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Team Code:
KSHAN 11th NATIONAL 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

MEMORANDUM ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

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

Whether The Sentence Given By The Sessions Court Should Be

Confirmed.................................................................................................................1
II.

Whether The Accused Is Guilty Of Murder U/S 302 Of The IPC............3

III.

Whether The Evidences Are Sufficient To Secure Conviction................14

IV.

Whether The Appellant Is Liable For Causing Disappearance Of The

Evidence Of Offence Under S. 201.......................................................................19


Prayer..........................................................................................................................xii

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LIST OF ABBREVATION

A.I.R.
All.
Bom.
Cr.P.C.
Cri. L.J.
Ed.
I.L.R.
I.P.C.
J.&K.
Jhar.
Ker.
M.P.
Ori.
P.C.
Raj.
S.
S.C.
S.C.C.
S.C.R.
U/S

All India Reporter


Allahabad
Bombay
Code of Criminal Procedure
Criminal Law Journal
Edition
Indian Law Reporter
Indian Penal Code
Jammu and Kashmir
Jharkhand
Kerala
Madhya Pradesh
Orissa
Privy Council
Rajasthan
Section
Supreme Court
Supreme Court Cases
Supreme Court Reporter
Under Section

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INDEX OF AUTHORITIES
Cases
1. Abdul Majid v. State of M.P., A.I.R. 1963 M.P. 364........................................19
2. Abdul Mojid v. State of Madhya Pradesh, A.I.R. 1963 MP 364......................17
3. Acit Baron Sam v. State 2006 CrLJ 3786 (Mad).............................................21
4. Anter Singh v. State of Rajasthan A.I.R. 2004 S.C. 2865................................23
5. Aradadi Ramudu v. State, (2012) 5 S.C.C. 134...............................................14
6. Arvindkumar Anupalal Poddar v. State of Maharashtra, (2012) 11 S.C.C. 172.
....................................................................................................................27, 29
7. Bachan Singh, 1980 Cr.L.J. 636 (S.C.); Machhi Singh, 1983 Cr.L.J.
1457(S.C.)........................................................................................................11
8. Baldeo v. State of Pepsu, A.I.R. 1956 S.C. 488...............................................20
9. Baldua v. State 2006 Cr.L.J. 1396 (Chh).........................................................25
10. Baldua v. State 2006 CrLJ 1396 (Chh)............................................................22
11. Benjamin v. State of Tamil Nadu, 2008 Cr.L.J. 1806 (S.C.)............................13
12. Bhupendra singh v. State of Punjab, A.I.R. 1968 S.C. 1438............................10
13. Budha Satya Venkata S. Rao v. State of Andhra Pradesh 1995 S.C.C. (Cri)
127....................................................................................................................25
14. Chahat Khan v. State of Haryana, A.I.R. 1972 S.C. 2574...............................14
15. Dhanno Khan v. State, A.I.R. 1957 All. 317....................................................20
16. Gokaraju Venkatanarasa Raju v. State of Andhra Pradesh, 1993 Supp. (4)
S.C.C. 191........................................................................................................28
17. Gordhan v. State of Rajasthan 1971 Cr.L.J. 541..............................................21
18. Hafizullah v. State, A.I.R. 1957 All. 377..........................................................19

