Memorialon Behalf of State (Prosecution) - 7th RLC SAQUIB RIZVI MEMORIAL NATIONAL MOOT COURT COMPETITION 2015
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7th RLC SAQUIB RIZVI MEMORIAL NATIONAL MOOT COURT COMPETITION 2015 was Held from October 9th-11th 2015. Team Comprising ...
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015
IN THE SESSION COURT OF CHANDIGARH
NATIONAL MOOT COURT COMPETITION, 2015
State
-
Prosecution
Vs. Vivek and Other’s
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MEMORIAL ON BEHALF OF PROSECUTION
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Memorial On Behalf Of Prosecution
Accused
5th RCL NATIONAL MOOT COURT COMPETITION, 2015
TABLE OF CONTENT Content
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Page 1. Index of Abbreviation
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2. List of references
4
3. List of cases
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4. Statement of jurisdiction
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5. Statement of fact
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6. Statement of issues
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7. Summary of pleadings
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8. Detailed pleadings
12
9. Prayer
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Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015
INDEX OF ABBREVIATION §
:
Section
§§
:
Sections
¶
:
Paragraph
¶¶
:
Paragraphs
A
:
Accused
A.P.
:
Andhra Pradesh
A.C.
:
Appellate Cases
AIR
:
All India Reporter
Anr.
:
Another
Bom.
:
Bombay
Cri.L.J.
:
Criminal Law Journal
Cr.P.C
:
Criminal Procedure Code
IPC
:
Indian Penal Code
Mad.
:
Madras
n.
:
Note
Ors.
:
Others
PW
:
Prosecution Witness
SC
:
Supreme Court
SCC
:
Supreme Court Cases
Sd/-
:
Signed
Supp.
:
Supplementary
U.P.
:
Uttar Pradesh
U.S.
:
United States
U.T.
:
Union Territory
v.
:
Versus
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Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015 LIST OF REFERENCES LIST OF BOOKS REFERRED
Indian Penal Code, 1860, Bare Act by Universals Indian Evidence Act, 1872 , Bare Act by Universals Criminal Procedure Code, 1973, Bare Act by Universals Constitution of India, Bare Text by Universals Law of Crimes, Ratan Lal and Dheeraj Lal, 34th edition 2014, Lexis Nexis Law of Crimes, K.D. Gaur 5th edition, 2014, Universals Law Publication Law of Evidence, Ratanlal and Dhirajlal 24th edition, Lexis Nexis Publication Supreme Court Cases, 2014 Supreme Court Cases, 2013 Supreme Court Cases, 2012 Supreme Court Yearly Digest 2014 Supreme Court Yearly Digest 2013 Supreme Court Yearly Digest 2012 Supreme Court Yearly Digest 2011 Supreme Court Yearly Digest 2010
LIST OF WEBSITES
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www.courtnic.nic.in www.manupatra.com http://indiankanoon.org/ www.supremecourtofindia.nic.in judis.nic.in
Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015
LIST OF CASES
1. Munnu Raja v State Of MP AIR 1976 SC 2199 2. Bhagat Singh Vs Commissioner of Police AIR 1983 SC 826 3. State of UP v Ram Sagar Yadav AIR 1985 SC 416 4. Vadde Rama Rao v State of AP 1990 CrLJ 1666(AP) 5. Kundula Bala Subrahmanayam v State of AP (1993) 2 SCC 684 6. Meesala Ram Krishnan v State of AP (1994) 4 SCC 182 7. Charipalli Shankar Rao v PP, HC of AP AIR 1995 SC 777 8. Najama Faraghi v State of West Bengal AIR 1998 SC 682 9. Rajayyan v State of Kerala AIR 1998 SC 1211 10.Bhola Turha v State of Bihar AIR 1998 SC 1515 11.Hanshraj v State of Punjab 2000 (3) RI 556 12.Sarwan Kumar v State of HP AIR 2000 HP 239 13.Gopali Devi v State (Govt of NCT Delhi). 2001 CrLJ NOC 158 (Del) 14.Panchdo Singh v State of Bihar AIR 2002 SC 526 15.Sarju Modi v State Of Bihar 2003 CrLJ 631(Jhar) 16.Vidya Devi v State of Haryana AIR 2004 SC 476 17.Vidya Devi v State of Haryana AIR 2004 SC 1757 18.State of AP v Raj Gopal Asawa AIR 2004 SC 1933 19.Satbir Singh v. State of Haryana AIR 2005 SC 3546 20.Kishan Singh v State of Punjab AIR 2008 SC 233 21.L K Naiak v State 2013 CrLJ 1792(CHH) 22.Rajbir v State of Harayan (2013) 7 SCC 256 23.Pradeep Kumar v. State Of Haryana (2014) 7 SCC 395 24. Malathi Ravi v. B.V.Ravi (2014) 7 SCC 640
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Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015
STATEMENT OF JURISDICTION The Learned Session Court, has the jurisdiction to decide this case, and this jurisdiction has been conferred to it through section 177 of Criminal Procedure Code, 1973 which says that “ every offence shall ordinarily be inquired and tried by a court within whose local jurisdiction it was committed” The Learned Trial Court has jurisdiction to take cognizance of this matter as per section 26 of Criminal Procedure Code, 1973, which says that, any offence under Indian Penal Code (45 of 1860) may be tried by the Court of Session. Moreover through Schedule-1 of Criminal Procedure Code, 1973, the Court of Session is competent to here and decide the matter. The Court is also requested to determine the legal consequences, including the rights and obligations of the Parties, arising from its judgment on the questions presented in the case.
