R2 Dowry 2

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Team code:
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT
COMPETITION, 2015
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IN THE COURT OF SESSIONS

AT DURG, XANADU
S.C. No. 111 OF 2015
STATE OF XANADU PROSECUTION
V.
MR. MANOHAR LAL

& DEFENCE
MR. RAHUL GULATI
WRITTEN ON BEHALF OF THE DEFENCE
COUNSEL FOR THE DEFENCE
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MEMORANDUM FOR DEFENCE

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015
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TABLE OF CONTENTS
List of Abbreviations....4
Index of Authorities ............5
Table of Cases ...5
Books......6
Web Sources..7
Lexicons.....7
Statutes..........7
Statement of Jurisdiction..8
Statement of Facts........9
Sequence of Events.....10
Statement of Charges..11
Summary of Arguments..12
Arguments advanced...13
1. MR. MANOHAR LAL (first accused A1) IS NOT GUILTY OF MURDER AND MR.
RAHUL GULATI (second accused A2) IS NOT GUILTY OF ABETMENT OF
MURDER...15
1.1 The evidence of PW1 is unreliable and untrustworthy as he is an interested or partisan
witness16
1.1.1 PW1 has motive to falsely implicate the accused..16
1.1.2 The conduct of PW1 was suspicious and unnatural.17

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1.2 The medical evidences do not corroborate the case of prosecution and it is not a conclusive
proof...18
1.2.1 There is discrepancy as to the time of death..19
1.2.2 The forensic report is wholly inconsistent with that of post-mortem report19
1.3 The investigation is perfunctory, tainted and prejudiced..20
1.3.1 The prosecution has supposed certain material facts and information21
1.4 No iota of evidence to link A2 with the alleged crime...22
1.4.1 Nothing said by A2 amounts to abetment by instigation..22
1.4.2 There is no evidence so as to suggest abetment by conspiracy..23
2 MR. MANOHAR LAL (first accused A1) AND MR. RAHUL GULATI (second accused
A2) ARE NOT GUILTY OF FORGERY AND COMMON INTENTION.....23
2.1 The prosecution has not proved the making of a false document..25
2.2 Evidence of PW1 is unreliable as it lacks probative value.25
2.3 Handwriting in the alleged forged document was not proved to be that of the accused....26
2.4 The charge u/s. 34 of BPC is not applicable in the present case26
3 MR. MANOHAR LAL (first accused A1) AND MR. RAHUL GULATI (second
accused A2) ARE NOT GUILTY OF CRIMINAL CONSPIRACY27
3.1 Ingredients of criminal conspiracy are not fulfilled in the present case.28
3.1.1 There were no meeting of minds between the accused...29
4. MR. MANOHAR LAL (first accused A1) AND MR. RAHUL GULATI (second
accused A2) ARE NOT GUILTY OF HACKING AND IDENTITY THEFT...30
4.1 Investigation was illegal, perfunctory, tainted and prejudiced...30
4.2 Expert evidence of PW4 is not conclusive.31
4.3 Evidence of PW1 is unreliable and untrustworthy.31

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4.4 Guilt is not unerringly pointing towards the accused32
Prayer......33
Appendix.....34
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LIST OF ABBREVIATIONS
AIR All India Reporter
Bom Bombay High Court

Cal Calcutta High Court
Cri LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defence Witness
Ed. Edition
Guj Gujarat
I.O. Investigation Officer
IPC Indian Penal Code
Ker Kerala High Court
Mad Madras High Court
P. Page No.
P&H Punjab & Haryana High Court
PW Prosecution Witness
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
V. Versus
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INDEX OF AUTHORITIES
TABLE OF CASES:
1. Rajaram v. State, (1992) 3 SCC 634.
2. Mallana v. State of Karnataka, (2007) 8 SCC 523
3. Rameshwar v. State of Rajasthan, AIR 1952 SC 54
4. Satya Narain v. State of M.P., AIR 1972 SC 1309
5. Kulesh Mondal v. State of W.B. (2007) 8 SCC 578
6. Namdeo v. State of Maharashtra, (2007) 14 SCC 150
7. Shivasharanappa & Ors. V. State of Karnataka, AIR 2007 SC 2143.
8. Narain v. State, 1984 Cri LJ 528
9. State (Delhi Admn.) v. Laxman Kumar, 1985 (2) Crimes 758.
10. Nagindra Bala v. Sunil Chandra, AIR 1960 SC 706.
11. Nihal Singh v. State, AIR 1965 SC 26
12. State of Himachal Pradesh v. Jai Lal, 1999 AIR SCW 3309.
13. Nagindra Bala v. Sunil Chandra, AIR 1960 SC 706.
14. Tulsiram v. State, 1954 Cr LJ 225,227 (SC)
15. Amrik Singh v. State of Punjab, 1983 Cr LJ 1411
16. Saju v. State of Kerala, AIR 2001 SC 175.
17. Bhagawati Singh v. Balwant Singh, 1978 Cr LJ (Raj) 340 (342).
18. Krishna Moorthy v. State of Madras, (1961) 1 Mad LJ 379
19. Shiv Narain v. State of Maharashtra, AIR 1980 SC 439.
20. Sushil Suri v. Central Bureau of Investigation, (2011) 5 SCC 708 (Para 26)
21. Devendra v. State of U.P., (2009) 7 SCC 495.
22. Daniel Hailey v. State of Madras, AIR 1968 Mad 349.

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23. Mallana v. State of Karnataka, (2007) 8 SCC 523.
24. Karthik Malhar v. State of Bihar, (1996) 1 SCC 614.
25. Tameshwar Sahi v. State of U.P., 1975 SC Cri.R 437.
26. Mohd. Aslam v. State of M.P., AIR 1981 SC 1735.
27. Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.
28. Garib Singh v. State of Punjab, 1972 Cr LJ 1286
29. Pandurang v. State of Hyderabad, AIR 1955 SC 216
30. Yogesh v. State of Maharashtra, AIR 2008 SC 2991.
31. Kekar Singh v. Union of India, AIR 1985 SC 153.
32. Jagannath Mishra v. State of Orrisa, 1974 Cut LT 1253.
33. Mohammad Ismail v. State, (1936) Nag 152.
34. Prabhakar N. shetty v. State of Maharashtra, (1990) 1 Crimes 192.
35. K. Hashim v. State of T.N., (2005) 1 SCC 237
36. State v. V.C. Shukla, 1980 Cr LJ 965.
37. Amrik Singh v. State of Punjab, 1983 Cr LJ 1411
38. M/s. Sundaran v. State of Tamil Nadu, (2008) Cri LJ 53 (Mad).
BOOKS:
1. Ratanlal & Dhirajlal, The Indian Penal Code, 32nd Enlarged Ed., Reprint 2012.
2. Sarkar, The Code of Criminal Procedure, 15th Ed., 1993.
3. Nelson R. A., Indian Penal Code, (10th Ed. 2008).
4. Lyons Medical Jurisprudence & Toxicology, 11th Ed.
5. Modis Textbook on Medical Jurisprudence and Toxicology, 24th Ed.
6. Medicine and Law, Justice Kannan, 1st Ed. 2014.
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7. Glanville Williams on Text Book of Criminal Law, 2nd Ed., 1995
8. Pillay, Modern Medical Toxicology, 6 Ed., 2004
LEXICONS:
1. Whartons Law dictionary,(9th Ed. 2012)

