRED
1. Dr. Umadethan, Principles and practice of forensic medicine, 1st Edn. 2008, Swamy
Law House, Kochi.
2. Bernard Knight, Lawyers Guide to Forensic Medicine, 2nd Edn. 1998, Cavendish
Publishing Ltd., London.
3. C J Vyas, Determination of Death, 1993, Macmillan India Ltd.
4. B S Nabar, Forensic Science in Crime Investigation, 3rd Edn. Reprint 2008, Asia Law
House, Hyderabad.
5. Parikhs Textbook of Medical Jurisprudence and Toxicology, 6th Edn. Reprint 2004,
Medical Publications, Bombay.
6. Jaspal Singh J., Indian Penal Code, 1st Edn. 1998, AIR Publication, Nagpur.
7. B R Sharma, Forensic Science in Criminal Investigation and Trials, 4th Edn. 2003,
Universal Law Publishing Co. Pvt. Ltd.
8. Modis Medical Jurisprudence and Toxicology, 23rd Edn., LexisNexis Butterworths.
9. Textbook of Forensic Medicine and Toxicology, 14th Edn. Reprint 2007, Paras
Publishing, Hyderabad.
10. Ratanlal and Dhirajlals Law of Crimes, Vol I, 25th Edn. Reprint 2004, Bharat Law
House, New Delhi.
11. Ratanlal and Dhirajlals Law of Crimes, Vol II, 25th Edn. Reprint 2004, Bharat Law
House, New Delhi.
12. Basus Code of Criminal procedure, Vol I, 10th Edn. 2007, Ashoka Law House, New
Delhi.
13. C D Field, Expert Evidence, 4th Edn. Reprint 2009, Delhi Law House.
14. R A Nelsons Indian Penal Code, 9th Edn. 2003, LexisNexis Butterworths.
15. Forensic Science in Investigation of a crime, Padmashri Dr. S Subramanian, 1st Edn.
2007, S Gogia and Company, Hyderabad.
16. Justice V V Raghavan, Law of Crimes, 5th Edn. Reprint 2001, India Law House, New
Delhi.
17. S M A Qadri, Ahmad Siddiques Criminology, 5th Edn. Reprint 2007, Eastern book
Company.
18. Ratanlal and Dhirajlal , The Indian Penal Code, 29th Edn. 2002, Wadhwa Nagpur.

19. B R Sharma, Scientific Criminal Investigation, 2006 Edn., Universal Law Publishing
Company.
20. Sarkar on Criminal Procedure, 8th Edn. Reprint 2004, India Law House.
21. S V Joga Rao, Law of Evidence, 17th Edn. 2001, Butterworths, New Delhi.
22. Ratanlal and Dhirajlal, Law of Evidence, 21st Edn. Reprint 2005, Wadhwa and
Company, Nagpur.
23. P S A Pillai, Criminal Law, 9th Edn. 2000, Butterworths, New Delhi.
24. Rodney D Ryder, Guide to Cyber Laws, 2nd Edn. 2003, Wadhwa Nagpur.
25. Justice Yatindra Singh, Cyber Laws, 3rd Edn. Reprint 2008, Universal Law Publishing
Company.
26. Cyber Law Text and Cases, 2nd Edn. 2004, Thomson South-Western West.
27. R P Kathuria, Supreme Court on Criminal Law, 3rd Edn. 1984, Kathurias Publication.
28. Dr. Gupta and Agarwal, Information Technology Law and Practice, 1st Edn. 2009,
Premier Publishing Company .
29. Dr. (Sir) Hari Singh Gour, Penal Law of India, 11th Edn. in 4 volumes Reprint 2004,
Law Publishers (India) Pvt. Ltd.
30. J C Smith, Smith and Hogan Criminal Law Cases and Materials, 8th Edn. 2002,
LexisNexis Butterworths.
31. Basus Indian Penal Code (Law of Crimes), Vol I, 9th Edn. Reprint 2004, Ashoka Law
House.
32. Cases and Materials on Code of Criminal Procedure, 1973, 2nd Edn. 1982, Eastern
Book Company.
33. Criminal Manual 2005, Universal Law Publishing Company.
34. Sudipto Sarkar and B R Manohar, Sarkars Law of Evidence, Vol II, 16th Edn. Reprint
2008, Wadhwa and Company, Nagpur.
35. Dr. K N Chandrasekharan Pillai, R V Kelkars Criminal Procedure, 5th Edn. 2008,
Eastern Book Company.
36. Sarkars Commentary on the Law of Evidence, Vol I, 2nd Edn. Reprint 2008, Dwivedi
Publishing Company.
37. C. Gringas, To be great is to be misunderstood: the Computer Misuse Act,
1990(1997) 3 Computer and Telecommunication Law Review.