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015
STATEMENT OF FACT Case of the Prosecution The state/prosecution would humbly submit before the Learned session court that following are the facts of the present cases 1. That following is the list of persons involved A-1 A-2 A-3 A-4 PW-1 PW-2 PW-3 PW-4 PW-5 PW-6
Vivek Gopal Krishan Pushpa Raj Kumar Neha Veena@Meena Naresh Ravi Umesh Dr. P Nadda
Husband of deceased Father-in-law of deceased Mother-in-law of deceased Father of deceased Deceased Colleague/Neighbor of deceased Colleague/Neighbor of deceased Neighbor of deceased Brother of deceased Medical Practitioners
2. A-1 was a matriculate and a very ambitious young man. He was a good business man and was running grocery store at his home with his A-2. 3. At the insistence of his parents he got married with Deceased on December 10, 2011. They started living with the parents of A-1 in Panchkula. 4. The father of Deceased, Rajkumar told the investigating officers that at the time of marriage he had given Rs.100, 000 as cash and promised to give an acre of land to her daughter which was to be registered in the name of Deceased and A-1 and another acre to PW-5 at his marriage. A-1 had been pressurising Deceased for registration of land in his name. 5. Due to their extra busy schedules they didn’t get time to spend time with each other. They didn’t even manage to go for a honeymoon. With the passage of time relations of Deceased with her husband and in laws get strained. 6. The deceased got very upset when even parents of A-1 kept silent and never ask A-1 to cooperate with his wife.
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Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015 7. Deceased often use to come home for lunch. On March 3rd 2014 in between 12:30pm and 1pm PW-2 and PW-3, neighbours of Deceased (also colleagues of Deceased) heard screams of a lady. 8. To their surprise they found that A-1 and his parents are standing near Kitchen, broken door of the kitchen was lying on the floor and Deceased was engulfed in flames. 9. PW-2 asked for a blanket and water from the A-2 of Deceased. A-2 went inside and brought a blanket and A-1 rushed to bathroom for fetching a bucket of water. PW-2 extinguished the fire with the help of blanket and water. 10. Deceased told her that “her Mother-in-Law Pushpa had poured kerosene over her and her husband A-1 has set her on fire” and another neighbor PW-4 who also reached there after hearing screams and overheard the statements made by Deceased to PW-2. Then he went to inform Deceased’s brother PW-5 who worked nearby. 11. In the meanwhile PW-3 went to call a doctor and ambulance 12. PW-5 reached the house of A-1 at 2pm with PW-4 and saw number of persons gathered there. PW-5 went close to Deceased and took her palm into her hands and enquired “Did your inlaw set you on fire? Deceased nodded ‘Yes’ and hardly said “you tell father and mother about this. I am dying.” 13. PW-6, who was a medical practitioner, was called by PW-3 for examining Deceased gave the deceased her first aid and advised the family members to take Deceased to P.G.I. Chandigarh. Deceased was taken to hospital where she was declared brought dead. 14. PW-5, there upon went to Police Station and lodged the report. A case under sections 302, 304B read with section 34 of the IPC, was registered in Police Station, sector 11, Chandigarh. 15. The post-mortem report disclosed burns to the extent of 90% on the body of Deceased and she died because of them. 16. The in-laws of Deceased surrendered in the Court of Sessions on May 10, 2014.