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19. Haji Mohammed Iqbad v. State of Karnataka, 1990 Cr.L.J. N.O.C. 179 (Kant.)
..........................................................................................................................21
20. Hemant Trivedi v. State of Rajasthan, (2007) 14 S.C.C. 513..........................29
21. Jaffer Hussein Dastagir v. State of Maharashtra, A.I.R. 1970 S.C. 1934.........28
22. Jumman v. State of Punjab A.I.R. 1957 S.C. 469............................................10
23. K. Ahmed Koya v. State of Kerela, A.I.R. 1967 Ker 92..................................18
24. K. M. Nanavati v. The State of Bombay, A.I.R. 1962 S.C. 605......................18
25. K. M. Nanavati v. The State of Bombay, A.I.R. 1962 S.C. 605.......................17
26. K. M. Nanawati v. State of Maharashtra, A.I.R. 1962 S.C. 605......................19
27. Kalawati v. State of Himachal Pradesh, 1953 S.C.R. 546...............................29
28. Khetramani Dasi v. Emperor, A.I.R. 1922 Cal. 539.........................................14
29. Laxman v. State of Madras, A.I.R. 1974 S.C. 1803.........................................13
30. Laxman v. State of Maharashtra, 1998 Bom. C.R. (Cri.) 372..........................14
31. Mahmood v. State, A.I.R. 1961 All. 538..........................................................20
32. Masalti v. State of U.P. A.I.R. 1965 S.C. 202....................................................9
33. Mohammad Idrish v. State, 2004 Cr.L.J. 1724 (Raj.); Baldeo v. State, 2004
Cr.L.J. 2686 (All.)............................................................................................13
34. Mohibur Rahman v. State of Assam, A.I.R. 2002 S.C. 3064...........................26
35. Padala Veera Reddy v. State of Andhra Pradesh A.I.R. 1990 S.C. 79.............24
36. Polukuri Kottiaya v. R, A.I.R. 1947 PC 67; State of Rajasthan v. Bhup Singh,
(1997) 10 S.C.C. 675.................................................................................22, 23
37. Ravirala Laxmaiah v. State of A.P., (2013) 9 S.C.C. 283................................26
38. Reg v. Govinda, I.L.R. 1 Bom. 342.................................................................16
39. Rohtash Kumar v. State of Haryana,(2013) 14 S.C.C. 434..............................26
40. Roshanlal v. State of Punjab, A.I.R. 1965 S.C. 1413.......................................27

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41. Santosh v. State of Madhya Pradesh, (1975) 3 S.C.C. 727..............................16


42. Satendra Singh v. State of Madhya Pradesh, 2013 S.C.C. OnLine M.P. 8665.29
43. Sehaj Ram v. State of Haryana, A.I.R. 1983 S.C. 614.....................................16
44. Shabir Ahmed Khan v. State of J.&K., (1989) 3 Crimes 396 (399)(J.&K.)....20
45. Shabir Ahmed Khan v. State of J.&K.,(1989) 3 Crimes 396 (399)(J.&K.).....21
46. Shankar Narayan Bhadolkar v. State of Maharashtra, (2005) 9 S.C.C. 71......28
47. Sharad Birdichand Sarda v. State of Maharashtra A.I.R. 1984 S.C. 1622.......24
48. State of Himachal Pradesh v. Jeet Singh, (1999) 4 S.C.C. 370........................28
49. State of Jharkhand v. Anil Sharma 2003 Cr.L.J. 1739 (Jhar.)..........................11
50. State of Maharashtra v. K. Laxmipati Naidu A.I.R. 1981 S.C. 617.................17
51. State of Orissa v. Burdara Majhi, A.I.R. 1978 Ori. 168...................................19
52. State v. Laikhan Pradhan, A.I.R. 1956 Ori 108................................................18
53. State v. Rajendran (1999) 6 S.C.C. 679; Subbaiah Ambalam v. State of Tamil
Nadu, A.I.R. 1977 S.C. 2046...........................................................................10
54. Subbaiah Ambalam v. State of Tamil Nadu, A.I.R. 1977 S.C. 2046................10
55. Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 S.C.C. 681..........26
56. Ulla Mahapatra v. King, A.I.R. 1959 Ori. 261.................................................19
57. Vemireddy Satyanarayan Reddy v. State of Hyderabad, A.I.R. 1956 S.C. 379.
..........................................................................................................................28
58. Yuvraj Ambar Mohite v. State of Maharashtra, 2006 (10) S.C.A.L.E. 369.....25
Statutes
1. Indian Evidence Act, 105 (1872)..................................................................17
2. Indian Evidence Act, 27 (1872)....................................................................19
3. Indian Penal Code, 201 (1860).....................................................................27
4. Indian Penal Code, 300 (1860)...................................................12, 16, 19, 20

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Books
1. K. D. Gaur, Textbook of the Indian Penal Code (4 th ed., Universal Law
Publications 2013)............................................................................................15
2. K. D. GAUR, TEXTBOOK OF THE INDIAN PENAL Code (4 th ed.,
Universal Law Publications 2013)...................................................................13
3. S. K. SARVARIA, R. A. NELSONS INDIAN PENAL CODE (9 th ed.,
LexisNexis Butterworths 2003).................................................................19, 20

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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.
JayeshGaitonde, the chain of events that transpired are:
i. JayeshGaitonde dropped Vishnu Rai at Rita Inn and left at 7.45 pm.
ii. Vishnu Rai called JayeshGaitonde 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 shouth 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
WHETHER THE SENTENCE GIVEN BY SESSION COURT SHOULD BE
CONFIRMED?
A sentence of capital punishment by the Sessions Court is not to be executed unless it
is confirmed by the High Court. The fact that the appellant committed the crime in the
most brutal manner makes him liable to be awarded capital punishment.

