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Team Code:
KSHAN 11thNATIONAL MOOT COURT COMPETITION 2016

BEFORE THE BOMBAY HIGH COURT


AT NAGPUR, MAHARASHTRA

CRIMINAL APPEAL NUMBER_________of 2016


AND
CRIMINAL CONFIRMATION __________ of 2016

RAMESH LAL
(Appellant)
v.
STATE OF MAHARASHTRA
(Respondent)

FOR OFFENCES CONVICTED UNDER:


SECTION 302, 201 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HONBLE BOMBAY HIGH COURT

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TABLE OF CONTENTS

List Of Abbrevation....................................................................................................iii
Index Of Authorities....................................................................................................v
Statement Of Jurisdiction.........................................................................................vii
Statement Of Facts...................................................................................................viii
Statement Of Charges.................................................................................................ix
Summary Of Arguments.............................................................................................x
Arguments Advanced...................................................................................................1
I.

Wheteher The Appeal Against Coviction Of The Accused Is Maintainable


1

II. Whether The Sentence Given By The Sessions Court Should Be


Confirmed.........................................................................2
III. Whether The Accused Is Guilty Of Murder U/S 302 Of The Ipc...........4
IV. Whether The Evidences Are Sufficient To Secure Conviction............15
Prayer..........................................................................................................................xii

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LIST OF ABBREVATION

A.I.R.
All E.R.
Anr.
Bom.
Bom. L.J.
Chh.
Cr. App. R.
Cr.P.C.
Cri. L.J.
Cut. L. T.
D.W.
Del.
Ed.
I.L.R.
I.P.C.
Kant.
Ker.
Mad.
Ori.
P.W.
Punj.
S.
S.C.
S.C.A.L.E.
S.C.C.
S.C.J.
Sind.
U/S

All India Reporter


All England Reporter
Another
Bombay
Bombay Law Journal
Criminal Appeal Reports
Code of Criminal Procedure
Criminal Law Journal
Defence Witness
Delhi
Edition
Indian Law Reporter
Indian Penal Code
Kerala
Madras
Orissa
Prosecution Witness
Punjab
Section
Supreme Court
Supreme Court Almanac
Supreme Court Cases
Supreme Court Journal
Sindh
Under Section

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INDEX OF AUTHORITIES
TABLE OF CASES
1. Amar Singh v. State of M.P. 1991 Cr.L.J. 1077 (MP)......................................29
2. Amarjit Singh Sohan Singh v. State, A.I.R. 1970 Punj. 279............................22
3. Anant Kumar v. State of M.P., 1993 Cr.L.J. 1499............................................25
4. Anter Singh v. State of Rajasthan A.I.R. 2004 S.C. 2865................................25
5. Bachan Singh v. State of Punjab (1980) 2 S.C.C 684......................................13
6. Baldua v. State, 2006 Cr.L.J. 1396 (Chh)........................................................24
7. Banarshi alia Panha v. State, 1997 Cr.L.J. 604 (MP).......................................29
8. Bhupendra singh v. State of Punjab, A.I.R. 1968 S.C. 1438......................11, 12
9. C. Chenga Reddy v. State of A.P., (1996) 10 S.C.C. 193.................................14
10. Chandmal v. State of Rajasthan, 1976 Cri. L.J. 679........................................17
11. Dayabhai C. Thakkar v. State of Gujarat, A.I.R. 1964 S.C. 1563....................22
12. Empress v. Khogayi, I.L.R. 2 Mad 122............................................................21
13. Govinda Reddy v. State of Mysore, A.I.R. 1960 S.C. 29.................................17
14. Haji Mohammed Iqbad v. State of Karnataka 1990 Cr.L.J. NOC 179 (Kant). 23
15. Hanumant v. State of Madhya Pradesh, A.I.R. 1952 S.C. 343........................18
16. Haris J. Mal v. State 1982 Cr.L.J. 2023 (Del)..................................................23
17. In re Arumugam, 1997 Cr.L.J. 3546 (Mad).....................................................13
18. In Re: Palani Goundan v. Unknown, A.I.R. 1920 Mad. 862............................16
19. Jumman v. State of Punjab, 1957 Cr.L.J. 586............................................10, 11
20. K. Ahmed Koya v. State of Kerela, A.I.R. 1967 Ker. 92.................................21
21. K. M. Nanavati v. State of Bombay, 1962 S.C. 605..................................19, 21

