IMSMC Prosecution

TEAM CODE: IMSMC 1608 IMS LAW COLLEGE NATIONAL MOOT COURT COMPETITION, 2016

BEFORE THE HONOURABLE SUPREME COURT OF YANGISTAN

UNDER ARTICLE 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 PROSECUTION

i

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

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

STATEMENT OF ISSUES……………………………………………………………….......X

SUMMARY OF ARGUMENTS……………………………………………………………..XI 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 OFFEN CE U/S 506, IPC?

PRAYER FOR RELIEF……………………………………………………………….........XII

ii

TABLE OF ABBREVIATIONS

¶

Paragraph Number

¶¶

Paragraph Numbers

&

And

AIR Anr.

All India Reporter Another

DPSP

Directive Principles of State Policy

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

iii

INDEX OF AUTHORITIES TABLE OF CASES S.NO 1

NAME OF CASES Bhagwanji Appaji v. Kedari Kashinath

2

Chahat Khan v. State of Haryana

CITATIONS (1900) ILR 24 Bom 202 AIR 1972 SC 2574

3

State of U.P. v. Samman Das

AIR 1972 SC 677

4

Sakal Deep v. State of U.P.

1993 Cri LJ 557

5

Mayur v. State of Gujarat

AIR 1983 SC 66

6

State of Haryana v. Ram Singh

AIR 2002 SC 620

7

Domu Chopadi v. State,

8

Darshan Singh v. State

9

Mani Lal Gupta v. State

10

Omanakullam v. State of Kerala

11

Hanumant v. State of MP

1987 Cr LJ 1481 (Ori) 1995 SCC (Cri) 702 1988 Cri LJ 627,630 2000 Cr LJ 4893 (Ker) (DB) AIR 1952 SC 343

12

Bhagat Ram v. State

AIR 1954 SC 621

13

Kedar v. State

AIR 1954 SC 660.

14

Anant v. State

AIR 1960 SC 500

15

Agarwal v. State

AIR 1963 SC 200

16

Laxman Naik v. State

17

M. Prasad v. State of Bihar

18

Bakshish Singh v. State of Punjab

1975 Cr LJ 2692 (SC) 1954 Cr LJ 1797 (SC) 1971 Cr LJ 1452

19

State of U.P. v. Sukhbari

AIR 1985 SC 1224

20

Balwinder Singh v. State of Punjab

AIR 1987 SC 350

iv

21

Ashok Kumar Chatterjee v. State of M.P

AIR 1989 SC 1890

22

Tomaso Bruno & Anr. v. State of U.P

(2015) 42 SCD 313

23

Rajinder v. State

(1963) 2 SCJ 418

24

Ravinder Kumar v. State of Punjab

25

State v. Shri Ram

1966 CrLJ 960 (SC) 1970 1 Cut WR 98

26

Noble Mohandas v. State by Deputy Inspector of 1989 Cr LJ 669 Police

27

Vijay Kumar Singh & Ors v. State of Bihar

2007 (1) BLJR 65

28

Punjab Singh v. State of Haryana

29

Anil Rai v. State of Bihar

[1984] Supp SCC 233 [2001] 7 SCC 318

30

Mayur v. State of Gujarat

31

Habeeb Mohd

32

Attwood Re

33

Haughton v. Smith

(1960) 102 CLR 353 [1975] AC 476

34

Ram Kumar v. State

AIR 1970 Raj 60

35

Sarabjeet Singh v. State of UP

36

S.Raghubir Singh Sandhwala v. Commr

37

State of West Bengal v. Mohammad Khalid

AIR 1983 (SC) 529 IT AIR 1959 Punj 250 AIR 1995 SC 785

38

Westminster City Council v. Croyalgrange

1986 ALL ER 353

39

Jai Prashanth v. Delhi Administration

1991 2 sec 32, 1991 (1) Scale 114

40 41

Purushothamdas Patel v. Dahiben Jagdish Rathid Lakwinder Singh v. State of Punjab

42

Mumtaz Begum v. Ullah Khan

43

Govind Rao v. State of MP

AIR 1983 SC 66, 1982 Cr LJ 1972 AIR 1954 SC 51

AIR 2003 Guj 82 1998 Cri. LJ 468 AIR 1964 J.&K. 34 AIR 1222, 1965 SCR(1) 678

v

43

Shri Sunil Shantaram Parwa v. State of Maharastra

44

V.M Singhvi v. R.M Tewari

45

Amulya Kumar Behera v. Nabhagana Behera

46

Ramesh v. State

47

Chandani v. Bhahataran

48

Noble Mohandas v. State

49

Dada Hamnat

50

Ganga Chandra Sen v. Gour Chander Bankiya

51

Amitabh Adhar v. NCT of Delhi

(1885) ILR 15 Cal 671 (2000) Cr LJ 4772

52

Vasant Waman Pradhan v. Dattatraya Vithal Salvi

(2004) 1 Mah LJ 487

53

A.K Gopalan

AIR1949 Mad 233

54

2007 Cr LJ 204

55

Tammineedi Bhaskara Rao and Ors v. State of Andhra Pradesh and Another State of Haryana v. Janak Singh & Etc

