SCHOOL OF LAW, UPES

BEFORE THE COURT OF CHIEF JUDICIAL MAGISTRATE,

SEHRADUN

STATE OF UTTARAKHAND

(PROSECUTION)

V.
RAJESH SINGH ...... (1)

&

DR.TAPAN DAS ....... (2)

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 302 READ WITH SECTION 120B OF INDIAN PENAL CODE,

1860

UPON SUBMISSION TO THE HON’BLE CHIEF JUDICIAL MAGISTRATE

MEMORIAL ON BEHALF OF THE DEFENCE

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 TABLE OF CONTENTS

Table of Contents 2

List Of Abbreviations 3

Index Of Authorities 4

Statement Of Jurisdiction 5

Statement Of Facts 6-7

Statement Of Charges 7

Summary Of Arguments 8

Issue- 8-12

Whether Mr Rajesh Singh and Dr. Tapan Das are jointly guilty for Criminal Conspiracy and
Murder?

Statement of Witnesses 12-14

Prayer 14-15

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 LIST OF ABBREVIATIONS

CrPC Code Of Criminal Procedure

IPC Indian Penal Code

SC Supreme Court

Dr Doctor

Sec Section

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 INDEX OF AUTHORITIES

Cases:
 Amar Malla v. State Of State Of Tripura; AIR 2002 SC 3052
 Ambalal v. State of Rajasthan; AIR 2003 Cr LJ 115
 Asha v. State of Rajasthan; AIR 1997 SC 2828
 Badshah Singh v. State of Punjab; AIR 1958 All 677
 Bakshish Singh v. State of Punjab; AIR 1971 SC 2016

Books:
 Proof of guilt, by Glanville Williams
 Eindian Penal Code
 Law related to crimes, A.N Gaur

Statutes:
 Constitution of India, 1949
 The Eindian Penal Code, 1860
 Criminal Code of Procedure and Rules

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 STATEMENT OF JURISDICTION

The Hon’ble court has the jurisdiction to try the matter under Section 177 read with Section
209 of The Code Of Criminal Procedure Act, 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 trail;
c. send to that Court the record of the case and the documents and articles, if any, which are
to 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
1. Rani aged 26 yrs is the only child of richest businessmen Mr. Hari Mehta. She is married
to Rajesh singh aged 27 years who is newly startup businessmen.
2. Rani is not able to conceive a child which Rajesh presupposes is due to her weight.
During this rajesh suffered heavy losses and was in urgent need of money.

3. On 15th November, Rajesh went to the Blue-Ocean Restro Bar with his dear friend
Dr.Tapan, aged 29 yrs, who is a medical professor and research associate in Research
&Development Department in Alpine Hospital & Institute Of Medical Sciences. They
discussed about the wealth of Rani’s father. Also they discussed about their problem like
Dr. Tapan was willing to pay for a sexually arousing drugs. “ Rajesh replied she is useless
to me now may she is of some use to you”.

4. On 16th novemeber , Rani met Dr. Tapan and he did not refer her to any medical
practiconer.

5. On 17th November, she visited again and Rani signed the consent agreement for the
treatment. She visit thrice a week for a three hour sitting. She was given anesthesia so that
she dosen’t feel pain in her abdominal region and uterus.

6. Under the cover Dr. Tapan has started experiment. After few days drugs started causing
negative impacts on Rani’s body like headache, bodyache, depression, etc.

7. On 28th November Dr. Tapan discussed the entire situation with Rajesh and Rajesh told
him to continue the treatment has he had full faith in him. Dr. Tapan continued the
treatment despite the occurrence of major side effects.

8. ON 12th December Rani called his frienf deepali to pick her from the lab. In lab she found
Rani and Dr. Tapan in a compromising position.She took Rani home and told her what
she saw. Rani told her that she will discuss everything with her husband when he returns
home after 3 days. Later Rani messaged Dr. Tapan that i will see you.

9. On 16th December Rani discussed everything with Rajesh when he returned from a
profitable business trip.Rajesh reacted calmly assured her that he will talk to Dr. Tapan
regarding this. Later in the evening rani’s father died.

10. On 17th December Rajesh met and Dr. Tapan at blue ocean and discussed about Rani’s
father death and the entire incident which occurred in front of deepali. Dr. Tapan told
rajesh that we have to pave the right way in which rajesh replied to manage all the
financial accounts. Later on Rajesh assured his wife that there were some
misunderstandings only and Deepali is trying to befool you.

