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8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
IN THE HON’BLE BOMBAY HIGH COURT
Under Section 3!"#$ o% t&e Code o% Cri'in() Proced*re
IN THE MATTER O+
SOMNATH RA,I SATPUTE.///// SATPUTE./////////.APPELLANT ////.APPELLANT
.
STATE STATE O+ O + BA0ARASHTRA/////////RESPON0ENT BA0ARASHT RA/////////RESPON0ENT
Submitted By Saloni Agrawal Shubham Kumar Sharma Karan Parihar Institute of Law, Nirma University Ahmedabad, u!arat
- Appellant Appellant-
Arguments- Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
- Appellant-
TABLE O+ CONTENTS
LIST O+ ABBREIATION//////////./////.///.///../....ii IN0E1 O+ AUTHORITIES.////////.//.///////.////.//i2 STATEMENT O+ ,URIS0ICTION ////////..///.///.///../....i STATEMENT STATEMENT O+ +ACTS/////////.//////.///./////... +ACTS/////////.//////.///./////....i .i STATEMENT STATEMENT O+ ISSUES//////////////////////..//iii ISSUES //////////////////////..//iii SUMMARY O+ ARGUMENTS/...//./////.///////./////...4-# ARGUMENTS A0ANCE0/////////////////////.......3-#5
647 THE ACCUSE0 AS NOT RIGHTLY CONICTE0 +OR THE O++ENCE PUNISHABLE UN0ER SECTION 39# O+ IPC
6II7 THE ,U0GMENT PASSE0 BY THE TRIAL COURT AS AS NOT APPROPRIATE
PRAYER..///////////..////////////////////39
"#"$%AN&U" on behalf of APP#LLAN' (
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
Arguments- Arguments-
- Appellant-
LIST O+ ABBREIATIONS
S. No. )* (*
A::re2i(tion + AB%
/* 0* 3* 4* 6* 7* 8* )9* ))* )(* )/* )0* )3* )4* )6* )7* )8* (9* ()* ((* (/* (0* (3* (4* (6* (7* (8* /9* /)* /(* //* /3* /4* /6* /7* /8* 09* 0)*
A.% A& Add* A&5 A I% AL& All* Anr* BL& Bom.% B$"L% .r*P*.* .riL5 &%5 &: ed* #1h* u!* on;ble i*e* IL% IP. KL5 "ohd* N$. $rs* PL5% P: Sen ea2h day after her admission in the hosital, who visited the ward on a arti2ular day, what is the
)4 C. Chenga Redd + !thers v* State of Andhra Pradesh% )884.riL5/04)* )6 Supra ,ote => )7 Supra ,ote ing ng dyin dying g de2larations to the oli2e, the de2eased was 2ons2ious and in a state of ma>ing valid statement whi2h on 2onfirming only he allowed to ta>e statements, but later during his 2ross e1amination he states that in both the de2larations ?#1h*(( and /0@ there is no referen2e as to the 2onfirmation that the atient was 2ons2ious and oriented* /)* /)* "ore "oreov over er,, in both both his his statem statemen ents ts duri during ng the the trial trial he 2ont 2ontes ested ted that that he had had made made endorsements on both the de2larations after they had been re2orded by the rese2tive oli2e 2onstables in order to verify that the de2laration was given by the atient only when it was 2onfirmed by him that she was in a fit and 2ons2ious state of mind to give the same, but those endorsements aear nowhere in the e1hibits of dying de2larations resented before the sessions 2ourt as a matter of do2umentary eviden2e*/6 'hus, this raises a doubt on the admissibility and reliability of the testimony given by this do2tor*
/0 Sugal" Sankaramma 1 !rs. v* !rs. v* 6anna 6enkates+arlu 1 !rs., !rs. , (990 .riL5 (370 /3 Paras /3 Paras Kumar v* State of B"har , (99) ?/@PL5%/76?at@ /4 Supra ,ote =; /6 Supra ,ote aers* 09 'his statement of his altogether raises a serious doubt on its 2redibility and is thus eligible for being dis2arded sin2e it fails to suort any >ind of eviden2e whi2h would would rove the guilt of the a22used*