CASES CITED
1. Jawala Ram (1895) PR No. 12 of 1895.
2. Amiruddin Salebhoy AIR 1923 Bom 44
3. Ashish Bathan v. State of MP, AIR 2002 SC 3206
4. Bhagat Ram v.State of Punjab, AIR 1954 SC 621
5. Binder Munda v. State of Orissa, 1992 Cr LJ 3508
6. Bindu Patel v. The State of Madhya Pradesh, 2002 AIR SCW 2035
7. Charan Singh v. State of UP, AIR 1967 SC 520
8. Chari R R AIR 1959 All 149
9. Chunku AIR 1931 All 258
10. Deonandan Mishra v. State of Bihar. 1955 AIR 801, 1955 SCR (2) 570
11. Dharam Pal v. State of Haryana, AIR 1978 SC 1492
12. Director of Public Prosecutors v. Doot, (1973) 1 All ER 940
13. DPP v. Bignell, [1998] 1 Cr App R
14. E. K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066
15. Emperor v. Shridhar Nana, (1905) 2 Cri LJ 585
16. EWHC Admin 476, [4].
17. Feda Hossein (1881) 10 CLR 184
18. Goswami Dr S L AIR 1979 SC 437
19. Harpal Singh v. Devinder Singh AIR1997 SC 2914
20. Intel Corps v. Hamidi, 7/P3d 296[Cal 2003]
21. Jagannath Mishra v. State of Orissa, 1974 Cut LT 1253
22. Karthik Sahu v. State, 1994 Cr LJ 102 (Ori)
23. Kehar Singh v. State (Delhi Admn.), AIR 1989 SC 1883
24. Krishnalal Naskar v. State, 1982 Cr LJ 1305 (Cal)
25. KS Narayan v. S. Gopinath, 1982 Cr LJ 1611 (Mad)
26. La Aung (1906) 12 Burma LR 70
27. Mohanan Kani v. State of Kerala, (1993) Cur Cri R 702 (DB) (Ker)
28. Mohd. Azad v. State of West Bengal, (2009) 3 SCC (Cri) 1082 SC
29. Mohd. Usman Mohd. Usman Shaikh v. State of Maharashtra, AIR 2011 SC 277.
30. Mulcahy v. The Queen, (1868) LR HL 306
31. N.A. Subrahmania Aiyar v. Queen Empress, (1900) 10 MLJ 147
32. Pandurang v. State of Hyderabad, AIR 1955 SC 216
33. Parimal Chatterji AIR 1932 Cal 760
34. Riasat Ali (1881) 7 Cal 352, 355
35. Kotamraju Venkatrayadu (1905) 28 Mad 90, 95 (FB)
36. Prem Narain AIR 1957 All 177
37. Ram Kumar 1998 Cri LJ 952 (MP)
38. Rameshwar Daga v. State of West Bengal, AIR 1965 Cal 38
39. Richard (1811) Russ & Ry 193
40. Samuel Holey (1915) 11 Cr App R 248
41. Shiva Sahai v. State of UP, 1990 Cr LJ (NOC) 15
42. Shri Ram v. State of UP, AIR 1975 SC 175
43. Shrukantiah Ramayya Munipalli v. State of Bombay, AIR 1995 SC 287
44. State (Delhi Administration) v. Gulzarilal, AIR 1979 SC 1382
45. Sudarsan Behara AIR 1927 Pat 87
46. Sudarshan Ramchandra Shelke v. Mr. PN Mule
47. Sulaiman v. King, AIR 1941 Rangoon 301
48. Vijaya Shankar v. State of MP, 1989 Cr LJ NOC 151 (MP)

49. Vijnder v. State of Delhi (1997) 6 SCC 171.

50. Vimla v. Delhi Administration AIR 1963 SC 1572

ACT, RULES AND INSTRUCTIONS

1.
2.
3.
4.

The Indian Penal Code, 1860

The Criminal Procedure Code, 1973
The Indian Evidence Act, 1872
The Computer Misuse Act, 1998

STATEMENT OF JURISDICTION

The defendants, Manohar & Rahul Gulati, hereby submits their response to the memorandum
filed by the prosecution filed under S. 26 (a) (ii) read with schedule I & S. 226 of the code of
criminal procedure 1973 before this Honble Sessions Court charging them under S.302, S.
465 r/w S. 34, S. 120B & S. 109 of the Indian Penal Code, 1860 and S. 66 & S. 66C of the
Information Technology Act, 2000 (as amended by the IT Amendment Act, 2008). This
Memorandum sets forth the grounds for Defence.

10

STATEMENT OF FACTS

Manohar lived with his uncle Karan, after losing his parents, he was intelligent and
got admission in TMC College in 2011. There, He befriended Rahul, who was a tech
freak, and became habitual of borrowing money from him. Rahul once decrypted

Karans online banking password by using a device and transferred money.

Karan was obese and having other ailments too. On May 21, 2014 when he was ill, he
informed Manohar about 2 Crore insurance policy that was taken for his (Manohars)

benefit. He also gave permission to transfer money in case of emergency.