11. On 18th December Rani was uncouncious and fell down . Rajesh called Dr. Tapan. Dr.
Tapan and his nurse reached immediately. Dr. Tapan injected an insulin of 0.25 gm. After
few hours she gained consciousness meanwhile Rajesh and Dr. Tapan

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12. On 19th December deepali came to Rani’s house to wish her birthday but she found her
body lying down. She immediately called police and lodged F.I.R.

STATEMENT OF CHARGES

Rajesh Singh and Doctor Tapan have been charged under section 302 read with
section 120B of the Indian Penal code 1860 for the crime of murder and criminal
conspiracy as
1. Rajesh gave Rani to Dr. Tapan for experiment as he was in the urgent need of
money.
2. After hearing news of Rani’s father death and knowing that if Rani also died,
Rajesh will be the sole owner of the property they planned the murder of Rani.

SUMMARY OF ARGUMENTS

1. THE ESSENTIAL INGREDIENTS OF THE OFFENCES, WHICH THE TWO

ACCUSED ARE CHARGED, UNDER ARE NOT FULFILED.

It is humbly submitted before this Hon’ble Court that the essential ingredients of all the
offences, which the two accused are charged under, are not fulfilled. The Accused number 1,
the husband of the deceased had neither motive nor intention to murder his own wife. He was
under losses for a short span of time. However, he was able to cope up with that and had
good
turnovers with his other foreign clients in his business trips. He had taken good care his wife
when she fell sick and unconscious. The Accused number 2, Dr. Tapan Das, with bonafide
intention was treating her and was giving her medical advises to cure her ailments. Both of
them never conspired to murder her and no evidence is established to prove their guilt,
thereby
the essential ingredients of the charged offences are not fulfilled.

2. THE GUILT OF THE TWO ACCUSED HAS BEEN NEITHER

ESTABLISHED NOR PROVED UNDER CIRCUMSTANTIAL EVIDENCE.
The Burden of Proof to establish the guilt of the two accused is on the Prosecution and the
burden has not been established. The standard of proof required is that of proof beyond all
reasonable doubts, which has not been satisfied in the present case. The Prosecution has
failed to establish the Circumstantial Evidence theory as there are many missing links in
itself. Thus,

the guilt of the two Accused has been neither established nor proved under Circumstantial
Evidence. Therefore, the two Accused, are entitled for benefit of doubt in the instant case and
hence should be acquitted.

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 ARGUMENTS ADVANCED
 THE ESSENTIAL INGREDIENTS OF THE OFFENCES, WHICH THE TWO
ACCUSED ARE CHARGED UNDER, ARE NOT FULFILED.
It is humbly submitted before this Hon’ble Court that the essential ingredients of the
offences,
which the two accused are charged under, are not fulfilled.
1.1 THE TWO ACCUSED ARE NOT GUILTY UNDER SECTION 120B OF EI.P.C
Section 120A of the Eindian Penal Code defines Criminal Conspiracy. When two or more
persons agree to do, or cause to be done, —
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy:
Provided, that no agreement except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is done by one or more parties to
such agreement in pursuance thereof.
Explanation — It is immaterial whether the illegal act is the ultimate object of such
agreement,
or is merely incidental to that object.
Section 120B of the Eindian Penal Code provides punishment for Criminal Conspiracy.
Punishment of criminal conspiracy —
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall,
where
no express provision is made in this Code for the punishment of such a conspiracy, be
punished
in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for
a term not exceeding six months, or with fine or with both. All conspirators are liable for the
acts of each other of the crime or crimes which has been

committed as a result of the conspiracy

Each conspirator can be attributed to each other’s action in a conspiracy. This is reflected in
the rule of evidence under Section 10 of the Evidence Act: Conspiracy is punishable
independent of its fruition. The principle of agency as a rule of liability and not merely a rule
of evidence has been accepted by the Supreme Court.
Supreme Court opined that where a number of offences are committed by several persons in
pursuance of a conspiracy it is usual to charge them with those offences as well as with the
offence of conspiracy to commit those offences.
It has been said that a criminal conspiracy is a partnership in crime, and that there is in each
conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or
more
persons enter into a conspiracy, any act done by any of them in pursuant to the agreement is,
in contemplation of law, the act of each of them and they are jointly responsible thereof.
The encouragement and support which co-conspirators give to one another rendering
enterprise
possible which, if left to individual effort, would have been impossible, furnish the ground
for
visiting conspirators and abettors with condign punishment. The conspiracy is held to be

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continued and renewed as to all its members wherever and whenever any member of the
conspiracy acts in furtherance of the common design. Offences of criminal conspiracy has its
foundation in an agreement to commit an offence. A conspiracy consists not merely in the
intention of two or more, but in the agreement of two or more to do an unlawful act by
unlawful
means.
A criminal conspiracy must be put to action in as much as so long a crime is generated in the
mind of the accused, it does not become punishable. What is necessary is not thoughts, which
may even be criminal in character, often involuntarily but offence would be said to have been
committed thereunder only when that take concrete shape of an agreement or cause to be
done an illegal act or an act which although not illegal by illegal means and then if nothing

further is done the agreement would give rise to a criminal conspiracy.

