TC-60
5th INDRAPRASTHA NATIONAL MOOT COURT
COMPETITION, 2016
Special Leave Petition (Crl.) No. XXX / 2016
APPELLANT JURISDICTION
FOROFFENCESCHARGEDUNDER:
SECTION302READALONGWITHSECTION34AND201OFTHE
INDIANPENALCODE,1860
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
LIST OF ABBREVIATIONS............................................................................................................
INDEX OF AUTHORITIES..............................................................................................................
BOOKS REFERRED:..........................................................................................................................
LEGISLATIONS:...................................................................................................................................
LEGAL DATABASES:..........................................................................................................................
CASES:..................................................................................................................................................
STATEMENT OF JURISDICTION.................................................................................................
STATEMENT OF FACTS.................................................................................................................
STATEMENT OF ISSUES..............................................................................................................
SUMMARY OF ARGUMENTS......................................................................................................12
I. WHETHER THE GIVEN APPEAL AGAINST THE HIGH COURT JUDGMENT IS
MAINTAINABLE................................................................................................................................
II.
WHETHER THE HONBLE HIGH COURT HAS WRONGLY ACQUITTED THE
RESPONDENTS..................................................................................................................................
III.
WHETHER THE RESPONDENTS IN THIS GIVEN CASE MUST BE AWARDED
DEATH PENALTY..............................................................................................................................
ARGUMENTS ADVANCED...........................................................................................................14
I.
2
Written Submission on behalf of the Appellant
EXPANSION
ABBREVIATION/SYMBOL
Supreme Court
SC
High Court
HC
AIR
SCC
Others
Ors.
Paragraph
/Para
And
&
Crpc.
IPC
Constitution
Evidence
SLP
I/O
Investigating Officer
Article
Art.
Cr.P.C.
Crl.
Criminal
CrLJ
Honble
Honorable
J.
Justice
No.
Number
Ors.
Others
Pg.
Page
3
Prosecution witness
Cri LJ/ Cr LJ
Assistant Sub-Inspector
A.S.I
S.H.O
Son of
s/o
Section
INDEX OF AUTHORITIES
BOOKS REFERRED:
I.
II.
III.
IV.
V.
An Analytical And Exhaustive Commentary On The Indian Penal Code, 1860, by Justice
M.L.Singhal & Sabiha
Commentary on the Code of Criminal Procedure Act, 1973 by Ratanlal & Dhirajlal
Commentary on the Indian Evidence Act, 1872 by Ratanlal & Dhirajlal
Commentary on the Indian Penal Code, 1860 by Ratanlal & Dhirajlal
Commentary on The Indian Penal Code, by K.D. Gaur
4
Written Submission on behalf of the Appellant
LEGISLATIONS:
I.
II.
III.
IV.
LEGAL DATABASES:
I.
II.
III.
Manupatra
SCC Online
Westlaw
CASES:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
936
Esher Singh v. State of AP (2004) 11 SCC 585
Ashok Nagar Welfare Assn. V. R.K. Sharma 2002 1 SCC 749
CCE v. Standard Motor Products, AIR 1989 SC 1298
Chandra Bansi Singh v. State of Bihar AIR 1984 SC 1767
Ganga Kumar Srivastava v. State of Bihar, AIR 2005 SC 3123
Arunachalam v. P. S. R. Sadhanantham 1979 AIR 1284
Durga Shanker Mehta v. Raghuraj Singh, AIR 1954 SC 520
Pritam Singh v State, AIR 1950 SC 169
Mohd. Hussain Umar Kochra Etc v. K. S. Dalip Singhji & Anr, AIR 1970 SC 45
Indira Kaur & Ors. vs Sheo Lal Kapoor 1988 2 SCC 488
Mano Dutt & Anr. v. State of Uttar Pradesh 2012 4 SCC 79
Commissioner of Income Tax v. Patram Dass Raja Ram Beri, AIR 1982 P&H 1
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
Chahat Khan v. State of Haryana, 1973 CriLJ 36 SC
Bhaskar Pandit v. State of Maharashtra, 1984 2 Bom CR 769
Raju v. State of Kerala, AIR 1994 Ker 179.