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22. Lahanappa Namaji Ghorpade v. State of Maharashtra, A.I.R. 2006 Bom.
536....................................................................................................................10
23. Masalti v. State of U.P. A.I.R. 1965 S.C. 202...................................................11
24. Mohd. Fazir Ali v. State of Assam (1991) 3 Crimes 174 (Ass).......................29
25. Motiram Chandiram v. Emperor, A.I.R. 1941 Sind. 117.................................22
26. Musheer Khan v. State of Madhya Pradesh, A.I.R. 2010 S.C. 762.................16
27. Nizam & Anr. vs. State of Rajasthan, Criminal Appeal No. 413 of 2007.......30
28. Om Prakash v. State of Haryana A.I.R. 1999 S.C. 1332..................................13
29. Padala Veera Reddy v. State of Andhra Pradesh A.I.R. 1990 S.C. 79.............28
30. Polukuri Kottiaya v. R, A.I.R. 1947 PC 67......................................................25
31. Prabhoo v. State of U.P. A.I.R. 1963 S.C. 1113...............................................26
32. R. v. Anderson, (1985) 2 All E.R. 961.............................................................15
33. R. v. White, (1910) 2 K.B. 124........................................................................15
34. Raghav Prapanna Tripathi v. State of Uttar Pradesh, A.I.R. 1963 S.C. 74......17
35. Ram Lal v. State of Haryana 1993 Cr.L.J. 1564..............................................13
36. Ramesh Bhai v. State of Gujarat, (2009) 5 S.C.C. 240....................................12
37. Ramesh Jijeba Lahane v. State Of Maharashtra, 2014 S.C.C. OnLine Bom.
1820..................................................................................................................14
38. Salveraj v. State of Tamil Nadu, (1976) 4 S.C.C. 343.....................................16
39. Sharad Birdichand Sarda v. State of Maharashtra A.I.R. 1984 S.C. 1622.......28
40. Shiva Sahai v. State of UP, 1990 Cr.L.J. (NOC) 15.........................................29
41. Siddanna Apparao Patil v. State of Maharashtra, A.I.R. 1970 S.C. 977..........10
42. State of Karnataka v. Papanaika, 2005 S.C.C (Cri.) 104.................................10
43. State of Rajasthan v. Bhup Singh, (1997) 10 S.C.C 675..................................25
44. State v. Laikhan Pradhan, A.I.R. 1956 Ori, 108...............................................20

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45. State v. Rama Shidappa, (1951) 54 Bom LR 316............................................27
46. State v. Sarungadhar Bhoi, (1972) 38 Cut. L.T. 734........................................18
47. Sujit Biswas vs. State of Assam (2013) 12 S.C.C 406.....................................24
48. Suresh Chandra Bahri v. State of Bihar, 1994 Cr.L.J. 1271.............................17
49. Surinder Pal Jain v. Delhi Administration, 1993 (3) S.C.C. 68.......................17
50. Tarseem Kaur v. Delhi Administration, 1994 (3) S.C.C. 467..........................17
51. Thabo Meli v. Queen, (1954) 1 All E.R. 373...................................................15
52. Velaudhan v. e of Kerala 1978 Cr.L.J. (NOC) 275 (Ker).................................30
53. Woolmington v. D.P.P., (1935) 25 C.R. App. R72...........................................16
54. Yuvraj Ambar Mohite v. State of Maharashtra, 2006 (10) S.C.A.L.E. 369.....30
Statutes
1. Indian Penal Code, 300 (1860)....................................................19, 20, 21, 22
Books
1. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (32nd ed.,
LexisNexis 2010).............................................................................................15
2. S. K. SARVARIA, R. A. NELSONS INDIAN PENAL CODE (9th ed.,
LexisNexis Butterworths 2003).......................................................................22

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STATEMENT OF JURISDICTION
The Honble High Court has jurisdiction to try the instant matter under Section 366(1)
of the Code of Criminal Procedure, 1973.

Section 366 in The Code Of Criminal Procedure, 1973 :

366. Sentence of death to be submitted by Court of Session for confirmation.

(1) When the Court of Session passes a sentence of death, the proceedings shall
be submitted to the High Court, and the sentence shall not be executed unless
it is confirmed by the High Court.
374. Appeals from conviction.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other Court in which a sentence of
imprisonment for more than seven years 2has been passed against him or
against any other person convicted at the same trial], may appeal to the High
Court.

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STATEMENT OF FACTS

1. On the night of 5th February, 2015, after the wedding attended by Mr. Jayesh
Gaitonde, the chain of events that transpired are:
i. Jayesh Gaitonde dropped Vishnu Rai at Rita Inn and left at 7.45 pm.
ii. Vishnu Rai called Jayesh Gaitonde at 9pm to accompany him to
Ramesh Lals house to talk about the sale of his land.
2. On the morning of 12.02.2015 a body was fished out with the help of
assembled people. The body had no head or abdomen. Shanky and his
relatives recognized the body to be to be that of Vishnu Rai. The dog squad
found burnt ash and black and white short hair 500 feet south to the well. On
going further 300 feet in the same direction white-black hair of small size,
teeth and lower portion of human jaw were found. Shanky Rai lodged his
report and on that Mr. Ramesh Lal and Mrs. Sangeeta Lal were tried.

3. On 23.02.2015 Ramesh confessed under Section 27 of the Evidence Act that


he with the help of his wife had committed the crime. There was a dispute
regarding the boundaries of agriculture land between the deceased Vishnu and
accused Ramesh. Vishnu had already lodged a report against Ramesh for
threatening him.