56

Amulya Kumar Behera v. Nabhagana Behera

1995 Cr LJ 3559

2003 (2) ALD Cri 55 1988 Crimes 318 (Bom) 1955 Cr LJ 3559 AIR 1960 SC 154 1964 Cr LJ 85 1989 Cr LJ 669 (1895) 20 Bom 794

AIR 2013 SC 9544

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) vi

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 CONSTITUTION OF INDIA INDIAN PENAL CODE, 1860 INDIAN EVIDENCE ACT, 1872

JOURNALS REFERRED SUPREME COURT CASES (SCC) ALL INDIA REPORTER (AIR) SUPREME COURT REPORTER (SCR)

WEBSITES REFERRED www.lexisnexis.co.in www.indiakanoon.org www.manupatra.com www.westlawindia.com www.heinonline.org

vii

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 Yangistan.

viii

STATEMENT OF FACTS Daina was a popular television actress in a country named Yangistan. She was found hanging on 1st April 2015 from the ceiling of her two-bedroom apartment in Kasauti Nagar area where 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 received death threats if she informed the police. Peter has 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 S.302, S.323 and S.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 S.302, S.323 and S.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 S.302, S.323 and S.506.

ix

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 OFFEN CE U/S 506, IPC?

x

SUMMARY OF ARGUMENTS ISSUE 1

PETER CAN BE HELD GUILTY OF OFFENCE U/S 302, IPC. The post mortem report of Daina’s body revealed “suffocation” as the cause of death. The reports further mentioned of “asphyxia” and ligature marks around her neck. Relying on the report it is evident that Mr. Peter has murdered Daina and is guilty of offence under Section 302 of the Indian Penal Code, 1860.

ISSUE 2 PETER CAN BE MADE LIABLE FOR CRIMINAL CHARGE U/S 323, IPC. The medical reports of the experts mention that injuries were found on the victim’s body (nose and cheek) which could be caused post a physical scuffle between them this satisfies the ingredients of S.323 and hence Mr. Peter must be made liable for this criminal charge.

ISSUE 3 PETER CAN BE HELD GUILTY OF OFFENCE U/S 506, IPC. Daina had revealed to her friends that Peter was assaulting her persistently threatening to kill her if she informed the police. There was a threat of injury to Daina’s person and property and the threat to kill her is illegal in nature. Therefore, Peter must be held guilty of offence under S.506 of the Indian Penal Code, 1860.

xi

ARGUMENTS ADVANCED

1.PETER IS GUILTY U/S 302 OF THE INDIAN PENAL CODE S.300 of the Indian Penal Code defines murder with reference to culpable homicide defined in S.299. If the special requirements are fulfilled, culpable homicide will then amount to murder, provided, the act does not fall within any of the Exceptions provided in S.300.1 1.1 The accused had an intention to kill the deceased In Hari Krishnan and Anr. v. Sukhbir Singh and Ors2, it was held that “The intention or knowledge of the accused must be as such necessary to constitute murder.” 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.3 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. The intention of a person can be gathered from the action of the person. It has also been held in Chahat Khan v. State of Haryana4 that, “Since intention is always a state of mind, it can be proved only by its external manifestations”. Applying these principles to the instant case, it can be inferred from the facts that the accused did have the intention to murder the deceased as referred from the facts in which he not only assaulted her but also threatened to kill her if she informed the police. 1

Culpable homicide is murder, if it is done with

(i) (ii) (iii) (iv)

Intention to cause death; or Intention to cause bodily injury knowing that the injury caused is likely to cause death, or Intention of causing bodily injury sufficient in the ordinary course of nature to cause death, or Knowledge that the act is (a) Imminently dangerous that in all probability it will cause death or bodily injury which is likely to cause death, and (b) Done without any justification for incurring the risk of causing death or the injury.

