Sample memorial for a basic criminal law moot problem

MEMORIAL FOR COMMON INDUCTION MOOT, 2015

ARUNIMA BISHNOI LL.B. 1st Year Section – E Roll no. - 151048 Campus Law Centre Date: 23rd September, 2015

Criminal Appeal, under Sections 379 and 380 of the Cr.P.C., to the Hon’ble Supreme Court of Delhi on behalf of the appellants for their conviction by the High Court of NCT of Delhi for the offence of Cruelty, Demanding Dowry and Murder.

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COMMON INDUCTION MOOT 2015, CAMPUS LAW CENTRE

IN THE HON’BLE SUPREME COURT OF INDIA

ANIL AND ORS. ………………………………………………………………APPELLANT

v.

STATE OF NCT OF DELHI …………………………………………………..RESPONDENT

[MEMORIAL ON BEHALF OF THE APPELLANT]

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF AUTHORITIES ……………………………………………………………….. 4 STATEMENT OF JURISDICTION ………………………………………………………. 5 STATEMENT OF FACTS …………………………………………………………………. 6 STATEMENT OF ISSUES ………………………………………………………………….8 SUMMARY OF ARGUMENTS …………………………………………………………….9 ARGUMENTS ADVANCED ………………………………………………………………10 A. THE ACCUSED CANNOT BE CONVICTED ON THE BASIS OF DYING DECLARATIONS……………………………………...............................................................10 I. There is inconsistency and material discrepancy in the dying declarations II. The third dying declaration appears to be tutored…………………………………………11 III. The dying declaration is not supported by a corroborate evidence……………………......12 B.

THE APPELLANTS CANNOT BE HELD LIABLE FOR CRUELTY AND DOWRY DEMAND ………………………………………………………………………………………13 I. There was no ‘cruelty’ inflicted by the appellants …...…………………………………....13 II. There was no ‘dowry demand’ by the appellants………………………………...………..14

C.

THE CIRCUMSTANTIAL EVIDENCES DO NOT PROVE THE GUILT BEYOND REASONABLE DOUBT ………………………………………………………………………15 I. The letter is not a reliable evidence………………………………………………………..15 II. The deposition by the deceased’s mother cannot be relied upon………………………….16

PRAYER …………………………………………………………………………………………….17

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

JUDICIAL PRECEDENTS Anmol Singh v. State of Madhya Pradesh, (2008) 5 SCC 468

11

Bhadragiri Venkata Ravi v. Public Prosecutor, High Court of A.P., (2013) 14 SCC 145

11

Dhanraj Singh v. State of Punjab, AIR 2004 SC 1920

16

Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078

14

Ismail v. State of Karnataka, 2000 CriLJ 1994 (Kant)

10

Lallu Manjhi v. State of Jharkhand, (2003) 2 SCC 401

12

Narain Singh v. State of Haryana, AIR 2004 SC 1616

10

Prem Singh v. State of Haryana, 2013(2) RCR 379

16

Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994

11

Rangaiah v. State of Karnataka, (2008) 16 SCC 737

11

Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264

12

Sankar Prosad Shaw v. State, 1991 CriLJ 639

15

Savitri Devi v. Ramesh Chand, (2003) CriLJ 2759 (Del)

14

Sharda v. State of Rajasthan, (2010) 2 SCC 85

16

Umedbhai v. State of Gujarat, AIR 1978 SC 424

15

Vijeta Gajra v. State (NCT) of Delhi, (2010) 11 SCC 618

14

BOOKS AND STATUTES Code of Criminal Procedure, 1973

5

Dowry Prohibition Act, 1961

14, 15

Indian Evidence Act, 1872

10

Indian Penal Code, 1860

13

PSA Pillai’s Criminal Law, 12th Edition, 2014

-

Sarkar’s Law of Evidence, Volume 1, 18th Edition, 2014

4

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has the jurisdiction to hear the matter under Sections 379 and 380 of the Code of Criminal Procedure, 1973 379. Appeal Against Conviction By High Court In Certain Cases Where the High Court has, on appeal reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may appeal to the Supreme Court. 380. Special Right Of Appeal In Certain Cases Notwithstanding anything contained in this Chapter, when more persons than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any of such persons, all or any of the persons convicted at such trial shall have a right of appeal.