4. Ramesh is awarded death u/s 302, 201 of IPC, 1860 by the district court
subject to confirmation by the Bombay High Court. Mrs. RanjitaLal has been
acquitted of all charges. Ramesh has preferred an appeal.

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STATEMENT OF CHARGES

Charge: 1
Ramesh Lal has been charged under Section 302 of the Indian Penal Code, 1860 for
the crime of Murder.

Charge: 2
Ramesh Lal has been charged under Section 201 of the Indian Penal Code, 1860 for
causing disappearance of evidence of offence, or giving false information to screen
offender.

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SUMMARY OF ARGUMENTS
Issue I
THE COURT EXERCISES JURISDICTION OVER THE APPEAL
It is humbly submitted before this Honble Court that the appeal of the accused lies
with this court under Art. 21 of the Constitution read with S. 374 Cr.P.C. which gives
the convicted a fundamental right to appeal.

Issue II
THE CASE DOES NOT FALL UNDER THE RAREST OF THE RARE CATEGORY
AND CONVICTION CANNOT BE CONFIRMED
It is humbly submitted before this Honble Court that the Sessions Court has erred in
its reasoning. Sufficient evidences or cogent reasoning do not back the conviction.
Moreover even the act does not fall in the category of rarest of the rare. The view of
the High Court in such cases of confirmation has to be independent than that of the
Sessions Court.

Issue III

EVIDENCE NOT SUFFICIENT TO SECURE CONVICTION


It is humbly submitted before this Honble Court that the evidences placed on record
are insufficient due to the inadmissibility created by S. 27, Evidence Act. The
incriminating materials as produced by the appellant are not to be admitted and the
statements of the prosecution witnesses are far from conclusive. Further the chain of
circumstantial evidences is incomplete with no evidences found which could be

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corroborated after independent searching. Even there is no medical report on


record to prove that the body is of Vishnu Rai.

Issue IV
ELEMENTS OF MURDER ARE NOT COMPLETE
It is humbly submitted before this Honble Court that there is insufficient evidence on
record to prove that the body is of Vishnu Rai. The presence of mensreaand
actusreusis not proved to be present beyond reasonable doubt by the prosecution.
Moreover the whole story of the prosecution is based on inadmissible evidences and
inconclusive statement of witnesses. Moreover the presence of motive cannot be the
sole basis of conviction and therefore weakening the basis of conviction.

Issue V
THE CASE UNDER SECTION 201 I.P.C. CANNOT BE PROVED
It is humbly submitted before this Honble Court that the case under 201 I.P.C. falls as
a corollary to the previous case being disapproved. It is not proved that the body is of
Vishnu Rai by the evidence on record. The prosecution has not discharged its burden
altogether. There is no evidence to prove beyond reasonable doubt that the accused
even had a reasonable belief that the offence has been committed.

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ARGUMENTS ADVANCED
I.

WHETEHER THE APPEAL AGAINST THE CONVICTION OF


THE ACCUSED IS MAINTAINABLE

Article 21 of the Constitution read with S. 374 of Cr.P.C. confers a right of appeal,
thus making it a fundamental right. Right of appeal, thus can neither be interfered
with or impaired, nor can it be subjected to any condition. 1 This appeal by the
Appellant, accused No. 1 on the file of the Sessions Court, Nagpur is directed against
the judgment of conviction and order of sentence passed in the said case convicting
him for the offence punishable under Section 302, 201 of IPC and sentencing him to
be hanged by neck till he is dead, subject to confirmation u/s 366 of Cr.P.C. by the
Honble Bombay High Court. The right to appeal is one both on matter of fact and a
matter of law.2 The High Court has full power to re-appreciate the evidence and come
to a conclusion independently.3 Thus, it is submitted that the appeal u/s 374 against
the judgment of the Sessions Court in the instant case is maintainable.
II.

SENTENCE GIVEN BY THE SESSIONS COURT SHOULD NOT


BE CONFIRMED

A sentence of capital punishment by the Sessions Court is not to be executed unless it


is confirmed by the High Court. This is a statutory right given to the convicted to
ensure greater care and caution in such circumstances where not only the punishment
is the highest which can be awarded but also it being irreversible. The High Court
must deal with the matter carefully and examine all material circumstances before

1Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 S.C.C. 528.


