IMSMC Defence

TEAM CODE: IMSMC 1608

IMS LAW COLLEGE NATIONAL MOOT COURT COMPETITION, 2016

BEFORE THE HONOURABLE SUPREME COURT OF YANGISTAN

UNDER ARTICLES 134(1)(c) OF THE CONSTITUTION OF YANGISTAN

IN THE MATTER OF

STATE OF KAUSATI...............................................PROSECUTION V.

PETER...............................................................DEFENCE

WRITTEN SUBMISSION ON BEHALF OF THE DEFENCE

i

TABLE OF CONTENTS INDEX OF ABBREVIATIONS………………………………………………………………III

INDEX OF AUTHORITIES…………………………………………………………………IV STATEMENT OF JURISDICTION……………………………………………………....…VII STATEMENTS OF FACTS………………………………………………………………...VIII

STATEMENT OF ISSUES………………………………………………………………........IX

SUMMARY OF ARGUMENTS……………………………………………………………......X ARGUMENTS ADVANCED………………………………………………………………...1 1. WHETHER PETER CAN BE HELD GUILTY OF OFFENCE U/S 302, IPC?

2. WHETHER PETER CAN BE MADE LIABLE FOR CRIMINAL CHARGE U/S 323, IPC?

3. WHETHER PETER CAN BE HELD GUILTY OF OFFENCE U/S 506, IPC?

PRAYER FOR RELIEF………………………………………………………………............XI

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TABLE OF ABBREVIATIONS

¶

Paragraph Number

¶¶

Paragraph Numbers

&

And

AIR Anr.

All India Reporter Another

IPC

Indian Penal Code, 1860

No.

Number

Ors.

Others

p.

Page Number

pp.

Page Numbers

s.

Section

SC

Supreme Court

SCC

Supreme Court Cases

ss.

Sections

U/s.

Under Section

v.

Versus

Vol.

Volume

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INDEX OF AUTHORITIES TABLE OF CASES

S.NO

NAME OF THE CASES

CITATIONS

1

Tika v. State of U.P.

AIR 1974 SC 155

2

Woolmingtom v. Director of Public Prosecution

3

State v. Sanjay Gandhi

(1935) 25 Cr App R 72 AIR 1978 SC 961

4

Rishikesh v. State

5

Hari Krishnan and Anr. v. Sukhbir Singh and Ors

AIR 1970 ALL 51 (FB) 1988 AIR 2127

6

Haribhajan v. State

AIR 1969 SC 97

7

Bhagwanji Appaji v. Kedari Kashinath

8

Ankeri v. State of Rajasthan

(1900) ILR 24 Bom 202 AIR 1994 SC 842

9

State of Rajasthan v. Dhool Singh

AIR 2004 SC 1264

10

Moti Singh v. State of Uttar Pradesh

AIR 1964 SC 900

11

Chahat Khan v. State of Haryana

AIR 1972 SC 2574

12

Attwood Re

(1960) 102 CLR 353

13

H.P. Adm v. Omprokash

1972 Cr LJ 606

14

Ram Das v. State of Maharashtra

1977 Cr LJ 955

15

Ashish Batham v. State,

AIR 2002 SC 3206

16

Pankoj Kumar Divetia v. State of Gujarat

AIR 1997 SC 2193

17

Madan Gopal v. Naval Dubey

(1992) 3 SCC 204

18

State of Haryana v. Bhagirath

AIR 1999 SC 2005

19

Mani Ram v. State

AIR 1993 SC 2453

20

Piara Singh

AIR 1977 SC 2274

21

Digambar Gope

1997 Cri LJ 2072

23

Hadia Mia v. State of Assam

1988 CrLJ 1459(Gau)

24

Nand Kishore Prasad v. State O Bihar And Ors

1978 AIR 1277

25

Govind Lal v. State of Rajasthan

(1987 (2) WLN 620)

26

Tek Chand v. Haryana & Ors

AIR 1972 SCC 228

27

Rishikesh v. State

AIR 1970 ALL 51 FB

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28

N Sundarama Reddy v. State

AIR 1959 AP 215

29

Mumtaz Begum v. Ullah Khan

AIR 1964 J. & K. 34

30

Prabhoo v. Emperor

AIR 1941 All 402

31

Padala Veera Reddy v. State of Andhra Pradesh

1989 Supp (2) SCC 706 : 1991 SCC (CRI) 407 1993 Cri LJ 2004 (2007)

and others 32

Rameshwar v. State of M.P.