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015
STATEMENT OF ISSUES 1. Is the offence covered under the provisions of Dowry Prohibition Act, 1961? 2. Does the act amount to an offence under section 498A of IPC? 3. Is it a Dowry Death as per section 304B of IPC? 4. Is it an offence punishable under section 302 of IPC? 5. Do the accused persons have any Common Intention? 6. What should be the quantum of punishment?
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Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015
SUMMARY OF PLEADINGS The state would humbly submit before the Learned Session Court, 1. That, the accused persons are guilty of the offences under Section 302, 304B, 498 read with section 34 under IPC, 1860 and section 3 and 4 of Dowry Prohibition Act, 1961 2. That, the accused persons took Rupees 1 Lakh from the deceased’ father at the time of marriage and thus committed an offence under section 3 of Dowry Prohibition Act,1961 3. That , the A-1 with indirect help of A-2 and A-3, always demanded from the deceased to ask A-4 to get the acre of land registered under the name of A-1 and thus committed an offence under section 4 of Dowry Prohibition Act, 1961 4. That, A-1 denied to perform matrimonial obligation with the deceased as A-1’s demand was not fulfilled and thus amounted mental cruelty on the deceased. 5. That, A-2 and A-3 silently supported the acts of A-1, and thus the act of A-2 and A-3 amounted to mental cruelty on the deceased
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Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015 DETAILED PLEADINGS 1.
Is the offence covered under the provisions of Dowry Prohibition Act, 1961? The state would humbly submit before the Learned Session Court, 1. That, as per section 216 of Cr.P.C., 1973, Court is at discretion to alter the charges at any stage before judgment, and in accordance to which, the prosecution would request the court to alter the charge sheet and add section 3 and section 4 of Dowry Prohibition Act,1961. 2. That, as per section 3 of Dowry Prohibition Act, 1961, “If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with the fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more”, thus, taking or giving Dowry shall be punishable, with a term not less than 5 years and a fine of not less than rupees 15 thousand or the amount of Dowry. 3. That, as per section 4 of Dowry Prohibition Act, 1961, “If any person demands directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to ten thousand rupees”, thus demanding dowry is an illegal offence. 4. That, section 498A of IPC and section 4 of Dowry Prohibition Act do not attract double jeopardy, thus the import of word harassment and cruelty is also very well known, and there is no arbitrary exercise of power in interpreting these word and it does not come in conflict with article 14 of Indian Constitution.1
1 Indian Penal Code, K.D.Gaur, P. 852 comment no 5 11
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 In Bhagat Singh v Commissioner of Police2 Hon’ble Supreme Court held that “greed for dowry system as an institution calls for the severest condemnation by all sections, and do not attract the principle of double jeopardy.” 5. That, A-2 and A-3 insisted A-1 to get married to the deceased as given in the facts, after accepting a sum of Rupees 1 Lakh in cash from the father of deceased, which was accepted by the father of deceased and also been recorded by IO in the course of investigation; and A2 and A-3 thereby persistently remained silent and did not stop the acts of A-1, and directly giving implied consent to the acts of A-1, causing mental torture to the deceased, and thus it clearly indicates that the silence of A-2 and A-3 were in support of such illegal demands. Attracting section 3 and section 4 of Dowry Prohibition Act, 1961. Hon’ble Supreme Court in Kishan Singh v State of Punjab 3 held that “demand for dowry was clearly proved as prosecution conclusively established it, it is common knowledge that even well possessed in-laws keep seeking dowry” this judgment previously held by Jharkhand High Court in Sarju Modi v State Of Bihar4 6. Hon’ble Supreme Court in Vidya Devi v State of Haryana5 held that “it is not necessary for the purpose of the offence under this section to show that there was an agreement for the purpose of Dowry and also there was additional demand for dowry after marriage and this was followed and also held in State of AP v Raj Gopa Awasa6 that “mere demand for dowry is enough to attract this section” and thus the fact that the A-4 has accepted that he has given sum of Rupees 1 Lakh in cash to A-1, and the conduct of other accused persons, are sufficient enough to prove that there has been giving and taking of dowry, and thus it attracts section 3 of Dowry Prohibition Act, 1961 2 AIR 1983 SC 826 3 AIR 2008 SC 233 4 2003 CrLJ 631(Jhar) 5 AIR 2004 SC 1757 6 AIR 2004 SC 1933 12
Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015 7. That, there was persistent demand made by A-1 to the deceased and her father, for registration of an acre of land in his name. Hon’ble Supreme Court in State of AP v Raj Gopal Asawa 7 held that “demand neither conceives, nor would conceive of any agreement, when section 304B refers to demand of dowry it refers to the demand of property or valuable security as referred to in definition of dowry in the act” 8. That, the acts of demand of A-1 and the acts of silence by A-2 and A-3 were corollary to each other, and thus completing the prerequisites of section 4 of Dowry Prohibition Act, 1961 9. That, the father of the deceased, Mr Raj Kumar (hereinafter referred to as A-4) should also be charged as an accused as per section 3 of Dowry Prohibition Act, 1961, as he complied with the illegal demands of the A-1, A-2 and A-3, and gave a sum of Rupees 1 Lakh in cash at the time of marriage, and had also promised to jointly register an acre of land in the A-1 and the deceased. Hon’ble High Court of Delhi in Uma Devi v The State & Another held that “giving of dowry is also prohibited and is a punishable offence” Hon’ble Supreme Court in State of AP v Raj Gopal Asawa8 held that “definition of dowry is not restricted to agreement or demand for payment of dowry before an at the time of marriage but also include subsequent demand” 10. That, thus A-1, A-2, A-3 and A-4 should be charged under section 3 of Dowry Prohibition Act, 1961 and A-1, A-2 and A-3 should be charged under section 4 of Dowry Prohibition Act, 1961
7 AIR 2004 SC 1933 8 (2004) 4 SCC 470 13
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015
2.