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[STATEMENT OF FACTS]

STATEMENT OF FACTS

BACKGROUND

1. After a relationship of 5 years, Anil (i.e. the appellant husband) and Riya (i.e. the deceased wife) got married on 15.09.2011. They were living in their newly rented home in Mukherjee Nagar, where Riya used to give tuitions to law students, in order to financially help Anil. 2. On 15.07.2013, Riya was admitted in the government hospital at 2:00 p.m. with 44% burns. 3. Her statement was recorded by the Head Constable of police, wherein she stated that she accidentally got the burns at 8:00 p.m. on 14.07.2013 due to a burning candle when she went to check the circuit box and because of the rain and wind, nobody got to know about the incident. She also stated that her friend Saumya brought her to the hospital. On the basis of this, an FIR was registered. 4. On the same day (i.e. 15.07.2013), a statement was also recorded by the Executive Magistrate, after getting the fitness certificate from the doctor. This was similar to her first statement, with the additional detail of her husband being in office at that time. 5. On 23.07.2013, a dying declaration was recorded by the Executive Magistrate in the presence of Riya’s parents and brother, wherein she gave a completely new account of the incident. She stated that as a result of quarrel, her husband set her on fire. When he was dousing off the fire, a neighbour Srinu came and helped. He asked Srinu not to reveal anything. After her in-laws came, she was taken to a private hospital on 15.07.2013 and then to the government hospital on 16.07.2013. 6. On 14.08.2013, Riya passed away in the hospital as a result of septicaemia shock due to ante-mortem burns (revealed by post-mortem). The police altered the FIR into offences under Sections 302, 498A IPC and filed a charge sheet against Anil, his father, his mother and his foster sister on 03.12.2013. JUDICIAL PROCEEDINGS

7. The trial court acquitted all the accused in its decision on 08.05.2014. as the prosecution could not prove any case against either of them beyond reasonable doubt. 6

COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[STATEMENT OF FACTS]

8. Hence, the State preferred a criminal appeal before the High Court of Delhi, wherein the appellant mother, father and sister were convicted under Section 498A IPC and Section 4 of the Dowry Prohibition Act 1956 and the appellant husband was convicted under Section 302, 498A IPC and Section 4 of the Dowry Prohibition Act 1956 on 17.10.2014. 9. The decision of the High Court (HC) was based upon the evidences produced, i.e. the letter written by Riya to her mother Jamini on 17.12.2012 (wherein she talked about the taunts of Anil’s parents, dowry demand by the foster sister, lack of support by Anil, life in the new rented home and the suspicion of extra-marital affair of Anil), the deposition of the neighbour Srinu who corroborated the presence of Anil during the incident, deposition of Riya’s mother that the relation between Riya and Anil were strained, and Riya’s dying declaration. 10. Aggrieved by the order of the HC, appellants Anil and his family have now petitioned before this Hon’ble Court. The matter is admitted and listed for hearing.

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[STATEMENT OF ISSUES]

STATEMENT OF ISSUES

A. Whether the accused can be convicted on the basis of dying declarations? I.

Whether there is inconsistency and material discrepancy in the dying declarations?

II.

Whether the third dying declaration appears to be tutored?

III.

Whether the dying declaration is supported by a corroborate evidence?

B. Whether the appellants can be held liable for cruelty and dowry demand? I.

Whether ‘cruelty’ was inflicted by the appellants?

II.

Whether there was ‘dowry demand’ by the appellants?

C. Whether the circumstantial evidences prove the guilt beyond reasonable doubt? I.

Whether the letter is a reliable evidence?

II.

Whether the deposition by the deceased’s mother can be relied upon?