Therefore,
1. An agreement between two or more persons
2. The agreement must relate to doing or causing to done either
I. An illegal act;
II. An act which in not illegal in itself but is done by illegal means.
The court must enquire whether the two persons are independently pursuing the same end or
they have come together to pursue the unlawful object. The from does not make them
conspirators but the latter does. For the offence of conspiracy some kind of physical
manifestation of agreement is required to be established.
Therefore, the Essentials of Criminal Conspiracy are as follows:
I. An Object to be accomplished
II. A plan or scheme embodying means to accomplish that object
III. An agreement or understanding between two or more of the accused persons whereby,
they become definitely committed to cooperate for the accomplishment of the object by
the means embodied in the agreement, or by any effectual means, and
IV. In the jurisdiction where the statute required an overt act.
The only relevant factor is that all means adopted and illegal acts done must be and purported
to be in furtherance of the object of the conspiracy.The offence of criminal conspiracy is
complete as soon as two or more persons agree to do or cause to be done an illegal act, or a
legal act by illegal means.
The actus reus in a conspiracy is the agreement to execute the illegal conduct, not only the
execution of it. It is not enough that two or more persons pursued the same unlawful object at
the same time or in the same place; it is necessary to show a meeting of minds, a consensus to

effect an unlawful purpose.

Prosecution has to produce evidence not only to show that each of the accused has knowledge
of the object of conspiracy but also of the agreement.
Mere circumstantial evidence to prove the involvement of the accused is not sufficient to
meet
the requirements of criminal conspiracy and meeting of minds to form a criminal conspiracy
has to be proved by placing substantive evidence.
For the meeting of minds two or more persons to turn into criminal conspiracy, it is important
to show that apart from knowledge of a plan to commit an illegal act or a legal act by illegal
means, some or all of the persons have formed the intention thereby becoming parties to the
agreement and thereby becoming conspirators.
A mere thought of criminal character or discussion to commit a crime does not per se
constitute criminal conspiracy. The criminal thoughts need to put into action in the shape of

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agreement.
As far as the mental state is concerned, two elements required by conspiracy are: 1: Intent to
agree; 2. The intent to promote the unlawful objective of the conspiracy. It is the intention to
promote a crime that lends conspiracy its criminal cast. Besides the fact of agreement, the
necessary mens rea of the crime is also required to be established.
In a criminal case of serious nature mens rea will not be excluded and once the charge of
conspiracy fails, the onus lies on the prosecution to prove affirmatively that the appellant was
directly and personally connected with the acts of omission and commission. Mere
agitating and avenging mood of the accused is not enough to make him a member of the
conspiracy.

The circumstantial evidence even if accepted in its entirety, only creates a suspicion of
motive
which will not serve as a sufficient ground for framing charges in the absence of any material
prima facie showing that the motive has passed into action and that the accused is connected
with the action in question.
There must be evidence to indicate that the accused was in agreement with the other accused
persons to do the act which was the ultimate object.
Motive by itself will not be a proof of conspiracy. Mere suspicion of motive will not serve as
a sufficient ground for framing the charges in the absence of any material, prima facie
showing
that the particular motive has passed into action and that the accused is connected with the
action in question. Suspicion, however strong it may be, may not take the place of legal proof
and the mere fact that there was animosity between the accused and prosecuting parties by
itself, wthout any other evidence to show that the accused had hatched the conspiracy, would
not be sufficient to convict the accused.
A few bits here and a few bits there on which the prosecution relies will not be held to be
adequate for connecting the accused with the commission of the crime of criminal
conspiracy.
Inferences from such proved circumstances regarding the guilt may be drawn only when such
circumstances are incapable of any other reasonable explanation20. The circumstances relied
upon by the court for drawing the inference of conspiracy must be proved beyond reasonable
doubt. Motive by itself will not be a proof of conspiracy. Mere suspicion of motive will not
serve as

a sufficient ground for framing the charges in the absence of any material, prima facie
showing
that the particular motive has passed into action and that the accused is connected with the
action in question. Suspicion, however strong it may be, may not take the place of legal proof
and the mere fact that there was animosity between the accused and prosecuting parties by
itself, wthout any other evidence to show that the accused had hatched the conspiracy, would
not be sufficient to convict the accused.
A few bits here and a few bits there on which the prosecution relies will not be held to be
adequate for connecting the accused with the commission of the crime of criminal
conspiracy.
Inferences from such proved circumstances regarding the guilt may be drawn only when such
circumstances are incapable of any other reasonable explanation. The circumstances relied
upon by the court for drawing the inference of conspiracy must be proved beyond reasonable
doubt.