ISSUE II
WHETHER THE ACCUSED GUILTY OF MURDER U/S 302 OF THE IPC?
The death of the deceased was homicidal in nature, the accused had requisite mens rea
to commit murder and also had a motive. Also, the acts which resulted in the death of
the deceased were committed by the accused. Since, the acts of the accused satisfied
the ingredients of S. 302 of the IPC. In Arguendo, the alleged act is subject to
exceptions provided under S.300 of the IPC.
ISSUE III
WHETHER THE EVIDENCES ARE SUFFICIENT TO SECURE
CONVICTION?
The statement made by the appellant and circumstantial evidences on record as well
as the last seen theory cumulatively corroborated with chain of events leads to the
conclusion that the conviction of the appellant was valid in this case.

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ISSUE IV
WHETHER THE APPELLANT IS LIABLE FOR CAUSING
DISSAPPEREANCE OF THE EVIDENCE OF OFFENCE UNDER S. 201?
In the instant case a murder was committed, the accused had knowledge of the
offence, caused disappearance of the evidence of offence and had the intention of
screening himself from legal punishment. Hence, the appellant should be held liable
under S. 201 of the IPC.

ARGUMENTS ADVANCED

I.

WHETHER THE SENTENCE GIVEN BY THE SESSIONS COURT


SHOULD BE CONFIRMED

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


is confirmed by the High Court. 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

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to ascertain the guilt or innocence of the convicted person1. Sec. 366(1), The Code of
Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) reads:
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.
The Sessions Court has rightly convicted the appellant after a plethora of evidences
against him. The elements of murder existed along with his confession. Further, there
also exists strong circumstantial along with requisite motive against the appellant.
In Subbaiah Ambalam v. State of Tamil Nadu2, the apex court was of the view that:
The proceedings before the court in such a case of reference against a death sentence,
the High Court is required to re-appraise and re-assess the entire facts and law so
that it may come to its independent conclusion, but while doing so the High Court
cannot totally overlook the conclusion arrived at by the Sessions Judge3.
There exists strong reasons for the conviction and has accordingly been dealt by the
Sessions Court. Factors that influenced the conviction were:
i.
ii.
iii.
iv.

presence of all the elements of murder


strong motive
confession by the appellant
circumstantial evidence

It shall be relevant to express the views of the Supreme Court in U.P. v. Anil Singh
that a judge does not preside over a trial merely to see that no innocent man is
punished, he also presides to see that a guilty man does not escape. Both are public
duties.
1Jumman v. State of Punjab, A.I.R. 1957 S.C. 469, Bhupendra singh v. State of Punjab, A.I.R. 1968
S.C. 1438.
2Subbaiah Ambalam v. State of Tamil Nadu, A.I.R. 1977 S.C. 2046.
3State v. Rajendran, (1999) 6 S.C.C. 679; Subbaiah Ambalam v. State of Tamil Nadu, A.I.R. 1977 S.C.
2046.

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1.1 The Death Sentence Should Be Upheld


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.
It is not possible to catalogue the special reasons which may justify the passing of
death sentence, but one of them is when the crime is committed in a brutal manner.
Here the crime involved beheading of the victim. The victim as mentioned by the
appellant under Sec.27 of the Evidence Act, was first killed, then stripped of his
clothes, beheaded, body pushed into the well and head buried at another place. This
case therefore comes clearly under the brutal category murder and shall attract death
penalty. Where the offence committed is vindictive, pre-planned and cold blooded for
gain, ordinarily death sentence should be imposed. In State of Jharkhand v. Anil
Sharma4 the court opined that after the accused has been convicted, he could be
sentenced for death if the crime is brutal, grotesque, diabolical, revolting or dastardly.
With the present fact situation at hand, the fact that the appellant committed the crime
in the most brutal manner makes him liable to be awarded capital punishment.
II.