2. Aiyar, P Ramanatha, The Law Lexicon, (4thEd. 2014.
WEB SOURCES:
1. http://www.judis.nic.in
2. http://www.scconline.com
3. http://www.legalcrystal.com
4. http://www.manupatra.com
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Penal Code, 1860 (Act 45 of 1860)
3. The Indian Evidence Act, 1872 (Act 1 of 1872)
4. The Information Technology Act, 2000 (Act 21 of 2000)
5. The Drugs and Cosmetics Act, 1940 (Act 23 of 1940)
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STATEMENT OF JURISDICTION
The Defense submits to the jurisdiction of this Honble Court U/s. 177 read with sec. 209 of the
Code of Criminal Procedure, 1973. This memorandum for the defense is submitted to the Court
u/s. 314 of Code of Criminal Procedure, 1973.
Section 177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired
into and tried by a Court within whose local jurisdiction it was committed.
Read with
Section 209. Commitment of case to Court of Session when offence is triable exclusively by
it.- When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall-
(a) commit the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
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STATEMENT OF FACTS
[A] BACKGROUND:
1. Mr. Manohar Lal lost his parents when he was ten years and stayed with his uncle karans
(fathers younger brother) family. Being studious Manohar scored good marks in +2 and joined in
a reputed medical college. He often borrowed money from his friend Rahul in order to meet his
expenses. On 1 August 2014, when Mano asked Karan why his college was not paid, he abused
Mano and Devika (Karans wife) also joined him saying that he has to stop depending on them. On
4 August 2014, Karan whispered to Mano to transfer some money to Manos account to pay his
college fees. Then he dozed off. Mano opened the laptop and transferred 2.50 lakhs to his account
towards college fees and his pocket expenses. Normally Karan used to transfer 2.25 lakhs to his
account every semester.
[B] EVENTS THAT UNFOLDED AND LED TO THE COMMISSION OF THE ALLEGED CRIMES
2. On 3 August 2014, Karan complained of severe pain in chest and stomach. His doctor Dr.
Choudhary was out of town and therefore Mano wrote a medicine Angispan in a paper that was
later found to be Dr. Choudarys prescription and injected it to Karan. Then Karan became normal
for few minutes and then started to have fits and seizure and subsequently died.
3. While arranging the belongings of Karan prior to the rituals, Devika and Raghav (Karans son)
found an insurance policy for 2 Crore rupees that was nominated to Mano and also of transfer of
2.50 lakhs to Manos account. They became suspicious of this and informed the police forthwith.
The police reached the spot at once and sent the body for autopsy and thereafter viscera to forensic
lab. The laptops, desktops and the key logger were also recovered and sent to forensic lab. The
autopsy report revealed that the death was unnatural. Then Mano and Rahul were arrested and
remanded to judicial custody. Having completed the investigation, the final report was filed in the
Magistrates Court which committed the case to the Court of Sessions, Durg.
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SEQUENCE OF EVENTS
S.NO DATE EVENT DESCRIPTION
1 2011 A1 joined in medical college
2 October 2013 A1 borrowed money from A2 to go for adventure trip
3 May 21 2014 The deceased fell very ill and told A1 about the life
insurance policy taken in his name for A1s benefit.
4 July 4 2014 The deceaseds condition worsened and medications

were changed and strong medicines were prescribed.
5 September 2014 A1 was declared defaulter and given notice to pay the
college fee and had quarrel with deceased and his wife
regarding money
6 August 2 2014 A1 transferred 2.50 lakhs to his bank account from

deceaseds account.
7 August 3 2014 A1 administered the drug angispan to the deceased

who fell ill and subsequently the deceased died.
8 August 4 2014 Dr. Choudary (DW4) came to know about A1