2

1988 AIR 2127 Bhagwanji Appaji v. Kedari Kashinath, (1900) ILR 24 Bom 202 4 AIR 1972 SC 2574, 1973 Cri LJ 36, (1972) 3 SCC 408, 1972 (4) UJ 773 SC 3

1

1.2 Principles of medical Jurisprudence substantiating the commission of homicide Kautaliya’s Arthashastra states that death can be caused by four ways of stopping the breathing- strangling, hanging, asphyxiation and suffocation. It has also given the list of forensic evidence for establishing the cause of death (verse 2.7.2-10). The post mortem report of Daina’s body revealed “suffocation” as the cause of death 5. The reports further mentioned of “asphyxia” and ligature marks around her neck. Meaning of suffocation: Suffocation includes all cases of asphyxia except drowning caused by violent means other than mechanical pressure on the wind pipe. Meaning of asphyxia: The word “asphyxia” means comes from the Greek word for “pulse less” which implies death. The word ‘asphyxia’ is meant to describe obstruction to the passage of air or is a state of oxygen lack, whereby supply of oxygen to body is interfered, hence to the act of breathing and respiration.6 In the case of State of U.P. v. Samman Das7, it was stated that, “The interference into the supply of oxygen to the tissue of lungs, leads to a situation which is called asphyxia. It may be caused on account of several reasons such as strangulation, suffocation drowning, etc.” In Sakal Deep v. State of U.P.8, it was elucidated that the word ‘asphyxia’ has been described, the practical effect of which is on account of some mechanical interference with the process of breathing. If some interference is caused to this process, there comes the stage of suffocation, unconsciousness and consequently death. Nail marks of interference to breathing may be noticed particularly with the presence of marks on the face or neck. Placing reliance on the above-mentioned cases, it can be inferred that in the instant case, the accused would have attempted to strangle the deceased that ultimately led to her death. This can be supported by the marks on her face and nose as revealed by her post-mortem report.

5

Moot Proposition, para 2 Modi’s Medical Jurisprudence and Toxicology, 23rd Ed., (2006) 7 AIR 1972 SC 677: 1972 Cri LJ 487 (SC) 8 1993 Cri LJ 557 at 555-556 6

2

The post mortem report of Daina revealed suffocation as the cause of death.9 Suffocation is a type of asphyxia. Suffocation is that form of death that results from exclusion of air from the lungs, by means other than that of the compression of the neck.10 In homicidal smothering, affected by the forcible application of the hand over the mouth and the nostrils, bruises and abrasions are often found on the lips and on the angles of the mouth and alongside the nostrils. There may be bruises and abrasions on the cheeks and the molar regions, or on the lower jaw, if there has been a struggle.11 The facts of the case at hand reveal that the post mortem report show marks on her body (cheeks and nose area) which should have been injuries post a physical scuffle. Placing reliance on the Principles of Medical Jurisprudence, it can be concluded that there was a physical scuffle between Daina and Peter which should have led to the former’s murder by the latter. 1.3 Balance in favour of post-mortem hanging A person may be murdered, and the dead body suspended to simulate suicide. In such a case, ligature mark is usually found. Therefore, when a person is found dead and his body is suspended, no opinion can be given from ligature mark alone, and there should be a question whether death really took place from hanging or not.12 In the present case, the post-mortem report is silent about the internal appearance of the deceased’s body. However, with regard to the external appearance, it is clearly mentioned in the facts that ligature marks were found on the neck. Placing reliance on the inputs given by the Hon’ble Supreme Court13, it is humbly contended before this Court that the cause of the deceased’s death was homicidal hanging/ post- mortem hanging. 1.4 Due consideration to expert opinion Medical evidence consists of a doctor’s report of the examination, reports of the ballistic firearms or fingerprint experts or of the chemical examiner and serologist, and the doctor’s oral evidence or other expert’s oral evidence.14

9

Moot Proposition, para 2 Modi’s Medical Jurisprudence and Toxicology, 23rd Ed., (2006) 11 ibid 12 Modi’s Medical Jurisprudence and Toxicology, 23rd Ed., (2006) 13 Supreme Court on Criminal Law by RP Kathuria, p. 808 14 Modi’s Medical Jurisprudence 10

3

In Mayur v. State of Gujarat,15 the Supreme Court observed: The learned judge was right in observing that ‘our courts have always taken the doctors as witnesses of truth.’ Even where a doctor has deposed in court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth. In State of Haryana v. Ram Singh,16 it was held “While it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant.” Therefore, placing reliance on the relevant ratios, it is humbly pleaded before the Hon’ble Court that the report and opinion of the doctors hold value and must be considered while deciding the case. 1.5 The conduct of the accused has to be taken into account The conduct of the accused preceding, attending and following the incident is relevant to find out whether he shared the common intention with the other accused in committing the crime.17 In the present case, Peter revealed to the police that upon discovery of Daina’s demise, Peter got so scared that he did not inform the police and that it was the hospital authority that informed the police of Daina’s demise. Also, the facts state that before the police reached the hospital following Daina’s suicide, Peter ran away. In Darshan Singh v. State18, it was held that “It is no doubt that the prosecution has to prove the case beyond reasonable doubt, but when the prosecution has established all the circumstances connecting the accused with the crime, in the absence of any explanation of the accused it cannot be said to that the conduct of the accused has to be ignored and need not be taken into account.” Therefore, it is contended that the previous conduct of Peter was bad and the same must be taken into account. 15