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

II.1

THE IPC
The Death Of The Deceased Was A Homicidal One

The counsel would like to bring to knowledge of the honble court that the death of
the deceased was homicidal one. This is primarily because of the following reasons:

The corpse was found in decapitated state and was without its abdomen;
Once the body of the deceased was fished out, it was notices that there were

blood stains to the edge of the well;


When the dog, Brutus, after sniffing the corpse, sniffed around the crime
scene, he found burnt ash and black & white short hair;

4State of Jharkhand v. Anil Sharma, 2003 Cr.L.J. 1739 (Jhar.).


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On further sniffing, it also found white and black hair of small size, teeth and
lower portion of human jaw.5

By no stretch of imagination the deceased can be said to have committed suicide on


the basis of the above mentioned non-contended facts as no person can behead
himself and remove his abdomen. Further, a person can also not be expected to burn
his own teeth, hair, jaw and skull. Ergo, by facts present before us, it can be
conclusively said, beyond any doubt, that this was a homicidal death.

II.2

The Accused Had The Requisite Mens Rea To Commit Murder

The intention of the appellant can easily be imputed from the nature of the act
committed by the accused. The nature of injuries caused showed that the accused had
intentionally committed the crime.6 Intention means a purpose or desire to bring about
a contemplated result or foresight that certain consequences will follow from the
conduct of the person and the evidence of motive is relevant since it throws light on
the question of intention; motive is something which prompts a man to form
intention.7 Where considering the number of injuries, nature of such injuries, and
evidence corroborating his deed, intention of the accused to cause death became clear,
it was held that the accused could only be convicted for the offence of murder 8, no
less. It is submitted that the intention to kill can be inferred from the number and
nature of injuries inflicted.9. In Chahat Khan v. State of Haryana10, the Supreme Court
5Moot Proposition.
6Mohammad Idrish v. State, 2004 Cr.L.J. 1724 (Raj.); Baldeo v. State, 2004 Cr.L.J. 2686 (All.).
7K. D. Gaur, Textbook of The Indian Penal Code (4th ed. Universal Law Publications 2013).
8Benjamin v. State of Tamil Nadu, 2008 Cr.L.J. 1806 (S.C.).
9Laxman v. State of Madras, A.I.R. 1974 S.C. 1803.
10Chahat Khan v. State of Haryana, A.I.R. 1972 S.C. 2574.
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had held that when a person is causing an injury on such a vital part, the intention to
kill can certainly be attributed to him. The Supreme Court in Aradadi Ramudu v.
State11 said that assuming for a moment that the accused had no intention to kill the
deceased, it can be said that he had the intention to cause an injury which would
ordinary course of things cause her death.
In Virsa Singh v. State of Punjab, the Supreme Court held that it does not matter that
there was no intention to cause death. It does not matter that there was no intention
even to cause an injury of a kind that is sufficient to cause death in the ordinary course
of nature. It does not even matter that there is no knowledge that an act of that kind
will be likely to cause death. Once the intention to cause the bodily injury actually
found to be present is proved, the rest of the inquiry is purely objective inference, the
injury us sufficient in the ordinary course of nature to cause death.
The counsel for the respondent, further, submits that not only motive and intention are
present but also that the act was premediated one since a bare perusal of the facts
makes it clear that the accused had grudges against the deceased owing to the disputed
land in furtherance of which the deceased had also lodged a complaint against the
accused.12 Thus, in the present case, strangulation of the deceased coupled with
beheading him was sufficient to show intention.
II.3