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It is humbly submitted before this Hon’ble Court that the essential ingredients of the
offences,
which the two accused are charged under, are not fulfilled and are thus not guilty of Criminal
Conspiracy under Section 120B of the Eindian Penal Code, 1860

 THE GUILT OF THE TWO ACCUSED HAS BEEN NEITHER

ESTABLISHED
NOR PROVED UNDER CIRCUMSTANTIAL EVIDENCE.

2.1 THE ESSENTIAL INGREDIENTS OF THE CIRCUMSTANTIAL EVIDENCE

THEORY
HAS NOT BEEN ESTABLISHED.
It’s a well-settled proposition of law states that the graver the offence, the greater would be
the
care taken to see that neither an innocent person is convicted nor a guilty one allowed to
escape.
Evidence in every case has to be appreciated on, the basis of the facts and circumstances of
that
case and it is not appropriate for any court to imprint the fact situation of one decided case
upon
another, howsoever similar they may be.
The Panchsheel of proof of a case based on circumstantial evidence, which are usually called
the 5 golden principles, has been stated by the Apex Court and reiterated by the High
Courts. They read as follows:
1. The circumstances from which the conclusion of the guilt is to be drawn should be
fully established, as distinguished from “may be” established.
2. The facts so established should be consistent only with the hypothesis of the guilt of
the accused, and is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved and
5. 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 accused and must show that in all
human probability the act must have been done by the accused. The essential elements to
prove guilt of an accused by circumstantial evidence53 are as follows:

1. The circumstances from which the conclusion is drawn must be fully proved;
2. The circumstances must be conclusive in nature;
3. All the facts so established must be consistent only with the hypothesis of guilt and
inconsistent with innocence;
4. The circumstances must to a moral certainty exclude the possibility of guilt of any
person other than the accused.
The law relating to circumstances evidence requires that the prosecution must prove each of
the circumstances, having a definite tendency pointing towards the guilt of the accused and
although each of the circumstances, by itself, may not be conclusive but the cumulative effect
of proved circumstances must be so complete that it excludes every other hypothesis and
unequivocally points to the guilt of the accused.
Thus, it is submitted before this Hon’ble Court that the essential ingredients of the
circumstantial evidence theory has not been successfully established

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2.2 THE GUILT OF THE TWO ACCUSED HAS NOT BEEN PROVED BEYOND
ALL
REASONABLE DOUBTS.
It is the cardinal principal of Criminal Law that the ‘Burden of Proof’ is on the Prosecution to
bring about conviction of the Accused in any case. The standard of proof in criminal cases is
that of ‘Proof beyond all reasonable doubts’.
The last seen theory comes into play where the time gap between the point of time when the
accused and the deceased were seen last alive and when the deceased is found dead is so
small that possibility of any other person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to positively establish that the
deceased was last seen with the accused when there is a long gap and possibility of other
persons coming in between exists.
In the absence of any other positive evidence to conclude that the accused and the deceased
were last seen together, it would be hazardous to come to a conclusion of guilt.55
While circumstantial evidence by itself is enough to form the basis for conviction56, each
incriminating circumstances must be proved and the totality of circumstances must
conclusively establish the guilt of the accused.
Doctrine of “last seen together” shifts the burden of proof onto accused, requiring him to
explain how the incident had occurred and failure on the part of the accused to furnish any
explanation in this regard, would give rise to a very strong presumption against him57. The
Supreme Court has held that a person can be convicted on circumstantial evidence provided
that links in the chain of circumstances connect accused with crime beyond reasonable
doubt..
The fact that the accused was seen by the witnesses going with the other accused person
towards the house of the deceased, by itself is not sufficient to establish the guilt of the
accused in the absence of other circumstantial linking of the accused with the commission of
the offence.
In State of UP v Ashok Kumar Srivastava it was pointed out that great care must be taken in

evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two
inferences, the one in favour of the accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the hypothesis of the guilt.
Thus, it is humbly submitted before this Hon’ble Court that the guilt of the two accused has
not been proved beyond all reasonable doubt.