AIR 1983 SC 66, 1982 Cr LJ 1972 AIR 2002 SC 620 17 Domu Chopadi v. State, 1987 Cr LJ 1481 (Ori). 18 1995 SCC (Cri) 702 16

4

Hence, placing reliance on this principle, it is humbly contended before this Hon’ble Court that possibility of Peter being guilty can be inferred from the facts and circumstances abovementioned and also creates benefit of doubt in favour of prosecution by his intention to dodge the police. 1.6 Hearsay evidence to be regarded for explanation of witnesses’ conduct The facts of the case stated hearsay evidences.19 In Mani Lal Gupta v. State20, the court held that “The witness was aroused on hearing the cries of two other prosecution witnesses that the accused had killed the children. His evidence of what he heard is admissible.” Based on the above ratio held by the court, it is contended that hearsay evidence is admissible in the Court of law to meet the ends of Justice. Therefore, it is pleaded that the hearsay evidence must be taken into account in the instant case also. 1.7 Circumstantial evidence acts as a key to deduce guilt of the Accused For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence i.e., by examining the persons who had seen its commission. The offence may be proved by circumstantial evidence also. The principal facts or “factum probandam” may be proved indirectly by means of certain inferences drawn from “factum probans”, i.e., the evidentiary facts.21 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,

19

-The friend of Peter Sandy stated “Daina and Peter had their ups and downs but looked very much in love. Daina and Peter were young and new in their relationship.” - 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 talk to her parents. 20 1988 Cri LJ 627,630 21 Omanakullam v. State of Kerala, 2000 Cr LJ 4893 (Ker) (DB)

5

it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredient poured into the cup.”22 Circumstantial evidence like all other evidence should be carefully tested before it is accepted as conclusive. It may be laid down as an elementary rule of law that in order to justify inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation of any other reasonable hypothesis than that of the guilt of the accused.23 The chain of evidence furnished by the circumstances should be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. It must be wholly inconsistent with his innocence and consistent only with his guilt.24 It was held in the case of Bhagat Ram v. State25, that “When the case depends upon the circumstantial evidence, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offences beyond reasonable doubt. Therefore, inference of guilt of the accused on the basis or circumstantial evidence can be justified only when all the incriminating facts and circumstances are all incompatible with the innocence of the accused.”26 In the present case, the facts clearly state that upon discovery of Daina’s death, Peter was so scared that he rushed her to the hospital and then ran away, without informing the police. It is pertinent to that the hospital authorities only informed the police about Daina’s death. Furthermore, the post-mortem report revealed asphyxia and suffocation as the cause of death. In addition to it, the post-mortem report accounted that the marks found on her cheek and neck could have been injuries post a physical scuffle between the accused and the deceased. Also, the victim had informed her friends of being physically assaulted by Peter and that he persistently threatened to kill her if she informed the police.

22

Wills’ Principle of Circumstantial Evidence Hanumant v. State of MP, AIR 1952 SC 343; Bhagat Ram v. State, AIR 1954 SC 621; Kedar v. State, AIR 1954 SC 660 24 Anant v. State, AIR 1960 SC 500; Agarwal v. State, AIR 1963 SC 200; Laxman Naik v. State, 1975 Cr LJ 2692 (SC), M. Prasad v. State of Bihar, 1954 Cr LJ 1797 (SC), Bakshish Singh v. State of Punjab, 1971 Cr LJ 1452 25 AIR 1954 SC 621; 1954 Cr LJ 1645 26 State of U.P. v. Sukhbari AIR 1985 SC 1224, 1985 Cr LJ 1479; Balwinder Singh v. State of Punjab AIR 1987 SC 350, 1987 Cr LJ 330; Ashok Kumar Chatterjee v. State of M.P. AIR 1989 SC 1890, 1989 Cr LJ 2124 23

6

The facts clearly stated that he had a record of cheating seven women and duping around Rs. 25 lakhs in the past. He was also previously married to an air hostess Marry and had not obtained a divorce decree and had an illicit relationship with Margarate. It is apparent from the circumstances of the case that he had lied about partying with Daina and a common friend the night before her demise, while it was confirmed by the CCTV footage of the pub that he had partied with another girl named Sara. In Tomaso Bruno & Anr. v. State of U.P.,27 the Supreme Court in paragraph 42 of its judgement said that, “The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case” “Electronic documents are admissible as material evidence. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution.” Placing reliance on the principle elucidated in Tomaso Bruno’s case, it is humbly contended that the CCTV footage is important and strong evidence that supplements the circumstantial evidence in the instant case. Moreover, it is mentioned that when Daina complained about being assaulted by Margarate to Peter, he used to switch his phone off. A careful scrutiny of facts would also suggest the difference in statements made by Peter and Sam, the neighbour’s cook, who was the first person to enter Daina’s locked apartment. Such incongruity disputes Peter’s credibility. Further, the trouble brewing between Daina and Peter was also confirmed by Producer Henry, whose offer for a television show was turned down by the deceased. Also, there was no suicide note discovered which poses the issue of Daina’s death being a suicide. Therefore, it is contended before this Hon’ble Court that the chain of factual and electronic evidence in this case is wholly inconsistent with the innocence of the accused.