Devika (Karans wife) didnt pay Manohars College fee when Karan was ill, this led
to an altercation when manohar inquired about this. The next day Karan asked
Manohar to transfer some money to his account for college fee. Manohar transferred

2.5 Lakhs.
The next day Manohar visited Karan, Suddenly Karan started coughing heavily and
complained of chest pain. Dr. Choudhry was not in town and unreachable. Manohar
wrote name of medicine Angispan in liquid form and asked Raghav to get it and he
administered it. Karan was quite for about half an hour. Suddenly he developed fits

and seizers and regardless of Manohars attempt to retrieve him, he passed away.
Dr. Chaudhary said though the medicine as such was harmless, but the its

combination with other medicines could be fatal. if proper care wasnt taken.
While arranging belongings of karan, Devika found the insurance policy of 2 Crores
in Manohars name and got awfully suspicious of Manohars actions. She
immediately called the police and informed about her suspicion of the circumstances
leading to Karans death. The police filed the final report before the Magistrates
Court who took cognizance of the report and therefore committed the case to the
Court of sessions in Durg, Xanadu.

11

STATEMENT OF CHARGES

Manohar and Rahul Gulati has been charged under Section 302, 120B, 465 r/w 34, 109 of
the Indian Penal Code, 1860 and Section 66 and 66C of IT Act 2000, for Crimes of Murder,
Forgery, Conspiracy, Abetment and Hacking.

12

SUMMARY OF ARGUMENTS
1. WHETHER MANOHAR AND RAHUL ARE CULPABLE UNDER SECTION 66
AND SECTION 66C OF THE INFORMATION TECHNOLOGY ACT, 2000?
It is reverently submitted in front of the honourable court that Manohar and Rahul are
innocent of the alleged charges under Section 66 and Section 66C of the Information
Technology Act, 2000. Their access cannot be termed as unauthorised as they had the
sanction of Karan to use his computer and his Laptop. Also, Manohar was permitted by
Karan to withdraw any necessary amount during an emergency and therefore it can also be
established that either Manohar knew the password or he had the knowledge which would
allow him to trace the password.
2. WHETHER MANO IS LIABLE FOR THE MURDER OF KARAN?
It is humbly submitted by the defense that Manohar is not liable for the murder of Karan, as
in the case of the defense, if it can be proved that even one of the elements that constitute the
crime of murder has not been successfully proved by the prosecution, then the accused cannot
be held criminally liable for that act. The prosecution has failed to prove both actus Reus and
mens Reus which is associated with the criminal offence murder and is solely relying on
circumstantial evidence. The Prosecution has thus fore not been able to attach guilt to the
accused without any reasonable doubt which should lead to the acquittal of the two accused.
3. WHETHER THE PRESCRIPTION HAS BEEN FORGED?
It is most humbly submitted in front of the court that the document was neither presented
dishonestly nor fraudulently by the accused. Manohar fund himself in a predicament where
his own uncle was dying in front of his eyes and only tried to his absolute best to save his
life. There was no scope of deception relating to the act as the very medicine was sold

13

without any prescription. No criminal act or intention could be derived from his actions and
therefore the charges against them should be set aside.
4. WHETHER

MANO

AND

RAHUL

ARE

LIABLE

FOR

CRIMINAL

CONSPIRACY?
The defense submits that no offense under S.120B of the IPC was committed as there was no
prior meeting of the minds or agreement between the two accused persons (4.1) that would
constitute a criminal conspiracy under S. 120A. It is clear from the prosecutions case that
there is a more than reasonable doubt of innocence. The prosecution has relied on a joke that
the accused persons cracked on the uncles expense. They have been unable to prove malice
behind such a statement.
5. WHETHER MANO AND RAHUL HAD A COMMON INTENTION TO COMMIT
THE CRIMES ?
It is submitted that even if the crimes in question were to be proved beyond a reasonable
doubt by the prosecution, they would not classify as being done in the furtherance of the
common intention of both Rahul and Manohar. The case of the prosecution has left many a
hole. Not only has the prosecution been able to prove the actual commission of the offense,
they have also not been able to prove that such offense was committed as part of a plan.
6. WHETHER RAHUL IS LIABLE FOR ABETMENT?
A person is said to instigate another to an act, when he actively suggests or simulates him to
the act by the any means or language, direct, or indirect, whether it takes the form of express
solicitation, or of hints, insinuation or encouragement. For abetment by conspiracy mere
agreement is not enough. It is clear that Rahuls references to Manohars possibility of being
rich were merely meant as a joke with no intention to goad Manohar into committing the
crime. Furthermore, as the prosecution has been unable to conclusively prove the commission

14

of any particular offense or that a conspiracy to commit illegal acts was present, Rahul is not
liable for abetment by conspiracy.

15

ARGUMENTS ADVANCED
ISSUE.1.

MANOHAR AND RAHUL ARE NOT CULPABLE UNDER

SECTION

66

AND

SECTION

66C

OF

THE

INFORMATION

TECHNOLOGY ACT (IT ACT), 2000.