Does the act of the accused persons amounts to an offence under section 498A of IPC, 1860? The state would humbly submit before the Learned Session Court, 1. That, as per section 216 of Cr.P.C., 1973 Court is at discretion to alter the charges at any stage before judgment, and in accordance to which, the prosecution would request the court to alter the charge sheet and add section 498A of IPC, 1860. 2. That, in furtherance of afore-stated section, the acts of the accused persons is liable to be punished on reasonable grounds, which are mentioned below. 3. That, the A-1 subjected the deceased to cruelty. Here Cruelty includes mental torture as per explanation of section 498A of IPC, 1860. 4. That, the deceased was always subjected to mental torture which is evident from the belowmentioned facts. a. The A-1, who is highly ambitious of expanding his economical resources, persistently forced the deceased and her father to register an acre of land in his name. b. Due to the non fulfillment of the demands, A-1 did not take the deceased for a honeymoon, thus not fulfilling his marital obligations. c. That in furtherance of non fulfillment of the illegal demands of A-1, which was registration of land in his name, the legitimate demands of the deceased were not fulfilled. 5. That, For mental cruelty Hon’ble Supreme Court has said that, “mental cruelty and its effect varies according to individual differences, differences in social status differences between societies”, it even said that “attitude of a person for another person can also be reason for mental cruelty9
9 Malathi Ravi v. B.V.Ravi (2014) 7 SCC 640 14
Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015 6. That, in Pradeep Kumar v. State Of Haryana10 , “(where demand of Rupees 1 Lakh for running a piggery farm—and consequent harassment meted out to deceased for nonfulfillment thereof proved vide testimonies of PWs 6 and 8 (mother and father of deceased respectively) and later part of the dying declaration)— Held conviction of accused husband under section 498-A sustainable.” 7. That, A-2 and A-3 have equally participated and supported the acts of A-1, as it is very clear from the fact that A-2 and A-3 kept silent and never asked A-1 to cooperate with the deceased; which paves a clear way, indicating the unlawful intention of A-2 and A-3 for pursuing their illegal demands. 8. That, for the aforesaid reasons, A-1, A-2 and A-3 should be charged with section 498A read with section 34 of IPC, 1860
10 Pradeep Kumar v. State of Haryana (2014) 7 SCC 395 15
Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015
3.