Naseem @ Bhatey v. State, 2000 CriLJ 3043 (All)
Son Lal v. State of Uttar Pradesh, AIR 1978 SC 1142;
Chhotka v. State of W.B., AIR 1958 Cal 482.
Shyamal Ghosh v. State of West Bengal, 2012 Cri.L.J. 3825 SC
State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840;
V.C. Shukla and Ors. v. State (Delhi Administration), AIR 1980 SC 1382;
Bodh Raj @ Bodha and Ors. v. State of Jammu & Kashmir, AIR 2002 SC 3164.
5
Written Submission on behalf of the Appellant
Hanumant Govind Nargundkar vs. State of Madhya Pradesh, AIR 1952 SC 343
Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr., 2012 4 SCC 722.
Thakaji Hiraji v. Thakore Kubersing Chamansing 2001 6 SCC 145.
State of Rajasthan v. Smt. Kalki and another, 1981 2 SCC 752
Myladimmal Surendran and others v. State of Kerala, 2010 11 SCC 129
Takdir Samsuddin Sheikh v. State of Gujarat and another, 2011 10 SCC 158.
Palichera Nagaraju v. State of AP, AIR 2006 SC 3010
State of UP. v. Jagdeo, AIR 2003 SC 660
Alamgir v. State (NCT Delhi), AIR 2003 SC 282
Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, AIR 2004 SC 313
Manthuri Laxmi Narsaiah v State of Andhra Pradesh, 2011 14 SCC 117,
Harishchandra Ladaku Thange v. State of Maharashtra, AIR 2007 SC 2957.
Bhagat Ram v. State of Punjab AIR 1954 SC 621
Babulal Bhagwan Khandare and another vs. State of Maharashtra, 2005 10 SCC 404.
Mustkeem v State of Rajasthan, AIR 2011SC 2769
Miller v Minister of Pensions, [1947] 2 All ER 372, [373].
Sanatan Naskar and Anr. v. State of West Bengal AIR, 2010 SC 3570.
Narendra Nath Khaware v Parasnath Khaware and ors, AIR 2003 SC 2325
Narendra Singh v State of Uttar Pradesh, AIR 1987 SC 1337
Krishnan and anr v. State of Kerela, AIR 1997 SC 383
Surja Ram v State of Rajasthan, AIR 1997 SC 18
6
Written Submission on behalf of the Appellant
In accordance with Article 136 of the Constitution of India read with Order XXII Rule 8 of
the Supreme Court Rules, 2013, the Appellants have approached the Honble Supreme
Court of India.
Article 136 of the Constitution of India, 1950.
Article 136: (1) Notwithstanding anything in this chapter, the SC may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to armed
forces
Order XXII Rule 8 of the Supreme Court Rules, 2013 provides that:
On the granting of the special leave, the petition for special leave shall be treated as a
petition of appeal and shall be registered and numbered as such.
Thus, the Appellants have approached this Honble Court for adjudicating the matter
brought forth in the court of law.
7
Written Submission on behalf of the Appellant
Lallan Prasad, aged 21 years s/o Sh. Chander Prasad, Sh. Ballan Prasad (PW1) and Sh
Mallan Prasad (PW2) were involved in a property dispute case with their maternal
uncle and his sons since 2003. The decision of the case was held in the favour of the
CAUSE OF ACTION
rd
th
On the night of 23 /24 January 2016, one of the cousins of Mr. Lallan Prasad named
Jeysha and Jeyshas friend Tashi caught Lallan Prasad in the market and started a
brawl. In the meantime, Jeyshas four brothers named Kishan, Bishaan, Disham and
Geysha also got involved in the fight after which Jeysha stabbed Lallan in a lane
where they had dragged Lallan. Lallans brother Ballan was walking behind him.
Ballan shouted looking at the condition of his brother, all of them fled away whereas
Tashi was caught by the public and handed over to the police.
