I

TEAM CODE:

6TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION 2016

IN THE HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

CRIMINAL APPEAL NO.****/2016

CASE CONCERNING OFFENCES UNDER SECTION 302, 304B, 498A READ WITH SECTION 34.

IN THE MATTER OF

STATE OF RAJASTHAN & VIKRAM GUPTA…................................................PETITIONERS

v.

DINESH GOYAL, SURESH GOYAL, SHARDA GOYAL...........................................RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF
THE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF RESPONDENT

 II

TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………..…..…………...III

LIST OF AUTHORITIES………………………………………………………………………...IV

CONSTITUTUION………………………………………………………………………..….IV

ACTS AND STATUTES………………………………………………………………………IV

LIST OF CASES......................................................................................................................IV

BOOKS REFERRED…………………………………………………………………………VI

DICTIONARIES REFERRED………………………………………………………………...VII

WEBSITE REFERRED………………………………………………………………………VII

STATEMENT OF JURISDICTION………………………………………………………………VIII

STATEMENT OF FACTS………………………………………………………………………..IX

QUESTIONS PRESENTED………………………………………………………………………XI

SUMMARY OF ARGUMENTS………………………………………………………………….XII

ARGUMENTS ADVANCED………………………………………………………………………1

I. WHETHER THE APPEAL FILED IS MAINTAINABLE?...................................................................1

A. THAT THE PETITIONER HAS NO LOCUS STANDI TO APPROACH THE SC…………………..1

B. THAT THE MATTER DOES NOT INVOLVE SUBSTANTIAL QUESTION OF LAW ….…...….….4

C. THAT THE APRECIATION OF EVIDENCE IS PROPER............................................................5

D. THAT GRAVE INJUSTICE HAS NOT BEEN DONE…..……..…………………………........6

II. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED ON THE

BASIS OF ORAL AND DOCUMENTARY EVIDENCE ADDUCED BY THE APPELLANT?..................7

A. ACCUSED ARE GUILTY OF OFFENCE U/S 304B RW 498A AND 34 ..................................7

B. ACCUSED IS GUILTY OF OFFENCE U/S 302 IPC……………………….……….….…..13

C. CIRCUMSTANCES ARE NOT OF CONCLUSIVE NATURE………………….………….....16

D. REASONABLE DOUBT EXIST…………………………………...……………….….....18

PRAYER……………………………………………………………………………….…….20

Memorial on Behalf of Respondents

 III

LIST OF ABBREVIATIONS

¶ Paragraph
& And
AIR All India Reporter
Anr. Another
Art. Article
CA Criminal Appeal
CIT Commissioner of Income Tax
Cr.LJ Criminal Law Journal
Cr. PC Code of Criminal Procedure
DV Domestic Violence
DW Defence Witness
FIR First Information Report
Gau Guwahati
HC High Court
i.e. That is
IPC Indian Penal Code
IEA Indian Evidence Act
FD Fixed Deposit
Mad Madras
NCT National Capital Territory
Ors Others
PC Privy Council
P&H Punjab & Haryana
PW Prosecution Witness
PMR Post Mortem Report
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Record
SLP Special Leave Petition
UOI Union of India
v. Versus

Memorial on Behalf of Respondents

 IV

LIST OF AUTHORITIES

CONSTITUTION

1. CONSTITUTION OF INDIA

ACTS AND STATUTES

1. THE DOWRY PROHIBITION ACT, 1961.

2. THE CODE OF CRIMINAL PROCEDURE, 1973

3. THE INDIAN EVIDENCE ACT, 1872

4. THE INDIAN PENAL CODE, 1860

5. THE PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE ACT, 2005

LIST OF CASES

1. Abraham Mallory Dillet re, (1887) 12 AC 459…..……………………...………….04

2. Ali Jishan v. State of Kerala, on 26 November, 2009……………..……………...…17
3. Amar Singh v. State of MP, 1996 Cr.LJ 1582 (MP)…………………...……………14
4. Anil Kumar Gupta vs. State of UP, 2011 Cr.LJ 2131…………………………..…...12
5. Aruna Chadha v. State of Delhi, CRL.REV.P. 305/2013…………………………..….…….05
6. Arun Garg v. State of Punjab, (2004) 8 SCC 251…………………………………...12
7. Beant Singh V. Union Of India & Ors 1977 SCC (1) 220…………………………..06
8. Bishandas v. State of Punjab, AIR1975 SC573……………………………………..………18
9. Brij Bhushan Sharma v. State of UP, 2001 Cr.LJ 1384…………………………......17
10. Chanda Laxmi N. v. State of A.P, 1996 Cr.L.J. 2670………..………………….......08
11. Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra, 1974 Cr.LJ 1044...06
12. Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415…………………….06
13. Chhotanney & Ors. v. State of UP, AIR 2009 SC 2013…………………………….19
14. Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731……………………......06
15. Durga Parsad v. State of MP, 2010 Cr.LJ 3419…………………………………….12
16. Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211….………………...1,2
17. Gedu Alias Parameswar Patra v. State of Orissa, SC on 13th July 2016…………...16
18. Gurnam Singh v. State, 1998 Cr.LJ 3694 (P&H)………………………………….10
19. Himanchal & Anr. v. State of UP, SC on 18th August, 2015……………………..15

Memorial on Behalf of Respondents

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20. Jahar Lal Das v. State of Orissa, 1991 (3) SCC 27……………………………….....17
21. Janak Singh v. State of Uttar Pradesh, (1973) 3 SCC 50……………………..……..01
22. Jawahar Maghi Sindhi Bhansale v. State, 2006 Cr.LJ 1717 (Guj)………………….10
23. Jethalal v. State of Gujarat, AIR 1968 Guj 163………………………………..……18
24. Kaliram v. State of HP, AIR 1973 SC 277………………………………………….19
25. Kans Raj v. State of Punjab, AIR 2000 SC 2324………………………………..….09
26. Kantilal Martaji Pandor v. State of Gujarat, (2013) 8 SCC 781…………….……....09
27. Keshab Chandra Panda v. State of Orissa, (1995) 1 Cr.LJ 174 (Ori)……………….11
28. King Emperor v. U Damapala, (1936)14 Ran 666……………………………….....18
29. Lokesh Kaushik & Ors. v. State, SC on 28th April, 2009…………………………...09
30. Mahmood v. State of UP, AIR 1976 SC 69…………...…………………………….17
31. Mahavir Kumar & Ors. v. State, Delhi HC on 16th May, 2014………………….10,11
32. Md. Alimuddin And Ors. v. State Of Assam MANU/GH/0052/1992 ………..…....18
33. Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182…….…………………..14
34. Mohd. Nawaz v. Emperor AIR 1941 PC 132………………………………………03
35. Mohinder Singh v. State of Punjab, AIR 1965 SC 79……………………………...05
36. Naina Mohammed re, 1960 Cr.LJ 620……………………………………………..18
37. Nazuk Zahan v. Addl. DJ, AIR 1981 SC 1549…………………………………......03
38. Palvinder Kaur v. The State of Punjab 1953 Cr.LJ 154……………………………05
39. Pritam Singh v. State, AIR1950 SC 169………………………………………..02,05
40. Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37……….....04
41. Rajiv Jassi v. State of HP, II (2004) DMC 683…………………………………....07
42. Rambraksh v. State of Chhattisgarh, CA No. 462 of 2016, SC on 12.05.2016..12,17
43. Ram Khelawan v. State of Madhya Pradesh, 2014 SCC Online Chh 29……….…15
44. R.J. Singh Ahluwalia v. State of Delhi, AIR 1971 SC 1552………………………03
45. Shailendra Kumar v. State of Chhattisgarh, on 11 Sept, 2009…………………….09
46. Sharad Birdhichand Sarda v. State of Maharsahtra, AIR 1984 SC 1622………….11
47. Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC
323............................................................................................................................03
48. State of Andhra Pradesh v. Kalidindi Sahadevedu, 2012 Cr.LJ 2302 (AP)……....08
49. State of Andhra Pradesh v. Madhususudhan Rao, 2008 15 SCC 582……….…....09
50. State of HP v. Rajiv Jassi, MANU/SC/0531/2016 : SC on 6th May, 2016………..17
51. State Of Orissa v. Minaketan Patnaik, AIR 1953 Ori 160………………………...04