33

Laliteshwar Prasad v. Bateshwar Prasad

AIR 1966 SC 580

34

Kosana Ranganayakamma v. Pasupulati

AIR 1967 AP 208

Subbamma And Ors. 35

Ram Singh v. Sonia and Ors

AIR 2007 SC 1218

36

Ram Kumar v. State

AIR 1970 Raj 60

37

Sarabjeet Singh v. State of UP

AIR 1983 (SC) 529

38

S Raghubir Singh Sandhwala v. Commr of IT

AIR 1959 Punj 250

39

State of West Bengal v. Mohammad Khalid

AIR 1995 SC 785

40

Jai Prashanth v. Delhi Administration

1991 2 sec 32

41

Usha Bala v. State of Punjab

42

Hajee Abdul Rehman v. Gulab Nabi

2002 (3) R.C.R (criminal) 445 1964 Cri LJ 4

43

Amulya Kumar Behera v. Nabaghana Behera

1995 Cr LJ 3559

44

Rajendra Nath Datt v. State of Haryana

1933 Cri LJ 1025

45

Mangal v. State

AIR 1957 SC 190

46

Shivaji v. State

AIR 1973 SC 2622

47

K.Joseph v. Narayanan

AIR 1964 SC 1552

48

Bhagwan v. State

AIR 1965 SC 682

49

K. M. Nanavati v. State

AIR 1962 SC 605

50

Gopal Reddy v. State

AIR 1979 SC 387

51

State of Punjab v. Bhajan Singh

AIR 1975 SC 258

52

Dahyabhai v. State

AIR 1964 SC 1563

53

Tilak Raj v. The State of Himachal Pradesh

AIR 2016 SC 4896

54

Manik Taneja v State of Karnataka

AIR 2015 SC 141

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BOOKS REFERRED 1. GAUR, KD, CRIMINAL LAW: CASES AND MATERIALS, (6TH ED. 2009) 2. P.S.A. PILLAI, CRIMINAL LAW, LEXIS NEXIS, INDIA, 2015, 12TH EDITION 3. I, KATHURIA, R.P. SUPREME COURT ON CRIMINAL LAW, 1950-2002, ( 6TH ED. 2002) 4. III, SARVARIA, SK, INDIAN PENAL CODE, (10TH ED. 2008) 5. LAL, BATUK, THE LAW OF EVIDENCE, (18TH ED. 2010) 6. RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 33RD ED. (2011) 7. RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE, 22ND ED. (2006) 8. SARKAR, LAW OF EVIDENCE, (13TH ED,1990) 9. GANGULY, CRIMINAL COURT PRACTICE AND PROCEDURE, 9TH ED.(1996) 10. MODI, MEDICAL JURISPPRUDENCE AND TOXICOLOGY, 23RD ED., (2006)

STATUTES REFERRED 

INDIAN PENAL CODE, 1860



INDIAN EVIDENCE ACT, 1872

JOURNALS REFERRED 

SUPREME COURT CASES (SCC)



ALL INDIA REPORTER (AIR)



SUPREME COURT REPORTER (SCR)

WEBSITES REFFERED 

www.lexisnexis.co.in



www.indiakanoon.org



www.manupatra.com



www.westlawindia.com



www.heinonline.org

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STATEMENT OF JURISDICTION The Petitioner has approached this Hon’ble Court by the way of Criminal Appellate under Article 134(1) (c) of the Constitution of India.

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STATEMENT OF FACTS Daina was a popular television actress in a country named Yangistan. She was found hanging from her ceiling on 1st April 2015 in her two-bedroom apartment in Kasauti Nagar area she was living in with her partner Peter. Her body was discovered by a scared Peter, who rushed her to Fora Hospital and then fled from the place. The declaration and news of her death was informed to the police by the hospital authorities and not by Peter. Peter was detained by the Police for interrogation at an unknown location. The dead body of Daina was shifted to Kopra hospital for post-mortem. The post-mortem report of Daina body revealed “suffocation” as the cause of death and also mentioned of “asphyxia” and ligature marks around her neck. Apparently, Marks were found on her body (cheeks and nose area). During investigation the police found that Daina’s pass book and debit card was used by Peter. The bank statement revealed transactions including two transactions of Rs. 1 lakh each on 18th March and 19th March, 2015. Daina had informed her friends of being physically assaulted and threats to be killed if she informed the police. Peter had a record of cheating seven women and duping around Rs. 25 lakh in the past. Peter was earlier married to Marry, and has not got a divorce decree yet and his 9-years old son and illicit relationship with Margarate surfaced later. The police also interrogated Margarate who explained how she knew Peter for 5 years, started a business with him and finally landed in heavy debt after investing around Rs. 30 lakhs in the business. During the interrogation, Peter revealed to the police that Daina had nothing of her own, and that he got her passport, Aadhar Card and individual accounts done. After investigation, Peter was put to trial before the Sessions Court. The Court convicted Peter under Sec.302, 323, section 506 of IPC, 1860 and sentenced him to life imprisonment. He was awarded rigorous imprisonment for 2 yrs under section 506 of IPC and imprisonment for 1yr under section 323 of IPC. Both the sentences were to run concurrently. During the trial Peter was on bail. Peter appealed before the High Court seeking acquittal. The High Court adjudicated in favour of the accused by acquitting him from the charges under Section 302, Sec 323, Sec.506 of IPC, 1860 and dismissed the appeal of the State, being bereft of any substance. Aggrieved by the said judgment of the High Court, the State filed an appeal before the Supreme Court. The State appealed for considering the offence as heinous and to award life imprisonment under Section 302, Section 323 and Section 506.

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STATEMENT OF ISSUES

ISSUE 1: WHETHER PETER CAN BE HELD GUILTY OF OFFENCE U/S 302, IPC?

ISSUE 2: WHETHER PETER CAN BE MADE LIABLE FOR CRIMINAL CHARGE U/S 323, IPC?

ISSUE 3: WHETHER PETER CAN BE HELD GUILTY OF OFFENCE U/S 506, IPC?