Is it a Dowry Death as per section 304B of Indian Penal Code? The state would humbly submit before the Learned Session Court, 1. That, Section 304 of Indian Penal Code states that, “Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.” 2. That, the deceased and the A-1 got married on 10th December 2011, at the insistence of the parents (A-2 and A-3) of A-1. 3. That, the deceased was murdered on 3rd of March 2014. And the reason of her murder was burn injuries. As per the postmortem report, deceased’s 90% of body was burned. This also proves that the death of the deceased was not under normal circumstances. 4. That, the date, which is 3rd march 2014 (that is 2 years 2 months and 21 days from the date of marriage) on which deceased was murdered, was within seven years of her marriage. 5. That, the father of deceased, which is Raj Kumar, has already given a sum of Rupees 1,00,000/-(Rupees One Lakh) in cash, at the time of marriage of the deceased and A-1, as reported to the IO during the course of investigating. 6. That, the A-1 is very ambitious and greedy person. He had continuously forced the deceased and the father of deceased, which is Raj Kumar, to get an acre of land registered in his name, which was to be registered jointly in the name of A-1 and deceased, which are Vivek and Neha respectively, which is further supported by the fact, that the A-1 always dreamt of expanding his business and opening a grand showroom of merchandize in Chandigarh. 7. That, Hon’ble Supreme Court in Vidya Devi v State of Haryana11 held that “expression “soon before” is a relative term it has to be constructed in the context of specific circumstance of each case no hard and fast rule of a universal application be laid down by
11 AIR 2004 SC 476 16
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 prescribing a time limit” there is no time prescribed time to define the nexus between the death or the cruelty or harassment. Hence in this case a relative time limit can nt be fixed 8. That, the A-1, to get his demand fulfilled, subjected the deceased to both cruelty and harassment. 9. That, the A-1 never fulfilled the matrimonial obligations, which was a cruelty done by the A-1 on the deceased. Restraining on self, to perform matrimonial obligation is a mental cruelty done on the counterpart. The meaning of cruelty for the purpose of section 304B has to be gathered from the language as found in section 498A, IPC and as per Explanation clause of that section. Cruelty means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc., or harassment to coerce her or any other person related to her meet demand. Cruelty includes both Physical and Mental torture.12 10. That, the A-1 had always neglected the needs and legitimate demands of the deceased. This neglect was to such an extent that he did not manage to take her for a honeymoon. Hon’ble Supreme Court in Rajayyan v State of Kerala13 held that “there was cruelty and harassment and proof of persistent demand for dowry by the accused/husband which were not met. He has even disowned his wife, all this showed that she was subjected to mental cruelty before death” 11. That, it has been stated above that the A-1 had been persistently forcing the deceased and her father to get that acre of land registered under his name. Hon’ble Supreme Court in State of AP v Raj Gopal Asawa14 held that “demand neither conceives nor would conceive of any agreement when section 304B refers to demand of
12 K. D. Gaur, Text book on Indian Penal Code, Fifth Edition, p558 13 AIR 1998 SC 1211 14 AIR 2004 SC 1933 17
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 dowry it refers to the demand of property or valuable security as referred to in definition of dowry in the act” 12. That, the A-2 and A-3 always kept silent and never asked their son (A-1) to cooperate with the deceased, over which, with passage of time relations of the deceased with the accused persons got strained. More over as stated above, A-2 and A-3, forced A-1 and deceased to get married, as they were getting a dowry of Rupees 1 Lakh. And that there silence was directly giving consent to all the demands of A-1. Furthermore, silence of A-2 and A-3 gave encouragement, support and protection to A-1, who actually raised the demand. Hon’ble High Court in Vadde Rama Rao v State of AP15 held that “if it is proved that plot to engineer the death of a married woman was hatched by in-laws their actual participation would not be necessary to convict them” 13. That, all the ingredients of sections 304B are fulfilled, as: a. Deceased’s death was caused by 90% of body burns, which is very abnormal situation b. Deceased died exactly after 2 years 2 months and 21 days, which is within seven years of her marriage. c. Deceased was constantly subjected to the mental cruelty d. Deceased was subjected to cruelty, which was for obtaining dowry. The Hon’ble Supreme Court in Satbir Singh v. State of Haryana16 held that “once the prosecution is able to establish the ingredient of dowry death under 304B Of IPC the burden of proof of innocence shifts of defence” and the same was also held in a case before, Hon’ble Supreme Court in Hanshraj v State of Punjab17 held that “in case of a death of the women caused and satisfy the essentials of 304B the husband and the husbands relatives will be presumed to have caused dowry death, and are liable for the offence, unless it is proved otherwise. That is to say, the burden of proof shifts on the part of the accused to prove his innocence unlike other offences wherein the accused is presumed innocent” and this judgment were followed by Himachal Pradesh High Court in Sarwan Kumar v State
15 1990 CrLJ 1666(AP) 16 AIR 2005 SC 3546 17 2000 (3) RI 556 18
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 And as the prosecution has clearly established all the ingredients of dowry death as per section 304B, the burden that accused persons are innocent lies on accused persons 14. That, for these reasons A-1, A-2 and A-3 should be charged under section 304B read with section 34 of IPC, 1860.
18 AIR 2000 HP 239 19
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 4.