prescribing the drug on his prescription paper
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STATEMENT OF CHARGES
BEFORE THIS HONBLE COURT OF SESSIONS, DURG
State of Xanadu
v.
Mr. Manohar Lal and Another
S.C. No. 111 of 2015
After complying with the statutory requirements the Court of Sessions framed charges against
the accused under sections
a. Mr. Manohar Lal (A1) has been charged under sections 302, 465 r/w 34, 120B of
Bharat Penal Code, 1860 and Sections 66 and 66C of the Information Technology Act,
2005.
b. Mr. Rahul Gulati (A2) has been charged under sections 302, 465 r/w 34, 120B, 109 of
Bharat Penal Code, 1860 and Sections 66 & 66C of the Information Technology Act,
2005.
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SUMMARY OF ARGUMENTS
1. MR. MANOHAR LAL (first accused A1) IS NOT GUILTY OF MURDER AND MR.
RAHUL GULATI (second accused A2) IS NOT GUILTY OF ABETMENT OF
MURDER.
It is humbly submitted before the Honble Court of Sessions, Durg that the accused are not
guilty under Section 3021 the Bharat Penal Code, 1860 (hereafter BPC) because evidence
submitted by the prosecution does not show that the accused committed the alleged murder.
The evidence of PW1 is unreliable and untrustworthy as he is an interested or partisan
witness. The medical evidences do not corroborate the case of prosecution and it is not a
conclusive proof. The investigation was perfunctory, tainted and prejudiced.
accused A2) ARE NOT GUILTY OF FORGERY AND COMMON INTENTION.
It is humbly submitted before the Court of Sessions, Durg that the accused are not guilty
under Section 465 read with Section 34 of Bharat Penal Code, 1860 2 (hereafter BPC)
because the prosecution has not submitted one proper evidence that could link the accused
with the alleged crime. The defense will show that the prosecution has not proved the
making of a false document and that the handwriting in the alleged false document was not
proved to be that of accuseds although it is disputed and that the evidence of PW1 is
unreliable.
1
Refer Appendix
2
Refer Appendix
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accused A2) ARE NOT GUILTY OF CRIMINAL CONSPIRACY.
under Section 120B of Bharat Penal Code, 18603 (hereafter BPC). There is no evidence on
record to prove that there existed an agreement between the accused to commit an unlawful
act or a lawful act by illegal means. Thus, the charge of conspiracy is not sustainable.
accused A2) ARE NOT GUILTY OF HACKING AND IDENTITY THEFT.
under Section 66 and 66C of the Information Technology Act, Act 2000 (hereafter the IT
Act). The investigation in the instant case was illegal, perfunctory, tainted and prejudiced
to the accused. Further submits that the expert evidence of PW4 is not conclusive and the
evidence of PW1 is unreliable.
3
Refer Appendix
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ARGUMENTS ADVANCED
1. MR. MANOHAR LAL (first accused A1) IS NOT GUILTY FOR MURDER
UNDER SECTION 302 AND MR. RAHUL GULATI (second accused A2) IS NOT
GUILTY FOR ABETMENT OF MURDER UNDER SECTIONS 302/109.
The case of prosecution is that on 3 August 2014 the deceased experienced sudden chest
pain. He was administered a drug by Mr. Mano (hereafter A1) his brothers son who is a
medical student. As the drug was administered to the deceased, the deceased recovered but in
a manner of few minutes he collapsed. It is alleged by the prosecution that the deceased
happened to die because of administration of the drug by A1.
The Prosecution has relied on the following evidences to prove the charge of murder:
(i) Direct evidence of PW1;
(ii) Post mortem report of the deceased (Annexure 3);
(iii)Forensic report (Annexure 4); and
(iv) Recovery of prescription sheet of Dr. Choudary.
It is humbly submitted before the Honble Court of Sessions that the accused denies the charges
levelled against them. The accused relies on the following grounds to disprove the case of the
prosecution:
1. The evidence of PW1 is unreliable and untrustworthy as he is an interested or partisan
witness. [1.1]
2. The medical evidences do not corroborate the case of prosecution and it is not a
conclusive proof. [1.2]
3. The investigation is perfunctory, tainted and prejudiced. [1.3]
4. No iota of evidence to link A2 with the alleged crime. [1.4]
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1.1 The evidence of PW1 is unreliable and untrustworthy as he is an interested or partisan
witness.
A witness is normally considered to be an independent witness unless he springs from
the sources which are likely to be tainted such as enmity or relationship and which make him
inclined to implicate the accused falsely.4 The testimony of partisan or interested witnesses
must be scrutinized with care and caution.5 As a matter of prudence the Court must look for
independent corroboration.6 It is not safe to base conviction on the basis of evidence of partisan
witnesses unless some corroboration is found in other evidence or material on record.7 If such
evidence does not satisfy the test of credibility, then the Court can disbelieve the same.8
1.1.1 PW1 has motive to falsely implicate the accused.
The defense submits that, in the instant case, there are possibilities of A1 being
falsely implicated by PW1 who claims to be an eyewitness to the alleged murder of the
deceased due to animosity. Before proceeding with the testimony of PW1, it must be borne in
mind that he himself stated that he never liked A1 because he considered him like a parasite
living in their house.9 A further perusal of his statement given to I.O. goes to suggest that there
existed, in his mind, hatred and hostility towards A1. He was all envious and jealous of A1
4
Rajaram v. State (1992) 3 SCC 634.
5
Mallana v. State of Karnataka, (2007) 8 SCC 523
6
Rameshwar v. State of Rajasthan, AIR 1952 SC 54
7
Satya Narain v. State of M.P., AIR 1972 SC 1309
8
Kulesh Mondal v. State of W.B. (2007) 8 SCC 578
9
Moot Proposition, Annexure 5, p. 14.
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since the deceased always compared him with A1 and told to emulate him in all spheres10 and
also because of the fact that A1 enjoyed the love and affection of the deceased than he did.
Therefore, in the light of above facts, it is submitted that the evidence of PW1 is likely to be
tainted because of long existing hatred and animosity against A1 and this casts a shadow of
doubt that such resentment made him inclined to implicate A1 falsely. The evidence of PW1
does not inspire confidence thus making it unsafe to rely upon to convict the accused.
1.1.2 The conduct of PW1 was suspicious and unnatural.
The natural conduct of the eyewitness is relevant to establish the credibility of the
witness. 11 If a witnesss behavior is absolutely unnatural, his testimony may not deserve
credence and acceptance.12 If the conduct of a witness is abnormal, he is not to be believed.13
The defence submits that the conduct of PW1 was suspicious and does not stand reliable, as it
was unnatural. The evidence of PW1 states that his father was under intolerable pain for which
the A1 alleged to have administered drugs after which the deceased got recovered and stayed
quite for about half an hour and drank a mysterious liquid from the flask that caused instant
death.14 The total time of transaction must be not less than one hour. It is strange and unnatural
conduct of PW1 to not had taken any steps to contact any other doctor or sent for an ambulance
or to take steps, for that matter, in treating his dying father. Although there is no set rule of
natural reaction, 15 PW1 being well educated and according to his degree of sophistication
10
Ibid, p. 1, Para 3
11
Namdeo v. State of Maharashtra, (2007) 14 SCC 150
12
Shivasharanappa & Ors. V. State of Karnataka, AIR 2007 SC 2143.
13
Narain v. State, 1984 Cri LJ 528
14
Ibid, p. 14
15
State (Delhi Admn.) v. Laxman Kumar, 1985 (2) Crimes 758.
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should have made an attempt to save his dying father at least by calling for an ambulance or
for emergency help which he did not do so in the case at hand.
In the instant case, the conduct of PW1 (natural son of deceased) who testifies that he stood
mute and took no steps when his father was dying before his own eyes can be ascribed to be an
unnatural one. It creates hallow of suspicion in the veracity of his evidence.