Memorial on Behalf of Respondents

 VI

52. State of Punjab v. Jagir Singh, Baljeet & Karam Singh, AIR 1973 SC 2407……….19
53. State of Tamil Nadu v. C.A. Akhtar and Co., Manu/TN/0637/1997………………..15
54. State Of U.P v. Krishna Gopal & Anr AIR 1988 SC 2154…………………….…....03
55. State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382…………………………..18
56. Sukbir Singh v. State of Haryana, AIR 2002 SC 1168……………………………...04
57. Sunkara Suri Babu v. State, 1996 Cr.LJ 1480 (AP)……………………………...….11
58. Tanviben Pankaj Kumar Divetia v. State of Gujarat, (1997) 7 SCC 156…………...07
59. Ujagar Singh v. State of Punjab (2007) 13 SCC 90…………………………………05
60. U. Suvetha v. State, (2009) Cr.LJ 2974…………………………………………......08
61.Vipin Jaiswal(A-I) v. State Of A.P. SC on 13 March, 2013………………………...07
62. Vithal Eknath Adlinge v. State of Maharashtra, SC on 27th Feb, 2009……………..17

BOOKS REFERRED
1. Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016)
2. Dr. CK Parikh, Textbook of Medical Jurisprudence, Forensic Medicine &
Toxicology, (6th Ed., CBS Publisher’s 2014)
3. Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010).
4. Dr. K.S. Narayana Reddy, The Essentials of Forensic Medicine& Toxicology (33rd
Ed., J.P. Publications, 2010)
5. H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law Publication,2015)
6. J.P. Modi’s , A Textbook of Medical Jurisprudence & Toxicology, (25th Ed., Lexis
Nexis , 2016)
7. Justice UL Bhatt, Lectures on Indian Evidence Act,(Universal LawPublication,2015)
8. KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009)
9. KD Gaur, The Indian Penal Code, (15th Ed. , Law Publishers India Pvt. Ltd., 2016)
10. MP Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016)
11. N.K. Acharya, Protection of Woman From Domestic Violence Act,( 6th Ed. Asia Law
House,2013
12. Prof. Arthur Best, Wigmore on Evidence,(Aspen Publishers; 13-Volume
Ed.December 31, 1995)
13. P.K. Majumdar & R.P. Kataria, Law Relating to Dowry Prohibition Cruelty &
Harassment (3rd Ed. Orient Publication,2015)
14. Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II , Thomson Reuters)
15. Ram Shelkar, Law Relating To Dowry Death( 1st Ed. , Kamal Publishers, 2010)

Memorial on Behalf of Respondents

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16. Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)
17. Ratanlal & Dheerajlal, Law of Evidence (25th Ed, Lexis Nexis, 2013)
18. Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016)
19. R.V. Kelkar, Criminal Procedure, (5th Ed. 2011)
20. SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency, 2014 )
21. SC Sarkar, The Code of Criminal Procedure: An Encyclopaedic Commentary on the
Code of Criminal Procedure,1973 (11th Ed., Lexis Nexis, 2015)
22. V.N. Shukla's, Constitution of India, (12th Ed. Eastern Book Company, India 2013).

DICTIONARIES REFERRED
1. Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006)
2. Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990).

WEBSITES REFERRED

1. www.manupatrafast.in (Last visited on 7th August, 2016)

2. www.scconline.com (Last visited on 8th August,2016 )
3. www.supremecourtofindia.nic.in (Last visited on 2nd August,2016)
4. www.westlawindia.com (Last visited on 5th August,2016)

Memorial on Behalf of Respondents

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STATEMENT OF JURISDICTION

The respondents have appeared before the Honourable SC of India in response to the appeal
filed by the Appellant.

The memorandum for Respondents in the matters of State of Rajasthan & Vikram Gupta
v. Dinesh Goyal, Suresh Goyal & Sharda Goyal, set forth the Facts, Contentions and
Arguments present in this case.

Memorial on Behalf of Respondents

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STATEMENT OF FACTS

1. Shri Dinesh Goyal & Shri Vikram Gupta were acquaintances. Suresh and Sharda, son
and daughter respectively of the above mentioned were pursuing MBA, in the same College.
Both fell in love. Suresh suggested to his father to talk to Vikram Gupta for his daughter.
Marriage was agreed upon. Dinesh Goyal demanded dowry of a substantial value and a sum
of ₹ 1 Cr. for wedding celebrations. Vikram Gupta accepted it. The marriage took place on
17.07.2012. The said dowry was paid. An extravagant wedding reception was thrown by
Dinesh Goyal on 18th July, 2012 in the presence of approximately 5000 guests.
2. CIT conducted a survey u/s 133A (5) & calculated an expenditure of ₹ 5 Cr. by Gupta
and ₹. 7.5 Cr. by Goyal, whereon an assessment of books of account revealed expenses each
of ₹ 1 Cr. only. They stated that expenditure computed by the investigation is incongruent to
the tune of ₹ 2.5 Cr. Both filed their returns and declared their undisclosed amount as per
their statements and paid tax with interest. However, on scrutiny assessment u/s. 143(3) the
Assessing Officer made an addition of the differential amount and levied tax with interest
notifying for penalty u/s. 271(1)(c) of the Act. Both the filed appeals are pending.
3. Sharda did not receive proper humane treatment from her in-laws. Her mother-in-law
continuously demanded a Mercedes Car and a FD of ₹ 1 Cr. However a FD of ₹ 25 lac was
already presented by the name of Sharda. Her mother-in-law also demanded a baby boy,
within a year. Sharda gave birth to a baby girl; the Goyal family was not happy and Sharda
was sent back. Sharda in the meantime maintained a daily diary. Around 20.05.2015 Suresh
apologized for mistreatment and brought Sharda back home. But the relationship between
Sharda and her husband continued to be estranged due to dowry demands and drinking habits
of Suresh. Sharda was abused and beaten even in front of the servants.
4. Goyal family hatched a plan on 24.5.2015 and bought an organic phosphorus poison
(NUVAN) from PW-1. On 25.5.2015, Sharda was forcibly poisoned by her mother in law.
And Suresh helped her to do so. Sharda sustained injuries on her face, lips and neck. PW-2, a
servant heard the commotion and the conversation “Give me salty water. I do not want to
die”. Servants, PW-3 and PW- 4 smelt poisonous odour in the room. PW-4, requested Dinesh
to take Sharda to the hospital but Dinesh refused. In the meantime PW-5 and PW-6 (relatives
of Sharda) arrived and smelt the same odour in the room. On being asked, she raised her hand
towards the accused Dinesh Goyal and Shalini Goyal. PW-4 informed the police at about
4.30 a.m. On that, PW-7 noted the information in the daily diary. He found Sharda lying on
the bed in an unconscious state. PW-8, examined Sharda at about 6 a.m. and noted the