27

(2015) 42 SCD 313

7

It was also held in the case of Rajinder v. State28 that “When the circumstantial evidence proves the guilt the failure to prove the motive does not weaken the case against the accused. Where the circumstances proved against the accused as follows: (1) That the deceased was last seen with the accused; (2) That the accused made contradictory statements as to where the accused was; and (3) That the recovery of the dead body was made at the instance of the accused”. It was held by the Supreme Court in the case of Ravinder Kumar v. State of Punjab29, that the three circumstances are sufficient to convict the accused with the murder of the deceased. Secondly, the accused stated that he partied with the deceased and a common friend on the previous night which was contradicted and disproved by the CCTV footage that showed that he partied with another girl and not Daina. Thirdly, the facts state that the dead body was recovered and taken to the hospital at the instance and by the accused, who later fled from there without informing the police. Therefore, since all the three conditions in Ravinder’s case, it is humbly contended before this Court it is sufficiently correct to convict the accused of the murder of the deceased. 2. IT IS HUMBLY PLEADED THAT PETER MUST BE CONVICTED UNDER SECTION 323 OF I.P.C. Section 319 of IPC defines Hurt.30 So, for an offence under Section 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.

2.1 Elements of Hurt fulfilled Ingredients: (1) That the accused caused hurt to another person. 28

(1963) 2 SCJ 418 1966 CrLJ 960 (SC) 30 “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” 29

8

(2) That he caused such hurt voluntarily; (3) That such case was not covered under Section 334 of I.P.C I. It is contended that the first ingredient of hurt (Accused caused hurt to another person) is satisfied Section 319 states the meaning of hurt in the case State v. Shri Ram31 “The court of appeal had allowed an appeal against conviction for assault occasioning actual bodily harm and held that inadvertent recklessness, that is failure to give thought to the possibility of risk involved in pursuing a course of action, was insufficient to amount to the mens rea required for conviction u/s 47 of offences against persons act.” So, as far as IPC the slightest gesture injury or pain to a person is assault defines in S.351 but S.319 talks about bodily pain/injury more aggravated than that of assault.32 Peter and Daina have been having misunderstandings and problems in their relationship, based the factum probandum in the case, it is found out that there were injuries on the victim’s body around her nose and cheek area which could be because of a physical scuffle between them or by the victim’s communication before her death to her friends that she has been assaulted. 2.1.2 Injuries were found on the victim’s body (nose and cheek) which could be caused post a physical scuffle between them The smallest offence connected with the infliction of bodily pain is assault, which has been defined in S.351. This section defines bodily pain which is caused by actual contact with the body by a somewhat aggravated assault. But between assault and hurt, there is no radical difference. Many of the offences which fall under the head of ‘hurt’ will also fall under the head of ‘assault’. However, bodily hurt may not be caused by many acts which are not assaults. Therefore, all designated pain, disease and infirmity is said to be hurt. It was held in Vijay Kumar Singh & Ors v. State of Bihar33 that having regard to the fact when the witnesses have supported the prosecution case and their evidence found to be reliable having been corroborated by the medical evidence. Also, it was further held in the case of that in Punjab Singh v. State of Haryana34 if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence. Furthermore, in Anil

31

1970 1 Cut WR 98 Noble Mohandas v. State by Deputy Inspector of Police, 1989 Cr LJ 669 33 2007 (1) BLJR 65 34 [1984] Supp SCC 233 32

9

Rai v. State of Bihar35 it was held that if medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statements of the eye-witnesses has to be accepted. In Mayur v. State of Gujarat,36 the Supreme Court observed learned judge was right in observing that ‘our courts have always taken the doctors as witnesses of truth.’ Even where a doctor has deposed in court, his evidence has to be appreciated as evidence and there is no irrebuttable presumption that a doctor is always a witness of. It is brought before this Hon’ble court that the medical reports by the experts clearly indicate some injuries which were largely seen on Daina’s nose and cheeks. Daina was a young woman who was in love with the accused and abided by his words to make their relationship work, she was not allowed to even have telephonic communication with the parents and Mr. Peter has also assaulted her, this has put Daina to a state of mind where she was extremely depressed and helpless. Mr. Peter has brutally made use of this situation has hurt and assaulted her in the name of love and relationship. 2.2 It is contended that conduct37 of an accused must be considered In criminal proceedings, character of an accused is often a matter of importance in explaining his conduct and judging his innocence and culpability. Various acts of an accused may appear to be suspicious or free from suspicion when we come to know about the character of the person by whom they were committed. Even on the question of quantum of the sentence, general good character of the accused is a relevant and important consideration.38 In the instant case, it is stated that Peter had had a record of cheating seven women and duping around Rs. 25 lakh in the past. It was also alleged that he assaulted her and persistently threatened to kill her if he informed the police. Therefore, it is contended that the previous conduct of Peter was bad and the same must be taken into account.