There Exists Clear Motive

Motive is something, which prompts a man to form an immediate intention 13. Motive
is that which makes a man do a particular act. There can be no action without a
motive, which must exist for every voluntary act. Previous threats, previous
litigations, or previous altercations between the parties are admitted to show motive 14.
11Aradadi Ramudu v. State, (2012) 5 S.C.C. 134.
12Annexure Moot Proposition, Oral Report (Complaint) Made By Vishnu Rai Dated 29/08/14.
13Baldeo v. State of Pepsu, A.I.R. 1956 S.C. 488.
14Shabir Ahmed Khan v. State of J.&K., (1989) 3 Crimes 396 (399)(J.&K.).
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Appellant, Ramesh Lal here, had been threatening the deceased for a long time. An
oral report (complaint) made by Vishnu Rai dated 29/08/2014 has also been placed on
record. Going by what was help by the court in Shabir Ahmed Khan15 as previous
altercation between the parties are shown, the presence of motive is proved.
When there is direct evidence about murder motive loses its significance, but still then
motive is relevant to know the intention of the culprit16. The statement of Shanky
Vishnu Rai (PW 1) further proves the presence of motive in the crime. PW1 has
specifically mentioned the murder threats and the existence of a dispute between the
appellant and the deceased. The aspect as to the existence of motive is to be read in
consonance of the part which talks of the presence of circumstantial evidence. The
Karnataka High Court in Haji Mohammed Iqbad v. State of Karnataka 17 had held:
when the proof of murder cases rests on circumstantial evidence, motive plays an
important role and the merits of the case need closer examination. In Acit Baron
Sam v. State18, the accused had developed hatred against the deceased, as he was
caught red handed by the deceased while copying in examination. Thus the
prosecution case that the accused had strong motive against the deceased stood fully
established. Apart from this the statement of the eye witness was corroborated by
medical evidence. Conviction of the accused was held proper. In another case the
accused took the deceased to his house for sleeping there and early morning his dead
body was found inside the house of the accused. Motive of the crime was proved and
circumstances taken together formed a complete chain for proving the offence and
therefore the conviction was upheld19. Motive needs corroboration, which in the
present case are the circumstantial evidences such as the presence of long standing
15Shabir Ahmed Khan v. State of J.&K.,(1989) 3 Crimes 396 (399)(J.&K.).
16Gordhan v. State of Rajasthan, 1971 Cr.L.J. 541.
17Haji Mohammed Iqbad v. State of Karnataka, 1990 Cr.L.J. N.O.C. 179 (Kant.).
18Acit Baron Sam v. State, 2006 Cr.L.J. 3786 (Mad).
19Baldua v. State, 2006 Cr. L.J. 1396 (Chh.).
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enmity and the fact the Vishnu Rai had last left for the house of the appellant. The
chain of events as to have taken place for the commission of the crime is complete, as
discussed in the issue pertaining to circumstantial evidence and therefore the
conviction needs to be upheld by the honble high court.
II.4

Actus Reus Can Be Related To The Mens Rea

It is a general principal of criminal law that no act per se is criminal, but the act
becomes criminal when the actor does it with a guilty mind. Thus, there must be a
mind at fault to constitute a crime. 20 In the light of the facts present before us, it is
submitted that the acts, which resulted in the death, were, in fact, committed by the
accused. As is testified by the DW1, who last saw the deceased, the deceased entered
the house of Ramesh; thereafter, no one had heard from the deceased. Moreover, the
accused had also given the sim card and mobile of the deceased, 21 which could have
only come in his possession after the deceased had made the call to Jayesh Goitonde.
In the light of this argument, by no stretch of imagination the deceased can be said to
have been killed by any other person except the accused owing to the fact that the
accused has himself confessed his guilt and corroborated the same with enough
evidences.
II.5

The Act Of Accused Satisfies The Ingredients Of S.300 Of The IPC

It has already been stated that the homicide was committed with the intention of
causing death thus the case at hand falls under S.300. Knowledge that the natural and
probable consequence of an act22 would be death will suffice for a conviction under
S.302.23 In present case, accused throttled the deceased as well as beheaded his neck
and cut his stomach, which means that the obvious result of his act is death of the
20 K. D. Gaur, Textbook of the Indian Penal Code (4th ed. Universal Law Publications 2013).
21Moot Proposition.
22Sehaj Ram v. State of Haryana, A.I.R. 1983 S.C. 614.
23Santosh v. State of Madhya Pradesh, (1975) 3 S.C.C. 727.
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victim and also there is no scope of escape. It is submitted that in Reg v. Govinda,24 it
was held that if the risk is higher of act and death is the most probable result, it is
murder25. In light of the factual circumstances, it is submitted that the victim had, at
previous instances, been threatened by the accused and that a complaint against the
accused was also filed by the deceased 26 owing to the pre-existing dispute between the
accused and the deceased27, thus, the intent was to kill the deceased arouse out of sheer
ill-motive and personal gains. It was the apprehension that the deceased would sell his
land and, thus, the illicit gain of the accused would not be catered to. Therefore, all the
requirements mentioned under sec. 30028 are met with and the accused shall be held
guilty of murder in the fact and circumstances of the current case.
II.6

The Alleged Act Is Subject To The Exceptions Provided Under

S.300 IPC
The Prosecution further contends that the act of the accused not only fulfils the
essential requisites of murder but also does not qualify to fall within any of the
exceptions provided in S.300. Firstly, the respondent would submit that if an accused
pleads an exception, then by virtue of Section 105 of the Indian Evidence Act 29, the
burden of proving the existence of such circumstances, bringing the case within any
of the exception, lies upon him and that the court is enjoined to presume the absence
of such circumstances. In Abdul Mojid v. State of Madhya Pradesh30 it was held that
the court is precluded to presume the existence of any such circumstances in the

24Reg v. Govinda, I.L.R. 1 Bom. 342.