Ballan admitted his brother at 3D Hospital in a critical condition with multiple stab
wounds on both arms, chest wall, scalp and right side of gluteal region and were
victim, Lallan and said that he was unfit for giving the statement.
After all the investigation was done, A.S.I Harpal Singh and his team gave the report
After obtaining the statement of Ballan (PW1) as the eye witness of the case, A.S.I
Harpal Singh went to investigate the crime spot where they found blood strewn on the
road.
On 30th January 2016 the police arrested the other co-accused with the help of state
police officers of Ambala but failed to recover the murder weapon. After interrogating
Jeysha, they found that he had thrown the murder weapon, which was admitted to be a
knife, in the river.
STATEMENT OF CHARGES
Initially, the Respondents/Accused were charged under 307/34 IPC after the
investigation and Tashi had got arrested. Subsequently the I.O changed the charges to
STATEMENT OF ISSUES
9
Written Submission on behalf of the Appellant
COURT HAS
WRONGLY
SUMMARY OF ARGUMENTS
I.
It is humbly submitted in the Honble Supreme Court that the special leave petition filed
against the judgment of the high court is maintainable under Article 136 of the Constitution of
10
Written Submission on behalf of the Appellant
The appellant humbly submits to this Honble court that the decision given by HC must be set
aside and the matter at hand must be re-evaluated based on the established facts and
circumstances. In the instant matter, the Trial Court had convicted the Respondents of the
offences of murder and common intention of the Respondents was established thereof, under
302 and 34 of the Indian Penal Code, 1860 respectively.
An appeal had been filed under the HC who turned the conviction into acquittal. The HC has
failed to appreciate all the facts put forth by the Appellant. With the evidence presented at the
trial stage, there is sufficient and conclusive evidence to show that the Respondents are indeed
guilty of the aforementioned offences. This assertion is twofold:
Firstly, the conclusion arrived at by the HC have not considered all the circumstances at hand
(a); and Secondly, the evidence had to be evaluated properly (b).
III.
11
Written Submission on behalf of the Appellant
ARGUMENTS ADVANCED
I. THE
GIVEN
HIGH
COURT JUDGMENT
IS
MAINTAINABLE.
A. THAT THE PRESENT PETITION IS MAINTAINABLE IN THIS COURT.
(1.) It is humbly submitted before this Honble Court that the appeal made as per Article 136
of the Constitution is maintainable under the appellate jurisdiction of SC. In this present matter
the Respondents were initially convicted by the trial court, which was later over-ruled by the
12
Written Submission on behalf of the Appellant
13
Written Submission on behalf of the Appellant
14
Written Submission on behalf of the Appellant
Where grave and substantial injustice has been done by disregard to the forms of
legal process, or
Violation of the principles of natural justice or otherwise.
The exercise of the power of the SC is not circumscribed by any limitation as to who may
invoke it.15 Hence, it is clear from the above-mentioned facts that the SC will not grant special
leave to appeal under Art. 136 of the Constitution unless it is shown that special and
exceptional circumstances exist, that substantial and grave injustice has been done and the case
in question presents features of sufficient gravity to warrant a review of the decision appealed
against16. Further, in the exercise of its special leave appellate jurisdiction, the Supreme Court
will not interfere with the concurrent findings of the Courts.
The Counsel moreover submits that the present case was dismissed by the HC on the sole
basis that the case was bereft of any substance and that the testimony of one of the Prosecution
witness was deemed as a concocted statement of an interested party, therefore, bringing the
present matter in front of this Honble Division Bench. It is submitted that in the case of
15
Written Submission on behalf of the Appellant
HONBLE
HIGH
COURT
HAS
WRONGLY
ACQUITTED
THE
RESPONDENTS.