Memorial on Behalf of Respondents

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patient semi-conscious with history of consumption of poison. Reddish contusion over the
lateral side of her right eye brow and swollen lips were observed. He administered the initial
treatment. Thereafter he referred Sharda to S.M.S. Hospital, Jaipur where she died. Post
mortem was conducted by PW-9 in association with Dr V. K. Mishra. Cause of death was
diagnosed to be a case of Asphyxia due to the organic phosphorus poisoning.
5. Vikram Gupta, PW- 10 got to know about Sharda’s condition came to the hospital and
lodged a report at the PS mentioning that three accused have forcibly administered poison
with intention to kill his daughter for non-fulfilment of further demand of dowry. FIR was
registered u/s 498A, 304B, 306/34 of the IPC. The diary which was exhibited and evidence
showed that Suresh purchased NUVAN, as a result charges u/s 498A and 304B read with s34
of IPC& under the Dowry Prohibition Act, 1961were framed against the accused persons. All
the three accused adjured the guilt and pleaded innocence. Accused, Dinesh in his statement
u/s 313 Cr. PC did not deny the factum of the deceased having died due to poison. Three
defence witnesses were examined, who stated that Sharda Goyal was happy in Goyal House
and their relations were cordial and she was treated as a daughter.

Finding of the trial Court: The trial court acquitted the mother-in-law & Suresh Sh. Suresh
Goyal. However, convicted the father-in-law for commission of offence u/s 302 IPC and
awarded imprisonment for 7 years with no fine.

Finding of the Rajasthan High Court: State as well as Vikram Gupta filed appeal against
accused. Dinesh Goyal also filed an appeal against conviction. The High Court acquitted the
respondent Dinesh Goyal on the ground that circumstantial evidence is not of conclusive
nature.

Appeal before the Supreme Court: The State as well as Vikram Gupta filed appeal against
all the three accused setting aside conviction and non-levy of maximum imprisonment with
fine as also awarding exemplary cost all throughout.

Memorial on Behalf of Respondents

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QUESTIONS PRESENTED

-I-

WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT?

-II-

WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED ON

THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE ADDUCED BY THE APPELLANT?

Memorial on Behalf of Respondents

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SUMMARY OF ARGUMENTS

I. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT.

It is humbly submitted before this Honourable SC that the petitioner has no locus standi
to approach the Honourable SC because the present case does not involve any substantial
question of law, the HC has considered the entire gamut of evidence properly and there has
been no grave injustice. Also the SC will not interfere with the concurrent finding of the
courts below unless of course the findings are perverse or vitiated by error of law or there is
gross miscarriage of justice. Criminal appeals may not be brought to the SC by the appellant
when they are not covered by its jurisdiction. Therefore in the present case, present appeal
filed by the State & Vikram Gupta is not maintainable.

II. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED

ON THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE ADDUCED BY THE APPELLANT?

It is most humbly submitted before the Honourable Court that the acquittal order given by
HC in favour of accused is justifiable. As the circumstances of the case is not of conclusive
nature and chain of circumstances is not complete as to unerringly point to the guilt of the
accused. The prosecution has also failed to prove that the poison was in possession of the
accused. The Trial Court has not convicted the accused under section 498A or section 304B
of IPC. Therefore it could not be said that deceased was being ill-treated or harassed with
cruelty on the account of dowry. Also the victim did not name the accused as responsible for
administering poison. The clothes of the deceased have not been produced. When two views
are possible, one favourable to the accused is required to be adopted. Hence conviction
should be set aside. Therefore, accused are not guilty of the offence u/s 498A, 304B and 302.

Memorial on Behalf of Respondents

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ARGUMENTS ADVANCED

I. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT.

It is humbly submitted before this Honourable SC that the petitioner has no locus standi
to approach the Honourable SC [A] because the present case does not involve any substantial
question of law, [B] the HC has considered the entire gamut of evidence properly [C] and
there has been no grave injustice [D].

[A] THE PETITIONER HAS NO LOCUS STANDI.

It is most humbly submitted before this Honourable Court that the SC will not interfere
with the concurrent finding of the courts below unless of course the findings are perverse or
vitiated by error of law or there is gross miscarriage of justice. Criminal appeals may not be
brought to the SC by the appellant when they are not covered by the jurisdiction of the SC of
India.1
Criminal Appellate jurisdiction in SC can arise only through Article 134 or 136 of the
Constitution of India. A limited Criminal Appellate jurisdiction is conferred upon the SC by
Article 134. It is limited in the sense that the SC has been constituted as a Court of criminal
appeal in exceptional cases where the demand of justice requires interference by the highest
court of the land.2There are two modes by which a criminal appeal from any judgement, final
order or sentence in a criminal proceeding of a HC can be brought before the SC:
1. Without the certificate of the HC- Firstly, an appeal lies to the SC if the HC reverses
the decision of acquittal of the accused person and sentences him to death. Once it is
established that the HC has applied the correct principles in reversing an order of
acquittal, the SC would not interfere with the HC’s order of conviction or reassess the
evidence. The SC would only examine whether the HC has approached the question
properly and applied the principles correctly. Secondly, if the HC has withdrawn for trial
before itself any case, from any court subordinate to its authority and has in such trial
convicted the accused person and sentenced him to death, an appeal shall lie in the SC
from the order of the HC.3

1
Ganga Kumar Srivastava v. State of Bihar, 2005 6 SCC 211
2
V.N Shukla, Constitution of India, (11th Ed., Eastern Book Company at Pg. 497)
3
Janak Singh v. State of Uttar Pradesh, (1973) 3 SCC 50 ( Quoted in VN Shukla’s, Constitution of India, 12 th
Ed. At Pg. 530)
 2

2. With the certificate of the HC.–An appeal lies to the SC from any judgement, final
order or sentence in a criminal proceeding of a HC if the HC certifies under Article 134A
that the case is fit one for appeal to the SC. The HC can issue a certificate in its own
motion or if an oral application is made by the aggrieved party immediately after passing
the judgement. 4

In the present case, none of the conditions under Article 134 are satisfied to entertain this
appeal. The other remedy available is under Article 136. The basic principles underlying
Special Leave to Appeal under Article 136 of the Constitution of India are:

i. The powers of this Court under Article 136 of the Constitution are very wide but in
criminal appeals this Court does not interference with the concurrent findings of fact,
save in exceptional circumstances.
ii. It is open to this Court to interfere with the findings of fact given by the HC, if the HC
has acted perversely or otherwise improperly.
iii. It is open to this Court to invoke the power under Article 136 only in very exceptional
circumstances as and when a question of law of general public importance arises or a
decision shocks the conscience of the Court.
iv. When the evidence adduced by the prosecution fell short of the test of reliability and
acceptability and as such it is highly unsafe to act upon it.
v. Where the appreciation of evidence and finding is vitiated by any error of law or
procedure or found contrary to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of the HC are manifestly
perverse and unsupportable from the evidence on record.5