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SUMMARY OF ARGUMENTS

ISSUE 1 PETER CANNOT BE HELD GUILTY OF OFFENCE U/S 302, IPC. In the instant case of the death of the deceased, the prosecution has failed to produce any material evidence, leave alone an evidence of a greater standard of proof. Lack of proof and evidence and mere strong suspicion cannot be used as a substitute to prove the guilt of the accused. In a case largely dependent on circumstantial evidence, there is always the danger that conjecture or suspicion may take place of legal proof. The accused is not required to prove his case beyond reasonable doubt. Thereby, Mr. Peter cannot be held guilty u/s 302 of The Indian Penal Code, 1860.

ISSUE 2 PETER CANNOT BE MADE LIABLE FOR CRIMINAL CHARGE U/S 323, IPC? Marks were found on her body (cheeks and nose area) which could have been injuries post a physical scuffle between Daina and Peter was the report submitted by the medical experts. The opinion of the medical experts is merely advisory and not substantive evidence thereby it should not be considered and hence Mr. Peter cannot be held liable for criminal charge u/s 323.

ISSUE 3 PETER CANNOT BE HELD GUILTY OF OFFENCE U/S 506, IPC? From the facts and circumstances of the case in hand, it appears that there was no intention on the part of Mr. Peter to cause alarm in the mind of the complainant causing obstruction in discharge of her duty. Therefore, to take the aforementioned into consideration and to serve the needs of justice, by acquitting Peter of any criminal charge u/s. 506 Part 1 of the Indian Penal Code, 1860.

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ARGUMENTS ADVANCED I PETER IS NOT GUILTY OF MURDER

1.1 Presumption of innocence One of the cardinal principles which always has to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which he is charged. It has been evidently provided for in S.105 of the Indian Evidence Act, 1872 that it is for the prosecution to establish beyond reasonable doubt all essential ingredients of the crime especially mens rea to prove the guilt of the accused. This has further been emphasized in Tika v. State of U.P.1 In Woolmingtom v. Director of Public Prosecution2 it has been observed: “Throughout the web of the English Criminal law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt.” The law laid down in England applies to India as well.3 The approach which a court should take in convicting an accused who is presumed to be innocent is that unless the contrary is clearly established the burden under the accusatory system is always on the prosecution.

Proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence also.4 An exception can be proved by preponderance of probability. Complete proof of an exception by the preponderance of probability cannot fall short of elimination of reasonable doubt about the ingredients of the offence.5 The accused is not required to prove his case beyond reasonable doubt. The onus is discharged if he succeeds in proving preponderance beyond reasonable doubt. As soon as the preponderance of probability is established, the burden of proof shifts to the prosecution who has still to discharge the original onus. The onus on the accused may well be compared to the party in a civil proceeding. Just

1

AIR 1974 SC 155 (1935) 25 Cr App R 72 3 Woolmingtom v. Director of Public Prosecution, (1935) 25 Cr App R 72 4 State v. Sanjay Gandhi, AIR 1978 SC 961: 1978 Cri LJ 952(SC) 5 Rishikesh v. State AIR 1970 ALL 51 (FB) 2

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as in a civil proceeding the court trying an issue makes its decision by adopting the best of probabilities, so must a criminal court hold the plea by the accused proved if a preponderance of probability established by the evidence led by him.6 Therefore, in the case at hand, it is pleaded before this Hon’ble Court be pleased to hold the plea of the accused proved since preponderance of probability has been established by the evidence presented. 1.2 Elements of S.3007 have not been fulfilled. In Hari Krishnan and Anr. v. Sukhbir Singh and Ors8, it was opined that “The intention or knowledge of the accused, must be as such necessary to constitute murder.” A perusal of this case elucidates that the key ingredients of murder include intention and knowledge. Intention and knowledge9 have different penal consequences. They are used as alternate mens rea10 for the offences. i)Intention Intention is not defined in the IPC. It can be variously defined to mean the object, purpose, the ultimate aim or design behind doing an act. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing and satisfying a purpose.11 It is the fore knowledge of an act coupled with the desire of it. The intention is the state of mind which has to be inferred from the facts and circumstances of each case particularly the nature of each weapon and how it was used and the injuries inflicted. In Ankeri v. State of Rajasthan12, 6

Haribhajan v. State, AIR 1969 SC 97 S.300 Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—(Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— (Fourthly) —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 8 1988 AIR 2127 9 appear in the ss 299 and 300 of the IPC dealing with culpable homicide and murder 10 A blameworthy mental condition 11 Bhagwanji Appaji v. Kedari Kashinath, (1900) ILR 24 Bom 202 12 AIR 1994 SC 842: 1994 Cr LJ 957 7

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“when the appellant though armed with an axe caused only simple incised injuries some of which are superficial and not causing any damage to the internal organs of the body of the deceased, it is said that he does not have any intention to murder another person.”

In the present case, the appellant was not armed with any weapon nor did he cause any injuries to the deceased. The post mortem report did not mention of any internal injuries that could have occurred as a result of attacking the deceased by means of any weapon. The only injuries that were revealed by the report were of certain marks on the nose and cheek areas which did not cause any internal injuries. Applying the ratio of Ankeri’s case to this case, it is humbly contended before this Hon’ble Court that the accused did not have any intention to cause the murder of the deceased. It has further been held State of Rajasthan v. Dhool Singh13 “the number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing the injury, which are the indicators of the fact whether the accused caused the death of the accused with an intention of causing death or not.”