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

A. THE ACCUSED CANNOT BE CONVICTED ON THE BASIS OF DYING DECLARATIONS I. There is inconsistency and material discrepancy in the dying declarations – There is a complete change in the stand of the deceased after the first two declarations. Also there is a material discrepancy regarding the date of admission in hospital in the third dying declaration. It does not inspire full confidence and gives benefit of doubt to the appellant husband. II. The third dying declaration appears to be tutored – A long gap after the first two declarations and the silence of Riya’s family during that time gives the impression that the third declaration is a tutored one. Also, it was made in the presence of Riya’s family. III. The dying declaration is not supported by a corroborate evidence – The deposition of Srinu does not prove the guilt beyond reasonable doubt. He reached the scene after the act had taken place.

B. THERE WAS NO CRUELTY AND DOWRY DEMAND BY THE APPELLANTS I. There was no ‘cruelty’ inflicted by the appellants – The marital discord and petty issues with in-laws, as stated in the letter by Riya to her mother, do not constitute cruelty and harassment for dowry for the purpose of Section 498A. Also, the demand of dowry by the foster sister of Anil does not come under Section 498A because she is not a ‘relative’ according to the meaning of the section. II. There was no ‘dowry demand’ by the appellants – There was no demand of dowry by Anil and his parents. The sole demand by his sister doesn’t come under the purview of Section 4, read together with Section 2, of the Act.

C. THE CIRCUMSTANTIAL EVIDENCES DO NOT PROVE THE GUILT BEYOND REASONABLE DOUBT I. The letter is not a reliable evidence – Inspite of the situation described by the deceased, there was no follow up communication by her mother. Also, the letter indicates that the deceased is hypersensitive. II. The deposition by the deceased’s mother cannot be relied upon – Being a partisan witness, the deposition by Riya’s mother is not wholly reliable. So, it does not prove the guilt beyond reasonable doubt.

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

A. THE ACCUSED CANNOT BE CONVICTED ON THE BASIS OF THE DYING DECLARATIONS

According to Section 32(1)1, which refers to dying declarations, “Statement, written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” Even if a statement is initially given to a police officer and treated as FIR, it becomes a dying declaration on the subsequent death of the deceased if it satisfies all the ingredients.2

I.

There Is Inconsistency And Material Discrepancy In The Dying Declarations

1. The 3 dying declarations of the deceased wife, Riya, are inconsistent. In the first two declarations, she states that the incident was accidental, while in the last declaration, she deviates from her stand altogether and accuses the appellant husband of setting her on fire. 2. “Dying declaration should be such as to inspire full confidence. And like any other evidence, it has to be tested on the touchstone of credibility to be acceptable.”3 Changing the incident from a mere accident to an act of murder, that too after 8 days of the incident 1

Indian Evidence Act, 1872 Ismail v. State of Karnataka, 2000 CrLJ 1994 (Kant) 3 Narain Singh v. State of Haryana, AIR 2004 SC 1616 2

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[ARGUMENTS ADVANCED]

and after giving two consecutive statements which do not inculpate the appellant husband of any crime, does not inspire full confidence. 3. Also, the third dying declaration which incriminates the husband is self-contradictory and unreliable. Riya stated that she was admitted in a private hospital on 15.07.2013 by her husband and in-laws and around 12 noon on the next day (i.e. 16.07.2013), they brought her to the government hospital. It is completely in contrast with the hospital records which show that she was admitted at 2:00 p.m. on 15.07.2013 by her friend, Saumya. 4. “The Court has to examine the nature of discrepancies, namely whether they are material or not.”4 In this case, discrepancy regarding who brought her to the hospital, when she was brought to the hospital, and to which hospital she was brought to, cannot be considered a normal error of observation, nor a normal error of memory due to lapse of time. 5. In the case of ‘Bhadragiri Venkata Ravi v. Public Prosecutor, High Court of A.P.’5, this Hon’ble Court held, “It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In fact it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case.”