2.3 Proof of contents of electronic records S.65A, 65B of The Indian Evidence Act, 1872 must be taken into consideration 35

[2001] 7 SCC 318 AIR 1983 SC 66, 1982 Cr LJ 1972 37 S.8, Indian evidence Act, 1872 38 Habeeb Mohd, AIR 1954 SC 51: 1954 Cri LJ 338 36

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S.65A says that the contents of electronic records may be proved in accordance with provisions of S.65B. It prescribes the mode of proof of contents of electronic records. The primary purpose is to sanctify proof by secondary evidence. This facility of proof by secondary evidence will apply to any computer output, such output being deemed as a document. The section lays down certain conditions which have to be satisfied in relation to the information and the computer in question. Where those conditions are satisfied, the electronic record shall become admissible in any proceedings without further proof or product of the original evidence of any contents of the original or of any face stated in it. “The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case” “Electronic documents are admissible as material evidence. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution.” Placing reliance on the principles laid in this case Tomaso Bruno & Anr. v. State of U.P.,39 it is humbly contended that the CCTV footage is important and strong evidence that supplements the circumstantial evidence in the instant case. It was also held in the case of Rajinder v. State40 that when the circumstantial evidence proves the guilt the failure to prove the motive does not weaken the case against the accused. Therefore, the electronic record must be made admissible in this Hon’ble Court as it fulfils the conditions mentioned in Section 65B of Indian Evidence Act, 1872 and to throw light upon contradicting statements made by Mr. Peter that he was partying with Daina the night before her death which is false as the CCTV footage clearly points out he was with another girl, this can also be taken into account that Mr. Peter has been under the guilt of hurting Daina and has been making statements which are not true because of fear. Also, the learned counsel therefore humbly submits that relying on these precedents, it can be inferred that Mr. Peter has hurt Daina which is supported not only by the medical reports given by medical experts which were analysed by the Sessions Court but also the explicit oral communication by Daina to her friends that she had been physically assaulted and Mr. Peter threatened to kill her if she informed the police. 2.4 S.351 of Indian Penal Code defines Assault

39 40

(2015) 42 SCD 313 (1963) 2 SCJ 418

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In English law actual infliction of bodily injury is called battery. Assault in English Law is an attempt to cause injury to another and whoever by the show of force and gesture creates a reasonable apprehension of danger to life or limb in the mind of another is guilty of assault. Actual infliction of injury is battery. Hurt is equivalent to battery in English law. Kenny designates assault as non sexual offence non fatal in character. The fall roughly into two classes: (a) Those which occasion actual bodily harm (b) Those which in which actually bodily harm is not necessary It was held that these separate statutory offences and they should now be charged as being contrary to S.39 of Criminal Justice Act,1988. In a case of actual as well as apprehended unlawful force a charge of common assault should be formulated by using the phrase assault by beating. The Court of appeal had allowed an appeal against conviction for assault occasioning actual bodily harm and held that inadvertent recklessness, that is, failure to give thought to possibility of risk involved in pursuing a course of action was insufficient to amount to mens rea required for conviction u/s. 47 of Offences against Persons Act. A cardinal principle of criminal law is embodied in the maxim acts non fact rename miss mens sit rea. In Haughton v. Smith,41 Lord Hailsham LC states that “An act does not make a man guilty of a crime, unless his mind if also guilty.” Even though there were only communications of assault which was made by Daina before her death it is apparent after the medical reports by the medical experts of marks on her nose and cheeks which might have been because of a physical scuffle between them. This is vital enough that there has been an offence of assault committed by Mr. Peter.

2.5 Intention and Knowledge must be taken into account With the bases of all the principles and precedent and keeping in mind the record of activities and the number of people Mr. Peter has cheated on we can therefore prove that he fulfils the elements of crime, which is, 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 41

[1975] AC 476, [1973] 3 All ER 1109, [1974] 3 W.L.R.