Therefore, it is humbly pleaded in the instant case that the accused did not have any intention to cause the death of the deceased because the former did not use any weapon (no factual evidence), or attack any vital part of the deceased’s body (no proof in the post mortem report) and the nature of injuries were not grave. The intention of the accused depending upon the parts of body he attacks has been elucidated in a catena of cases. In Moti Singh v. State of Uttar Pradesh,14 “the deceased Gayacharan, had received two gunshot wounds in the abdomen, which were dangerous to life” In Chahat Khan v. State of Haryana,15 it was held 13

AIR 2004 SC 1264: 2004 Cr LJ 931 AIR 1964 SC 900 15 AIR 1972 SC 2574 14

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“When injuries are inflicted on vital parts of the body like the abdomen by a lethal or sharp edged weapon, the irresistible reference is that the accused intended to kill the deceased.”

In the case at hand, the accused did not have any intention to kill the deceased because he did not attack body parts that are dangerous to life or use any sharp or dangerous weapons to attack the deceased. Therefore, the accused cannot be held guilty for murder.

ii) Knowledge Knowledge is the awareness of the consequences of the act. A guilty/malafide intention or knowledge is essential to the offence under this section.16 Further, death must be a likely result of the intended bodily injury.17 In the instant case, marks were found on her body- cheeks and nose area. In an ordinary sense, marks on cheeks and nose area cannot be regarded as a bodily injury intended to cause death. The mere fact that there is remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt.18 Therefore, it is contended before this Hon’ble Court that the accused is not guilty.

1.3 Previous bad character of the accused is not relevant S.54 of the Indian Evidence Act, 1872 states that previous bad character not relevant, except in reply.19 The meaning of evidence of “bad character” was explained in an Australian case, Attwood Re,20 The court said: The expression ‘bad character’ in relation to a witness has no technical or legal meaning. Bad character may be regarded as the contrary of good character.

In the instant case, it is stated that Peter had had a record of cheating seven women and duping around Rs. 25 lakhs in the past. It was also alleged that he assaulted her and persistently threatened to kill her if he informed the police. However, while relying on S.54 of the Indian Evidence Act, the previous bad character of a person is not relevant unless

16

Hari Singh Gour, The Penal Law of India, vol 3, 11 th edn, Law Publishers, Allahabad, 1998, pp 2377 2378 PSA Pillai, Criminal Law, Lexis Nexis, India, (2015), 12 th Ed. 18 H.P. Adm v. Omprokash, 1972 Cr LJ 606 19 In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. 20 (1960) 102 CLR 353 17

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evidence has been provided that he had a good character. In this case, no evidence has been provided supporting or contending his good character. Therefore, it is contended by the respondent that any information relating to any negative or bad character of the accused should not be considered or given any weightage. 1.4 Hearsay evidence not admissible21 The facts of the case state the hearsay evidences.22 Hearsay is properly speaking secondary evidence of any oral statement. It is a fundamental rule of English Law of Evidence that Hearsay is not admissible. The reasons advanced for rejection of Hearsay are numerous, such as the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumour. The two principle objections, however, appear to be lack of oath; and absence of opportunity to cross examine.23 According to Wigmore, the main reason for rejection of Hearsay is that such statements are not subjected to the test of cross examination. Therefore, placing reliance upon the abovementioned principles, it is humbly pleaded before this Hon’ble Court that Hearsay evidence must not be admitted in this Hon’ble Court.

1.5 Balance in favour of Circumstantial evidence Chief Justice Abbot observed: “In a great portion of trial, as they occur in practice, no proof that the party accused actually committed the crime is or can be given; the man who is charged with theft is rarely seen to break the house or take the goods; and in case of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredient poured into the cup.”24 Further, mere suspicion, however strong or probable it may be, is no effective substitute for

21

Evidence which is not direct is Hearsay Evidence. Producer Henry said he had offered a show to Daina, but she was not keen to accept the offer because of the trouble in her personal life. He stated that, “She was having trouble in her personal life. She had distanced us from her so we don’t know exactly what happened. She was away from her family...we used to meet her every day. As friends we know she was having problem.” Daina had informed her friends of being physically assaulted. She also revealed to her friends that he was persistently threatening her if she informs the police he will kill her. Peter never let Daina talked to her parents. 23 Hals, 3rd Ed, Vol 15, para 534; Phip 11th Ed p 278 24 Wills’ Principle of Circumstantial Evidence 22

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the legal proof required to substantiate the charge of commission of the crime. Graver the charge the greater should be the standard of proof required.25 In the instant case of the death of the deceased, the prosecution has failed to produce any material evidence, leave alone an evidence of a greater standard of proof. Lack of proof and evidence and mere strong suspicion cannot be used as a substitute to prove the guilt of the accused. In a case largely dependent on circumstantial evidence, there is always the danger that conjecture or suspicion may take place of legal proof.26

It is humbly contended that the conjecture and suspicion has taken place of legal proof and there is no evidence of commission of murder by the accused in the case at hand. 1.6 The opinion of the doctors “Apparently27, marks were found on her body (cheeks and nose area) which could have been injuries post a physical scuffle between Daina and Peter before Daina committed suicide,” is not substantive evidence and should not be considered. S.45 of the Indian Evidence Act, 1872 defines Opinions of experts28. In the instant case, the doctors who conducted the autopsy on Daina’s body are experts within the meaning explained under S.45. The medical opinion is merely of advisory nature. It is based on the observations made by the medical officer of the body of the injured and the corpse after the occurrence has taken place. Medical evidence is only an evidence of opinion and is hardly decisive. It is not substantial evidence.29 In the case of Madan Gopal v. Naval Dubey,30 it was held “The medical opinion being an opinion is advisory in nature and not binding upon the Court. The Court has to form its own opinion considering the material data and the opinion on the technical aspects rendered by the medical expert.”