The SC observed in the Pritam Singh v. State6, in explaining how the discretion will be
exercised generally in granting SLP: The wide discretionary power with which this court is
invested under it is to be exercised sparingly and in exceptional cases only and as far as
possible a more or less uniform standard should be adopted in granting special leave in the
wide range of matters which can come up before it under article 136.7 Circumspection and

4
Article 134A, Indian Constitution
5
Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211
6
AIR 1950 SC 169
7
Ibid

Memorial on Behalf of Respondents

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circumscription must induce the Court to interfere with the decision under challenge only if
the extraordinary flaws or grave injustice or other recognised grounds are made out.8

The SC does not interfere with the HC findings of acquittal unless that finding is clearly
unreasonable, unsatisfactory, perverse or manifestly illegal or is vitiated by some glaring
infirmity in the appraisal of evidence, or the HC completely misdirects itself in reversing the
order of conviction by the trial court, or it results in gross miscarriage of justice.9

Also the SC does not allow a point not raised before the courts below to be raised before
itself for the first time.10 Every error, even of law, does not justify interference under article
136.11 In the present case there is no error of law.

In Mohammed Nawaz v. Emperor,12 the Privy Council pointed out the circumstances in
which criminal appeal would interfere:

1. Where the accused has not been given the opportunity of being heard.
2. Where the trial took place in the absence of the accused.
3. Where the accused is not allowed to call relevant witness.
4. Where the tribunal was shown to have been corrupt or not properly constituted.
5. Where the court fails to understand the proceedings because of language.
6. Where the sentencing court had no jurisdiction to try the cases

The present case does not satisfy any of the conditions mentioned above and appeal could not
be heard under these circumstances. Also, the court can interfere with the order of acquittal
only when:

1. The appreciation of evidence by the trail court is perverse or the conclusion drawn by
it cannot be drawn on any view of the evidence;
2. Where the application of law is improperly done;
3. Where there is substantial omission to consider the evidence existing on record;
4. The view taken by the acquittal court is impermissible on the evidence on record; or
5. If the order of the acquittal is allowed to stand, it will result in the miscarriage of
justice.

8
Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
9
State Of U.P v. Krishna Gopal & Anr AIR 1988 SC 2154
10
R.J. Singh Ahuluwalia v. State of Delhi, AIR 1971 SC 1552
11
Nazuk Zahan v. Addl. DJ, AIR 1981 SC 1549
12
AIR 1941 PC 132 (Quoted in VN Shukla, Constitution of India 12 th Ed at Pg.539)

Memorial on Behalf of Respondents

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In the instantaneous case, it is pertinent to note that, none of the circumstances above are
being fulfilled. It is a settled principle of law that the prosecution has to satisfy certain
conditions before a conviction based on circumstantial evidence can be sustained. 13 The
circumstances from which the conclusion of guilt is to be drawn should be fully established
and should also be consistent with only one hypothesis i.e. the guilt of the accused.14 The
circumstances should be conclusive and proved by the prosecution. There must be a chain of
events so complete as not to leave any substantial doubt in the mind of the court.15

In this present case the circumstances do not form a chain, such lacunae leaves a lot of room
for several possibilities and doubt. The HC took a decision keeping such doubt in mind, since
the evidences did not point towards the absolute guilt of the accused, the conviction was set
aside. Therefore, in light of the above mentioned arguments stated; the petitioner has no locus
standi to approach the Honourable SC.

[B] INVOLVES NO SUBSTANTIAL QUESTION OF LAW

It is most humbly submitted before this Honourable court that the present case does not
involve any substantial question of law. In Abraham Mallory Dillet re16, it was observed
that the Privy Council would not review criminal proceedings unless it is shown that by a
disregard of the forms of legal process or some violation of the principles of natural justice or
otherwise, substantial or grave injustice has been done.

The findings of the HC have to be judged by the yardstick of reason to ascertain whether such
findings were erroneous, perverse and resulted in miscarriage of justice, if the conclusion of
the court below can be supported by acceptable evidence, the SC will not exercise the
discretion to interfere with the decision and if the two views are possible, the view in the
favour of the accused has been accepted.17

Also SC stated that it must nonetheless be emphasised that whether a chain is complete or not
would depend on the facts of each case emanating from the evidence and no universal
yardstick should ever be attempted.18

13 Ratanlal & Dhirajlal, Indian Evidence Act, (25th Ed., Lexis Nexis at Pg. 18)
14 Ibid
15 Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
16 (1887) 12 AC 459, (Quoted in State of Orissa v. Minaketan Patnaik, AIR 1953 Ori 160)
17
Sukbir Singh v. State of Haryana, AIR 2002 SC 1168
18
Ujagar Singh v. State of Punjab, (2007) 13 SCC 90,

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[C] APPRECIATION OF EVIDENCE IS PROPER

It is most humbly submitted before this Honourable court that the evidence is considered
properly in the present case. Also SLP does not concern itself with the weight of evidence, or
the conflict of evidence or with inferences drawn from evidence or with questions as to
corroboration or contradictions of testimony or as to whether there was sufficient evidence to
satisfy the burden of proof.19

The court does not allow facts to be reopened or act as a court to review evidence. 20 The
conduct of the deceased of pointing a finger towards the accused does not prove anything.
There is no eye witness to show that the accused have administered the poison. PW2 has only
heard shrieks and gave evidence which was the aftermath of the main alleged incident, giving
rise to suspicion. There are series of decisions holding that no one can be convicted on the
basis of mere suspicion, however, strong it may be.21 In cases denying on circumstantial
evidence courts should safeguard themselves against the danger of basing their conclusions
on suspicions how so ever strong.22

In the present case, the court would not grant SLP merely because the finding of fact
challenged as erroneous or on the ground that the SC would have come to a different
conclusion upon the evidence admitted.23

The HC gave its decisions based on evidences; the principles of natural justice were
followed. There are no facts to show that the accused was not given adequate opportunity, the
procedure followed was the one given in Cr.PC, and there is no issue as to the interpretation
of law. The order was passed keeping in mind the evidences.