2Siddanna Apparao Patil v. State of Maharashtra, A.I.R. 1970 S.C. 977.
3State of Karnataka v. Papanaika, 2005 S.C.C. (Cri.) 104.
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upholding the conviction and confirming the sentence of death . Sec. 366(1)
Cr.P.C.
In dealing with such reference where death has been awarded, the appellate court is
not only to see whether the order passed by the Sessions Judge is correct, but to
examine the case for itself and even direct a further inquiry or the taking of additional
evidence if the court considers it desirable in order to ascertain the guilt or innocence
of the convicted person5. The Sessions Court has erred in awarding death sentence to
the appellant based on a confession under Section 27, which is mainly inadmissible
and uncorroborated and with no direct evidences to prove the guilt.
The Supreme Court in Bhupendra Singh v. State of Punjab6, had opined that:
When a case is submitted to the High Court under s. 368, the entire case is open to
its consideration, independent of the views expressed by the sessions judge.
Therefore this High Court hearing the matter under Sec. 366 Cr.P.C. ought to form its
own opinion after the perusal of the evidences on record and hearing the arguments
advanced. Considering the statement of the appellant as recorded under Sec.27 of the
Evidence Act, discussed in the other issue and the paucity of independent evidences
and with the respondents relying on unnecessary elements such as motive the
conviction of the appellant cannot be upheld. The Supreme Court has cautioned that
while exercising the power under s. 366 Cr.P.C. to confirm the death sentence a
greater care and circumspection is very much necessary 7. The appellant would like to
stress on the fact that the case is criminal in nature and in a criminal case, a conviction
is to be based on cogent grounds and the penal provisions are to be strictly applied. In

4Masalti v. State of U.P., A.I.R. 1965 S.C. 202.


5Jumman v. State of Punjab, A.I.R. 1957 S.C. 469; Bhupendra Singh v. State of Punjab, A.I.R. 1968
S.C. 1438.
6Bhupendra Singh v. State of Punjab, A.I.R. 1968 S.C. 1438.
7Ramesh Bhai v. State of Gujarat, (2009) 5 S.C.C. 240.

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the present case the evidences have been over-stretched to secure the conviction
of the appellant. There are clear loopholes in the story of the respondent and the
evidences as placed on record are grossly insufficient.
II.1

Whether The Death Sentence Is Appropriate

Sec. 354(3), Cr.P.C., 1973 provides that sentence other than death is the general rule.
Only for special reasons, which are required to be stated death, sentence is
permissible. There is no hard and fast rule of universal application and each case is to
be decided on its own merit. The punishment is to be awarded judiciously only and
only if there exists a strong case against the accused. In murder cases unless the nature
of the crime and the circumstances of the offender reveal that the criminal is a menace
to the society or any other special circumstances, death penalty cannot be awarded.
This is the mandate of law laid down in Sec. 354(3) Cr.P.C8.
In re, Arumugam9where the accused had caused death of deceased by inflicting cut
injuries due to property dispute between them. It was held that since the society was
not likely to be exposed to any peril or menace the accused should be allowed to
escape death sentence. Furthermore, when the question as to the constitutionality of
death penalty came up before the Supreme Court in Bachan Singh v. State of
Punjab10, it laid down several mitigating circumstances such as
i.

the probability that the accused would not commit acts of violence as would

ii.

constitute a continuing threat to society and


the probability that the accused can be reformed or rehabilitated

The appellant clearly falls into the above categories and therefore a clear cut case for
awarding death penalty cannot be made out. Nonetheless, it cannot be
overemphasized that the scope and concept of mitigating factors in the area of death
8Ram Lal v. State of Haryana, 1993 Cr.L.J. 1564.
9In Re Arumugam, 1997 Cr.L.J. 3546 (Mad.).
10Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684.
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penalty must receive a liberal and expansive construction by the Courts in


accord with the sentencing policy writ large in Sec. 354(3) judges should never be
bloodthirsty11.
The appellant humbly submits that not only the death sentence is inappropriate the Ld.
Sessions Judge has erred in its reasoning and based the conviction on very weak
grounds. The prosecution has failed to discharge its burden and based on the evidence
on record, conviction cannot be secured.
III.

WHETHER THE ACCUSED IS GUILTY OF MURDER U/S 302 OF


THE INDIAN PENAL CODE

It is humbly submitted before this honble court that the accused has beenfalsely
implicated and that at vital points, the chain of events, as presented by the
prosecution, is broken. There are no reliable evidences which could conclusively hold
that the deceased was seen lastly in the company of Ramesh. Moreover, the recoveries
made at the instance of Ramesh are clearly inadmissible in evidence.
III.1

Whether the death of the deceased was a homicidal one

The counsel for the appellant would like to point out that the Prosecution has failed to
discharge its duty of convincingly proving that the death of the deceased was
homicidal. As is prima facie clear, there are no evidences on record to conclusively
show that the death was a homicidal one. There is no conclusive data to prove that the
body was of Vishnu Rai. The fact is clear only till the point that Vishnu Rai had not
returned, but there are no evidences to show that he had actually died. In fact, the
identification of the beheaded body found in the well to be that of the deceased,
Vishnu Rai, was done by PW 1 and his relatives merely on the basis that there were
corn marks on the feet of the body, such an identification cannot be said to be valid
11Om Prakash v. State of Haryana, A.I.R. 1999 S.C. 1332.
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one and it will be unsafe to reach to the conclusion that it was, in fact, the body
of Vishnu Rai.
III.2