/7 Supra ,ote ed him to ta>e her to the 2lini2 he relied by telling her to get out of the house and assaulted her with hands* Being annoyed by this, she oured >erosene over her and to this he said that he would >ill >ill her and set her on fire* She 2laims that he tried to >ill her and therefore she has a legal 2omlaint against him* 09* rom the above above mentioned statements, it is aarent that there there are 2ertain in2onsisten2ies between both the statements given by the de2eased* 'he time differen2e between the re2ordings of these de2larations is aro1imate / hours* 'he oli2e 2onstable ta>ing the se2ond de2laration said that when he went near her in order to re2ord her statement, she was lying in bed 2almly* en2e, it dire2ts the aellants to the fa2t that she was in a roer state of mind and had amle amount of time to reiterate her statements with modifi2ations whi2h 2onseuentially were of a greater intensity* intensity*03 0)* &ying de2laration de2laration should should be of su2h a nature nature as to insire full 2onfiden2e 2onfiden2e of the .ourt in its truthfulness and 2orre2tness, as the a22used has no ower of 2ross e1amination* 04 'his reuisite reuisite of a dying de2laration de2laration to be 2onsidered 2onsidered as reliable and admissible in a 2ourt of law is absent and not satisfied in the resent 2ase sin2e the de2eased was beheld in a rage of revenge against the 2ruelty whi2h she 2laims that the a22used has been osing uon her from the ast years of their marriage* She was under an imression that it is highly robable that her husband will be 2onvi2ted if she gives su2h a statement whi2h shows her utmost utmost miserable miserable 2ondit 2ondition ion,, hen2e hen2e there there was an additio addition n in her se2ond se2ond dying dying de2laration to ma>e his 2onvi2tion 2ertain* "oreover, the uestion of Oassault; also 2omes into i2ture later*06 E77EC$ !7 2,S$2'A$2!, 2,S$2'A$2!, !R $U$!R2,' !, &(2,' &ECARA$2!,:&ECARA$2!,:0(* &ying de2laration de2laration should should be free from any >ind of instigation instigation or influen2e influen2e else it uts a uestion uestion on the 2redibility 2redibility of the statement made by the erson* 'he statement statement made by the de2eased was instigated by her mother* 'his 2ontention 2an be suorted by P:);s statement wherein he stated that throughout their way to hosital in !ee the mother of the de2eased was instigating her to give the statement against the a22used and also she was resent when her dying de2laration was being re2orded* 07 'he 'he foll follow owin ing g test test 2an be devi devised sed in orde orderr to answ answer er the the ues uesti tion on whet whethe herr dyin dying g de2laration is true or not03 2b"d 03 2b"d 04 6asanta S5o Shra+an 'a#bh"e v* State of Maharashtra through through PS!% (996?)98@B$"L%(()0 06 Supra ,ote @@ 07 Supra ,ote =>
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Appellant- Appellant-
)@ :heth :hether er the the de2la de2laran rantt had had suff suffi2i i2ien entt oo oort rtun unity ity to obser observe ve and and iden identif tify y his his assailantJ (@ :hethe :hetherr the 2aa2ity 2aa2ity of the de2larant de2larant to remember remember the fa2ts fa2ts stated, stated, had not been been imaired at the time he was ma>ing the statement, by 2ir2umstan2es beyond his 2ontrol either due to nature of in!uries or for any other 2auseJ /@ :hether :hether the statement statement has been 2onsist 2onsistent ent througho throughout ut if the de2larant de2larant had several several oortunities of ma>ing a dying de2laration aart from the offi2ial re2ord of it* 0@ :hether :hether the statement statement had been been made at the earliest earliest oortun oortunity ity and was was not the the result of tutoring by interested artiesJ 3@ :hethe :hetherr the stateme statement nt made by the de2larant de2larant is intrinsi intrinsi2ally 2ally sound sound and a22ord a22ord with robabilitiesJ 4@ :het :hethe herr any any mate materi rial al art art of stat statem emen entt is rov roved ed fals falsee by othe otherr reli reliab able le eviden2e*08