It is a well settled practice of the SC that except where there has been an illegality or an
irregularity of procedure resulting in the absence of a fair trial or gross miscarriage of justice,
the SC does not permit a third review of evidence with regard to questions of facts in cases in
which two courts of fact have appreciated and assessed the evidence with regard to such
question.24

19
M.P. Jain, Indian Constitutional Law (7th Ed. Lexis Nexis, 2016 at Pg. 174)
20
Mohinder Singh v. State of Punjab, AIR 1965 SC 79
21
Aruna Chadha v. State of Nct Delhi, Cri. Rev. No. 305/2013
22
Palvinder Kaur v. State of Punjab, 1953 Cr.LJ 154
23
Pritam Singh v. State, AIR 1950 SC 169
24
Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731

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[D] GRAVE INJUSTICE HAS NOT BEEN DONE

It is most humbly submitted before this Honourable SC that there is no grave injustice.
According to HC findings there has been no evidence to show that “NUVAN” was in
possession of Dinesh Goyal. He took the deceased to the hospital, also arranged for salt water
for gastric lavage. Conduct of a man is particularly important to the law of evidence for his
guilt or state of his mind.25 It also cannot be disputed that when we take into account the
conduct of an accused, his conduct must be looked at in its entirety.26 Flight from justice and
its analogous conduct, have always been deemed indicative of a consciousness of guilt, it is
today universally conceded that the fact of an accused’s flight escape, concealment, related
conduct are admissible as evidence of consciousness of guilt and thus of guilt itself.27

The Supreme Court does not interfere with the exercise of discretionary power by the HC
merely because two views are possible on the facts of the case.28 An appellate court,
however, must bear in mind that in case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to be innocent unless
he is proved guilty by a competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened
by the trial court.29

As per the HC in the present case, circumstances are not of conclusive nature. Chain of
circumstances is not complete so as to unerringly point to the guilt of the accused. Also the
prosecution has failed to prove that poison was in possession of the accused. And the
appellant was not able to prove the case beyond reason doubt. When two views are possible,
one favourable to the accused is required to be adopted. Therefore no grave injustice has been
done in the present case.

In Tanviben Pankajkumar Divetia v. State of Gujarat,30 the Honourable SC in the case

based on circumstantial evidence has also cautioned the Courts as under:

"......the Court has to be watchful and avoid danger of allowing suspicion to take the place of
legal proof for sometimes, unconsciously it may happen to be a short step between moral

25
Sec. 8, IEA 1872
26
Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra, 1974 Cr.LJ 1044
27
Prof. Arthur Best, Wigmore on Evidence,(Aspen Publishers; 13-Volume Ed .December 31, 1995 Pg. 345)
28
Beant Singh V. Union Of India & Ors 1977 SCC (1) 220
29
Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415
30
MANU/SC/0550/1997 : (1997) 7 SCC 156; Rajiv Jassi v. State of Himachal Pradesh II (2004) DMC 683

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certainty and legal proof. It has been indicated by this Court that there is a long mental
distance between "may be true" and "must be true" and the same divides conjectures from
sure conclusions."

Thus in the light of all the cases cited and the evidence produced we can conclude that in
these cases what the court has to see is “ interest of justice “ and the interest of justice
demands that the court should protect the respondent. Therefore the present does not have
jurisdiction to be heard at the apex court.

II. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED ON

THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE ADDUCED BY THE APPELLANT?
It is most humbly submitted before the Honourable SC that the decision of the HC is
justifiable. The HC of Rajasthan has set aside the order of Session Court in which the court
had convicted the accused. The order of the HC is valid as firstly, the accused are not guilty
for the offence of Dowry Death and Cruelty [A] secondly, the accused is not guilty for the
offence of Murder [B], because the chain of circumstantial evidence is not established and
there exists reasonable doubt [C].

A. THE ACCUSED ARE NOT GUILTY OF OFFENCE U/S SECTION 304B READ WITH SECTION
498 A OF IPC.
It is humbly submitted before this Honorable Court that the accused are not guilty for
the offence of dowry death. The Honorable SC has pronounced that for conviction in dowry
31
death it is mandatory to prove cruelty first. Whoever, being the husband or the relative of
the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable to fine.32
And cruelty means any willful conduct which is of such a nature as is likely to drive the
woman to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman.33

In the present case, there is no any willful conduct which is of such nature as is likely to drive
the woman to cause grave injury or danger to life or health (whether mental or physical). And
not even a single witness could describe any incidence in which the deceased was subjected
to cruelty earlier.

31
Vipin Jaiswal(A-I) vs State Of A.P. SC on 13 March, 2013
32
Sec. 498A, IPC, 1860
33
Explanation I of S. 498 A, IPC, 1860

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For proving the offence under section 498A the following ingredients of this Section must be
fulfilled.

1. The women must be married

2. She must be subjected to cruelty or harassment and

3. Such cruelty or harassment must have been shown either by husband of the woman or
by the relative of her husband.34

In the instant case only the first ingredient is satisfied. The testimony of witnesses do not
prove that the deceased was subjected to any cruelty. Also in the present case the Trial Court
convicted the accused only u/s 302 of IPC and finally he was acquitted by the HC, it means
that accused is not guilty of the offence of dowry death & cruelty in the present case.

Where the charge was that of murdering wife for dowry and no evidence was available
except this that the accused projected the theory of intruders killing her (which the court did
not believe) and did not immediately made police report or to get medical help for his injured
wife, this was held to be not sufficient to convict him for murder.35 In the present case, on
20.05.2015 Shri Dinesh Goyal reached in-laws house and sought consent of Sharda and she
returned to Goyal Palace. Also after that there was no demand of dowry & cruelty. Therefore,
accused should not be convicted under section 498A of IPC.

In State of Andhra Pradesh v. Kalidindi Sahadevedu,36 it was alleged that, as the deceased
did not beget child for a period of three year after the marriage, accused harassed the
deceased by calling her “barren woman”. It was held that mere commenting that deceased
was not begetting children, does not amount to subjecting cruelty within the meaning of
section 498A of IPC. Hence, in the present case the allegation of appellant that deceased
mother in law threatened to give birth to a baby boy, within one year, else she would be
thrown out would not amount to cruelty under section 498A of IPC.

34
Suvetha v. State, (2009) Cr. LJ 2974
35
Chanda Laxmi v. State of AP, 1996 Cr.LJ 2670 (Quoted in (Ratanlal & Dhirajlal, The Indian Penal Code, 34 th
Ed. Sec.498A)
36
2012 Cr.LJ 2302 (AP) Quoted in (Ratanlal & Dhirajlal, The Indian Penal Code, 34 th Ed. Sec.498A)

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Even mere harassment or mere demand for dowry for property etc. is not cruelty. It is only
where the harassment is shown to have been caused for the purpose of coercing a woman to
meet demands that it amounts to cruelty which has been made punishable under the section.37

Also the SC has observed that in-laws of a deceased cannot be roped in only on the ground of
being the close relative of the husband of the deceased. Some overt act must be attributed to
them in the incident and the same should also be proved beyond reasonable doubt38.

Also in State of AP v. Madhusudhan Rao,39 no cruelty for dowry was made out, the fact
that there was attempt at forced poisoning was nullified in the view of SC. The court also
pointed out harassment simpliciter is not cruelty; it is cruelty when it is passed for coercing a
dowry demand.

The SC observed in the number of cases that where the cause of the death of the deceased is
no more in question in a case, the dying declaration made by the deceased cannot be taken to
be proof of cruel acts committed by the appellant for the purpose of holding him guilty under
section 498A IPC.40 Also in the present case, the relationship between the accused &
deceased was cordial & DW’s stated the same.

ACCUSED ARE NOT GUILTY FOR THE OFFENCE OF DOWRY DEATH.