25 Ibid.
26Annexure Moot Proposition, Report Made By Vishnu Rai Dated 29/08/14.
27Moot Proposition; Annexure Moot Proposition, Statement of P.W.1.
28Indian Penal Code 300 (1860).
29Indian Evidence Act 105 (1872).
30Abdul Mojid v. State of Madhya Pradesh, A.I.R. 1963 M.P. 364; State of Maharashtra v. K.
Laxmipati Naidu, A.I.R. 1981 S.C. 617.

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absence of their proof; it is also precluded from speculating and giving the accused
any benefit of doubts on the basis of such speculations.
The definition of provocation as explained by the Supreme Court of India in the case
of K. M. Nanavati v. The State of Bombay31, is as follows; the test of grave and
sudden provocation is whether a reasonable man, belonging to the same class of
society to which the accused belongs, and placed in the situation in which the accused
was placed, would be so provoked as to lose his self-control.
An important factor which court must look into while allowing the first exception is
the reasonable-man standard. This deals extensively with the relation of the
defendants behavior to that of the reasonable man. Not only must the defendant have
been provoked, but also the circumstances must be such that the ubiquitous
reasonable man would have acted in the same manner under those circumstances
In the light of the abovementioned tests, the counsel would like to state that there was
no grave and sudden provocation. Moreover, the method of causing the murder was
such that the accused had not only throttled the deceased but also beheaded him and
cut his stomach into straight following by burning his head and jaw, etc. This clearly
shows that the act was not a provoked one, rather a premediated one.
In K. Ahmed Koya v. State of Kerela,32 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. As mentioned in the information
provided by the accused under section 27 of the Indian Evidence Act 33, the deceased,
Vishnu Rai, hurled filthy abuses at him. In State of Orissa v. Burdara Majhi34the court
31K. M. Nanavati v. The State of Bombay, A.I.R. 1962 S.C. 605.
32K. Ahmed Koya v. State of Kerela, A.I.R. 1967 Ker. 92.
33Indian Evidence Act 27 (1872).
34State of Orissa v. Burdara Majhi, A.I.R. 1978 Ori. 168.
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held that mere objectionable or filthy abuses cannot be said to have deprived one of
his power of self control. The provocation must be an act, or a series of act, which, by
their very nature, would induce sudden and temporary loss of self control in a
reasonable man to such an extent that it can be said that he is no longer the master of
his mind.35 For the application of the first exception to section 300 36, the provocation
pleaded must be grave, grave here means that it must be serious enough to influence
the mind of the provoked person.37 An accused person, in order to invoke the benefits
of first exception, must distinctly show not only that the act was done under the
influence of some feeling, which took away, from the person doing it, all control over
his actions, but also that, that feeling had an adequate cause. 38 The said deprivation of
self-control

is

missing

in

the

instant

case.

Moreover, Exception 1 to sec. 30039 is not an absolute one and each little provocation
cannot be called grave simply because the consequences ensuing from that
provocation at the hands of the accused had been grave.40
The provocation must be such as will upset not merely a hastily, hot-tempered,
hypersensitive person, but even a person of ordinary sense and calmness. 41 Also, a
bare statement by the accused, that he regarded the provocation as grave, will not be
accepted by the court; the court has to apply an objective test for deciding whether or
not

the

provocation

was

grave.

A reasonable man does not lose self-control merely on account of an ordinary

35Ulla Mahapatra v. King, A.I.R. 1959 Ori. 261.


36Indian Penal Code 300 (1860).
37S. K. Sarvaria, R. A. Nelsons Indian Penal Code (9th ed. LexisNexis Butterworths 2003).
38Hafizullah v. State, A.I.R. 1957 All. 377.
39Indian Penal Code 300 (1860).
40S. K. Sarvaria, R. A. Nelsons Indian Penal Code (9th ed. LexisNexis Butterworths 2003).
41Dhanno Khan v. State, A.I.R. 1957 All. 317.
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exchange of abuses.42 Thus, it is humbly submitted before this Honble Court that
owing the fact that there was no on record proving the existence of provocation,
neither grave nor sudden, the incident cannot be said to be one falling under
Exception 1 to sec. 30043. In arguendo, even if we accept the mere statement of the
accused that the deceased had hurled filthy abuses, the same cannot be said to be a
sufficient ground for invoking the aforementioned Exception.