Whether the accused had the requisite mensrea to commit murder

Mens Rea is the mental element necessary for constituting a particular crime. 12 The
principle of mens rea states that a crime is not committed, if the mind of the person
doing the act in question be innocent.13Actus non facit reum, nisi mens sit rea states
that the intent and act must both concur to constitute the crime. 14 If there is no mens
rea in relation to the actus reus, the accused cannot be held culpable.15 Though, in the
instant case, there is no evidence on record to show that the accused had killed the
deceased, even if we say that while throttling the deceased, the accused, in fact, did
have mens rea, it cannot be conclusively determined whether the deceased died by
this strangling. The fact that deceased could not move could be due to the fact that
both the accused and the deceased were in drunk state; ergo, a proper determination of
whether the deceased had, in fact, died due to that strangling cannot be said certainly.
In In Re: Palani Goundan v. Unknown16, a similar question arouse before the court, it
was held that the accused cannot be convicted either of murder or culpable homicide.
Thus, in the present case, the accused has not committed the murder since there is
neither any evidences pointing towards his guilt nor any intention of causing the death
of the deceased can be proved to be existing on accuseds part.
III.3

Motive Independently Is Irrelevant

The existence of motive is by itself not an incriminating circumstance. The motive for
an act is not sufficient test to determine the criminal character. Motive howsoever
12R. v. Anderson, (1985) 2 All E.R. 961.
13Ratanlal & Dhirajlal, The Indian Penal Code(32nd ed. LexisNexis 2010).
14Thabo Meli v. Queen, (1954) 1 All E.R. 373.
15R. v. White, (1910) 2 K.B. 124.
16In Re: Palani Goundan v. Unknown, A.I.R. 1920 Mad. 862.
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relevant it be to the case, it shall always be grossly insufficient to secure a
conviction independently. In Haji Mohammed Iqbad v. State of Karnataka17, had held
thatonly motive is not sufficient for conviction. Motive needs corroboration, which in
the present case is not present. The statement of Shanky Vishnu Rai (PW1) is
recorded under Sec. 161 of the Cr.P.C. and hence is inadmissible. Further the oral
report (complaint) made by Vishnu Rai dated 29/08/2014 as submitted by the
respondent is not conclusive. Killing Vishnu Rai would not have benefitted the
appellant in any manner as the property would have then been passed on to his legal
heirs. Ganesh Tekriwal (DW2) a qualified chartered accountant too in his statement
supports the fact. The prosecution may prove the motive of the crime if it helps them
to establish their case, but they are not legally bound to do it because a motiveless
crime is still a crime18. Further on the aspect of corroboration, which needs to the
proved by the respondent. There are no cogent evidences on which motive can rely
and help uphold the conviction. The circumstantial evidence is grossly inadequate
with several loopholes, as dealt in the issue pertaining to circumstantial evidence.
There is no established chain of events; just that the deceased reached the house of the
appellant and after a few days his body was found from a nearby well. Thus it is
humbly contended that as a complete chain of circumstantial evidences does not
corroborate motive, the appellant is entitled to relief from this honble High Court.
III.4

Whether the Prosecution has established its case beyond

reasonable doubt
It is the duty of the prosecution to prove beyond reasonable doubt that the alleged act
was caused by the conduct of the accused. Since the case of Woolmington v. DPP19, it
17Haji Mohammed Iqbad v. State of Karnataka, 1990 Cr.L.J. N.O.C. 179 (Kant.).
18Haris J. Mal v. State, 1982 Cr.L.J. 2023 (Del.).
19Woolmington v. D.P.P., (1935) 25 C.R. App. R. 72.
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has been firmly established that the onus is on the Prosecution to establish mens
rea beyond all reasonable doubt, whether generally or when particular issue arises.
Conviction is not sustainable when prosecution evidence is wholly unreliable and
unsatisfactory.20Therefore, in the present case, due to the absence of conclusive
evidences and inability of circumstantial evidences to establish the guilt, the accused
person must be presumed as innocent and not guilty. It is further submitted that
circumstantial evidence, at the trial of a person charged with murder should be so
cogent and compelling as to convince the court that upon no rational hypothesis other
than murder by the accused can the facts be accounted for.21
III.5