It is most humbly submitted before this Honourable court that the accused are not
guilty of the offence of dowry death. Where the death of a woman is caused by any burns or
bodily injury or occurs otherwise than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called "dowry death", and such husband or relative
shall be deemed to have caused her death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extend to imprisonment for life.41

The term “dowry” means any property or valuable security given or agreed to be given either
directly or indirectly by one party to the marriage to the other party to the marriage or by the

37
Lokesh Kaushik & Ors. v. State, SC on 28th April, 2009
38
Kans Raj v. State of Punjab, AIR 2000 SC 2324 (Quoted in Shailendra kumar v. State of Chhattisgarh, on 11 th
Sept, 2009.)
39
2008 15 SCC 582
40
Kantilal Martaji Pandor v. State of Gujarat, (2013) 8 SCC 781
41
Sec. 304B, IPC 1860

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parent of either party to the marriage or to any other person.42 In the present case there is no
any property or valuable security given or agreed to be given either directly or indirectly by
Shri Vikram Gupta to Shri Dinesh Gupta.

It is pertinent to note that this section apply whenever the occurrence of death is preceded by
cruelty or harassment by husband or in laws for dowry and death occurs in unnatural
circumstances. But in the instantaneous case, it is very clear from the facts of the case that the
occurrence of death is not preceded by cruelty or harassment by husband and in laws as it
was not stated by any servant who gave testimony. Henceforth, it is most humbly submitted
in the Honourable Court that the accused is not guilty for the offence of dowry death.

In a similar case where the accused were charged for harassing the victim for bringing
inadequate amount of money but demand for dowry was not proved and hearsay evidence of
the witnesses could not be proved beyond reasonable doubt. It was held that offence under
section 498-A was not made out and accused was entitled to acquittal.43

The SC observed that, where Father-in-law was, in a case was subject to vague accusation of
ill-treatment but since there was no other evidence which could prove that father-in-law was
inflicting physical and mental cruelty to the deceased wife, hence order of conviction and
sentence passed were set aside.44

It is pertinent to note that Section 304B of IPC always apply whenever the occurrence of
death is preceded (soon before) by cruelty or harassment by husband-in laws for dowry and
death occurs in unnatural circumstance.45 In the present case, the occurrence of the death of
the deceased was not preceded by cruelty or harassment by the accused for dowry. Hence
they are not guilty for the offence under section 304B of IPC.

Also it is pertinent to note that for convicting the accused under section 304B of IPC all the
ingredients must be fulfilled but in this case appellant failed to prove all the ingredients
before the court. There is no cruelty in the present case which is preceded by demand of
dowry by husband and in-laws. Also HC held that since the trial court has not convicted the
accused under section 498A or section 304B IPC, it could not be said that the deceased was
being ill – treated or harassed with cruelty on account of dowry.
42
Sec. 2, Dowry Prohibition Act, 1961
43
Gurnam Singh v. State, 1998 Cr.LJ 3694 (P&H)
44
Jawahar Maghi Sindhi Bhansale v. State, 2006 Cr.LJ 1717 (Guj) (Quoted in Ratanlal & Dheerajlal, The
Indian Penal Code, 34th Ed. Sec.304B)
45
Mahavir Kumar v. State, Delhi HC on 16th May, 2014

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In a case where the deceased was of little tolerance and the usual domestic quarrel led her to
commit suicide. In this situation, the accused was acquitted by giving him the benefit of
doubt.46Also to convict the accused under section 304B of the IPC one of the main ingredient
of the offence which is required to be established is that “soon before her death” she was
subjected to cruelty and harassment “in connection with the demand for dowry”47

In the case at hand, she was not subjected to cruelty in connection with the demand of dowry.
And in the present case there is no proximity between the death of the accused and the
demand for dowry.

In Sharad Birdhichand Sarda v. State of Maharashtra,48 while dealing with the case of
death by poisoning of a newly married bride, the Honourable SC held: "So far as the matter is
concerned, in such cases the Court must carefully scan the evidence and determine the four
important circumstances which alone can justify a conviction-

i. there is a clear motive for an accused to administer poison to the deceased;

ii. that the deceased died of poison said to have been administered;
iii. that the accused had the poison in his possession;
iv. that he had an opportunity to administer the poison to the deceased."

In the present case, the prosecution can be said to have been able to prove only two
ingredients, that is, the deceased died of organo phosphorus poison and that the accused had
an opportunity to administer the same. The prosecution has miserably failed to prove that
such poison was in possession of the accused and that he had a motive to kill the deceased.

In a case there was a history of beating the wife up for dowry. But the couple reconciled and
resumed joint life. The wife joined her husband after a long stay with her parents. Within two
days thereafter her parents were informed of her death. During that time she had not made
any complaint to her parents about dowry or torture. The court held that section was not
attracted because there was no cruelty or harassment soon before her death.49

In the instantaneous case, it is also observed that no presumption can be drawn.50 When the
question as to whether a person has committed the dowry death of a woman and it is shown

46
Sunkara Suri Babu v. State, 1996 Cr.LJ 1480 (AP)
47
Mahavir Kumar & Ors. v. State, Delhi HC on 16th May, 2014
48
MANU/SC/0111/1984 : AIR 1984 SC 1622
49
Keshab Chandra Panda v. State of Orissa, (1995) 1 Cr.LJ 174 (Ori)
50
Section 113B, IEA, 1872

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that soon before her death such woman had been subjected by such person to cruelty or
harassment for or in connection with any demand for dowry, the court shall presume that
such person had caused the dowry death.51

Also it is pertinent to note that this presumption can only be raised only on proof of the
following essentials which means that the presumption can be raised only if the accused is
being tried for the offence under section 304B IPC. Also in the present case, Trial court
acquitted all the accused under the charges of 304B which was followed by the HC.
Therefore, it could be said that the deceased was not being ill- treated or harassed with
cruelty on account of dowry.

If the requirements of Section 304B of IPC and Sec.113-B of IEA can’t be satisfied by the
prosecution, accused must be acquitted.52 Also when the HC convicted the accused solely on
the ground of last seen theory with the victim on that fateful night, the singular circumstance
is not enough to conclude that the appellant forcibly administered the poison to the victim.
The SC set aside the conviction.53Also SC in its latest judgement54 observed that to record a
conviction the last seen theory together itself would not be sufficient and the prosecution has
to complete the chain of circumstances to bring home the guilt of the accused.

The High Court is not empowered to impose fine as a punishment under the section. The
High Court should have set aside the fine but instead imposed the fine of ₹ 2 lakhs. The SC
described the direction to be wholly illegal.55 Hence in the present case there is no fine
imposed by the Honourable court as it was wholly illegal.

Thus in the light of all the cases cited and the evidence produced we can conclude that in
these cases what the court has to see is “ interest of justice “ and the interest of justice
demands that the court should protect the respondent. Therefore respondent must be acquitted
u/s 304B.

51
Ibid.
52
Durga Parsad v. State of MP, 2010 Cr.LJ 3419
53
Anil Kumar Gupta v. State of UP, 2011 Cr.LJ 2131
54
Rambraksh v. State of Chhattisgarh Criminal Appeal no. 462 of 2016, Decided on 12.05.2016
55
Arun Garg v. State of Punjab, (2004) 8 SCC 251

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B. DINESH GOYAL IS NOT GUILTY FOR THE OFFENCE OF MURDER.