0/* In the the 2ase of of Mona &as v* State v* State of Assam, Assam , it was held that though a dying de2laration is entitled to great weight, weight, it is worthwhile worthwhile to note that the a22used has no ower of 2rosse1amination* Su2h a ower is essential for eli2iting the truth as an obligation of oath 2ould be* 'his is the reason the .ourt also insists that the dying de2laration should be of su2h a nature as to insire full 2onfiden2e of the 2ourt in its 2orre2tness* 'he .ourt has to be on guard that the statement of de2eased was not as a result of either tutoring or romting or a rodu2t of imagination* 'he .ourt must be further satisfied that the de2eased was in a fit state of mind after a 2lear oortunity to observe and identify the assai assailan lant* t* $n2e $n2e the the 2our 2ourtt is sati satisfi sfied ed that that the the de2la de2larat ratio ion n was was true true and and volu volunt ntary ary,, undoubtedly, it 2an base its 2onvi2tion without any further 2orroboration* It 2annot be laid down as an absolute rule of law that the dying de2laration 2annot form the sole basis of 2onvi2tion unless it is 2orroborated* 'he rule reuiring 2orroboration is merely a rule of ruden2e*39 00* In the the 2ase 2ase of Kr"shna 1 Anr. Anr. )s. State of Ra#asthan, Ra#asthan , the 2ourt held that there are a number of dying de2larations then the dying de2laration made first in the oint of time should be given referen2e as there are lesser 2han2es of tutoring or romting by the 08Chandra+at" 08Chandra+at" v* State* State* )884 .rL5 863, S*.* SA%KA%, .$""#N'A%C $N #=I&#N.#, &:I=#&I LA: A#N.C, 4//, =$L* ) ?( nd ed* (997@* 39 (9)0.riL5)690
"#"$%AN&U" on behalf of APP#LLAN' )/
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Appellant- Appellant-
interested arties* All the dying de2larations made by the de2eased should be 2onsistent and and if ther theree is any any in2o in2ons nsist isten en2y 2y then then no relia relian2 n2ee 2an be la2e la2ed d on thes thesee dyin dying g de2larations*3) Absence of Mag"strate:03* urther, absen2e of "agistrate in re2ording dying dying de2laration is a 2ru2ial oint whi2h the state has negle2ted on their art* 04* 04* In the the 2ase of of &amodaran &amu )s. State, State , it was held that dying de2laration made to a Poli2e $ffi2er is also admissible under se2tion /( of the Indian #viden2e A2t, )76( but it is better to >ee a dying de2laration made to a Poli2e $ffi2er out of 2onsideration until and and unle unless ss the the ros rose2u e2uti tion on satisf satisfie iess the the 2our 2ourtt as to why why it was was not not re2or re2orde ded d by a "agistrate or at least by a do2tor* 'he ra2ti2e of investigating $ffi2ers themselves re2ording dying de2laration when it is ossible by a "agistrate or a do2tor will have to be dis2ouraged in order to avoid wrong de2larations being ut in* 3( 06* In the the 2ase 2ase of Bhanudas Bandu $h"te v* State of Maharashtra, Maharashtra , the a22used was in hosital for more than three days, it was surrising to note that her dying de2laration was not re2orded by Se2ial #1e2utive "agistrate and this a22ording to the 2ourt, 2reated doubt about genuineness of rose2ution 2ase* 2ase *3/ 07* 07* In the the 2ase 2ase of Smt. Madhu Bala v* State /&elh" Adm"n"strat"on.0, Adm"n"strat"on.0, it was held that it is mand mandat ator ory y for for the the inve invest stig igati ating ng offi offi2er 2er or othe otherr oli oli2e 2e offi offi2e 2ers rs to aly aly to .hief .hief "etroolitan "agistrate to deute some "agistrate for re2ording of dying de2laration* 30 08* urthe urther, r, in the the 2ase of Bas"r S"ngh 1 !rs. !rs . v* State of Ra#asthan ;; it was said that dying de2larations ta>en by oli2e head 2onstables or the investigating offi2ers reuire to be dis2ouraged* dis2ouraged* 'hey are always interested in the su22ess of the investigation, investigation, hen2e, they 2annot be said to be indeendent witnesses and the dying de2laration re2orded by them should always be dis2ouraged* 34 39* 39* In the the 2ase 2ase of Balak of Balak Ram v* State of U.P. it was observed observed that investigatin investigating g offi2ers are >eenly interested in the fruition of their efforts and though there is no assumtion against