25

Ashish Batham v. State, AIR 2002 SC 3206, (2002) SCC (Cri) 1718 Pankoj Kumar Divetia v. State of Gujarat, AIR 1997 SC 2193, (1997) 7 SCC 156 27 Oxford Dictionary meaning: As far as one knows or can see 28 When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts. 29 Mani Ram v. State, AIR 1993 SC 2453 30 (1992) 3 SCC 204 26

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The evidence of doctor or medical expert is merely an opinion which lends corroboration to the direct evidence in the case.31 In another case, where in the opinion of the autopsy surgeon, death was due to asphyxia as a result of strangulation and might be homicidal in nature, the use of the words “might be” also suggested it might not be so and in the absence of no other evidence or circumstances to indicate it was a case of murder and homicidal death, the conviction of the accused will be improper.32 In State of Haryana v. Bhagirath,33 it was held that “The opinion given by the medical need not be the last word on the subject.”

Hence, placing reliance on the ratios highlighted in the cases above, it is pleaded before this Hon’ble Court that the opinion of the doctors with reference to the marks on the deceased’s cheeks and nose must not be considered.

2. IT IS HUMBLY PLEADED THAT PETER IS NOT GUILTY OF ANY OFFENCE U/S 323, IPC The acts constituted offence of causing hurt as defined in S. 319, IPC and made punishable by S.323, IPC.34 S.319 of IPC defines Hurt.35 So, for an offence under S.323 of IPC, it is necessary to prove that:I) Hurt is caused. II) Hurt is caused voluntarily. III) Hurt is simple in nature. It is contended that essentials of S.319 has been satisfied in order to constitute an offence u/s 323, IPC.

Elements of Hurt: Ingredients: 1. That the accused caused hurt to another person. 2. That he caused such hurt voluntarily; 3. That such case was not covered under Section 334 of I.P.C 31

Piara Singh, AIR 1977 SC 2274: 1977 Cri LJ 1941 (SC) Digambar Gope 1997 Cri LJ 2072 33 AIR 1999 SC 2005 34 Kosana Ranganayakamma v. Pasupulati Subbamma And Ors., AIR 1967 AP 208 35 "Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” 32

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I. Accused caused hurt to another person 2.1 Injuries were found on the victim’s body (nose and cheek) which could be caused post a physical scuffle between them. “The accused’s case cannot be disbelieved in the light of the medical evidence as the medical evidence is mere advisory in nature.”36 In Madan Gopal v. Naval Dubey And Anr37, it was held “the medical opinion being an opinion is advisory in nature and not binding upon the Court. The Court has to form its own opinion considering the material data and the opinion on the technical aspects rendered by the medical expert. And thus, Medical evidence is only an evidence of opinion and is hardly decisive. It is not substantial evidence.”

It was held that it is the duty of the court to pass a judgement of its own whether the hurt in question is of one category or other. The medical evidence is only an opinion to help the court to formulate its own opinion.38 In the instant case, the doctors who conducted the autopsy on Daina’s body are experts within the meaning explained under S.45. Medical opinion is merely of advisory nature. Mr. Peter’s intention to cause bodily pain to her according to S.319 read with S. 323 of IPC, 1860 has not been proved and drawing inference from the above laid cases, it is humbly sought before this Hon’ble court that the opinion of the medical experts in the report regarding the injuries on the cheeks and nose is decisive and should not be considered.

II Voluntarily Causing Hurt not fulfilled: U/s 39 of the Indian Penal Code, A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which at the time of employing those means, he knew or had reason to believe to be likely to cause it.

Daina had informed her friends of being physically assaulted. She also revealed to her friends that Peter was persistently threatening her if she informs the police he will kill her. This statement was merely an assumption and efficient evidence was not proved, the term Assault 36

Sheikh Naiyar v. State of Bihar (1992 SCR (2) 921,1992 SCC (3) 204) 38 Hadia Mia v. State of Assam, 1988 CrLJ 1459 (Gau). 37

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defined under Section 351 of IPC.39 Here, Mr. Peter has proved his intention which is not criminal in nature as defined in Section 35 of IPC.40

2.2 There is Insufficient and Indeterminate Evidence by the Prosecution It is contented that these charges have been incorrectly slapped against Mr. Peter. It is also held in the case, Govind Lal v. State of Rajasthan41 that “It cannot be said with certainty that the injury or injuries concerned might have been caused by the accused only, the prosecution failed to establish the guilt of the accused beyond reasonable doubt accordingly the conviction of the accused was set aside”.