It is most humbly contended before this Honourable Court that the accused is not
guilty for committing the offence of murder under section 302 read with section 300, IPC.
The respondent humbly contends that both, the actus reus and the mens rea of the crime are
not established in the instant matter by the appellant and the same has been upheld by the HC.

The matter which needs to be taken under consideration in the present case is that the
deceased died due to consumption of excessive amount of drugs. To prove the charge under
section 300, actus reus [1] and mens rea [2] needs to be established, which is a sine qua non
of conviction. Therefore, it shall only be considered as a false allegation against accused.

1. ACTUS REUS OF MURDER IS NOT ESTABLISHED

Actus reus is any wrongful act56. In a case of murder, actus reus would be the physical
conduct of the accused57 that causes death of the victim. In the instant case actus reus is not
established by way of witness statements, PMR Report, Dying Declaration and conduct of
accused.

1.1 DISCREPANCY IN STATEMENT OF WITNESSES

It is humbly submitted before this Honorable court that the appellant has brought 10
witnesses before this court and out of them none of them is an eye witness who had seen that
the accused has forcibly administered poison to the deceased.

Firstly, the Statement of Shri Sanjay Kumar PW1 shopkeeper on whose shop the accused
allegedly purchased the poison was not reliable as held by the HC and also prosecution has
failed to prove that poison was in possession of the accused. Secondly, PW2 Shri Surendra
Kumar who had only heard the shrieks and cries of the accused is not an eye witness of the
case. Thirdly the, two other servant Shri Ved Parkash PW3 & Shri Om Parkash PW4 stated
that they saw that the clothes of the deceased were drenched then the same was not exhibited
as evidence. Fourthly, Shri Anil Kumar PW5 & Shri Shiv Kumar PW6 relatives of the
deceased noticed the condition of the deceased and they failed to inform the same to the
father of the deceased and police. Lastly, Dr. Piyush Kapila (PW9) could not rule out the
possibility of the injuries by convulsion.

56
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd edition 2006)
57
Dunham Beth Walston, Introduction to Law, 6th Ed. ,2011

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Therefore, in the present case witnesses of the appellant are not reliable then reasonable
doubt exist. And it is most humbly submitted before this Honourable court that all the
witnesses and appellant must be convicted under section 201 of IPC for giving the false
information to court.

1.2. DYING DECLARATION

It is most humbly submitted before this Honourable court that the dying declaration of the
deceased was not admissible as evidence in the court. In the present case it is pertinent to note
that on being asked by PWs 5 & PWs 6 what had happened, she raised her hand only towards
the two accused and did not state anything. Also on that time she was in unconscious
position. It is also pertinent to note that when the deceased was semi-conscious and Dr. OP
Chaudhary did not record the statement.

It is pertinent to note that the court should be satisfied that the deceased was in a fit state of
mind and capable of making a statement at the time when it was recorded. Also in Amar
Singh v. State of MP58 it was held that without proof of mental or physical fitness, dying
declaration is not reliable.

Dying declaration recorded on the basis of nods and gestures is not only admissible but
possesses evidentiary value, the extent of which shall depend upon who recorded the
statement, what is his educational attainment, what gestures and nods were made, what were
the questions asked whether they are simple or complicated - and how effective or
understandable the nods and gestures were.59

In light of the arguments above stated , it has been clearly proved that the dying declaration
of an accused cannot be admissible as the victim did not name the accused responsible for
administering poison and there was no reason for her merely lifting her hand towards the
accused.

1.3. PMR REPORT

It is most humbly submitted before this Honourable Court that the PMR report has
nothing to show that accused had committed the crime. In the present case, it is pertinent to
note that the possibility of the injuries could be caused by convulsion was not ruled out. Also

58
1996 Cr.LJ 1582 (MP)
59
Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182

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the injuries increased from 2 to 6 in the PMR report submitted by Dr. Piyush Kapila.
Assuming for the sake of arguments that PMR report is correct.

For the sake of convenience, the respondent feels obliged to assist this Honourable Court in
understanding the intricacies of the treating doctor’s statement and the PMR that the 7cm
*5cm large purple coloured patch over dorsum of right hand with multiple needle prick marks
which clearly shows that the deceased took drugs on a regular basis and due to this, death of
the accused may have happened. Also it was stated by the accused under statement under
section 313 of Cr. PC that the deceased had asked him to give her salty water. He had given
her water to vomit and shifted her to hospital. On the basis of above stated facts we can
conclude that there is reasonable doubt as to what had happened.

1.4. CONDUCT60 OF AN ACCUSED

It is most humbly submitted before this Honourable court that the conduct of the accused
clearly shows that he had not committed the crime. In the present case, the accused had
administered salty water in order to enable the victim to vomit. This indicates that gastric
lavage was carried out by the accused to save the deceased.

It is pertinent to note that accused had accompanied her to the hospital. The victim did not
name the accused as responsible for administering poison and there was no occasion for her
merely lifting her hands towards the accused.

Also in the case at hand the conduct of the appellant should also be noted. The clothes of the
deceased have not been produced. Hence the conduct of the appellant and his witnesses
clearly shows that accused is not guilty for the offence of murder.

2. MENS REA OF MURDER IS NOT ESTABLISHED

In Indian penal law, mens rea is inbuilt in the statute.61Mens rea is considered as
guilty intention62, which is proved or inferred from the acts of the accused. It is submitted that
the intention to kill is not established in light of clear-cut motive of the accused. The accused
had no intention to kill the victim and it is presumed that every sane person intends the result
that his action normally produces. In this case the intention can be ruled out from the fact that
cruelty could not be proved. Further the intention to kill can be inferred from the murder of

60
Section 8, IEA, 1872
61
Ram Khelawan v. State of Madhya Pradesh, 2014 SCC Online Chh 29
62
State of Tamil Nadu v. C.A Akhtar & Co., MANU/TN/0637/1997

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the victim. If the accused had intention to kill the accused then he would have purchased
better poison.
Where a man intentionally kills another, he must inflict such body injury sufficient in the
ordinary course of nature that his act results in immediate death.63
In the present case the presumption of section 113A IEA, 1872 does not arise for conviction
under section 306 because the basic ingredient i.e. mens rea is not proved. Also, there was no
preparation proved by the prosecution in the present case as prosecution has failed to prove
that poison was in possession of the accused.

C. THE CIRCUMSTANCES ARE NOT OF CONCLUSIVE NATURE

It is most humbly submitted before this Honourable Court that the circumstances are
not of conclusive nature. In the present case, the HC acquitted the respondent Dinesh Goyal
on the ground that the circumstances are not of conclusive nature. Also in the instantaneous
case, chain of circumstances is not complete so as to unerringly point to the guilt of the
accused.

It is also pertinent to note that appellant has brought up 10 witnesses before this court, and
out of them none of them is an eye witness and the case is based on circumstantial evidences.
It is a well settled principle that where the case is solely mainly based on circumstantial
evidence, the court must satisfy itself that various circumstanced in the chain of evidence
should be established clearly and that the completed chain must be such as to rule out a
reasonable likelihood of the innocence of the accused64.