Is it an offence punishable under section 302 of IPC, 1860? The state would humbly submit before the Learned Session Court, 1. That section 299 of IPC, 1860 states that, “Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 2. That, section 300 of IPC, 1860 states that, “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.” 3. That, the combined effect of section 299 of IPC, 1860 and section 300 of IPC, 1860 states that, whenever a death is caused with an intention of causing death, or with an intentions of causing such a bodily injury which is likely to cause death, or by any act having the knowledge that such an act is sufficient in ordinary course of nature that it will cause death, then the person who commits such murder. 4. That, A-1, A-2 and A-3 had intention of causing such a bodily injury to the deceased, such that the death was the most probable result. 5. That, due to ongoing examination, the deceased often used to come home for lunch, and this was well known A-1, A-2 and A-3. 20
Memorial On Behalf Of Prosecution
5th RCL NATIONAL MOOT COURT COMPETITION, 2015 6. That, A-1, who is a very ambitious person, and who always dreamt of expanding his business and who had no time to take his wife on honeymoon, was also present at the time of crime incident, which clearly signifies that this was very well planned act. 7. That, A-1, A-2 and A-3 knew the school and lunch timings of the deceased. 8. That, they together planned to burn the deceased by pouring kerosene and lighting up the fire. 9. That, the presence of A-1 on 3 rd march 2014 (Monday) highly supports the facts established by the prosecution. 10. That, when deceased came home for lunch, on 3 rd march 2014, A-3 poured kerosene on deceased and A-1 lighted her up in the kitchen. 11. That, as the fire engulfed the deceased, she screamed, which was unheard by any of the accused persons, as they intentionally wanted the deceased to die, but to the fortune of the deceased, the two neighbours who were also colleagues (Meena @ Veena hereinafter referred to as PW2 and Naresh hereinafter referred to as PW3) of the deceased, heard her cries and quickly rushed at the crime spot. To the surprise of PW2 and PW3, the accused persons were standing near the kitchen and not acting in any manner so as to save the deceased. 12. That, this act of avoidance of the accused persons, clearly establishes the intention of the accused persons to murder the deceased, which is further established by the fact that as the situation got worsened, until and unless PW2 had asked for blanket and water to save the deceased, the accused persons wouldn’t have assisted PW2 nor the deceased, and it was only later, that on the request done by PW2, A-1 and A-2 assisted her, hence it clearly indicates the intention of the accused persons of murdering the deceased. 13. That, PW2 extinguished the fire with the help of water and blanket and the deceased turned on to the side of PW2. Here, at this instance, the deceased made the dying declaration that “the A-3 had poured kerosene over the deceased and A-1 had set the deceased on fire”, this dying declaration was also overheard by Ravi (hereinafter referred as PW4), who also rushed to the spot hearing the screams. 21
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 14. That, PW4 thereby rushed to the brother of the deceased Umesh (hereinafter referred as PW5) to inform about the incident. 15. That, on the information conveyed by PW4 to PW5, PW5 reached at the spot of crime at 2 pm along with PW4. PW5 saw the deceased lying on the floor of kitchen and noticed the burns over the body of the deceased. 16. That, the deceased was enquired by PW5, questioning whether the accused set the deceased on fire. The deceased nodded ‘yes’ and hardly the deceased said that PW5 should tell father and mother of the deceased that she was dying. The Hon’ble Supreme Court in Meesala Ram Krishnan v State of AP 19 held that “a dying declaration made by nods and gesture or by sign language has been held to be admissible and also on the fact of particular case to be reliable” Hon’ble Chhattisgarh High Court in L K Naiak v State20 has held that “evidences of relatives or related witness cannot be rejected in Toto on the ground of their relation; relatives are last persons to spare the real culprit and implicate and innocence falsely.” 17. That, it is very crucial to notice that incident happened around 12:30pm to 1:00pm and until around 2 pm, there was neither any medical assistance given to the deceased, nor did the accused persons avail any medical assistance for the deceased. It was only PW3 who called on Dr. P Nadda (hereinafter referred to as PW6) for medical assistance. 18. That, A-1, A-2 and A-3 did not actively participate in saving the deceased person, neither at the time when deceased was engulfed in fire, nor after the fire was extinguished, hence they always abstained from assisting by any means so as to save the deceased. This intention or attitude clearly indicates that the accused persons didn’t want the deceased to survive, so they left no stone unturned to murder her.