1.2 The medical evidences do not corroborate the case of prosecution and it is not a
conclusive proof.
The prosecution has relied on Post-mortem report (Annexure 3) and Forensic report
(Annexure 4) to corroborate the incriminating circumstances against the accused. The
prosecution alleges that the administration of drug had cost the life of the deceased. The PMO
report was said to have prepared by PW3 (medical officer) in Altis Medical Hospital at 1600
hours who opined that death due to cardiac arrest that was triggered by drug dose or cross-
reaction.16 It is submitted that the post-mortem report is ambiguous as to how the cause of death
was ascertained. It does not disclose the fact as to what drug was found to be the cause of death
or what is the cause for cross-reaction.
The expert witness is expected to put before the Court all materials inclusive of the data, which
induced him to come to the conclusion.17 If the doctor who conducted the autopsy has based
his opinion on the post-mortem appearances, as well as on the statement of police, he should
mention in his report on what basis he formed such opinion.18 The Apex court has held that,
credibility of the experts evidence depends on the reason stated in support of his conclusions
16
Moot Proposition, Annexure 3, p. 10
17
Nagindra Bala v. Sunil Chandra, AIR 1960 SC 706.
18
Nihal Singh v. State, AIR 1965 SC 26
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and the data and materials furnished which form the basis of his conclusions.19 However, in
the instant case, the PMO report is devoid of such particulars.
1.2.1 There is discrepancy as to the time of death.
It is universally accepted norm that the time of death of a person can be determined
either by rigor mortis or by examining the stomach contents.20 In the instant case, the PMO
report is devoid of any such particulars as to how the time of death was determined to
corroborate the prosecution case. The expert witness is expected to put before the Court all
materials inclusive of the data which induced him to come to the conclusion.21
In contrary, the PMO report identifies that there were fresh food particles, which includes fruit
and rice.22 The PMO report states the time of death as about five hours before the examination.
If the examination began by 10:30 hours, as it stands mentioned in the said report, then the
death must have been caused around 5 to 6 am in the morning. However, the time of death as
per the FIR was around 8:30 am to 10:00 am based upon oral complaint given by PW2. It is
amply clear that the time of death as set out in the post-mortem report contradicts the time of
death mentioned in the FIR, which was registered at the instance of PW2.
1.2.2 The forensic report is wholly inconsistent with that of post-mortem report.
The forensic report23 opens up a new theory pertaining to the death of the deceased,
which concludes that death due to air embolism in the artery thereby causing blockage to
oxygen rich blood reaching the heart causing damage to the heart led to arrhythmia, which
19
State of Himachal Pradesh v. Jai Lal, 1999 AIR SCW 3309.
20
Modis Textbook of Medical Jurisprudence and Toxicology, 24 th Edn. 2011, p. 354.
21
Nagindra Bala v. Sunil Chandra, AIR 1960 SC 706.
22
Ibid.
23
Moot Proposition, Annexure 3, p. 12
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further led to cardiac arrest. A bare reading of the forensic report prepared by PW5 suggests
that, strangely enough, there was nothing to indicate that the death was caused by drug reaction.
The two medical evidences of prosecution case has two contradicting theory as to the cause of
death. In addition to that, a perusal of both the reports goes to show that there is plethora of
discrepancies in material particulars that affect the credibility of these reports.
In ordinary circumstances, there would have been nothing in taking the reports of these persons
on record as permitted by the Cr.P.C, 1973. When however, there is a difference of opinion in
the reports, the duty to explain the difference is on the prosecution and the mere production of
the report does not, under the circumstances, prove anything which can weigh against the
accused.24
In the light of above submissions, it is crystal clear that the evidence of PW1 also stands
unreliable corresponding to the evidences of PW3 and PW5 for the reasons stated above. Thus
making it unsafe to rely upon the medical evidence to convict the accused.
1.3 The investigation is perfunctory, tainted and prejudiced.
The investigator is enjoined upon to unearth the crime and as soon as he receives
the information about the crime he is to proceed to spot, ascertain facts and circumstance of
the case, inter alia, to search the places and take into possession the things considered necessary
for the investigation.25
It is alleged by the prosecution that A1 administered the drug angispan to the deceased and
thereby cause his death. But there is no recovery of the used medicine bottle of the said drug
from the spot of occurrence. This non-recovery of very vital incriminating article casts a serious
24
Tulsiram v. State, 1954 Cr LJ 225,227 (SC)
25
Amrik Singh v. State of Punjab, 1983 Cr LJ 1411
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cloud of suspicion. Further, the prosecution has alleged that the said drug was bought from the
pharmacy in which PW6 was the attendant. But no bill receipt has been produced. Although
the investigating agency has recovered many articles from the spot of occurrence but there is
nothing amongst them that would incriminate the accused.
1.3.1 The prosecution has suppressed certain material facts and information.
It is submitted that, in the instant case, there are high possibilities of suppression
of material facts which if comes into light may become fatal to the prosecution case.
As per the evidence of PW1, the deceased was active for sometime after administration of
drugs and also did intake some liquid from the flask that was accessible to everyone in the
house.26 It is to be borne in mind that only after drinking the alleged liquid form the flask he
died. The medical evidences of prosecution case has sidelined the fact of what was the content
of liquid did take by the deceased lastly. The suppression of such fact is very fatal to the
prosecution case as it discredits the entire credibility of the medical evidences.
Furthermore, the prosecution has suppressed the particulars as to which hospital the deceased
was taken for emergency treatment where he was declared brought dead. 27 If the medical
practitioner were not sure of the cause of death or in case of sudden death by drug, etc. when
the injured is brought dead, the proper course for him would be to report at once to the police
authorities.28 No records were produced of the same which casts a serious doubt on the veracity
of prosecutions case.
1.4 No iota of evidence to link A2 with the alleged crime.
26
Moot Proposition, Annexure 5, p. 14.
27
Ibid, p. 13.
28
Modis Textbook of Medical Jurisprudence and Toxicology, 24 th Edn. 2011, p. 203.
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The defence submits that the prosecution has falsely roped A2 in the present case. A
perusal of evidences on record goes to show that there is no prima facie evidence to support
the charge of murder and abetment of murder against A2. Not even a statement has been made
to that effect by any of the witnesses. In order to bring home an offence u/s. 10929 of BPC the
following ingredients must be fulfilled:
(i) Abetment of an offence, either by instigation, conspiracy or aiding;
(ii) The commission of the act abetted, in consequence of abetment;
(iii) There must not be any express provision, in the Penal Code, for the punishment
of such abetment.30
And to constitute abetment, it is necessary for the prosecution to prove that the accused aided,
abetted, counseled or procured the commission of the principal offence; that the principal
offence was in fact committed; and that he had the intent to aid or encourage its commission.31
1.4.1 Nothing said by A2 amounts to abetment by instigation.
It is submitted that the complainant ought to have led evidence to show what were
the actual words used by the accused by way of instigation or persuasion. In the absence of
such evidence, there was no ground for proceeding against the accused for abetment of the