The statement of Dr. Piyush Kapila (PW9) was also disbelieved on the ground that he could
not rule out the possibility of the victim committing suicide by herself. Also, Dr. Chaudhary
had noticed only two injuries on the person of the deceased. However, the injuries increased
from 2 to 6 in the post mortem report submitted by Dr. Piyush Kapila (PW9). The possibility
of the injuries could be caused by convulsions was also not ruled out. Possibility of injuries
caused by convulsions is strengthened from the fact that number of ante-mortem injuries had
increased from the period the victim was examined initially and when the post mortem was
conducted.

The prosecution has failed to prove that poison was in possession of the accused. Since the
trial court has not convicted the accused under section 498A or section 304B, IPC, it could

63
Himanchal & Anr. v. State of UP, SC on 18 th August, 2015
64
Gedu Alias Parameswar Patra v. State of Orissa, SC on 13 th July 2016

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not be said that the deceased was being ill-treated or harassed with cruelty on the account of
dowry.

The evidence of shopkeeper Sanjay Kumar from whose shop accused allegedly purchased
poison is not reliable. Accused would not choose a poison like organo phosphorous i.e.,
NUVAN‟ a pesticide which has a pungent smell like kerosene to kill the victim. The injuries
cannot be taken as violence upon her as the deceased might have scratched her face and neck
as itching and irritation which take place due to poisoning.65

Assuming for the sake of arguments, if the accused had committed the offence, he would
have purchased better poison. But actually the accused had administered salty water in order
to enable the victim to vomit. This indicates that gastric lavage was carried out by the
accused to save the deceased. He had accompanied her to hospital.

Also, the victim did not name the accused as responsible for administering poison and there
was no occasion for her merely lifting her hand towards the accused. The clothes of the
deceased have not been produced.

The SC also ruled out that last seen together not sufficient in itself to convict66 and also it has
been consistently laid down by this court that where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only when all the incriminating facts and
circumstances are found to be incompatible with the innocence of the accused or the guilt of
any other person67. In the present case all incriminating facts and circumstances are not found
to be compatible as there is no dying declaration of deceased, who is the sole witness of
crime and discrepancy of statements given by the witnesses.

When even a link breaks away, the chain of circumstances gets snapped and other
circumstances cannot in any manner establish the guilt of the accused beyond all reasonable
doubts.68 When attempting to convict on circumstantial evidence alone the Court must be
firmly satisfied of the following three things:69

i. The circumstances from which the inference of guilt is to be drawn, must have
fully been established by unimpeachable evidence beyond a shadow of doubt.
65
State of Himachal Pradesh v. Rajiv Jassi, SC on 6 May 2016
66
Rambraksh vs. State of Chhattisgarh, CA No. 462 of 2016, SC on 12 th May 2016
67
Vithal Eknath Adlinge v. State of Maharashtra, SC on 27 th Feb, 2009
68
Jahar Lal Das v. State of Orissa, 1991 (3) SCC 27; (Quoted in Brij Bhushan Sharma v. State of UP, 2001
Cr.LJ 1384)
69
Mahmood v. State of UP, AIR 1976 SC 69 (Quoted in Ali Jishan v. State of Kerala, on 26 November, 2009)

Memorial on Behalf of Respondents

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ii. The circumstances are of determinative tendency, unerringly pointing towards the
guilt of the accused.
iii. The circumstances taken collectively are incapable of explanation on any
reasonable hypothesis except that of the guilt sought to be proved against him.

The prosecution fails to pinpoint how the accused is solely responsible for committing of the
crime, notwithstanding that the entire case rests solely upon contradictory circumstantial
evidence. Therefore, it is humbly submitted before this Honorable Court that the charge of
murder against the accused cannot be made in the present matter.

D. THERE EXISTS A REASONABLE DOUBT.

It is humbly submitted before this Honourable Court that the burden of proving the
case beyond reasonable doubt lies on the prosecution.70 “Whoever desires any court to give
judgment as to any legal right or liability dependent on the existence of facts which he
asserts, must prove that those fact exists.” When a person is bound to prove the existence of
any fact, it is said that the burden of proof71 lies on that person.

Even total silence of the accused as to any defence on his part does not lighten the
prosecution burden to prove its case satisfactorily.72 In a criminal trial the burden of proving
the guilt of the accused beyond all reasonable doubt always rests on the prosecution and on
its failure it can’t fall back upon evidence adduced by the accused in support of his defence.
The accused was given the benefit of doubt.73

Section 106 of IEA does not cast any burden on an accused person to prove that no crime
was committed by proving facts especially within his knowledge; nor does it warrant the
conclusion that if anything is unexplained which the court thinks the accused could explain,
he ought there to be found guilty.74 It does not affect the onus of proving the guilt of the
accused. That onus rests on the prosecution and is not shifted on to the accused by the section
106 of IEA75. It cannot be used to shift the onus of establishing an essential ingredient of the
offence on the accused.76

70
Sec. 101 of IEA, 1872
71
Taylor, 12thedn, s. 364, p.252
72
Bishandas v. State of Punjab, AIR1975 SC573
73
State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382
74
King Emperor v. U Damapala, (1936)14 ran 666
75
Naina Mohammed re, 1960 Cr.LJ 620
76
Jethalal v. State of Gujarat, AIR 1968 Guj 163

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The SC ruled out that prosecution cannot derive any advantage from falsity or other
infirmities of the defence version, so long as it does not discharge its initial burden of proving
its case beyond all reasonable doubt.77 A reasonable doubt must not be imaginary, trivial or
merely possible doubt; but a fair doubt based upon reason and common sense arising out of
the evidence of the case.78 Here the accused cannot convict on this ground.

Every case in the final analysis would have to depend upon its own facts.79 Another golden
thread which runs through the web of the administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the case one pointing to the guilt of the
accused and the other to his innocence, the view which is favourable to the accused should be
adopted.80And here in our case lack of evidence, contradictory evidences and unreliable
circumstantial evidences are enough to make a common man judge it to be a reasonable
doubt.

Appellant is falsely prosecuting the respondent.Therefore, in light of the above discussion

and material on record clearly shows that in the present case the prosecution’s story paid
heavy reliance on unreliable evidence, discrepancy in statements and failed to establish the
connection of recovered weapon from house. Moreover, the accused is falsely being framed
by the prosecution which created a large cloud of reasonable doubt which shall only be
considered as a false allegation against accused. The judgment and order of conviction passed
by the HC was based upon proper appreciation of evidence, the circumstances found
established by court in the instant case have been unnecessarily doubted.

77
Md. Alimuddin & Ors. v. State Of Assam, 1992 Cr.LJ 3287
78
Chhotanney & Ors. v. State of UP, AIR 2009 SC 2013
79
State of Punjab v. Jagir Singh, Baljeet Singh & Karam Singh, AIR 1973 SC 2407
80
Kali Ram v. State of Himachal Pradesh, MANU/SC/0121/1973 : AIR 1973 SC 2773

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PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Honourable Court, that it may be
graciously pleased to adjudge and declare that -

1. The judgement of the High Court is valid.

2. The accused must be acquitted from all the charges.

3. The witnesses and appellant must be convicted under section 201 of IPC.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best
Interests of Justice, Fairness, Equity & Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Date: …………………… Sd/-

Place ………………… (Counsel for Respondent)

Memorial on Behalf of Respondents