It is most humbly submitted by the defence that Manohar and Rahul are not liable under
Section 66 and Section 66c under the IT Act, and such charges against them should be set
aside at face value. Though there is no mention of such words in these sections, these sections
are synonyms of imposing liability for hacking and identity theft respectively. There is no
question of any crime being committed on the aforesaid grounds in the present case as the
requirements of the said sections arent fulfilled by their acts.
There are two acts which will be scrutinized to find out the culpability under the said sections
of IT Act. Firstly, the act of inserting a device called key logger to track and extract password
from Karans personal computer and then using the password for transferring money into
Manohars account on multiple occasions. Secondly, the act of Manohar extracting the
password of Karans bank account from his Laptop and then using it to transferring the sum
of 2.5 Lakhs into his account. The two acts will be referred to as Act 1 and Act 2 hereafter for
the matter of convenience.
Section 66 imposes criminal liability on a person who commits any crime under Section 43 of
the said Act, but is done dishonestly or fraudulently. Under section 43 of the Information
Technology Act, civil liability is imposed on an individual who without permission of the
owner or anyone in charge of a computer (a) accesses or secures access to such computer, (b)
extracts any data, (g) provides access to any person to facilitate access to a computer,
computer system or network in contravention to the provision of the Act.

16

Section 66C imposes punishment for identity theft on any person who fraudulently and
dishonestly makes use of electric signature, password or any other unique identification
feature of any other person. The meaning and the application under the said two sections is
stated to the same as of in Section 24 and Section 25 of Indian Penal Code. The need to prove
guilt, beyond reasonable doubt is an established legal principle in Indian law which the
prosecution is clearly not able to establish.1 It would be herein proved that the act of Manohar
and Rahul did not satisfy these elements which are mentioned in the sections and therefore be
acquitted of the aforesaid charges.
1.1.

The actions of Manohar and Rahul in furtherance of Act 1 could be deemed to be

Criminal Acts under Section 66 and 66c of the Information Technology Act, 2000.

It being a criminal offence, mens rea is essential requirement for the commission of this. The
requisite mens rea is specifically mentioned in the Section itself which require dishonest or
fraudulent action, which means, with the intention to deceive or cause injury and with the
intention to cause wrongful gain to oneself or wrongful loss to another. No mental element
can be established for the specific crime that is in contention, as Manohar already had the
permission of Karan to withdraw money from his account. With respect to Crimes related to
cyber trespass in US law too, persons cannot be charged for such offences unless the accused
had the awareness or mens rea of committing a criminal act.2
The wordings of Section 43 seem to clearly run parallel to the Sections of the computer
misuse statute in England. The word permission could be read in reference to words such as
Access and authorisation in the Computer misuse Act, 1990.

1 Bhagat Ram v.State of Punjab, AIR 1954 SC 621

2 Intel Corps v. Hamidi, 7/P3d 296[Cal 2003]

17

In the present case Manohar was having an implied access to the computer by considering
that Manohar had been using Karans computer on multiple occasions. There are no questions
of any liability arising, where the access to the very computer was granted to a person. 3
Manohar already has the permission or the authorisation for using the computer and
therefore there could be no grounds for holding him liable under section 66 of the Act. 4
Assuming but not contending that Manohar and Rahul did hack into Karans computer to get
his password, it would anyways be assumed that Manohar already had access to Karans
password as he was told to withdraw money if needed in times of need. The authorisation for
the use of Karans password was already delivered by Karan to Manohar.
In cases of circumstantial evidence, it needs to be proved beyond probability that the act is
done by the accused and no other person could have committed those acts. 5 Key logger being
present in Karans computer is no conclusive proof that Manohar and Rahul are the ones who
inserted the device. There could be more than one set of circumstances which could lead to
the key logger being found in the computer and it could not be proved beyond measure that
they were the ones who inserted it which should in itself acquit the accuse in itself. 6 If two
views are possible, one against the accused and the other favouring, the ones favouring the
accused shall be taken. The Court must guard against the danger of allowing conjecture or
suspicion to take the place of legal proof. 7 There should be no chain of conclusions consistent

3 DPP v. Bignell, [1998] 1 Cr App R

4 EWHC Admin 476, [4].
5 Deonandan Mishra v. State of Bihar. 1955 AIR 801, 1955 SCR (2) 570
6 Ashish Bathan v. State of MP, AIR 2002 SC 3206
7 Charan Singh v. State of UP, AIR 1967 SC 520

18

with the innocence o the accused.8 Even if there is some liability of the accused, it would be
under Section 43 of the IT Act which would bring civil liability on the accused and not a
criminal one.9
It is further contended that the evidential requirements in the present case arent fully
satisfied. It is further contended that Confessions of a co-accused is no evidence and therefore
no reliability could be put on Rahuls statement in front of the investigation officer. 10 Further,
very little or no evidential value could be set on Raghavs statement as his relations with
Manohar were strained.11 The statements of police findings attaching blame to the accused as
weapon of the crime or any other device which had been used to commit a crime being found
in the accusers home is no conclusive proof of guilt of the accused.12 It is inadmissible in the
court and should be set aside. Court should reach the conclusion after hearing both the sides.13
Therefore, the prosecution has failed to prove both mens rea and actus reus beyond
reasonable doubt which is requisite to commit an offence under either Section 66 or Section
66C of the IT Act.
1.2.