II. The Third Dying Declaration Appears To Be Tutored 1. “The Court has to scrutinise the dying declaration carefully and must ensure that there was no tutoring, prompting or imagination.”6 2. The gap of 8 days between the third declaration and the previous two declarations, and the silence of Riya’s family in the meanwhile cast a doubt that the third one is a tutored declaration. Also, it was made by Riya in the presence of her parents and brother. In the case of ‘Rangaiah v. State of Karnataka’7, this Hon’ble Court has held,

4

Anmol Singh v. State of Madhya Pradesh, (2008) 5 SCC 468 (2013) 14 SCC 145 6 Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 7 (2008) 16 SCC 737 5

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[ARGUMENTS ADVANCED]

“Where at the time of recording of the dying declaration, the deceased was surrounded by his own people, veracity of the said statement, therefore, cannot be said to be completely beyond doubt.” 3. Also, cases are quite common where the wife is virtually pushed to a position of utter desperation due to unhappiness and marital discord which results in an attempted suicide and at a later point of time when questions are put, one cannot eliminate the possibility of false implication, out of a sense of vendetta, or if the victim feels guilty of having attempted the suicide.8

III. The Dying Declaration Is Not Supported By A Corroborate Evidence 1. “Where a dying declaration is suspicious, it should not be acted upon without corroborate evidence”9 2. Srinu, the sole witness presented as evidence by the prosecution, only testified the presence of Anil during the incident. The mere presence doesn’t signify that Anil had set Riya on fire. If at all Anil was there, it is quite possible that he had reached the place of the occurrence only moments before Srinu arrived. 3. Also, it is not impossible that Anil was not present there at all and was very far away from the place of occurrence. Except Srinu, there is no other evidence to prove the presence of Anil. Otherwise, there seems to be no reason for Saumya to admit Riya in the hospital on the next day of the incident, instead of her husband. 4. In the case of ‘Lallu Manjhi v. State of Jharkhand’10, this Hon’ble Court had classified the oral testimony of the witnesses into three categories: (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable. In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. And in this case, Srinu falls under the third category of witnesses.

8

Sarkar’s Law of Evidence, Volume 1, 18th Edition Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264 10 (2003) 2 SCC 401 9

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[ARGUMENTS ADVANCED]

B. THERE WAS NO CRUELTY AND DOWRY DEMAND BY THE APPELLANTS

I.

There Was No ‘Cruelty’ Inflicted By The Appellants

According to Section 498A11, “Whoever, being the husband or the relative of the husband of a woman, subject such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purposes of this section, ‘cruelty’ means – (a) Any wilful 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, limb or health (whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

1. According to the letter allegedly written by Riya to her mother Jamini, Anil’s parents, especially mother, used to taunt her in respect of bad luck brought by her to the family. She was also unhappy regarding Anil’s estrangement over the fact that her father could not give any dowry despite being from a big family. All these petty discords do not amount to cruelty and harassment for dowry under Section 498A. 2. She also stated that her life is peaceful after shifting to their newly rented home, away from her in-laws’ place. And there was a long gap of 7 months between the sole letter written by her and the occurrence of the fatal incident. All this shows that these disputes were not persistent.

11

Indian Penal Code, 1860

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[ARGUMENTS ADVANCED]

3. “Ingredients of ‘cruelty’ as contemplated under section 498A are of much sterner degree than the ordinary concept of cruelty applicable for the purposes of divorce. The acts or conduct should be either such that may cause danger to life, limb or health or cause ‘grave’ injury or of such a degree that may drive a woman to commit suicide.”12 4. In the case of ‘Girdhar Shankar Tawade v. State of Maharashtra’13, this Hon’ble Court held, “It is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Also, there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b).” 5. Lastly, if at all a demand was made for dowry, it was by the foster sister of Anil. “In order to be charged under Section 498A IPC, one has to be ‘relative’ of husband by blood, marriage, or adoption. Being foster sister of complainant’s husband and not being his relative in any manner, cannot be tried for offence under Section 498A”14

II. There Was No Dowry Demand By The Appellants

According to Section 415, “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: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.”