(9.) The appellant humbly submits to this Honble court that the decision given by HC must
be set aside and the matter at hand must be re-evaluated based on the established facts and
circumstances. In the instant matter, the Trial Court had convicted the Respondents of the
16
Written Submission on behalf of the Appellant
A.THAT
17
Written Submission on behalf of the Appellant
It is submitted that the offences of murder, which the Respondents have been
Respondents of, are laced with mens rea. Mens Rea considered as guilty intention,
24
which is
proved or inferred from the acts of the Respondents.25 . It is the sine qua non of a criminal
act. In the present matter, the Respondents had attacked the victim due to the retribution of
not getting the property. It is based on:
1. Presence of Intention, and 2. Existence of Motive.
(14.) The intention to kill can be construed from the kind of injury caused by him on the
vital part of the body.26 In the present matter, the Respondents had not only beaten up the
victim but also inflicted injury on him by sharp weapons clearly shows the intent behind such
an act. When the doer of an act knows that his act would result in death of a person, he
should be deemed to have intent to cause death. 27 The question, so far as the intention is
concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of
seriousness but whether he intended to inflict the injury in question; and once the existence
of the injury is proved the intention to cause it will be presumed unless the evidence or the
circumstances warrant an opposite conclusion.28
23David Ormerod, Smith and Hogans Criminal Law, (13th edn, Oxford University Press
2011).
24 Commissioner of Income Tax v. Patram Dass Raja Ram Beri, AIR 1982 P&H 1.
25 State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
26 Chahat Khan v. State of Haryana, (1973) CriLJ 36 (SC); Bhaskar Pandit v. State of
Maharashtra, 1984 (2) Bom CR 769; Raju v. State of Kerala, AIR 1994 Ker 179.
27 R.A. Nelson, Indian Penal Code, 1009 (7th Ed Lexis Nexis Gurgaon, 1983)
28 Naseem @ Bhatey v. State, (2000) CriLJ 3043 (All)
18
Written Submission on behalf of the Appellant
19
Written Submission on behalf of the Appellant
20
Written Submission on behalf of the Appellant
21
Written Submission on behalf of the Appellant
22
Written Submission on behalf of the Appellant
49
or acceptability ought to be the guiding factor in deciding a case. The evidence must inspire
confidence and in the event of unshaken credibility, there is no justifiable reason to reject the
same.50 Even if a witness is related to the victim there is no reason to discard the evidence
especially when it is reliable and trustworthy.51 It is further submitted in arguendo, that the
Court cannot derail the entire case on the mere ground of absence of independent witness
as long as the evidence of the eyewitness, though interested, is trustworthy.52
46 Bryan A. Garner, Blacks Law Dictionary, (9th Ed., Thomson Reuters 2009).
47 State of Rajasthan v. Smt. Kalki and another, [(1981) 2 SCC 752]; Myladimmal
Surendran and others v. State of Kerala, [(2010) 11 SCC 129]; Takdir Samsuddin Sheikh
v. State of Gujarat and another, [(2011) 10 SCC 158].
48 Palichera Nagaraju v. State of AP, AIR 2006 SC3010: 2006 CrLJ 3899: 2006 (3)
Crimes 253 (SC).
49 State of UP. v. Jagdeo, AIR 2003 Sc 660: (2003) 1 SCC 456: 2003 Cr.LJ 844: (2003) 3
Crimes 95.
50 Alamgir v. State (NCT Delhi), AIR 2003 SC 282: (2003) 1 SCC 21: 2003 CRLJ 456: JT
2002 (9) SC 347 :( 2003)| Crimes 212.
51 Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, AIR 2004 SC 313: (2004) 1
SCC 184; 2004 SCC (Cri) 269 (272): 2004 CrLJ 280: (2003) 4 Crimes 471.
52 Sadhu Saran Singh v. State of Uttar Pradesh, (2016) 4 SCC 357
23
Written Submission on behalf of the Appellant
Injury 2 which runs along the outside of the skull is the Superficial Temporal Artery which
in case gets cut results in profuse bleeding and cause death.
Injury 3 has multiple abrasions present over the left chest which indicates the direct
intention of the Respondents to kill the victim and is the trapezius muscle closer to the neck,
since most fatal stab wounds are located in the left chest region. Among a number of
explanations is that most people are right handed and, when facing a victim, will tend to
stab the left chest. In addition, if the intention is to kill someone, one would stab in the left
chest where the heart is thought to be.