3) )884?(@:LN)/0 3( )889?)@KL5(37 3/ (9)/?0@AB%4) 30)878?)6@&%5)67 )889.riL5689* 33)880.riL5(3(4* 34S*.* SA%KA%, .$""#N'A%C $N #=I&#N.#, &:I=#&I LA: A#N.C, 344, =$L* ) ?( nd ed* (997@*
"#"$%AN&U" on behalf of APP#LLAN' )0
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their vera2ity, it is not rudent to base the 2onvi2tion on a dying de2laration made to an investigating offi2er *36 3)* %e2ording of a &ying &ying de2laration by a Poli2e Poli2e $ffi2er or "edi2al $ffi2er:here a dying de2laration is re2orded by a Poli2e $ffi2er or a "edi2al $ffi2er, it shall, so far as ossible, ought to be attested by one or more of the ersons who haen to be resent at the time*37 3(* &ying de2laration de2larationss to be re2orded by 5udi2ial 5udi2ial "agistrates?i@ "agistrates?i@ :here a erson whose eviden2e is essential to the rose2ution of a 2riminal 2harge or to the roer investigation of an alleged 2rime, is in danger of dying before the enuiry ro2eedings or the trial of the 2ase 2ommen2es, his statement, if ossible, be got re2orded by a 5udi2ial "agistrate* :hen the oli2e offi2er 2on2erned with the investigation of the 2ase or the medi2al offi2er attending uon su2h erson arehends that su2h erson is in the danger of dying before the 2ase is ut in .ourt, he may aly to the .hief 5udi2ial "agistrate, and, in his absen2e, to the senior most 5udi2ial "agistrate resent at the headuarters, for re2ording the dying de2laration* de2laration*38 Absence of f"tness cert"f"cate:3/* Also, before re2ording re2ording the dying de2laration de2laration of the de2eased, fitness fitness 2ertifi2ate was not obtained by the oli2e from the do2tor on duty whi2h is a reuirement in the sense that it verifies the hysi2al and mental 2ondition of the atient that whether or not she is in a roer and fit state of mind to >now what she was going going to say in her statement* 49 30* In the the 2ase 2ase of 'o)"nd *ar" S+am 1 !rs. v* State State of U.P. U.P.% it was held that dying de2laration, whi2h is not 2ertified by do2tor, shall not be a22etable* 4) 33* In the the 2ase of of 'anpat v* State of Maharashtra whether de2eased was in a fit state of mind at the time of ma>ing any su2h statement was highly doubtfulJ and in the absen2e of eviden2e of the do2tor, who is suosed to have 2ertified de2easedQs fitness to ma>e a statement at the material time, it is more robable than not that de2eased was not in a fit state of mind to ma>e a roer, and rational statement* 4( 34* 34* In the the 2ase 2ase of Paparambak Rosamma 1 !rs. v* State of Andhra Pradesh it was stated that a22ording a22ording to Se2tio Se2tion n /( of Indian Indian #viden #viden2e 2e A2t, A2t, )76(, )76(, erson erson ma>ing ma>ing dying dying 36 )860.riL5)074 37 &(2,' &ECARA$2!,S% &ECARA$2!,S% htten and may sometimes destroy the a22etan2e of the eviden2e as to the finding of the arti2le*47 'hat;s why in this 2ase the findings of the arti2les are not the strong eviden2e* 40* It is obligatory on the art of the oli2e offi2er to 2all on and get get two or more rese2table inhabitants of the lo2ality to be witnesses of the sear2h* 'hese witnesses must be 2alled before the sear2h is started*48 In this 2ase witnesses were 2alled after the investigation had started* So this is the serious la2una in the investigation ro2ess* "iii "iii$$ Arr Arre@t e@t (nd (nd @ei @ei*r *ree ?(nc ?(nc&n &n( ('( > 69 43* Se2tion Se2tion )9( )9( of .r*P*. .r*P*. e1lains about the ro2edure related to SeiHure Pan2hnama of the