12

Savitri Devi v. Rramesh Chand, (2003) Cr LJ 2759 (Del) AIR 2002 SC 2078 14 Vijeta Gajra v. State (NCT) of Delhi, (2010) 11 SCC 618 15 Dowry Prohibition Act, 1961 13

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[ARGUMENTS ADVANCED]

1. No demand of dowry by Anil and his parents can be inferred from the letter. The only demand was from his foster sister. But that also does not come under the purview of ‘dowry demand’ for the purpose of this Act16. 2. In the case of ‘Sankar Prosad Shaw v. State’17, the Hon’ble Calcutta High Court held, “Although in common parlance one very often uses the term ‘dowry demand’ in the cases where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage, yet this will not amount to demand for dowry under the Act in view of the definition of dowry contained in Section 2 of the Act. Demand for dowry under the Act and in the legal sense will mean the demand for dowry only when it refers to property of valuable security given or agreed to be given at or before or after the marriage.” 3. There is no corroborate evidence to prove if any property or valuable security was given before or after the marriage or if there was any agreement regarding the same. In fact, the expression of the letter shows that there was no such transaction or agreement.

C. THE CIRCUMSTANTIAL EVIDENCES DO NOT PROVE THE GUILT BEYOND REASONABLE DOUBT

In the case of ‘Umedbhai v. State of Gujarat’18, this Hon’ble Court held, “It is well established that in a case resting on circumstantial evidence, all the circumstances brought out by the prosecution must inevitably and exclusively point to the guilt of the accused and there should be no circumstances which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the court will have to bear in mind cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.”

16

Dowry Prohibition Act, 1961 1991 CrLJ 639 18 AIR 1978 SC 424 17

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

I.

[ARGUMENTS ADVANCED]

The Letter Is Not A Reliable Evidence

1. Despite revealing the taunts, dowry demand and disharmony in her marital life, there is no proof of further communication between Riya and her mother. It is quite unusual that there was only a single letter written by her regarding these problems, and that too after a year of her marriage. It casts a grave doubt on the authenticity of the letter. 2. Also, the vacillating emotions and apprehensions expressed in the letter (first, the estranged behaviour of Anil and then the suspicion of his extra-marital affair) and the persisting unhappiness in her marital life despite shifting to a new home, suggest that the deceased might be hyper-sensitive. Thus, there is a possibility that Riya committed suicide on being unable to bear the disharmony in her marital life. In ‘Prem Singh v. State of Haryana’19, this Hon’ble Court held that the deceased was hyper-sensitive and as a result, the in-laws could not be convicted of the offence.

II. The Deposition By The Deceased’s Mother Cannot be Relied Upon

1. The evidence of mother, being a relative and partisan witness, does not constitute a wholly reliable evidence. There is a serious possibility of her deposition to be influenced by emotions and grief of the loss of her daughter. As a result, deposition by such a witness against the accused lacks credibility and does not prove the guilt beyond reasonable doubt. “The evidence of a partisan witness has to be analysed with care and scrutiny.”20 2. Further, silence of the mother between the occurrence of the incident and the recording of the third dying declaration indicates that she also believed it to be an accident.21

Finally, Anil's individual conviction under Section 302 of the IPC and his conviction, together with his family, under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act is based only upon circumstantial evidences including inconsistent dying declarations, a doubtful letter and unreliable depositions, which fail to prove the guilt beyond reasonable doubt. Hence, the conviction should be overruled.

19

2013(2) RCR 379 Dhanraj Singh v. State of Punjab, AIR 2004 SC 1920 21 Sharda v. State of Rajasthan, (2010) 2 SCC 85 20

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COMMON INDUCTION MOOT 2015 [MEMORIAL ON BEHALF OF APPELLANTS]

[PRAYER]

PRAYER FOR RELIEF

IT IS HUMBLY SUBMITTED BEFORE THIS HON’BLE COURT THAT IN LIGHTS OF THE ABOVE ARGUMENTS, CASES AND AUTHORITIES CITED, THE APPELLANT HUMBLY PRAYS BEFORE THE HON’BLE COURT TO: DECLARE THE JUDGMENT GIVEN BY THE HIGH COURT AS INVALID IN LAW, AND ALLOW THE APPEAL. AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT IN THE INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE. FOR THIS ACT OF KINDNESS, THE APPELLANT SHALL DUTY BOUND FOREVER PRAY.

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