The actions of Manohar in furtherance of Act 2 could be deemed to be Criminal

Acts under Section 66 and 66c of the Information Technology Act, 2000.

8 Ashish Bathan v. State of M.P. AIR 2002 SC 3206

9 Emphasis BPO fraud case, 2005
10 Kashmira Singh v. Sate of MP, (1952) SCR 526
11 Mohd. Usman Mohd. Usman Shaikh v. State of Maharashtra, AIR 2011 SC 277.
12 Binder Munda v. State of Orissa, 1992 Cr LJ 3508
13 Vijnder v. State of Delhi (1997) 6 SCC 171.

19

The fact that Karan himself asked Karan to transfer money to his account clearly establishes
the authorisation given by Karan to him for the very act. The fact that Karan dozed off is
absolutely irrelevant in the present circumstances as the authority for transferring money to
Manohars Laptop was granted and therefore all acts in furtherance of that access had resided
with Manohar. Manohar, at all times, had the standing right to withdraw money from Karans
account in case of an emergency and therefore any such transaction would be a legitimate
transaction and not fall under Section 66C. Also, it has already been contended that it is
highly unlikely that he was having knowledge of password or of the where-about. Therefore
such right off access of the folder in Karans computer existed from the very beginning.
ISSUE.2.

WHETHER MANO IS LIABLE FOR THE MURDER OF

KARAN?
It is humbly submitted by the defense that Manohar is not liable for the murder of Karan. It is
contended that in the case of the defense, if it can be proved that even one of the elements
that constitute the crime of murder has not been successfully proved by the prosecution, then
the accused cannot be held criminally liable for that act. Furthermore, the circumstantial
evidence must always be complete and conclusive and must be read as a whole and it should
indicate the guilt of the accused with certainty 14. Therefore, when the prosecution puts forth a
case based solely on circumstantial evidence, the facts need not only be consistent with the
guilt of the accused but also leave no reasonable doubt of his innocence 15. Cl (2) of S.300
requires for an offense to be proved that the offender have the intent to cause such bodily
injury (2.1) coupled with the knowledge of special circumstances of the victim (2.2) that such
a bodily injury was likely to cause the death of the victim 16. Lastly, it is contended that there
was no bodily injury at all caused to Karan by Manohar (2.3).
14Karthik Sahu v. State, 1994 Cr LJ 102 (Ori)
15Shiva Sahai v. State of UP, 1990 Cr LJ (NOC) 15

20

2.1.

MANO DID NOT HAVE THE INTENT TO CAUSE BODILY INJURY.

It is submitted that Manohar did not have the intention of causing bodily harm on Karan.
Manos acts reflect something done in good faith to prevent other harm, within the meaning
of S.81 of the IPC. Such an act was also done for the deceaseds benefit under S.88 of the
IPC. Manohar only jumped into action when Karans existing health problems activated and
was causing him discomfort. Furthermore, his attempt to call the physician, Dr. Choudhary is
evidence of Manos intent to save his uncle rather than kill him. Manohar also ensured that
Karan was taken to the hospital when his condition worsened. Therefore, From Manos
actions, one can only see an intention to save Karan rather than one to kill him.
2.2.

MANOHAR DID NOT HAVE SPECIAL KNOWLEDGE OF KARANs

AILMENTS

It is evident from the facts gathered that Karan did not like for anyone to remind him to take
his medicines or even to help him take them. Furthermore, the medicines were kept in the
cabinet in Karans room. Therefore, Manohar would not have had access to the medicines to
gather the special knowledge of Karans ailments.
2.3.

MANOHAR HAD NOT CAUSED ANY BODILY INJURY TO KARAN

It is contended that the police have arbitrarily charged the defendants with the murder of
Karan without exploring the other possibilities. The forensic and post mortem reports are
contradictory as to the cause of death with the post mortem report concluding that the cause
of death was a drug cross reaction/ overdose and the forensic report that the cause of death
was an air embolism. It is important to note that the prosecutions case lies in the fact that
Manohar had the knowledge of what he was doing and therefore that the mere fact that he did

16Mohanan Kani v. State of Kerala, (1993) Cur Cri R 702 (DB) (Ker)