roerty whi2h may be alleged or suse2ted to have been stolen or found under susi2ion of 2ommission of offen2e* 44* It is mandatory mandatory for every oli2e offi2er offi2er to to reort su2h seiHure to the magistrate having !urisdi2tion* Su2h oli2e offi2er may give 2ustody thereof to any erson on his e1e2uting Bond underta>ing to rodu2e before 2ourt uing to rodu2e the roerty before the .ourt as and when reuired and to give effe2t to the further orders of the .ourt as to the disosal of the same* Provided that where the roerty seiHed under sub-se2tion ?)@ is sub!e2t to seedy and natural de2ay and if the erson entitled to the ossession of su2h roerty is un>nown or absent and the value of su2h roerty is less than five hundred ruees, it may forthwith be sold by au2tion under the orders of the Suerintendent of Poli2e and the rovisions of se2tions 036 and 037 shall, as nearly as may be ra2ti2able, aly to the net ro2eeds of su2h sale*
"#"$%AN&U" on behalf of APP#LLAN' )6
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Appellant- Appellant-
46* Sub se2tion se2tion / has been inserted inserted in )867 to remove a la2una in the law in the matter of reuirement of the oli2e to forthwith reort the seiHure of roerty to the magistrate* 6) 47* 47* In this this 2ase, 2ase, the oli oli2e 2e as>ed as>ed the the a22u a22used sed on (7 uon for deliveran2e of !usti2e* 5. 'he ro2edure 2arried out ?in2luding the investigating ro2ess@ to rea2h the !udgment after 2ondu2ting the entire trial was in itself not aroriate* i. PROCE0 PROCE0URA URAL L LAPSES LAPSES IN THE THE T TRI RIAL AL
"#"$%AN&U" on behalf of APP#LLAN' (9
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79* Startin Starting g from from the wor> done by the oli2e oli2e head head 2onstab 2onstables les in re2ordi re2ording ng the dying dying de2laration of the de2eased till the 2omletion of the investigation ro2ess in 2arrying out an2hanama, seiHure, et2* underta>en by the oli2e inse2tors, the entire ro2edure was as2ertained with various lases* 'hese lases range from being minor-to-ma!or whi2h as a whole 2onstitutes the error-omission of formalities* ?i@ By P:( 7)* $n the date of the in2ident (0aurr hosital hosital and was as>ed to immediately immediately ta>e the ne2essary stes*7( irstly, irstly, there are un2ertaint un2ertainties ies in the time line with regards regards to the entire ro2ess of his re2ording the dying de2larations* As er the fa2ts of the 2ase, the de2eased was ta>en to the hosital at around )*)3m and admitted in the burn ward at around )*(9m* Surrisingly, he was also informed about the in2ident at )*(9m on re2eiving whi2h he rea2hed near the burn ward within five minutes only, i*e* at around )*(3m, and when he rea2hed near her, the "edi2o Legal .ase aers were already reared* Also, he stated s tated in his testimony that while he was re2ording her statement, no relatives of her met him, but at the same time, in the Indoor .ase aers there is a mention of the resen2e of the mother of the de2eased in the entire s2hedule, i*e* history, of the date the in2ident while her dying de2laration was being re2orded* 7/ 7(* 'he above mentioned mentioned fa2ts ose distrust and a sense of unreliability unreliability on the ro2edural ase2t of the statement ta>en by this arti2ular oli2e 2onstable* 7/* e had to re2ord her statement after 2onfirming that whether she was in a fully 2ons2ious state to ma>e a statement or not* e was given an oral 2onfirmation for the same and then he started to re2ord the statement* Before record"ng record"ng the statement:70* An error whi2h he made made before before re2ordin re2ording g her statemen statementt is that that he didn;t didn;t obtain obtain any fitne fitness ss 2ert 2ertifi ifi2at 2atee thou though gh it was was ossi ossibl blee for for him to do so* so*70 e ment mentio ioned ned in his his testimony that desite of having an oortunity to obtain a fitness 2ertifi2ate from the do2tor with rese2t to the mental and hysi2al 2ondition of the de2eased, he did not do so* e wouldn;t have stated this if it had been the 2ase that the do2tor was busy to give him the same or it was an omission of duty on their art*