S.323 of IPC provides that whoever, except in the case provided for by S.334, voluntarily, causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. The definition given in S.319 of IPC defines "hurt".42 Whoever causes disease or infirmity to such aggrieved person would be also punishable in view of S.323 of IPC if the charge is proved. It is immaterial whether there is any visible injury on the body or not. The learned counsel would also like to bring before this Hon’ble court the concept of preponderance of probability as rightly highlighted in the case Tek Chand v. Haryana & Ors43 where the benefit to the accused was given if there is lack of evidence, ambiguity and accuracy by the prosecution. The concept was further mentioned in the Golden Thread under Law of England in the case Woolmington v. Director of Public Prosecutor44, that it is the duty of the prosecution to prove the guilt of the accused which was quoted in further in the case of Rishikesh v. State.45

39

“Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.” 40 When such an act is criminal by reason of its being done with a criminal knowledge or intention.—Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention. 41 (1987 (2) WLN 620) 42 "Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt." 43 AIR 1972 SCC 228 44 [1935] UKHL 1, [1935] AC 462, (1936) 25 Cr App R 72 45 AIR 1970 ALL 51 FB

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Therefore it is opaque that Mr. Peter has not fulfilled any ingredients mentioned in the above case relied on, hence with reference to charges against him, he should not be held guilty under S. 323 of IPC, 1860.

2.3 Burden to prove the facts lies on the prosecution S.101 of the Evidence Act, 1872 states the true meaning rule is that where a given allegation, whether affirmation or negative forms as an essential part of party’s case the proof of such allegation rest on him.46 The principle of burden of proof is based on Co-Incumbit Prabatio Quidict Non que negat- The burden of proving of fact rests on the party who substantially asserts the affirmative of the issue not upon the party who denies it.47

Burden of Proof and Onus Probandi: As said above the burden of proof is two kinds: 1. Burden of Proof is on pleading 2. Burden of adducing evidence. The burden arises from the pleadings depends upon the facts asserted or denied and is determined by the rules of substantive and statutory law or by presumption of law and fact.

In criminal cases the burden of proof lies on the prosecution and accused must be proved beyond reasonable doubt. In Prabhoo v. Emperor48, in Criminal jurisprudence it is the most fundamental that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offences charged. The burden of proving guilt of the offence charged.49 It was an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts.50 Therefore, it is contented that the prosecution must prove that Mr. Peter who is innocent otherwise . 2.4 It is contended that Hearsay evidence must not be held admissible. According to S.60 of the Indian Evidence Act, 1872 only direct evidence of a fact can be produced by senses, can be given. To be technical, it may be said that hearsay evidence is not 46

N Sundarama Reddy v. State, AIR 1959 AP 215 Mumtaz Begum v. Ullah Khan AIR 1964 J. & K. 34 48 AIR 1941 All 402 49 State of Assam v. Manohar Ali, (1987) 1 CriLJ 748(Guti) 50 Rameshwar v. State of M.P. 1993 Cri LJ 2004 (2007) 47

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admissible.51 Further the English Law of Evidence that Hearsay is not admissible. The two principle objections, however, appear to be lack of oath; and absence of opportunity to cross examine. Therefore, placing reliance upon the abovementioned principles, it is humbly pleaded before this Hon’ble Court that Hearsay evidence must not be admitted in this Hon’ble Court. All presumptive evidence is circumstantial because necessarily derived from or made up of circumstances, but all circumstantial evidence is not presumptive. The proof of various facts or circumstances which usually attend the main fact in dispute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypothesis claimed. Or as otherwise defined, it consists in reasoning from facts which are known or proved to establish such as are conjectured to exist. In Padala Veera Reddy v. State of Andhra Pradesh and others,52 the Supreme Court of India held that when a case rests upon circumstantial evidence, the following tests must be satisfied: “(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” Further in Ram Singh v. Sonia and Ors.,53 it was held “In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets 51

Laliteshwar Prasad v. Bateshwar Prasad, AIR 1966 SC 580: (1966) 1 SCA 532: 1966 2 SCJ 241. 1989 Supp (2) SCC 706 : 1991 SCC (CRI) 407 53 AIR 2007 SC 1218 52

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snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.” It is evident that from the facts that the good intention of Mr. Peter has been seen during the police investigation when he had mentioned that, “she had nothing of her own, and that he got her passport, Aadhar Card and individual accounts done’’. This shows his good motive and his commitment towards Daina were not corrupted and he always looked out for her. Hence, it the prosecution’s burden to prove the guilt and the court to not believe this indirect and secondary evidence in hand. Intention is “the mental element of crime ordinarily involves no reference to motive; A bad motive or a good motive cannot be grounds for convicting a person.”54 Intention has been defined as the fixed direction of the mind to a particular object or determination to act in a particular manner and it is distinguishable from motive that incites or stimulates action.”55 In criminal law, motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to act for a definite result.56

Knowledge is awareness on the part of the person concerned, indicating his mind. A person can be supposed to know when there is a direct appeal to his senses.57 Knowledge is essential subjective. However intention and knowledge and intention can be presumed to be one and the same but the demarcating line between knowledge and intention is no doubt thin. But knowledge is contrast to intention. Intent signifies mental realisation in which the mind is a passive receipts of certain ideas or impressions arising it while intention is connotes a conscious state of mind which mental faculties are summoned into action for deliberate, prior conceived and perceived consequences.58 Intention is difficult to legally establish by direct evidence, however it can be perceived from the Modus Operandi of a person and it can be seen that Mr. Peter had no ulterior motives and is bad character is not a ground under Section 54 of the Indian Evidence Act, 1872 to make assumptions or convict him, he had the best interest for Daina and had full knowledge about her crucial situation about her financial background and tried to help in that aspect as well and he has further proved his intention to get married to her. Thus, Mr. Peter has not fulfilled the elements of crime. 54