III.

WHETHER THE EVIDENCES ARE SUFFICIENT TO SECURE

III.1

CONVICTION
The Statement Made By The Appellant And Evidences Thereof

Are Sufficient
The necessity for the exclusion of a confession made to a police officer disappears in
a case provided by Sec. 27, Evidence Act when the truth of the confession is
guaranteed by the discovery of the facts on consequence of the information given. 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 44. Here in the present
situation there are evidences even after the annulling effect of Sec. 27, which can be
admitted.
In Anter Singh v. State of Rajasthan45 the requirements for Sec. 27 to be applicable.
The respondent contends that when the appellant told API Rathod that he himself
42S. K. Sarvaria, R. A. Nelsons Indian Penal Code (9th ed. LexisNexis Butterworths 2003).
43Indian Penal Code 300 (1860).
44Polukuri Kottiaya v. R., A.I.R. 1947 P.C. 67; State of Rajasthan v. Bhup Singh, (1997) 10 S.C.C.
675.
45Anter Singh v. State of Rajasthan, A.I.R. 2004 S.C. 2865

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and Jayesh had brought the dead body of Vishnu, Jayesh cut the neck of Vishnu with
the help of the dagger, the statement is not admissible under Section 27 of the
Evidence Act but the individual act of the police to notice that the blood was spilled in
the cracks of the earth near his house. This spilled blood is admissible under Sec. 27
as it is corroborated and not self-incriminatory. In Prabhoo v. State of U.P.46 the Apex
court has emphasized that if there is a statement which leads to a discovery, the
statement cannot be admitted under Sec. 27 but the discovery could be made
admissible. As admitted by Ramesh in Sec. 27, Evidence Act, the part that Vinod Rai
had come to his alone at night, then the body was found in the well near the
appellants house added to that is the blood stains and presence of a strong motive.
Thereby putting every circumstance in place, it forms a complete chain, a chain that is
unbroken. In Bhopara Sara Bharwad v. State of Gujarat47 the court upheld a
conviction where the case was established on the following (i)enmity (ii) the deceased
was last seen in the company of the accused (iii) ornaments in possession, sold the
next day i.e. incriminating material. If we juxtapose the case in the present situation,
conviction can be secured as here too enmity has been proven, the appellant has
accepted that Vinod Rai had come to his place after which no one saw him and the
blood stains on the cracks of the earth till 2*3 feet. A combined reading of all going
by the Bhopara Sara Bharwad case is enough to secure conviction.
III.2

Circumstantial Evidence Are Sufficient

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
46Prabhoo v. State of U.P., A.I.R. 1963 S.C. 1113.
47Bhopara Sara Bharwad v. State of Gujarat, 1986 Cr.L.J. 518.
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support one particular inference over another. The Respondent humbly submits that
the holdings or the five point test laid down in Padala Veera Reddy v. State of Andhra
Pradesh48 and Sharad Birdichand Sarda v. State of Maharashtra49 by the apex curt
does not completely apply here and this specific case can be differentiated on the
basis that in those the entire case was based only on circumstantial evidence. Here the
respondent also has the backing of ascertainable motive and the aspect of the last seen
theory. Thereby escaping the 5 point checklist of the abovementioned cases. In
Baldua v. State50, the accused took the deceased to his house for sleeping there and
early morning his dead body was found inside the house of the accused. Motive of the
crime was proved and circumstances taken together formed a complete chain for
proving the offence and therefore the conviction was upheld51. Here the conviction
was upheld on the basis of circumstantial evidence coupled with motive. Similar is the
situation in the present case where there is circumstantial evidence in the form of his
last call to PW2 at 9 P.M. on 5.02.2015 that he was going to meet the accused and the
body being recovered after that. Further this fact is coupled with requisite motive too,
thus strengthening the reasons for conviction. The respondent humbly clarifies its
stand that it nowhere is suggesting that only motive or circumstantial evidence
independently could be the basis for conviction, but an amalgamation of both could.
In the absence of motive, circumstantial evidence os not justified.52
III.3