19 (1994) 4 SCC 182 20 2013 CrLJ 1792(CHH) 22
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 19. That, after examining the deceased PW6 advised the family members to take the deceased immediately to hospital. When the deceased was taken to the hospital she was declared brought dead. 20. That, the post-mortem report disclosed that the burns to an extent of 90% on the body of the deceased resulted in her death. 21. That, it was only after few months from the date when the case was registration that the A-2 and A-1 surrendered, thus their abscondence itself establishes their guilt. And for this the accused persons did not have any explanation. Hon’ble Supreme Court in Kundula Bala Subrahmanayam v State of AP21 held “absconding without any reason is too doubtful conduct of accused person” 22. That, evidences gathered are a. The dying declaration made by deceased ( may be referred as PW1) to PW2, over heard by PW4 and also made to PW5 b. The presence of accused persons at the crime spot. c. The conduct of accused persons during the incident and post incident period. 23. That, for these evidences and said facts Hon’ble Supreme Court has delivered many landmark judgments. 24. That, Hon’ble Supreme Court in Najama Faraghi v State of West Bengal 22, it was held that “the declaration would not lose a value on the ground that the maker died after making the statement, the question of relevance has to be considered on the facts of each case” the fact that the deceased had 90% of burn injuries and there was no chance of her survival is too relevant. 25. Hon’ble Supreme Court in Panchdo Singh v State of Bihar23, Held that the court has to see whether the statement is trustworthy or a mere attempt to cover up latches of 21 (1993) 2 SCC 684 22 AIR 1998 SC 682 23 AIR 2002 SC 526 23
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 investigation. A dying declaration which inspires confidence is a sufficient piece of evidence to sustain conviction. It is not necessary that the declaration should be of a longish nature and neatly structured. The fact that the dying declaration which is given to two different person, contains same message, is sufficient enough to inspire confidence in itself, and thus it is a very strong evidence against the accused persons. 26. That, the Hon’ble Supreme Court in Charipalli Shankar Rao v PP, HC of AP 24 held that “ an injured person making his or her dying declaration is not expected to make an elaborate and exhaustive statement so as to cover each and every aspect of the incident, in this case the person was under the pain and agony of 90% burns” similarly here, where as per the facts, the body of deceased was burned up to 90% burns, expecting everything and every name in dying declaration is not prudent. 27. That, the Hon’ble Supreme Court in Munnu Raja v State Of MP25 “held that there is neither rule of law nor of prudence that a dying declaration cannot be acted upon without corroboration” and again Hon’ble Supreme Court in State of UP v Ram Sagar Yadav 26 held that “if the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration; which was followed in Gopali Devi v State (Govt of NCT Delhi)27. Here, the declaration of the deceased is very much reliable, as it has been given with free consent, and without any threatening as per section 32(1) of Indian Evidence Act. 28. That, the Hon’ble Supreme Court in Bhola Turha v State of Bihar28 held that “dying declaration found to be reliable, no inconsistencies with testimony of eyewitness, conviction of caused proper.” 24 AIR 1995 SC 777 25 AIR 1976 SC 2199 26 AIR 1985 SC 416 27 2001 CrLJ NOC 158 (Del) 28 AIR 1998 SC 1515 24
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5.
Do the accused persons have any Common Intention? The state would humbly submit before the Learned Session Court, 1. That, Yes, the accused persons A-1, A-2 and A-3 possessed a common intention and had a prior meeting of minds. A. Prior to the murder of the deceased 2. That, A-2 and A-3 insisted A-1 to marry the deceased and all the three accused persons collectively received Rupees 1 Lakh in cash as a dowry, at the time of marriage. 3. That, as promised by the father of the deceased to register an acre of land in the name of deceased and A-1, which was not made and hence A-1 persistently subject the deceased to mental cruelty. The acts of A-1 were continuously supported either directly or indirectly by A-2 and A-3. 4. That, it is evident that the accused persons had an intention of meeting their demands of dowry which was not met and hence in furtherance of which they preplanned the act of murder of the deceased. Which attracts section 34 of IPC, 1860, read with section 3 and 4 of Dowry Prohibition Act, 1961 5. That, the A-1 abstained himself from performing matrimonial obligation and even did not fulfill the legitimate demand of the deceased, subjecting her to mental torture, over period of which the relations got strained. The accused A-2 and A-3 kept silent and did not ask A-1 to cooperate with the deceased, thus supported the acts of A-1, and here by attracting the section 34 of IPC, 1860 read with section 498A of IPC,1860 B. At time of incident of murder of deceased 6. That, the A-3 poured kerosene and A-1 lighted up the fire, and accused persons A-1, A-2 and A-3 abstained from saving the life of deceased. At the time when the deceased was engulfed in fire A-1 and A-2 assisted PW2 only on request done by the latter and not to the prior of the request. Hence it clearly indicates that the accused A-1, A-2 and A-3 had a common intention and their criminal acts constituted in furtherance of their intention