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person.42” 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.”43 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.44 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.45 It is also seen in the case Westminster City Council v. Croyalgrange46 that “Knowledge is normally required as to all the circumstances of the actus reus.” 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.47 It can therefore be seen that he had clear knowledge that Daina was under a crucial financial position but yet decided to assault and hurt her also threatened her and his motive was only to cheat her like he has done with plenty other women, one of who was Ms. Margaret who admitted during the police investigation about the history of women he has been with and other heinous acts.

II Voluntarily causing Hurt Voluntarily: U/S.39 of the IPC, 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. 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 legal provisions will have to be understood in its proper spirit. Possibility of causing prejudice either to the prosecution or to the defence has to be neatly judged and has to be avoided. 42

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 43 S Raghubir Singh Sandhwala v. Commr., IT AIR 1959 Punj 250 44 State of West Bengal v. Mohammad Khalid AIR 1995 SC 785 45 Hari Singh Gour- IPC, Vol 1 11 edition Law publishers 46 1986 ALL ER 353 47 Jai Prashanth v. Delhi Administration, 1991 2 sec 32, 1991 (1) Scale 114.

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The acts of assaulting Daina has been voluntary by Mr. Peter and it was already been brought to light by the counsel for prosecution, III Section 334 : Voluntarily Causing hurt on Provocation Whoever voluntarily causes hurt on grave and sudden provocation if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation shall be punished with imprisonment of either description for a term which may extend to one month or with fine which may extend to 500 rupees or with both. Mr. Peter is guilty of this offence as he has satisfied the elements under S.323 of the I.P.C. Therefore, on account of the submissions put forth before this Hon’ble Court, it is humbly contended before this Hon’ble Court that Mr. Peter is guilty u/s 323 of IPC.

3. PETER IS GUILTY OF CRIMINAL INTIMIDATION U/S 506, IPC 3.1 Meaning S.503 of the IPC defines Criminal Intimidation48 and S.506 defines Punishment for criminal intimidation.49 In the case of V.M Singhvi v. R.M Tewari50 the Court opined that athreat to affect another’s life may amount to criminal intimidation but not a mere threat. The threat should be given with the intent to cause alarm to the person threatened. The intention must be to cause alarm to the victim, whether the victim is alarmed or not is of no consequence.51 3.2 It is contended that essentials of S.503 has been satisfied in order to constitute an offence u/s 506, IPC

48

Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with 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 threat, commits criminal intimidation. 49

S.506 Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity 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. 50 51

1988 Crimes 318 (Bom) Amulya Kumar Behera v. Nabhagana Behera 1955 Cr LJ 3559

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Ingredients - S.503 has the following essentials(1) There should be a threat of injury to a person (i) To his person, reputation or property or, (ii) To the person or reputation of anyone in whom that person is interested. In the case of Ramesh v. State52 the Supreme Court opined that the conviction under 506 for criminal intimidation is valid where a father and daughter were threatened with injury by publication of indecent photographs of the daughter with the intent to cause alarm and also to get ‘hush money’. (2) The threat must be with intent, (i)To cause alarm to that person, or (ii)To cause that person to do any act which he is not legally bound to do as the means of avoiding execution of such threat, or (iii)To cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding execution of such threats. In the case of Chandani v. Bhahataran53 the Court laid down “The threat must be communicated or uttered with the intention of its being communicated to the person threatened for the purpose of influencing his mind.” 3.2.1 First ingredient of criminal intimidation (Threat of injury to a person) is satisfied Injury is defined in S.4454 of the Code. It involves doing of an illegal act. Where the accused held out a threat of getting a Head Constable of police dismissed from service, it was held this did amount to such threat of injury as was punishable under this section.55 “Threatens another with any injury”- the term “threat”56 is the declaration of an intention to inflict punishment loss or pain on another. The gist of the offence is the effect which the threat has decided to have upon the mind of the mind of the person threatened. It is clear that before it can have any effect on his mind it must be either made to him by person threatening

52

AIR 1960 SC 154 1964 Cr LJ 85 54 “Injury”.—The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. 55 Dada Hamnat, (1895) 20 Bom 794 56 From A- Sax threat on to tire, harass 53