Whether the accused is eligible for any defence under the IPC

As is evident, the deceased was not killed by the accused especially because there are
no evidences on record to conclusively prove the same; moreover, the prosecutions
case is entirely based on circumstantial evidences the chain of which is, itself, broken.
In arguendo, even if it were to be assumed that the act which led to the demise of the
deceased were performed by the accused, it is pertinent to note that such a killing
would be hit by Exception 1 to sec. 30022, which states that a homicide would not be
murder if the offender was deprived of the power of self-control owing to grave and
sudden provocation.
The definition of provocation as explained by the Supreme Court of India in the case
of K. M. Nanavati v. The State of Bombay23, is as follows:- The test of grave and
sudden provocation is whether a reasonable man, placed in the situation in which the
accused was placed, would be so provoked as to lose his self-control.Words or
20Salveraj v. State of Tamil Nadu, (1976) 4 S.C.C. 343.
21Raghav Prapanna Tripathi v. State of Uttar Pradesh, A.I.R. 1963 S.C. 74.
22Indian Penal Code 300 (1860).
23K. M. Nanavati v. State of Bombay, 1962 S.C. 605.
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gestures may also, under certain circumstances, cause grave and sudden
provocation to an accused to an accused so as to bring his act within the first
exception to sec. 30024.In applying the test, it is of particular importance:To consider
whether sufficient interval has lapsed, since the provocation, to allow a reasonable
man to cool; and to take, into account, the instrument, with which the homicide was
affected, because a resort in the heat of passion induced by provocation by a simple
blow, is a very different thing from one by making use of a deadly weapon like a
concealed dragger.25 Your Lordship, to this, the counsel would like to point out to the
fact that the accused Ramesh Lal had throttled the victim and not resorted to any
dangerous weapon as such.In K. Ahmed Koya v. State of Kerela26, it was held that the
defence of provocation rests upon the fact that provocation was grave and sudden by
reason of which the accused was deprived of his power of self-control.
The appellant, Ramesh, controlled himself even after the deceased was abusing him,
until he was overcome by a provocation resulting by the filthy abuses accompanied
with unchaste remarks towards his wife in her presence. It was only after this
provocation that he got extremely angry and throttled Vishnu. In Amarjit Singh Sohan
Singh v. State27, it was held that a very foul abuse hurled by the deceased may be
grave and sudden enough to entitle an accused to the benefit of Exception 1. Though
the prosecution has failed to discharge its burden of proving the accuseds guilt
beyond reasonable doubt and no evidences on record show the accuseds guilt, even if
we assume that the accused had, in fact, throttled the deceased, he did the same owing

24Indian Penal Code 300 (1860).


25State v. Laikhan Pradhan, A.I.R. 1956 Ori, 108.
26K. Ahmed Koya v. State of Kerela, A.I.R. 1967 Ker. 92.
27Amarjit Singh Sohan Singh v. State, A.I.R. 1970 Punj. 279.
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to the grave and sudden provocation caused by the deceased. Thus, the accused
should be given the benefit of the first exception to sec. 30028.
IV.

WHETHER THE EVIDENCES ARE SUFFICIENT TO SECURE

IV.1

CONVICTION
The Statement Made By The Appellant And Evidences Thereof

Are Insufficient
A statement made to a police officer by an accused person, while in custody of police,
although intended to be made in self-exculpation and not as a confession, may
nevertheless be an admission of an incriminating circumstances, and, if so, under
Section 25 and 26, it cannot be proved against the accused 29. The statement of the
appellant hence of telling API Rathod that he along with JayeshGoitonde (PW2) had
committed the crime becomes inadmissible.
The Privy Council held that this section, which is not artistically worded enables
provides an exception to the prohibition imposed by the preceding section, and
enables certain statement made by a person in police custody to be proved 30. In Anter
Singh v. State of Rajasthan31 one of the major requirements for Sec. 27 to be
applicable were mentioned was that the discovery must have been in consequence of
some information received from the accused and not by the accuseds own act.
The appellant contends that in the present case all the discoveries related to facts such
as the bottle of liquor, blood stained grey colour pant, blood stained knife and a Nokia
mobile phone were at the behest of the appellant who did that after making an

28Indian Penal Code 300 (1860).


29Anant Kumar v. State of M.P., 1993 Cr.L.J. 1499.
30Polukuri Kottiaya v. R, A.I.R. 1947 P.C. 67; State of Rajasthan v. Bhup Singh, (1997) 10 S.C.C.
675.
31Anter Singh v. State of Rajasthan, A.I.R. 2004 S.C. 2865.

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inadmissible confession. Therefore none of the evidences as placed on record
can be admitted due to the absence of clause (iii.).
There non-admission of evidence is deduced from several case laws of the Apex
court, which has several times that only those facts under Sec. 27, shall be admissible
in court which has been discovered as a consequence of the statement of the accused
by the police. In Prabhoo v. State of U.P.32, the accused gave out when interrogated,
that the axe with which the murder had been committed and his blood stained shirt
and dhoti to the police. The Supreme Court observed they were incriminating
statements made to a police officer and were hit by Sections 25 and 26 of the
Evidence Act. The statement that the axe was one with which the murder had been
committed was not a statement which led to any discovery under Section 27 of the
Evidence Act. Nor was the statement that the blood stained shirt and dhoti belonged
to him, a statement which led to any discovery within the meaning of Section 27.
Ramesh here too was in custody, as he was arrested and interrogated after which he
produced the material which came to be seized and placed on record. Further he
voluntarily produced the inadmissible evidences after making confessional statements
as to the commission of the crime.
Further the admissibility of a statement under Sec. 27 is not absolute, it is subject to
Art. 20(3) of the Constitution and Sec. 25 and 26 of the Evidence Act. Only so much
of the statement is admissible as relates distinctly to the fact discovered 33. Here there
was no discovery of any individual evidence by the police, which can be admitted by
the court. The side of the respondent is based merely on certain incriminating articles
at the instance of the accused and that cannot be the sole basis of conviction as

32Prabhoo v. State of U.P., A.I.R. 1963 S.C. 1113.