offence alleged to have been committed by the other co-accused in the case. 32
There were no words used by A2 to neither instigate nor persuade A1 to commit the alleged
murder. The words attributed by the prosecution to A2 are as following A2 always reminded
A1 how rich he could be if the deceased had to die. These words, even if taken at its face
29
Refer Appendix
30
Saju v. State of Kerala, AIR 2001 SC 175.
31
Cross and Jones on Introduction to Criminal Law, 9 th Edn., para 19.4, p. 387.
32
Bhagawati Singh v. Balwant Singh, 1978 Cr LJ (Raj) 340 (342).
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value, would not constitute instigation or persuasion to kill the deceased. A perusal of these
words clearly goes to show that A2, on coming to know about the insurance policy taken by
the deceased to the benefit of A1, expressed his opinion as to what will happen if the deceased
happen to die. These words cannot be interpreted in such a way so as to make it abetment of
murder by instigation or persuasion because that would be illogical and would cause prejudice
to A2.
1.4.2 There is no evidence so as to suggest abetment by conspiracy.
When the abetment is a form of conspiracy as set forth in Clause (2) of Section 107
of BPC, any charge of conspiracy is not established merely by proof of association together
nor by mere suspicion of guilt.33 There is no evidence on record to prove that the accused
persons conspired between themselves to commit the alleged murder. Mere suspicion of
conspiracy is not sufficient to bring home a charge of abetment by conspiracy.34
Therefore, it is submitted that the prosecution has failed to prove the above relied circumstances
and presumption of guilt is not shifted on the accused and the circumstances relied upon by the
prosecution is not proved. The Defence submits that the accused is entitled for benefit of doubt
on following grounds:
(i) Unreliability of the evidence of PW1 ;
(ii) Uncorroborated discrepancy in the medical evidences;
(iii) Non recovery of any material object; and
(iv) Investigation is tainted, perfunctory and prejudiced.
33
Krishna Moorthy v. State of Madras, (1961) 1 Mad LJ 379
34
Shiv Narain v. State of Maharashtra, AIR 1980 SC 439.
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24
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The Defence humbly submits that the guilt is not unerringly pointed towards the accused and
it cannot be held that the accused can only be the authors of the crime as they are entitled for
the benefit of doubt. Therefore, this Court should exonerate the accused of the charge of murder
and abetment of murder.
accused A2) ARE NOT GUILTY OF FORGERY AND COMMON INTENTION.
It is humbly submitted before this Honble Court of sessions, Durg that the accused
cannot be convicted under section 465 35 read with 34 of BPC. The evidence submitted by
prosecution does not show that the accused have participated in the alleged crime. In order to
convict a person under section 465, following essential ingredients are to be fulfilled, namely:
(i) The making of a false document or part of it; and
(ii) Such making should be to achieve any of the intentions enumerated u/s 464 of BPC.36
The entire case of the prosecution rests on Dr. Choudharys prescription for late Mr. karan
(hereafter the deceased) which was alleged to have been forged and also on the evidence of
PW1. The defence submits that there is nothing on record to show how the accused persons
were involved in the alleged crime and failed to fulfill the ingredients of forgery. As far as the
charge against A2 is concerned, it is liable to be quashed, as there is no prima facie evidence.
2.1 The prosecution has not proved the making of a false document.
The making of a false document is a sine-qua-non for committing the offence of forgery.37
Therefore, in order to bring home the charge of forgery the prosecution has to prove, inter alia,
35
Refer Appendix
36
Sushil Suri v. Central Bureau of Investigation, (2011) 5 SCC 708 (Para 26)
37
Devendra v. State of U.P., (2009) 7 SCC 495.
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25
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that the document in issue was false in fact.38 In the present case, the prosecution has not proved
by substantive evidence that the document in question was altered by the accused.
2.2 Evidence of PW1 is unreliable as it lacks probative value.
As stated in the earlier submissions, the evidence of PW1 cannot be relied upon to
secure a conviction as it lacks probative value. The motive on the part of PW1 to falsely
implicate the A1 has been established in the earlier submissions with the aid of circumstances
that transpired before the fact in issue took place. The general rule as to evidence of partisan
witnesses is that it should be considered with great care and caution.39 If such evidence does
not satisfy the test of credibility, then the Court must disbelieve the same.40 In case of interested
or partisan witnesses, it is highly recommended for courts to look for corroborative or
supportive evidence.41
The defence vehemently submits that there is no corroborative evidence of the same. It is
neither safe nor prudent to rely upon such evidence to convict the accused especially in the
absence of corroborative evidence. There is no other material to prove the alleged writing by
the accused in the alleged forged document.
2.3 Handwriting in the alleged forged document was not proved to be that of the accuseds.
It is humbly submitted that the accused denies the allegation levelled against them. The
prosecution has not proved that the handwriting in the alleged forged document was that of A1.
38
Daniel Hailey v. State of Madras, AIR 1968 Mad 349.
39
Mallana v. State of Karnataka, (2007) 8 SCC 523.
40
Karthik Malhar v. State of Bihar, (1996) 1 SCC 614.
41
Tameshwar Sahi v. State of U.P., 1975 SC Cri.R 437.
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26
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When there is a dispute as to handwriting, handwriting expert should be examined. 42 No
opinions were sought from handwriting experts.
From the above submissions, it is apparent that although it is alleged by the prosecution that
the accused made a false document in writing there is no evidence brought on record to prove
the same. Since it is a case of forgery by writing where the handwriting is disputed, the
prosecution should have sought for expert opinion whereas no attempt of that kind has been
made. The only evidence which is available is that of PW1 which is unreliable for whose
motive to falsely implicate the accused has been established.
2.4 The charge u/s. 34 of BPC is not applicable in the instant case.
The essential ingredients of Sec. 34 of BPC as stated and restated by law Courts in
plethora of cases are:
(i) Common intention to commit a crime, and
(ii) Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability.43
This provision is only a rule of evidence and does not create a substantive offence. It lays down
the principle of joint liability. To charge a person under this section, it must be shown that he
shared a common intention with another person or persons to commit a crime and subsequently
the crime was perpetrated.44 The Apex Court held in a case,45 that in the case of Sec. 34 it is
well established that a common intention presupposes prior concert. It requires a pre-arranged
42
Mohd. Aslam v. State of M.P., AIR 1981 SC 1735.
43
Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.
44
Garib Singh v. State of Punjab, 1972 Cr LJ 1286
45
Pandurang v. State of Hyderabad, AIR 1955 SC 216
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27
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plan because before a man can be vicariously convicted for the criminal act of another, the act
must have been done in furtherance of the common intention of them all.
The defence submits that charge under Sec. 34 of BPC is not sustainable. There is no prima
facie evidence on record to establish the sharing of common intention by the accused persons
in regard to committing the alleged forgery let alone participation.
In the present case, the prosecution alleges that A1 forged a prescription on August 4, 2014
when the opportunity arose. i.e. when the deceased suddenly fell ill to kill him. In that case, the