7( Supra ,ote ; 7/ Supra ,ote e a statement that he straightaway rea2hed her bed in the ward to re2ord her statement* After record"ng record"ng the statement:78* Subseuently Subseuently,, after re2ording the statement, he did not ma>e the attestation of the toe imression imression ta>en of the de2eased desite of having the oortunity oortunity to do so* 78 'his is an
73 'o)"nd *ar" S+am v* State of U.P., U.P., (9)) .ri L5 0074 All, 5US'I.# .*K* 'AKK#% + "%S* "*.* 'AKK#%, LA: $ #=I&#N.#, :C'#S + .$*, 7(/, =$L* ) ?(9)/@* 74 6asanta S. 'a#bh"e v* 'a#bh"e v* State of Maharashtra, Maharashtra , (997 .ri L5 N$. 30/ Bom (997 ?(@ AI% Bom, 5US'I.# .*K* 'AKK#% + "%S* "*.* 'AKK#%, LA: $ #=I&#N.#, :C'#S + .$*, 7//, =$L* ) ?(9)/@* 76 Supra ,ote ing dying de2laration still the session 2ourt ignored them, and also dis2arded the above 2ited 2ase by stating it to be irrelevant for the aellant;s 2ase to hel* hel*))) ))9* ))9* In de2idin de2iding g the 2ore issue issue whether whether the dying dying de2larati de2laration onss re2ord re2orded ed suffer suffer from any serious infirmity or not, the resondents further 2ited the 2ase of aman )s. State of Maharashtra==> % where wherein in the the .our .ourtt 2ons 2onsid ider ered ed that that the the absen absen2e 2e of medi2 medi2al al fitne fitness ss 2ertifi2ate 2an be valid e12use and a 2ertifi2ate by the do2tor is essentially a rule of 2aution, but the oint to be noted is that there the "agistrate himself too> the de2laration and that is why the dying de2laration was heavily relied uon by the !udge* owever, in the instant 2ase, there was no role of the "agistrate and there was no fitness 2ertifi2ate obtained, thereby ma>ing both the 2ases different* Also the rule of 2aution was not alied by the Session .ourt in this 2ase* en2e, it was misinterreted by the .ourt and should have been dis2arded instead of relying uon it* ))/ )))* )))* Subs Subse eue uent ntly ly,, when when the aell aellan ants ts relied relied uon uon Paparambak Rosamma )s. State of ==@ Andhra Pradesh ==@ % wherein the 2on2erned 2ourt said that dying de2laration 2annot be the
)98 Supra ,ote ing su2h 2hanges after getting influen2ed by the de2eased and her mother* ))6* ))6* urther, urther, the 2ourt 2ourt 2onsidered 2onsidered the the eviden2e eviden2e of the autosy autosy surg surgeon eon and was 2onvin2ed 2onvin2ed with the fa2t that the resondents have roved that the death of the de2eased was 2aused due to burn in!uries* It is an undisuted fa2t that the 2ause of death was burn in!uries sustained but nowhere the resondents and the 2ourt !ustified that the burn in!uries were due to homi2ide* )() 'hey failed to interret the fa2tum of death and to intelligibly observe that there were no e1ternal in!uries on the body of the de2eased aart from those suffered due to burns, whi2h ma>es it aarent that had it been the 2ase of homi2ide, the de2eased would have suffered suffered other in!uries as well as a matter of resisting the a2t, if done by the a22used* But here it is an aarent 2ase of sui2ide where the de2eased suffered only those in!uries whi2h were a 2onseuen2e of her own a2t and not by any other e1ternal a2ts*
)(9 Supra ,ote
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