Hari Singh Gour- IPC, Vol 1 11 edition Law publishers, Allahabad 1998 p. 232, Ram Kumar v. State AIR 1970 Raj 60, Sarabjeet Singh v. State of UP 1984 SCC (Cri) 151 AIR 1983 (SC) 529 55 S Raghubir Singh Sandhwala v. Commr of IT, AIR 1959 Punj 250 56 State of West Bengal v. Mohammad Khalid AIR 1995 SC 785 57 Hari Singh Gour- IPC, Vol 1 11 edition Law publishers, Allahabad 1998 p. 232 58 Jai Prashanth v. Delhi Administration, 1991 2 sec 32, 1991 (1) Scale 114

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Therefore in the light of precedents relied upon it is opaque that Mr. Peter has not fulfilled any ingredients mentioned which can make him guilty under Section 323, it is humbly therefore prayed that the charges against him should be dropped.

3. PETER IS NOT GUILTY OF CRIMINAL INTIMIDATION U/S 506 OF THE IPC. 3.1 Meaning S.50359of the IPC defines Criminal intimidation and S.50660 of the IPC defines Punishment for criminal intimidation. 3.2 Elements of Section 503 not fulfilled: Essential Ingredients - The offence of criminal intimidation has been defined under Section 503 IPC and Section 506 provides punishment for it. An offence under Section 503 has the following essentials; (A). Threatening a person with any injury; 1. To his person, reputation or property; or 2. To the person, or reputation of anyone in whom that person is interested.

3.3.1 It is contended that the first ingredient of criminal intimidation (threatening a person with any injury to his person, reputation or property) is not satisfied. (i) Definition of Threat Threat should be a real one and not just a mere word when the person uttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. In Usha Bala v. State of Punjab61 it was held,

59

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone one else in whom that person is interested, with the intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation. 60 Whoever commits the offence of criminal intimidation shall be punished with the imprisonment of either description for a term which may extend to two years, or with fine, or both, If the threat to be cause death or grievous hurt, etc and if the threat to be cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment of life, or with imprisonment for a term which may extend to seven years, or to impute unchasity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 61 2002 (3) R.C.R (criminal) 445

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"Empty threats do not prima facie mean that the case u/s 506 IPC is made out against the petitioner. Hence, in face no case is made out against the defence.” It can be seen in the instant case, except a vague and bald allegation of criminal intimidation, in absence of element of threat the allegation made cannot be sustained.

(ii) Injury and Criminal Intimidation. Section 4462 IPC, defines the word “injury”. Injury is an act contrary to law i.e. illegal. Legally the term injury‟ includes body, mind, reputation and property. So, it is a wider meaning as it also includes illegal damage to reputation or property of other. From the facts and circumstances, of the case in hand it can be clearly observed that there was no sign of injury apprehended on the complainant.

(iii) The condition of Threat to Person not satisfied. Section 1163 of the IPC defines the term Person. In the view of the facts and circumstances of the case and admissions made during interrogation, it can be clearly established that the friend of Peter, Sandy stated that Daina and Peter had their ups and downs but looked very much in love. They were young and new in their relationship.

(iv) The condition of Threat to Reputation not satisfied. Reputation at its best can be equated with an element of personal security or a significant part of one’s life and unification of virtues which makes the person proud to protect such private interest. From the facts and circumstances of the case in hand, and from the admissions made by Peter during interrogation it can be clearly established that the engagement was covered in news papers. It was in full media glare, and about divorce he stated, “It was a mutual separation and the divorce came through in 2013”.Therefore, was no apprehension of threat to reputation of the complainant in the instant case.

(v) The condition of Threat to Property not satisfied.

62

The word “injury” denotes any harm whatever illegally caused to any person in body, mind, reputation and property. 63 The word person includes any company or association or body of persons, whether incorporated or not.

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Section 2264 of the IPC defines movable property. From the facts of the instant case, it can be clearly observed that Daina had a separate bank account and did not have a joint account with Peter. Therefore, there was no threat to her property.

(B) The threat must be with intent; 1. To cause alarm to that person; or 2. To cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or 3. To cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.

3.3.2 It is contended that the second ingredient of criminal intimidation (To cause an alarm and to do any act or omit to do any act) is not satisfied. S.506, I.P.C relates to punishment for criminal intimidation. That offence consists of threatening another with injury to his person, reputation or property and threatens to affect another's living in whom that person is interested may amount to criminal intimidation. But a mere threat is not sufficient to attract the charge of criminal intimidation. The threat should be given with intent to cause alarm to the person threatened, for being an offence within the meaning of Section 503 and punishable under Section 506, I.P.C the threat should be a real one and not just mere words. When the person uttering it does not exactly mean what he says and also the person on whom threat is attached does not feel threatened, actually the offence of criminal intimidation punishable under Section 506, I.P.C goes out of way. In the case of Hajee Abdul Rehman v. Gulab Nabi65, the Court opined “that mere threats given by the accused not with an intention to cause alarm to the complainant but with a view to deterring him from interfering with what the accused believed to be his exclusive right of passage through the door would not constitute an offence of criminal intimidation.” It is contended that, the same ratio must be invoked in the instant case also, as there is no direct evidence establishing the fact that the real threat was apprehended, thereby causing alarm to the complainant. 64

The words “moveable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. 65 1964 Cri LJ 40

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Further, in Amulya Kumar Behera v. Nabaghana Behera66, the Court held that “if there is no evidence to show that the accused had intended to cause alarm to the complainant, the accused would be entitled for acquittal.” It is contended that the same must be invoked in the instant case as well.