common intention could not be attributed to the accused persons since it was highly
improbable, as the deceaseds illness could not have been foreseen. Assuming arguendo, there
must be participation by all the accused in the commission of the crime whereas there is no iota
of evidence even to suggest the participation of A2 in the alleged crime.
Therefore, in the light of above submissions, this Honble Court should acquit the accused of
the charge of forgery.
accused A2) ARE NOT GUILTY OF CRIMINAL CONSPIRACY.
It is humbly submitted before this Honble Court of Sessions, Durg that the accused
persons are not guilty for criminal conspiracy punishable under Section 120B46 of BPC. The
prosecution has failed to establish the ingredients of criminal conspiracy as defined under
Section 120A of BPC. The ingredients of criminal conspiracy u/s. 120A of IPC are:
1. There must be an agreement between the parties who are alleged to conspire;
2. That the agreement should be
a. for doing an illegal act; or
46
Refer Appendix
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28
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b. for doing by illegal means an act which may not itself be illegal.47
In the instant case, the Prosecution alleges that A1 and A2 conspired to murder late Mr. Karan48
(hereafter the deceased). It further alleges that the accused conspired between them to hack
into the deceaseds computer to steal his net banking password.
3.1 Ingredients of criminal conspiracy are not fulfilled in the present case.
The defence submits that the overt act in the present case that the prosecution alleges
to induct the accused under criminal conspiracy is devoid of the ingredients of criminal
conspiracy. Although, in most of the cases, there cannot be direct evidence of criminal
conspiracy, the circumstances defined u/s. 10 49 of Evidence Act mandates a prima facie
evidence of conspiracy to constitute an offence of criminal conspiracy. 50 As held by the Apex
Court, the onus is on prosecution to prove the charge of conspiracy by cogent evident, direct
or circumstantial. However, in the instant case, a necessity to charge the accused under criminal
conspiracy is on the fictional basis and not on the basis of evidences.
3.1.1 There was no agreement between the accused.
Agreement is the rock bottom of criminal conspiracy.51 The gist of the offence is
the bare engagement and association to break the law, where any act be done in pursuance
thereof by the conspirators or not.52 Although the accused was beneficiary of the crime, in
47
Yogesh v. State of Maharashtra, AIR 2008 SC 2991.
48
Moot Proposition, Annexure 1, FIR.
49
Refer Appendix
50
Kekra Singh v. Union of India,
51
Jagannath Mishra v. State of Orrisa, 1974 Cut LT 1253.
52
Mohammad Ismail v. State, (1936) Nag 152.
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29
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absence of evidence of meeting of minds, he must be acquitted.53 Further, a design resting in
mind only does not make out the offence of conspiracy.54
In the instant case, the prosecution has failed to prove that there prevailed an agreement
between the accused to commit any of the alleged offences levelled against them. The
circumstance that infers the criminal motive and agreement between the accused is not proved
with any documentary, oral or circumstantial evidences. Since consensus is the very basis to
constitute criminal conspiracy, a charge u/s. 120B55 of BPC cannot sustain in the absence of
the same.
Arguendo, if the allegations levelled against the accused that they are the beneficiaries of the
crime, or that they most of the time worked together on the computer system in a mysterious
manner, or that A1 avoided the company of the other members of the family are considered,
still that alone does not make enough to constitute a prima facie evidence of conspiracy within
the meaning of Sec. 10 of the Evidence Act.
The prosecution must adduce clear and cogent evidence of agreement that existed between the
accused to perpetrate a crime.56 In the present case, the prosecution has failed to establish any
circumstances that infer from the acts, statements and conduct of the parties in pursuant to the
charge of conspiracy.
53
Prabhakar N. shetty v. State of Maharashtra, (1990) 1 Crimes 192.
54
K. Hashim v. State of T.N., (2005) 1 SCC 237
55
Refer Appendix
56
State v. V.C. Shukla, 1980 Cr LJ 965.
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30
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Thus it is humbly submitted that in case of absence of ingredients of criminal conspiracy, the
charge of criminal conspiracy u/s 120B stands unproved. Therefore, this Court should acquit
the accused of the charge of criminal conspiracy.
accused A2) ARE NOT GUILTY OF HACKING AND IDENTITY THEFT.
It is humbly submitted before this Honble Court of Sessions, Durg that the accused are
not guilty for hacking and identity theft under Sections 66 and 66C of the Information
Technology Act, 2000 (hereafter the IT Act) respectively. As there is no direct evidence, the
prosecution has relied on circumstantial evidence to prove the aforesaid charges. The defense
humbly submits that the investigation in the instant case was illegal, perfunctory, tainted and
prejudiced. Further submits that the expert evidence of PW4 is not conclusive and the evidence
of PW1 is unreliable.
4.1 Investigation was illegal, perfunctory, tainted and prejudiced.
The investigator is enjoined upon to unearth the crime and as soon as he receives the
information about the crime he is to proceed to spot, ascertain facts and circumstance of the
case, inter alia, to search the places and take into possession the things considered necessary
for the investigation.57
The defense submits that the investigation in the present case is illegal for the Investigation
Officer (hereafter I.O.) was not empowered to conduct the investigation. Only a police officer
in the rank of an inspector level is competent to investigate an offence under the IT Act, 2000
notwithstanding anything contained in the Cr.P.C.58 It overrides the provisions of Cr.P.C. and
thus Section 156(2) would not save the illegality. A bare reading of the contents of the FIR
57
Amrik Singh v. State of Punjab, 1983 Cr LJ 1411
58
M/s. Sundaran v. State of Tamil Nadu, (2008) Cri LJ 53 (Mad).
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31
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shows that PW6 who is the I.O who is a sub-inspector of police and therefore he is not a
competent authority to investigate an offence under the Act.
Assuming Arguendo, the investigation was perfunctory and tainted. The prosecution agency
has produced no material records to prove that the hardware key logger was purchased by the
accused. The key logger, being advanced computer hardware, the prosecution agency could
have found from it was purchased and that could have ultimately led to who purchased it.
Therefore, it is submitted that the entire investigation had been one sided which caused
prejudice to the accused.
4.2 Expert evidence of PW4 is not conclusive.
The prosecution relied on the expert evidence of PW4 Mr. Hashmeet to corroborate the
charge of hacking and identity theft. In the present case, although the report of expert evidence
encloses the details of login time of the computer, it does not disclose any particulars to the
alleged net transaction. Relying on mere fact of login time (allegedly at 9:54 am) is alone
insufficient to connect the accused with the crime. Further, his evidence does not disclose as to
exactly if the computer had been hacked. Arguendo, he merely opines that key logger software
was installed in the hard drive of the desktop. That alone is not sufficient to make out a case
under the charge of hacking and there is no evidence to prove that the personal identity of the
deceased had been stolen. Furthermore, the Prosecution has failed to establish any reasonable
ground to believe that the accused commit the offences against the deceased.
4.3 Evidence of PW1 is unreliable and untrustworthy.
It is established by necessary evidence in the earlier submissions that PW1 is an
interested witness who has motive to falsely implicate the accused. Therefore, his evidence
cannot be taken without corroboration on material particulars.
4.4 Guilt is not unerringly pointing towards the accused.