21

such an act would indicate malice and the requisite intention to constitute murder. Therefore,
the prosecution has relied on the post mortem. They have however not addressed the opinion
given in the forensic report. Therefore, if it were proved that the death was actually caused
due to an air embolism, then due to a lack of proof on the regard of such the requisite
intention under section 300 of the IPC, there would be a reasonable doubt regarding the role
of the accused persons. The Court in State (Delhi Administration) v. Gulzarilal17 has stated
that when the medical evidence of both sides is balanced, the benefit of the doubt is to go to
the accused. Furthermore, when the cause of death cannot be conclusively ascertained, a
conviction for murder by poisoning cannot be sustained18.
Lastly, one of the drugs taken by Karan every day was Acamprosate that is used to treat
alcoholism. One of the side effects of the same however, is a suicidal tendency. There is also
proof that Karan was self medicating by taking numerous anti depressants and even pain
killers. Also, instances of his telling Manohar that he was not going to live for long and
therefore that he had taken care of Manos needs after Karans death and his acute alcoholism
despite his deteriorating health brings forth a reasonable assumption of suicidal tendencies
which the prosecution has not looked into.
Therefore, it is submitted by the defense that the case of the prosecution has not been proved
beyond a reasonable doubt and therefore, Manohar should not be convicted of murder.
Furthermore, when the case of an accused is so inextricably related to that of the other, the
acquittal of one would entail the acquittal of the other 19. Therefore, Rahul cannot be held
liable for Karans murder either under S.34 or S.120B of the IPC.
17State (Delhi Administration) v. Gulzarilal, AIR 1979 SC 1382
18Emperor v. Shridhar Nana, (1905) 2 Cri LJ 585
19Vijaya Shankar v. State of MP, 1989 Cr LJ NOC 151 (MP)

22

ISSUE.3.

WHETHER THE PRESCRIPTION HAS BEEN FORGED?

It is humbly submitted that the act done by Manohar does not constitute forgery Sec. 463 of
IPC, the document should have also been false (3.1) and made dishonestly or fraudulently
(3.2) by the accused with the intent (3.3) a) to cause damage or injury to i) the public, or ii)
any people; b) to cause any person to enter into an express or implied contract; c) To commit
fraud or that fraud20needs to be proved to constitute the offense.
3.1.

THE DOCUMENT SHOULD BE FALSE

In order for the offense of forgery to be constituted, the document involved must be false.
However, if the false document is incomplete in such a material way as no one will be
deceived; there will be no conviction for forgery.21Falsity consists in the document, or part of
a document, being signed or sealed with the name or seal of a person who did not in fact sign
or seal it.22It is essential that false document, when made, must either appear on its face to be,
or be in fact, one which, if true, would possess some legal validity, or in other words must be
legally capable of effecting the fraud intended. 23 In this case his writing on the prescription
was merely a mistake made in the heat of the moment. Legally the prescription was not
authentic and it cause no deception as a pharmacist can differentiate the forged document by
relying on the good pharmacy guidelines.24 (there were no signature.) this bring this
document out of the ambit of S. 465.

20 Goswami Dr S L AIR 1979 SC 437

21Richard (1811) Russ & Ry 193
22Per Garth, CJ in Riasat Ali (1881) 7 Cal 352, 355
232 Bishop 503; Jawala Ram (1895) PR No. 12 of 1895.
24 Good Pharmacy Guidelines, Indian Pharmaceutical Association, 2002

23

3.2.

THE

FAKE

DOCUMENT

WAS

MADE

FRAUDULENTLY

AND

DISHONESTLY
Where there is reliance on causing of injury under section 463 and on the element of
dishonestly under section 464 proofs of injury is necessary. But where fraud is the element
relied upon for application of both the sections, it is sufficient to prove that the accused
wanted to secure advantage to him but not also that he intended to cause injury to another. 25
In this case, the knowledge that a signature of the doctor is necessary and the subsequent lack
thereof of the same is proof that the document was not made dishonestly or fraudulently.
3.3.

THE INTENT REQUIREMENT TO SATISFY THE OFFENSE OF FORGERY

HAS NOT BEEN SATISFIED

When a false document is made, with intent to cause damage or injury to the public or to
any person, it is not sufficient to prove the knowledge of accused in making the document,
but it must be proved that it was his intention that it should injure another. 26 It is immaterial
whether, injury or fraud is actually caused or not. Presence of intention is sufficient.27
In order for the offense of fraud to be proved, actual deceiving or intent to deceive ends to be
proved. Furthermore, an actual injury or a possible or intent to injure is required. The test to
derive the answer for the same is to understand whether the author of the deceit has derived
any advantage from the fraud or if he could have derived the same.

25Chari R R AIR 1959 All 149

26Feda Hossein (1881) 10 CLR 184
27Chunku AIR 1931 All 258

24

The expression defraud involves two elements, namely, deceit and injury to the person
deceived. A dishonest or fraudulent intent is a necessary ingredient of this offence.28 The
offence of forgery is complete if a document, false in fact, is made with intent to commit a
fraud, although it may not have been made with any of the other intents specified in section
46329.From the intention that the false document should deceive others into a belief that it is
genuine it may generally be inferred that there was an intention to damage or injure. 30 Intent
to defraud may be inferred from the wilful use of a forged instrument to support genuine
claim.31
ISSUE.4.