33State v. Rama Shidappa, (1951) 54 Bom. L.R. 316.
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emphatically stated by the Supreme Court in Rambilas v. State of M.P. .The
34

appellant humbly submits that the said evidences should not be made admissible in
court after a complete reading of Sec. 27 along with Sec. 25 and 26 of the Evidence
Act.
IV.2

Circumstantial evidence is insufficient

Circumstantial evidence is evidence that relies on an interference to connect it to a


conclusion of fact. Circumstantial evidence allows for more than one explanation.
Difference pieces of circumstantial evidence may be required, so that each
corroborates the conclusions draws from the others. Together, they may more strongly
support one particular inference over another. Due to the annulling effect of Sec. 27,
Evidence Act the case of the defendant is entirely based on circumstantial evidence
only. In such a situation the case should be subjected to the tests as laid down in
PadalaVeera Reddy v. State of Andhra Pradesh 35andSharadBirdichandSarda v. State
of Maharashtra36:
i.

The circumstances from which the guilt is to be drawn should be fully

ii.

established;
The facts so established should be consistent only with the hypothesis of the
guilt of the accused, that is to say, they should not be explainable on any other

iii.
iv.
v.

hypothesis except that the accused is guilty;


The circumstances should be of conclusive nature and tendency;
They should exclude every possible hypothesis except the one to be proved,
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.

34Rambilas v. State of M.P., 1997 S.C.C. (Cri.) 1222.


35Padala Veera Reddy v. State of Andhra Pradesh, A.I.R. 1990 S.C. 79.
36Sharad Birdichand Sarda v. State of Maharashtra, A.I.R. 1984 S.C. 1622.
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The circumstances from which the guilt is to be established is not fully
established. As explained above the blood stained grey pant, blood stained knife and
Nokia phone and other materials cannot be made admissible in the court due to Sec.
27, Evidence Act and Art. 20(3) of the constitution, which gives us the fundamental
right against self-incrimination. The evidences of seizure of 2 mobile phones and the
dog squad finding teeth, lower jaw, burnt ash and hair are far from being conclusive
that the appellant is the wrongdoer. Thereby not fulfilling point (iii). Further more the
statements of the PW1 and PW2 do not establish a clear case leaving much room for
doubt. With no evidence of the deceased to have reached the appellants house, or
reasoning behind the body being found in the well after some days. There is no
established chain of evidence. Thereby defying point (v).Where the prosecution has
failed to discharge such burden, order of conviction would be liable to be set aside37.
When a law visits a person with serious penal consequences extra care must be taken
to ensure that those whom the legislature did not intend to be covered by the express
language of the statute are not roped in by stretching the language of the law 38.In a
murder case, the trial court is charged with the supreme duty of making proper
appreciation of evidence and of law before reaching the whether the case falls under
culpable homicide amounting to murder under Sec. 300 I.P.C.39.
IV.3

Whether Last Seen Theory Applies

In the instant case, the prosecutions case is fully based on the circumstances only and
there was no eye witness account; even DW1, Pankaj Ingle, in his statements had
mentioned that he could not remember the person properly. 40

37Shiva Sahai v. State of U.P., 1990 Cri.L.J. (N.O.C.) 15.


38Mohd. Fazir Ali v. State of Assam, (1991) 3 Crimes 174 (Ass.).
39Banarshi Alia Panha v. State, 1997 Cr.L.J. 604 (M.P.); Amar Singh v. State of M.P., 1991 Cr.L.J.
1077 (M.P.).
40 Ramesh Jijeba Lahane v. State Of Maharashtra, 2014 S.C.C. OnLine Bom. 1820.

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The onus to prove the circumstances on which the prosecution was relying is
upon the prosecution itself so as to establish fully so that conclusion of guilt can be
drawn.
The theory of last seen together is one where two persons are seen together alive
and after an interval of time, one of them is found alive and the other dead. If the
period between the two is short, presumption as to the person alive being the author of
death of the other can be drawn, but in the instant case, there is no evidence on record
to conclusively show that the deceased was last seen with the accused.
In arguendo, the circumstance of last seen together does not by itself and necessarily
lead to the inference that it was the accused who committed the crime, there must be
something more establishing connectivity between the accused and the crime, this
something else cannot, in any case, be mere circumstantial evidences. In Nizam &
Anr. vs. State of Rajasthan41, the Supreme Court held as dangerous to convict the
accused alleged of committing murder by relying on last seen theory. The instant
case of the prosecution was entirely based on the circumstantial evidence. It was held,
in C. Chenga Reddy v. State of A.P.42 that in a case based on circumstantial evidence,
settled law is that the circumstances from which the conclusion of guilt is drawn
should be fully proved and such circumstances must be conclusive in nature. the
Supreme Court has held that conviction cannot be based solely on the fact that the
victim was last seen alive in the company of the accused. 43 It is well-settled by this
Court that it is not prudent to base the conviction solely on last seen theory.