The Last Seen Theory Applies

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
48Padala Veera Reddy v. State of Andhra Pradesh, A.I.R. 1990 S.C. 79.
49Sharad Birdichand Sarda v. State of Maharashtra, A.I.R. 1984 S.C. 1622.
50Baldua v. State, 2006 Cr.L.J. 1396 (Chh.).
51Baldua v. State, 2006 Cr.L.J. 1396 (Chh.).
52Budha Satya Venkata S. Rao v. State of Andhra Pradesh, 1995 S.C.C. (Cri.) 127.
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death of the other can be drawn. In Yuvraj Ambar Mohite v. State of Maharashtra53 it
was held that in the absence of eye-witnesses, the person last seen with the victim is
presumed to be the murderer, thus, shifting the onus onto the accused to prove
otherwise or come up with an alibi. The respondent would bring to the honble courts
notice that as per the statement made by the DW1, the deceased was last seen entering
the house of the accused and that he had started abusing the accused and it was since
this night that the deceased hadnt returned to his home. After this, the body of the
deceased was found in the well. The Supreme Court in the case of Rohtash Kumar v.
State of Haryana54, has observed that in cases where the accused was last seen with
the deceased victim before the incident, it becomes the duty of the accused to explain
the circumstances under which the death of the victim occurred. In Trimukh Maroti
Kirkan v. State of Maharashtra55, Supreme Court held that where an accused is
alleged to have committed the murder and the prosecution succeeds in leading
evidence to show that shortly before the commission of crime they were seen together
it has been consistently held that if the accused does not offer any explanation how the
deceased received injuries or offers an explanation which is found to be false, it is a
strong circumstance which indicates that he is responsible for commission of the
crime. The Supreme Court in Ravirala Laxmaiah v. State of A.P., 56 observed that it is a
settled legal proposition that in a case based on circumstantial evidence, where no
eyewitness account is available, the principle is that when an incriminating
circumstance is put to the accused and the said accused either offers no explanation
for the same, or offers an explanation which is found to be untrue, then the same
becomes an additional link in the chain of circumstances to make it complete. In
53Yuvraj Ambar Mohite v. State of Maharashtra, 2006 (10) S.C.A.L.E. 369.
54Rohtash Kumar v. State of Haryana, (2013) 14 S.C.C. 434.
55Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 S.C.C. 681.
56Ravirala Laxmaiah v. State of A.P., (2013) 9 S.C.C. 283.
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Mohibur Rahman and anr. v. State of Assam57, on account of close proximity of place
and time between the event of the accused having been last seen with the deceased
and the factum of death a rational mind may be persuaded to reach an irresistible
conclusion that either the accused should explain how and in what circumstances the
victim suffered the death or should own the liability for the homicide. It is humbly
presented before this court that though circumstance of last seen together may not
itself necessarily lead to inference that it was the accused who has committed the
crime, the chain of circumstances taken individually and cumulatively leads to the
conclusion that it was the accused, who murdered the deceased, and caused
disappearance of evidence of the commission of the offence.58
IV.

WHETHER THE APPELLANT IS LIABLE UNDER S. 201

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


offender is a punishable offence under the IPC. 59 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.60 As proved above that the crime was committed
by the appellant and the appellant had concealed the offence and disposed the body
and was silent for several days and offence under S. 201 is made out. In Ram Badan
Sharma v. State of Bihar where the dead body was clandestinely disposed off without
anyone noticing it, a case of S. 201 was made out and convicted by the Supreme
Court.61On similar lines here too the appellant disposed off the body clandestinely for
57Mohibur Rahman v. State of Assam, A.I.R. 2002 S.C. 3064.
58Arvindkumar Anupalal Poddar v. State of Maharashtra, (2012) 11 S.C.C. 172.
59Indian Penal Code 201 (1860).
60Roshanlal v. State of Punjab, A.I.R. 1965 S.C. 1413.
61Ram Badan Sharma v. State of Bihar, A.I.R. 2006 S.C. 2855.
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several days and hid or got rid of all the evidence of the offence and therefore a case
under 201 IPC is clearly made out and liable for the harshest punishment.

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited,
may this Honble Court be pleased to:
1. Uphold the decision and sentence 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. Confirm the death sentence awarded by the Sessions Court, and also be liable
to fine, as much as the court deems fit under Section 302 of the Indian Penal
Code, 1860.
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______________
PUBLIC PROSECUTOR

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