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 are clearly established. And thus attracting section 34 of IPC, 1860. read with 302 of IPC,1860 C. After the murder of the deceased 7. That, the A-1, A-2 and A-3, soon after the fire was extinguished by PW2, the formers did not assist neither the deceased nor PW2 in availing any form of medical treatment. They clearly abstained themselves from informing to the concerned authorities neither to medical practitioner nor police. They were so determined to murder the deceased that they did not even inform her family members. Hence from the date of marriage till the day the deceased was murdered all the three accused A-1, A-2 and A-3 from doing their legal duty and obligations. Hence neither of the accused have no moral support to be spared. And thus attracting section 34 of IPC, 1860, along with 304B and 302 of IPC, 1860 8. That, Hon’ble Supreme Court in Rajbir v State of Harayan29 has directed all trial court to ordinarily add section 304B so that death sentences can be invoked in such heinous barbaric crimes against women 9. That, Hon’ble Supreme Court in Kundula Bala Subrahmanyam v State of AP
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where the facts are very much similar to this case and the case has been discussed on following points 1. Motive: the motive in this case is alleged to be the greed of dowry, 2. Dying Declaration: There were 2 dying declaration done to PW1 and PW2. According to PW2 the deceased told her that her mother in-law poured kerosene on her and her husband set heron fire 3. Medical Evidence the PW1 the medical practitioner deposed that the deceased had died of 90% burns. 4. Conduct of the appellant immediately and after the occurrence. Neither of the accused made any attempt whatsoever to extinguish the fire and save the deceased. 29 (2013) 7 SCC 256 30 (1993) 2 SCC 684 27
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 They raised no alarm. They stood as if they were waiting for her death, rather than making any effort to save her. Their conduct thus runs consistent with the hypothesis of the guilt. The theory of suicide was put only as an argument. They did not try to extinguish the fire and render any first aid to her, and also totally be trace the theory of suicide accepted by the trial court 5. Absconding: The in-laws were absconding and the reasons for the same were unknown. The apex court upheld the conviction under 302/34 IPC and righty said that in case of crime against women the roll of court assumes greater importance and is expected that the courts would deal with such cases in more realistic manner and do not allow criminals to escape on account of procedural technicalities or insignificant lacuna in the evidence as otherwise the criminals would receive encouragement and the victims of the crime would be totally discouraged by the crimes going unpunished.
That, for the above mentioned reason the accused persons A-1, A-2 and A-3 had a common intention and so they should be punished and held guilty for all the offences.
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5th RCL NATIONAL MOOT COURT COMPETITION, 2015 6.
What should be the quantum of punishment? The state would humbly submit before the Learned Session Court, 1. That, the deceased was constantly subjected to mental torture and from the day of her marriage the life of deceased at her husband’s place was not that of a happily married mesmerized life instead it was a life full brutal hardship. 2. That, the deceased was brutally murdered by pouring kerosene and burning away her life. 3. That, it is humble request to the Learned Session Court, that the brutal acts of the accused persons A-1, A-2 and A-3 should be severely punished. 4. That, It also humbly requests the Learned Session Court to take the note of act of A-4 of giving Dowry which is an offence and A-4 should be punished accordingly.
Sl.No. 01
02
Accused Person A-1: Vivek
Charges Section 3 and Section 4 of Dowry
A-2: Gopal Krishan
Prohibition Act, 1961 Section 302, 304B and 498A read with
Section 34 of IPC, 1860 Section 3 and Section 4 of Dowry Prohibition Act, 1961 read with section 34
03
A-3: Pushpa
of IPC,1860 Section 302, 304B and 498A read with
Section 34 of IPC, 1860 Section 3 and Section 4 of Dowry Prohibition Act, 1961 read with section 34
04
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A-4: Raj Kumar
of IPC,1860 Section 302, 304B and 498A read with
Section 34 of IPC, 1860 Section 3 of Dowry Prohibition Act, 1961
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PRAYER It is therefore, prayed that, your lordships may graciously be pleased In the light of arguments advanced and authorities cited, the prosecution humbly submits that the Learned Session Court may be pleased to adjudge and declare that, 1. The accused persons are held guilty of the offence and are convicted. and pass any order or orders as your lordship may deem fit as it deems fit in the interest of equity, justice and good conscience. And for this act of kindness the state shall ever pray.
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