41Nizam & Anr. v. State of Rajasthan, Criminal Appeal No. 413 of 2007.
42 C. Chenga Reddy v. State of A.P., (1996) 10 S.C.C. 193.
43 Nizam & Anr. v. State of Rajasthan, Criminal Appeal No. 413 of 2007.
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Therefore, it is humbly submitted before his Honble Court that the accused is
entitled to be acquitted by the Honble court by setting aside the judgment and order
of conviction passed by the Sessions Court.
V.

APPELLANT IS NOT LIABLE FOR CAUSING DISAPPEARANCE


OF THE EVIDENCE OF OFFENCE UNDER S. 201.

Causing disappearance of evidence of offence, or giving false information to screen


offender is a punishable offence under the IPC. 44 For S. 201 to apply in a certain case
it must be proved firstly that the offence has been committed, secondly that the
accused must know or have reason to believe that the offence has been committed,
thirdly the accused must either cause any evidence of the commission of that offence
to disappear and fourthly the accused must have acted with the intention of screening
the offender from legal punishment.45
5.1 Whether The Murder Of The Missing Person Has Been Proved Conclusively
There is no evidence to suggest that the body recovered from the well was of Vishnu
Rai and the Articles viz. black-grey hair, teeth and mandible which were found around
the said spot belonged to the same dead body. Also, the defendants have not yet
proven the identity of the body as well as the death of Vishnu Rai. PW1 in his
statement said that he identified the body through the corn marks on the sole and the
white and black hair on the chest. Also, PW2 has stated that there were 2-3 corn
marks on the dead body. In a case where a dead body found in a highly decomposed
state, it is incumbent on the part of witness identifying the same to state how he
recognized that dead body,46 and in a case where the dead body has been decomposed,

44Indian Penal Code 201 (1860).


45Roshanlal v. State of Punjab, A.I.R. 1965 S.C. 1413.
46Ravinder Prakash v. State of Haryana, (2002) 8 S.C.C. 426.
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the identification of the dead body may not be trustworthy evidence and in such
a case the DNA test may be required.47
5.2 Whether The Appellant Had Any Knowledge Of The Offence And Has The
Disappearance Of Any Evidence Been Caused
Secondly, the defendants have also not conclusively proved that the accused knew or
had reason to believe that the offence has been committed. Mere suspicion would not
be sufficient. There must be available on record cogent evidence that the accused has
caused the evidence to disappear in order to screen another known or unknown.48
The statement of confession of the appellant under the Recovery Panchnama 49 is not a
conclusive evidence so as to prove whether the accused has caused the disappearance
of the evidence or has acted with the intention of screening the offender from legal
punishment. Any confession by accused while in custody of police not to be proved
against him unless it be made in the immediate presence of a magistrate.50 If the
evidence led by the defendants is not conclusive then it is not sufficient to warrant
conviction under S 201 of IPC.51 There should be clear and independent proof that any
person has caused evidence to disappear in order to screen some person or person
unknown.52 To bring home an offence under the section, the accused must have had
the intention of screening the offender.53 Thus, as the essentials of S 201 have not
been conclusively proved by the defendants, the appellant cannot be held liable for an
offence under the said section.

47Jarnail Singh v. State of Punjab, (2009) 9 S.C.C. 719.


48V.L. Tresa v. State of Kerala, (2001) 3 S.C.C. 549.
49Annexure Moot Proposition, Recovery Panchnama of the liquor and the clothes of accused Ramesh
Lal produced by him, Dated:- 16.02.2012.
50Indian Evidence Act 26 (1872).
51State of Punjab v. Hari Kishan, 1997 (4) CRIMES 26.
52Budha v. Emperor, 1 Cri.L.J. 113.
53Jamna Das Parashram v. State of Madhya Pradesh,A.I.R. 1963 M.P. 106.

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PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited,
may this Honble Court be pleased to:

1. Set Aside the judgment and order of the Sessions Court in finding Ramesh
Lal guilty for the offence of murder and causing disappearance of offence,
or giving false information to screen offender under Sections 302/201 of
the Indian Penal Code, 1860.
2. Acquit the appellant of all the charges.

AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

All of which is most humbly and respectfully submitted.

Place: Nagpur

S.d______________

COUNSEL FOR THE APPELLANT

MEMORANDUM ON BEHALF OF THE APPELLANT