STATEMENTS OF WITNESSES

Defence Witness 1:

NAME: RAJESH SINGH

AGE: 29

RESIDENCE: 354, Indra Colony, Sehradun

My name is Rajesh and I married Rani in the year 2014. Rani and I had a healthy

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relationship. There had been some rough moments, mostly due to her problems, but we have
always managed to get through those. Rani had started the treatment under Dr. Tapan only
after considering all its effects and with her full consent, believing that it will help both of us
in reviving our marriage. The treatment had been going great and she faced no problems until

Deepali misguided her about Dr. Tapan‟s intention. When Rani told me about the session, I
immediately confronted Dr. Tapan. Once he explained me the whole procedure, I was certain
that Deepali had some misunderstandings.
The next day Rani became unconscious therefore I immediately called Dr. Tapan to the
house, believing that Rani‟s state must have been caused due to some or the other side effects
of the clinical trial.
As soon as Dr. Tapan came, he gave her some medicine which helped her regain her
consciousness. By that time I was already late for my flight to Mumbai where I had an urgent
meeting with some of the prospective foreign clients who were visiting Eindia only for 1 day.
Rani convinced me that she was fine and that I must not miss such an important opportunity.
Believing her, I left the house

Defence WITNESS 2:
NAME: Dr. TAPAN DAS

AGE:29

RESIDENCE: 20A Surya Colony, Sehradun

I had known Rani and Rajesh since my college days and had remained in contact with them
since then. Rajesh and I used to meet quite often and always discussed our problems with
each other. Rajesh had told me about Rani‟s problems a several times and when I got the
opportunity to research on a drug for a problem similar to hers, I was excited to tell the news
to Rajesh. As expected, Rajesh was more than happy to let Rani try the drug. I did not
directly ask him for the same, since the process involved strict doctor-patient physical

contacts, but they could be enough to make Rajesh concerned. However, believing in me
Rajesh offered to help me by talking to Rani for her consent for the clinical trial.
On the first session I made sure that everything was happening with her full consent. She told
me that she was desperate to make her marriage work and was ready to take any drug for this.
We had a long talk about her marriage and her expectations from this trial, and once I was
satisfied that I could really help her, I started the trial with her. She came to the lab in the
University three times a week for the process. After some sessions, her health started to
deteriorate, however when I explained to Rajesh that this could be because of the fact that her
body is taking some time in accepting the drugs, he asked me to continue the experiment.
Once during the process, one of her friends barged into the office while I was checking the
effect of the medicine that I had just injected in her. Her friend misunderstood the situation to
be some explicit advancement by me and tried to take Rani with her, who was in a semi-
unconscious state at the time. I tried my best to explain everything to her but she was not
ready to listen. However, I cleared everything out with Rajesh, as soon as he returned from
his business trip. He trusted me completely and therefore allowed me to continue with my
trial.

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The next day, I received a call from Rajesh stating that Rani had become unconscious. I
immediately took my kit and rushed to their house with a nurse. On reaching their, I found
that there was nothing serious and this was just another reaction of the drug. I injected a small
dose of insulin and she regained her health instantaneously. Once assured that she was okay,
Rajesh and I, along with the nurse, left the house

Defence Witness 3:

NURSE

NAME: MANYA KUMARI

AGE: 29

RESIDENCE:20A Surya Colony, Sehradun

My name is Manya Kumari and I work as a nurse at Alpine Hospital. I have been working
there for the past 3 years. I have assisted Dr. Tapan since then. I must say he is a very
curious learner and looks forward to discover new drugs and cure patients. Mrs. Rani started
visiting the lab for last 1 month. Dr. Tapan usually visits the patients in my presence but after
few initial meetings, he started her treatment in private. He usually took 3-4 hours and
directed me to not enter the room. Hence told me that he is working on new drugs and told
me that it is legal.
One day we received a call from Mr. Rajesh stating that Rani has become unconscious. I
along with Dr. Tapan immediately rushed to their house. On reaching there, we found that
there was nothing serious and this was just another reaction of the drug. Dr. Tapan injected
insulin to cure the patient.

PRAYER

Wherefore, in light of the facts established, Charges framed, Arguments advanced and
Authorities cited, may this Hon‘ble Court be pleased to:
TO HOLD:
1. The Accused no 1- Rajesh Singh not guilty under Section 302 (Punishment for Murder)
and Section 120B (Punishment of Criminal Conspiracy) of the Vindian Penal Code, 1860.

2. The Accused no 2- Dr. Tapan Das not guilty under Section 302 (Punishment for
Murder) and Section 120B (Punishment of Criminal Conspiracy) of the Vindian Penal
Code, 1860

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 TO PASS:

Acquit for the above mentioned offences.

AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted

Place: Sehradun

S/d_____________

Date: 18 / 02 / 2017
DEFENCE COUNSELS

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