Injury 6 is an injury on left chest near the left nipple, with the blade parallel to the ribs. If
major thrust is applied, it will pass between the 3rd and 4th rib perforating the left lung and
the Piercing of the heart can result in instant unconsciousness and death in as little as 3
seconds. This is a risky target due to potential for the blade to bind in the ribcage.
Injury 7 is the inside of the right armpit, with the blade parallel to the ribs. This is a risky
target due to potential for the blade to bind in the ribcage as it passes between the 3rd and
4th rib perforating the right lung.
Injury 8 is a thrust up and under the right side of the ribcage, done at a 45 degree angle into
the liver. Since the damage to the liver has been severe, this can result in unconsciousness in
as fast as as 1 minute and death in as fast as 5 minutes.
Injury 10 is a penetrating slash to the inside of the forearm between the radius and ulna
bones. Penetration of more than one inch will sever a great deal of veins and result in rapid
blood loss leading to fatality.
Injury 13 is just behind the bottom of the ear. This is the only point that an average person
may be able to pierce the skull with a knife and can result in instantaneous death
Injury 16 is a thrust to either kidney, and puncturing a kidney can cause near instant
unconsciousness and death within a short span of time, as short as one minute. (The
24
Written Submission on behalf of the Appellant
Injury 3 and 4 is the subclavian artery located approximately 2.5 inches below the point
shown, just behind the collar bone. Severing of the subclavian artery will result in
unconsciousness in as little as 2 seconds, and death in as little as 3.5 seconds.
25
Written Submission on behalf of the Appellant
It is humbly submitted by the Appellant, that the victim was harmed by the
Respondents as there were injury marks on Respondent 1 i.e Tashi as well. The counsel
contends that the non-explanation of the injuries sustained by the Respondents at about the
time of occurrence or in the course of altercation is a very important circumstance. 59
Furthermore, the presence of blood strewn in the said crime scene is a clear indication of a
fight. Thus, corroborating the said statement of PW1. Moreover, there is a clear corroboration
of evidence since, the finding of the I/O i.e. PW4. As to the disappearance of the murder
weapon and the medical report by PW3 i.e., Dr. Kamini as attached stated that a sharp object
was used to injure the victim. There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the innocence of the Respondents
and must show that in all human probability the act must have been done by the
Respondents.60 The aquittal of the Respondents in the present matter has resulted in grave
misscarriage of justice.
56 State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SCW 640: AIR 1992 SC 840.
57 Harishchandra Ladaku Thange v. State of Maharashtra, AIR 2007 SC 2957.
58 AIR 1954 SC 621
59 Babulal Bhagwan Khandare and another v. State of Maharashtra, [(2005) 10 SCC
404].
60 Mustkeem v. State of Rajasthan, AIR 2011SC 2769, [2011] 11 SCC 724, [26].
26
Written Submission on behalf of the Appellant
27
Written Submission on behalf of the Appellant
28
Written Submission on behalf of the Appellant
29
Written Submission on behalf of the Appellant
72 Id.
73 AIR 1987 SC 1337.
30
Written Submission on behalf of the Appellant
31
Written Submission on behalf of the Appellant
32
Written Submission on behalf of the Appellant
PRAYER
In the light of facts stated, issues raised, arguments advanced and authorities cited, the
Respondents humbly submit that the Honble Court may be pleased to adjudge and declare
that:
1. The impugned order of the High Court be set aside and the Respondents in the given case
be awarded death penalty.
2. The victims family be paid Rs 10,00,000/- (Rs. Ten Lakh only) as compensation.
3. Any other relief that the Honble Supreme Court be pleased to grant in the interest of
justice, equity and good conscience.
For This Act Of Kindness, The Appellant Shall Duty Bound Forever Pray.
Respectfully submitted
.
(Sd/-)
(Counsel for the Appellant)
33
Written Submission on behalf of the Appellant