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32
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The hard disk of the desktop in which the hardware device is alleged to have been used
and he key logger software was found to be installed and was open and accessible to everyone
in the house of the deceased. Although, the fact that the accused persons worked on it most of
the times per se cannot make them liable for the alleged crime. There are possibilities that it
must have been done by someone else from the very family.
In the light of above submissions, it is submitted that the prosecution has failed to prove the
alleged crime with unbroken chain of links. It could not be said that only the accused can be
the authors of the alleged crime and the guilt is not unerringly pointing towards the accused.
Therefore, this Court should give the benefit of doubt to the accused A1 and A2 and thereby
acquit them of the charges of hacking and identity theft.
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33
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PRAYER
In the light of the facts stated, charges framed, evidence adduced, arguments advanced and
authorities cited, the first accused (Mr. Manohar Lal) and the second accused (Mr.Rahul Gulati),
the Defense herein, most humbly prays before this Honble Court of Sessions, Durg to be
graciously pleased to declare:
1. That A1 and A2 are not liable for murder under sec 302 and 302 r/w 109 of BPC, 1860
2. That A1 and A2 are not liable for forgery under sec 465 of BPC, 1860
3. That A1 and A2 are not liable for criminal conspiracy under sec 120B of BPC, 1860
4. That A1 and A2 are not liable for hacking and identity theft under sec 66 & 66C of IT Act,
2000
And acquit the first and the second accused herein and pass any other order in favour of the
Defense that it may deem fit in the ends of equity, justice and good conscience.
For this act of kindness, the Defense shall duty bound forever pray.
All of which is humbly submitted,
S/d
(Counsels for Defense)
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34
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APPENDIX
INDIAN PENAL CODE, 1860
Sec. 34: Acts done by several persons in furtherance of common intention When a criminal
act is done by several persons in furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him alone.
Sec. 37. Co-operation by doing one of several acts constituting an offence When an offence
is committed by means of several acts, whoever intentionally cooperates in the commission of
that offence by doing any one of those acts, either singly or jointly with any other person,
commits that offence.
Illustrations
(a) A and B agree to murder Z by severally and at different times giving him small doses of
poison. A and B administer the poison according to the agreement with intent to murder Z. Z
dies from the effects of the several doses of poison so administered to him. Here A and B
intentionally co-operate in the commission of murder and as each of them does an act by which
the death is caused, they are both guilty of the offence though their acts are separate.
Sec. 299. 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.
Illustrations: (a) A lays sticks and turf over a pit, with the intention of thereby causing death,
or with the knowledge that death is likely to be thereby caused. Z believing the ground to be
firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
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Explanation I A person who causes bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be
deemed to have caused his death.
Explanation 2 Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to proper remedies and
skilful treatment the death might have been prevented.
Sec. 302. Punishment for murder Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
Classification of Offence: PunishmentDeath, or imprisonment for life, and fine
CognizableNonbailable Triable by Court of SessionNon-compoundable.
Sec. 304B. Dowry death (1) 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
Explanation For the purpose of this sub-section, "dowry" shall have the same meaning as in
section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall
not be less than seven years but which may extend to imprisonment for life.
Classification of Offence: PunishmentImprisonment of not less than 7 years but which may
extend to imprisonment or lifeCognizableNon-bailableTriable by Court of Session
Non-compoundable
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36
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Sec. 322. Voluntarily causing grievous hurt Whoever voluntarily causes hurt, if the hurt
which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt
which he causes is grievous hurt, is said "voluntarily to cause grievous hurt."
Explanation A person is not said voluntarily to cause grievous hurt except when he both
causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is
said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause
grievous hurt of one kind, he actually causes grievous hurt of another kind.
Illustration: A, intending or knowing himself to be likely permanently to disfigure Zs face,
gives Z a blow which does not permanently disfigure Zs face, but which cause Z to suffer severe
bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.
Sec. 326. Voluntarily causing grievous hurt by dangerous weapons or means Whoever,
except in the case provided for by section 335, voluntarily causes grievous hurt by means of any
instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of
offence, is likely to cause death, or by means of fire or any heated substance, or by means of
any poison or any corrosive substance, or by means of any explosive substance, or by means of
any substance which it is deleterious to the human body to inhale, to swallow, or to receive into
the blood, or by means of any animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.
Classification of offence: PunishmentImprisonment for life, or imprisonment for 10 years and
fineCognizableNon-bailableTriable by Magistrate of the first classNon compoundable.
Sec. 354. Assault or criminal force to woman with intent to outrage her modestyWhoever
assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that
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37
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he will thereby outrage her modesty, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.
Classification of offence: PunishmentImprisonment for 2 years, or fine, or both
CognizableBailableTriable by any MagistrateNon-compoundable.
Sec. 498A. Husband or relative of husband of a woman subjecting her to cruelty Whoever,
being the husband or the relative of the husband of a woman, subjects 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 purpose 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.
Classification of offence: PunishmentImprisonment for 3 years and fine-Cognizable if
information relating to the commission of the offence is given to an officer in charge of a police
station by the person aggrieved by the offence or by any person related to her by blood, marriage
or adoption or if there is no such relative, by any public servant belonging to such class or
category as may be notified by the State Government in this behalfNon-bailableTriable by
Magistrate of the first classNon compoundable.
Sec. 506. Punishment for criminal intimidation 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.
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INDIAN EVIDENCE ACT, 1872
Motive, preparation and previous or subsequent conduct.
Sec. 8. Motive, preparation and previous or subsequent conduct.-Any fact is relevant which
shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to
such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
Explanation 1.--The word "conduct" in this section does not include statements, unless those
statements accompany and explain acts other than statements; but this explanation is not to affect
the relevancy of statements under any other section of this Act.
Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his
presence and hearing, which affects such conduct, is relevant.
CODE OF CRIMINAL PROCEDURE, 1973
Sec. 154. Information in cognizable cases - (1) Every information relating to the commission of
a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced
to writing by him or under his direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a book to be kept by such officer
in such form as the State Government may prescribe in this behalf
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of
cost, to the informant
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39
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(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in sub-section (1) may send the substance of such information,
in writing and by post, to the Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police officer subordinate to him, in the
manner provided by this Code, and such officer shall have all the powers of an officer in charge
of the police station in relation to that offence
Section 161. Examination of witnesses by police - (1) Any police officer making an investigation
under this Chapter, or any police officer not below such rank as the State Government may, by
general or special order, prescribe in this behalf, acting on the requisition of such officer, may
examine orally any person supposed to be acquainted with the facts and circumstances of the
case
(2) Such person shall be bound to answer truly all questions relating to such case put to him by
such officer, other than questions the answers to which would have a tendency to expose him to
a criminal charge or to a penalty or forfeiture
(3) The police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does so, he shall make a separate and true record of the
statement of each such person whose statement he records
Sec. 164. Recording of confessions and statements.- (1) Any Metropolitan Magistrate or
Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or
statement made to him in the course of an investigation under this Chapter or under any other
law for the time being in force, or at any time afterwards before the commencement of the inquiry
or trial: Provided that no confession shall be recorded by a police officer on whom any power of
a Magistrate has been conferred under any law for the time being in force
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40
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(2) The Magistrate shall, before recording any such confession, explain to the person making it
that he is not bound to make a confession and that, if he does so, it may be used as evidence
against him; and the Magistrate shall not record any such confession unless, upon questioning
the person making it, he has reason to believe that it is being made voluntarily
(3) If at any time before the confession is recorded, the person appearing before the Magistrate
states that he is not willing to make the confession, the Magistrate shall not authorise the
detention of such person in police custody
(4) Any such confession shall be recorded in the manner provided in section 281 for recording
the examination of an accused person and shall be signed by the person making the confession;
and the Magistrate shall make a memorandum at the foot of such record to the following effect.
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such
manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate,
best fitted to the circumstances of the case; and the Magistrate shall have power to administer
oath to the person whose statement is so recorded
(6) The Magistrate recording a confession or statement under this section shall forward it to the
Magistrate by whom the case is to be inquired into or tried
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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT

IN THE COURT OF SESSIONS

S.C. No. 111 OF 2015

STATE OF XANADU PROSECUTION

MR. MANOHAR LAL

WRITTEN ON BEHALF OF THE DEFENCE

COUNSEL FOR THE DEFENCE

MEMORANDUM FOR DEFENCE

Index of Authorities ............5

Table of Cases ...5

RAHUL GULATI (second accused A2) IS NOT GUILTY OF ABETMENT OF

1.1 The evidence of PW1 is unreliable and untrustworthy as he is an interested or partisan

1.1.1 PW1 has motive to falsely implicate the accused..16

1.1.2 The conduct of PW1 was suspicious and unnatural.17

MEMORANDUM FOR DEFENCE

1.2.1 There is discrepancy as to the time of death..19

1.3 The investigation is perfunctory, tainted and prejudiced..20

1.4 No iota of evidence to link A2 with the alleged crime...22

1.4.1 Nothing said by A2 amounts to abetment by instigation..22

1.4.2 There is no evidence so as to suggest abetment by conspiracy..23

A2) ARE NOT GUILTY OF FORGERY AND COMMON INTENTION.....23

2.2 Evidence of PW1 is unreliable as it lacks probative value.25

accused A2) ARE NOT GUILTY OF CRIMINAL CONSPIRACY27

3.1.1 There were no meeting of minds between the accused...29

accused A2) ARE NOT GUILTY OF HACKING AND IDENTITY THEFT...30

4.1 Investigation was illegal, perfunctory, tainted and prejudiced...30

4.2 Expert evidence of PW4 is not conclusive.31

4.3 Evidence of PW1 is unreliable and untrustworthy.31

MEMORANDUM FOR DEFENCE

4.4 Guilt is not unerringly pointing towards the accused32

MEMORANDUM FOR DEFENCE

AIR All India Reporter

Bom Bombay High Court

Cri LJ Criminal Law Journal

I.O. Investigation Officer

IPC Indian Penal Code

Ker Kerala High Court

Mad Madras High Court

P&H Punjab & Haryana High Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

MEMORANDUM FOR DEFENCE

1. Rajaram v. State, (1992) 3 SCC 634.

2. Mallana v. State of Karnataka, (2007) 8 SCC 523

3. Rameshwar v. State of Rajasthan, AIR 1952 SC 54

4. Satya Narain v. State of M.P., AIR 1972 SC 1309

5. Kulesh Mondal v. State of W.B. (2007) 8 SCC 578

6. Namdeo v. State of Maharashtra, (2007) 14 SCC 150

7. Shivasharanappa & Ors. V. State of Karnataka, AIR 2007 SC 2143.

8. Narain v. State, 1984 Cri LJ 528

9. State (Delhi Admn.) v. Laxman Kumar, 1985 (2) Crimes 758.

10. Nagindra Bala v. Sunil Chandra, AIR 1960 SC 706.

11. Nihal Singh v. State, AIR 1965 SC 26

13. Nagindra Bala v. Sunil Chandra, AIR 1960 SC 706.

14. Tulsiram v. State, 1954 Cr LJ 225,227 (SC)

15. Amrik Singh v. State of Punjab, 1983 Cr LJ 1411

16. Saju v. State of Kerala, AIR 2001 SC 175.

17. Bhagawati Singh v. Balwant Singh, 1978 Cr LJ (Raj) 340 (342).

18. Krishna Moorthy v. State of Madras, (1961) 1 Mad LJ 379

19. Shiv Narain v. State of Maharashtra, AIR 1980 SC 439.

21. Devendra v. State of U.P., (2009) 7 SCC 495.

22. Daniel Hailey v. State of Madras, AIR 1968 Mad 349.