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or communicated to him in such a manner. The threat referred to in this section must be a threat communicated or uttered with the intention that victim is so abused by the accused. The threat must be communicated or uttered with the intention of it being communicated to the person threatened for the purpose of influencing his mind.57 In order to be liable for criminal intimidation, the injury threatened to be caused must be an illegal one. In the case of Noble Mohandas v. State58 the Court laid down that in order to attract Section 506(2), the threat should be a real one and not just mere words. In the instant case, Daina had revealed to her friends that Peter was assaulting her persistently threatening to kill her if she informed the police. There was a threat of injury to Daina’s person and the threat to kill her is illegal in nature. (i) The condition of Threat to Property is satisfied In the view of facts, and circumstances of the case in hand and submissions made by the witnesses it can be clearly established that during the investigation the police came to know the fact that Daina’s pass book and debit card was used by Peter. The bank statement revealed that the account has been swiped out to zero balance and the last transaction was a debit of Rs 395 on March 30, 2015. Apart from that the bank statement revealed that the last major credit was of Rs 1 lakh each on March 18 and 19 through an ATM and prior to that on March 2, 2015 from Alpha Entertainment of Rs 1.11 lakh. Rs 1 lakh deposited on March 18 was withdrawn in multiples of Rs 10,000 from ATMs and out of the Rs 1 lakh deposited on March 19, 2015 Rs 40,000 was withdrawn from ATMs on March 21, 2015. From the above findings made by the Police department it can be construed that Daina was possessing a great threat on her property. (ii) The condition of Threat to Person is satisfied From the facts of the instant case, it can be clearly established that 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.Therefore, it can be perceived from the facts of the case that Daina was possessing threat to her person. Presumption of Facts in pursuance of S.114 of the Evidence Act. 57 58

Ganga Chandra Sen v. Gour Chander Bankiya (1885) ILR 15 Cal 671 1989 Cr LJ 669

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Presumption of facts are inferences from certain facts drawn from experience and observation of the common course of nature, the constitution of human action, usage and habits of the society and ordinary course of human affairs. Sec. 11459 of the Evidence Act is a general provision dealing with presumption this kind and the Court has the discretion on the facts of each case to draw such presumption of facts. By invoking the above principle, it is pleaded that engagement of Daina and Peter was covered in newspapers. It was in full media glare as stated in the facts of the instant case. It can be presumed at this juncture when Daina came to know about Peter’s illicit relationship and his record of cheating other girls, caused an alarm to Daina who was all set to marry him. Based on the aforementioned, it is contended such act of Peter would have been an instant threat to Daina’s reputation. Therefore, it is contended from the above stated submissions that Mr. Peter had threatened Daina with injury to her person, property and reputation. 3.2.2 Second ingredient of criminal intimidation (The threat must be with intent) is satisfied The threat must be with intent. However, a mere threat does not amount to criminal intimidation. It must be made with intent to cause alarm to the person threatened. 60 It is immaterial whether it has alarmed the recipient of the threat. There has been a causation of Alarm in the instant case. To constitute criminal intimidation, the threat must cause, inter alia, alarm in the mind of the victim. It is the intention of the speaker that has to be considered in deciding whether what he has stated comes within the mischief of section 503, I.P.C.61 To constitute an offence it must be shown that the person actually threatened another with an injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested, with the intent to cause alarm.62 Before an offence under this Section is made out, it must be established that the accused had an intention to cause an alarm to the complainant. 3.3 Conclusion

59

Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case 60 Amitabh Adhar v. NCT of Delhi, (2000) Cr LJ 4772 (Del), (2008) 85 DLT 415 61 re A.K Gopalan , AIR1949 Mad 233 62 Tammineedi Bhaskara Rao and Ors v. State of Andhra Pradesh and Another ,2007 Cr LJ 204

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It is clear from the facts of the case in hand that Mr. Peter was successful in causing an alarm to Daina. It is commonly laid down principle of criminal jurisprudence that, intention is a mental element which has to be gathered from the circumstances of the case in the hand, based on the maxim “actus non facit reum, nisi mens sit rea”. In the case of State of Haryana v. Janak Singh & Etc63 the Supreme Court opined that both accused and the co accused are guilty of offence u/s 376, 511 and 506 of the IPC wherein the criminal charge u/s 506 was upheld keeping in mind the facts of the case, which clearly observed threat to the reputation of the complainant by producing indecent photograph of the complainant. The Court also observed threat to her person, as the complainant was threatened to be killed to death by the accused. This is enough to cause alarm and the court upheld their conviction. Based on the above ratio held by the Supreme Court it is contended that the same must be invoked in the instant case also to serve the need of justice. In Amulya Kumar Behera v. Nabhagana Behera64 , it was held “The intention of the accused must be to cause alarm to the victim, and whether he is alarmed or not is of no consequence.” Based on the ratio, in the instant case, it is clear from the facts in hand that Peter had a guilty mind to cause alarm to Daina with regard to her person and property. Therefore, since all the essential constituting an offence u/s 506 of the IPC has been satisfied, it is humbly contended before this Court to take into account the aforesaid and discharge Peter for the offence of criminal intimidation u/s 503, IPC and hence, punishable for the same u/s 506, of the

63 64

AIR 2013 SC 9544 1995 Cr LJ 3559

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PRAYER FOR RELIEF

Wherefore in the light of issues raised, arguments advanced and authorities cited, the Petitioner humbly submits that the Hon’ble Court may be pleased to adjudge and declare Mr. Peter with life imprisonment under S.302, S.323 and S.506.

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 PROSECUTION)

xii