WHETHER

MANO

AND

RAHUL

ARE

LIABLE

FOR

CRIMINAL CONSPIRACY?
The defense submits that no offense under S.120B of the IPC was committed as there was no
prior meeting of the minds or agreement between the two accused (4.1) that would constitute
a criminal conspiracy under S. 120A. Furthermore, even if there were to be such an
agreement, the circumstances at the time of offence being committed would be such that it
was not done in furtherance to the common intention or agreement of the accused (4.2).
It is essential here to note that when the evidence is only circumstantial, it must be such as
would not only be consistent with the guilt of the accused, but also inconsistent with any
reasonable hypothesis of his innocence32. Also, the court in the K. S. Narayanan case 33 as well

28Sudarsan Behara AIR 1927 Pat 87

29Per Sir Arnold White, CJ, in Kotamraju Venkatrayadu (1905) 28 Mad 90, 95 (FB)
30M & M 416
31Samuel Holey (1915) 11 Cr App R 248
32Rameshwar Daga v. State of West Bengal, AIR 1965 Cal 38

25

as the Krishnalal Naskar case34 has held that although there was no requirement for concrete
evidence of a conspiracy, it is necessary that such a conspiracy charge contain particulars of
the names of the place or places where it was hatched, the persons hatching it, how it was
hatched and for what purpose it was hatched. The prosecutions case highlights little, if at all,
about the particulars of the conspiracy, barring the name of the accused persons and further
no mala-fide intention of the accused could be deciphered from his actions or words in the
present fact circumstances.
4.1.

THERE WAS NO PRIOR AGREEMENT BETWEEN THE ACCUSED WITH

REGARD TO THE COMMISSION OF ANY CRIME

According to S.10 of the Evidence Act, the first condition that needs to be satisfied so as for
anything said, written or done by the conspirators to be admissible in proving consort is to
prove a prima facie case of conspiracy which should show an appearance of coherence. 35 The
innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict36.
Also, even if the agreement were to be proved, it would continue only as long as the
agreement to affect the unlawful object continues 37. Lastly, there must be a meeting of minds
resulting in an ultimate decision taken by the conspirators regarding the commission of an
offense38.
33KS Narayan v. S. Gopinath, 1982 Cr LJ 1611 (Mad)
34Krishnalal Naskar v. State, 1982 Cr LJ 1305 (Cal)
35Kehar Singh v. State (Delhi Admn.), AIR 1989 SC 1883
36E. K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066
37Director of Public Prosecutors v. Doot, (1973) 1 All ER 940
38Jagannath Mishra v. State of Orissa, 1974 Cut LT 1253

26

Therefore, as there was no proof of prior consort between the accused persons prior to the
commission of the said offense of hacking, even if the prosecution were indeed to prove such
an offense, the actual commission of hacking would be the first prima facie evidence of a
conspiracy. Therefore, anything done, said or written after the said act of hacking would only
be admissible as evidence of criminal conspiracy, and not the hacking as an act in it.
Assuming but no contending that there was indeed an agreement beforehand to commit an
offense of hacking by the accused persons and such an agreement were reasonably proved,
the agreement would cease to exist once the act of hacking were completed as the common
object, which would be to hack Karans online banking password would be completed. The
prosecution however has not provided any proof of any new agreement between the accused
to commit the offenses of forgery and murder.
Also, assuming but not contending that the offenses of murder and forgery were indeed
committed, they circumstances for the same arose all of a sudden and there was no
opportunity for Manohar to enter into an agreement for the same. The prosecution has not
proved a common object that the murder of Karan would satisfy as the hacking of Karans
account would suffice to pay back Rahul for the money that Manohar owed him.
Lastly, assuming but not contending that Manohar is actually guilty of the offense of
forgery, , such an act would be done in his own benefit and not in furtherance or reference to
an agreement between the accused persons to fulfill their common object.
ISSUE.5.

WHETHER

MANO

AND

RAHUL

HAD

COMMON

INTENTION TO COMMIT THE CRIMES

It is submitted that even if the crimes in question were to be proved beyond a reasonable
doubt by the prosecution, they would not classify as being done in the furtherance of the
common intention of both Rahul and Manohar. For S.34 to be proved to be applicable in a

27

particular case, there should be a pre-planned illegal act done by one or more persons (5.1) in
furtherance of the common intention of all those persons to commit the act (5.2).
It is essential here to note that the essence of S.34 of the IPC is that the accused person be
physically present at the scene of occurrence and must participate in the offense in some way
or the other at the time of it commission39.
5.1.

THERE WAS NO PRE-ARRANGED PLAN TO COMMIT A CRIMINAL ACT

It is firstly contended that since the definition of necessitates the act to be a result of a prearranged plan40; the absence of the same in this case prevents the application of S.34. The
prosecution is unable to prove definitely or at all that there was indeed a pre-arranged plan
between the accused persons to commit such an offense. These offenses, even if they were
committed, were done so in the spur of the moment and therefore there would've been no
time to come up with a pre-arranged plan with regards to the particulars of the commission of
the offense.
The prosecution has relied on the Rahuls joke about Karans death to charge him with
murder read with S.34. Assuming but not contending that there was indeed an exhortation on
Rahuls behalf asking Manohar to kill Karan, the principle used in Harpal Singh v. Devinder
Singh41 is to be referred to wherein the Court has laid down that a mere exhortation to do an
act need not necessarily show an intention. Not only that, knowledge of a likely result cannot
also be construed to be an interest to bring out that result 42. It is submitted that the
39Shrukantiah Ramayya Munipalli v. State of Bombay, AIR 1995 SC 287
40Pandurang$ v. State of Hyderabad, AIR 1955 SC 216
41Harpal Singh v. Devinder Singh AIR1997 SC 2914
42Sulaiman v. King, AIR 1941 Rangoon 301