3.3 It is contended that mere outburst of the accused is not sufficient to attract S.506 of the IPC. In the case of Rajendra Nath Datt v. State of Haryana67 the Court opined that Mere outburst of the accused at the time of assault on the complainant that he will kill him was not sufficient to hold that it would fall within the mischief of S.506. It was held “there was no question of indicting the accused u/s 506, IPC on mere threats to cause grievous injury.” Placing reliance on the ratio, it is contended that in the instant case, the act of the accused does not attract S.506 of the IPC as it was just an outburst of the accused during the tiff between the deceased and himself and not an act of criminal intimidation. 3.4 Evidence as to character must be taken into account. In

a criminal

proceeding, the fact that the person accused is of good character is

relevant68and is often a matter of importance in explaining his conduct and in judging his innocence or criminality. Further, the fact that the accused person has a bad character is irrelevant, unless the evidence has been given that he has a good character, in which case it becomes relevant or in cases in which the bad character of any person is itself a fact in issue. To ascertain motive certain unpleasant things about the accused may be proved. This was laid down by the Supreme Court in the case of Mangal v. State69.

U/s.53, good character of the accused is always relevant. Evidence can be given both of general character and general disposition. “Disposition” means inherent qualities of the person, “reputation” means general credit among the public. Character evidence may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a

66

1995 Cr LJ 3559 1933 Cri LJ 1025 68 S.53, Indian Evidence Act, 1872 69 AIR 1957 SC 190 67

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background for appreciating his reaction in a given solution. It must give place to acceptable positive evidence.70

Based on the above ratio upheld by the Apex Court it is contended that the same must be invoked in the instant case also in order to meet the ends of fairness, reasonableness and equality.

3.5 Presumption of the Innocence of the accused, must be taken into consideration. There is a presumption of innocence against the commission of crime. This ratio has been laid down by the Supreme Court in the case Shivaji v. State71 and a catena of other cases In K.Joseph v. Narayanan72 the Supreme Court upheld that “the accused is entitled to rely on the presumption of innocence to testimonial compulsion to swear against himself.” In the case of K. M. Nanavati v. State73 the Supreme Court opined that “the burden is thrown upon the prosecution to prove its case beyond reasonable doubt.”

3.5.1 Reasonable Doubt Reasonable doubt is simply a degree of doubt which would permit a reasonable and just man to come to a conclusion and reasonableness of doubt must commensurate with the nature of the offence to be investigated. In Gopal Reddy v. State74 the Apex Court was of the opinion that “reasonable doubt does not mean light, insubstantial doubt that flit through the mind of any of us about anything at sometime or other, it is not a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded on reasons.” The Supreme Court in State of Punjab v. Bhajan Singh75 upheld

70

Bhagwan v. State, AIR 1965 SC 682 AIR 1973 SC 2622 72 AIR 1964 SC 1552 73 AIR 1962 SC 605 74 AIR 1979 SC 387 75 AIR 1975 SC 258 71

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“Where there is a lacuna in the prosecution case the benefit should go to the accused. There is a long distance between ‘may be true’ and ‘must be true’ and the prosecution has to travel all the way to prove its case beyond all reasonable doubt.” In Dahyabhai v. State76 the Apex Court opined that “If oral, documentary or circumstantial evidence raise any reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence including ‘mens rea’ of the accused, then the accused is entitled to the benefit of doubt on the ground that the general burden of proof resting on the prosecution was not discharged.”

Based on the above ratios held by the Supreme Court, it is pleaded that Peter must be granted with benefit of doubt in the instant case as well.

3.6 Conclusion The Apex Court in the case of Tilak Raj v. The State of Himachal Pradesh77 laid down “wherein the Court held that a reading of evidence on record in the light of aforesaid legal provision shows the insufficiency of evidence to hold the conviction of the appellant for the offence of criminal intimidation punishable under Section 506 part I of IPC.”

From the aforesaid, it is clear that the evidence of the prosecution is neither believable nor reliable to bring home the charge against the accused. The facts and circumstances of the case in hand prove that Peter cannot be found guilty of any offence under Section 506 Part I of the IPC. In the case Manik Taneja v State of Karnataka78 the Supreme Court held “it is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of ‘criminal intimidation’”.

The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm 76

AIR 1964 SC 1563 AIR 2016 SC 4896 78 AIR 2015 SC 141 77

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would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant, which the appellant had failed to do. From the facts and circumstances of the case in hand, it appears that there was no intention on the part of Peter to cause alarm in the mind of the complainant causing obstruction in discharge of her duty. Therefore, it is humbly submitted before this Court, to take the aforementioned into consideration, to serve the needs of justice, by acquitting Peter of any criminal charge u/s 506 Part 1 of the IPC.

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PRAYER FOR RELIEF

Wherefore in the light of issues raised, arguments advanced and authorities cited, the Defence humbly submits that the Hon’ble Court may be pleased to dismiss the appeal

And pass such orders proper in the circumstances of the case with costs, which this Court may deem fit, in the light of equity, justice and good conscience for which the counsel may forever pray.

Sd/COUNSEL FOR THE DEFENCE

xi