28

prosecution is unable to prove a pre-arranged plan and a meeting of minds between the
accused and provide any evidence in this regard.
THE ACTS WERE NOT IN FURTHERANCE OF THE COMMON INTENTION
The defense humbly submits that the acts were not in furtherance of the common intention of
the two accused persons. The prosecution has not proved any sort of communication
whatsoever between the accused persons to prove the existence of even prior knowledge with
regard to the death of Karan. They has relied on a joke to claim that the murder of Karan was
part of a pre-arranged plan and in furtherance of the common intention of the accused.
It is true that no concrete evidence is required to prove a common intention between two
people to commit an act. It is however key here to understand that such evidence must be
such that it does not leave any room for doubt against such an intention 43. The case of the
prosecution has left many a hole. Not only has the prosecution been able to prove the actual
commission of the offense, they have also not been able to prove that such offense was
committed as part of a plan.
It is humbly submitted that due to the lack of evidence on the prosecution's part, it cannot be
conclusively proved that there was any illegal act committed by one or more persons in
furtherance of the common intention of all those. Therefore, S.34 shall not be applicable.
ISSUE.6.

WHETHER RAHUL IS LIABLE FOR ABETMENT

Section 107 states that a person who intentionally instigates a person to commit an illegal act
or abets a conspiracy is liable for the offense of abetment. A person is said to instigate
another to an act, when he actively suggests or simulates him to the act by the any means or
language, direct, or indirect, whether it takes the form of express solicitation, or of hints,

43Dharam Pal v. State of Haryana, AIR 1978 SC 1492

29

insinuation or encouragement.44 The word instigate means to goad or urge forward or to

provoke, incite, urge or encourage doing an act.45 In this case there is no such incidence of
instigation, Rahul just gave a true statement that if his uncle dies one day naturally he will
become rich. Moreover, there has to be a reasonable certainty in regard to the meaning of the
words used by the inciter in order to judge whether or not there was an incitement, but it is
not necessary in law to prove the actual words used for the incitement, 46 words are uncertain
here so interpretation should not be done on mere suspicion. Every case is dependent on its
own facts and circumstances.47 Abetment depends upon the intention of the person who abets,
and not upon the act, which is actually done by the person whom he abets. 48 In this case there
was no intention of Rahul to instigate Manohar for any criminal act.
For abetment by conspiracy mere agreement is not enough, an act or illegal omission must
take place in pursuance of the conspiracy and in order to the doing of the thing conspired
for.49 When once the conspiracy has advanced to such a point that acts in furtherance of it
have been done by any member of the conspiracy, the offence is complete.50 Mere proof that
the crime charged could not have been committed without the interposition of the alleged

44Amiruddin Salebhoy AIR 1923 Bom 44

45Parimal Chatterji AIR 1932 Cal 760
46Prem Narain AIR 1957 All 177
47Ram Kumar 1998 Cri LJ 952 (MP)
48La Aung (1906) 12 Burma LR 70
49Mulcahy v. The Queen, (1868) LR HL 306
50N.A. Subrahmania Aiyar v. Queen Empress, ( 1900) 10 MLJ 147

30

abettor is not enough compliance with the requirements of Section 107 and intention of the
accused is of prime importance.51
Abetment involves a mental process of instigating a person in doing of a thing 52 and cutting
of jokes at occasions does not constitute the offense of abetment by instigation.53 Therefore, it
is clear that Rahuls reference to Menorahs possibility of being rich was merely meant as a
joke with no intention to goad Manohar into committing the crime. Furthermore, as the
prosecution has been unable to conclusively prove the commission of any particular offense
or that a conspiracy to commit illegal acts was present, Rahul is not liable for abetment by
conspiracy.

51Shri Ram v. State of UP, AIR 1975 SC 175

52Bindu Patel v. The State of Madhya Pradesh, 2002 AIR SCW 2035
53Sudarshan Ramchandra Shelke v. Mr. PN Mule

31

PRAYER

Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities
cited; this Honble Court may be pleased to:
Find that
A. The deceased, Mr. Karan was not murdered
B. The accused Mr. Manohar Lal and Mr. Rahul Gulati have not committed the offences
under the sections 302, 465 r/w 34, 120B and 109 of the Indian Penal Code, 1860 &
sections 66 & 66c of the Information Technology Act, 2000 ( as amended by the IT
Amendment Act, 2008).
And pass any other order that it may deem fit in the ends of justice, equity, and good
conscience. All of which is respectfully submitted.

Place:
Date:

S/d_________________
(Counsel on behalf of the Defence)