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HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

BEFORE THE SESSIONS JUDGE, LUCKNOW, U.P.

CASE NO.: 1010/18


FIR NO.: 1693/18

STATE OF U.P.
(PROSECUTION)

v.

MANGAL SINGH
(DEFENCE)

FOR THE OFFENCE CHARGED UNDER


SECTION 302 INDIAN PENAL CODE, 1860

MEMORIAL FOR PROSECUTION

(MEMORIAL ON BEHALF OF PROSECUTION) 1


TABLE OF CONTENTS

1. TABLE OF CONTENTS 2

2. LIST OF ABBREVIATIONS 3

3. INDEX OF AUTHORITIES 4

4. STATEMENT OF JURISDICTION 5

5. STATEMENT OF FACTS 6

6. SUMMARY OF ARGUMENTS 8

7. ARGUMENTS ADVANCED 9

A. ISSUE I 9

B. ISSUE II 13

C. ISSUE III 17

8. PRAYER 21

(MEMORIAL ON BEHALF OF PROSECUTION) 2


LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

All ALLAHABAD HIGH COURT

Cal CALCUTTA HIGH COURT

Chh CRIMINAL LAW JOURNAL

Cri LJ/ CrLJ CHATTISGARH HIGH COURT

Cr.PC CRIMINAL PROCEDURE CODE

Del DELHI HIGH COURT

etc. ETCETERA

Ed. EDITION

Guj GUJARAT HIGH COURT

Hon’ble HONOURABLE

H.P. HIMACHAL PRADESH

IC INDIAN CASES

IEA INDIAN EVIDENCE ACT, 1872

IPC INDIAN PENAL CODE, 1860

Mad MADRAS HIGH COURT

n. FOOTNOTE NO.

Ori ORRISA HIGH COURT

p. PAGE NO.

P&H PUNJAB AND HARYANA HIGH COURT

Pat PATNA HIGH COURT

PW PROSECUTION WITNESS

Raj RAJASTHAN HIGH COURT

SC SUPREME COURT

SCC SUPREME COURT CASES

SCJ SUPREME COURT JOURNAL

SCR SUPREME COURT REPORTER

S./ Sec. SECTION

v. VERSUS

& AND

(MEMORIAL ON BEHALF OF PROSECUTION) 3


INDEX OF AUTHORITIES
CASES CITED:
1.Andhra S v. Sriramulu, A 1957 AP 130
2. Rajasthan v. Smt. Kalki & Anr, 1981 SCC (2) 752.
3. Seeman v. State, (2005) 11 SCC 142.
4. Sewaka v. State of M.P., AIR 2002 SC 50
5. Vikram Singh v. State of Punjab, AIR 2010 SC 1007
6. Ganesh Bahadur v. State of of Uttarakhand, 2015 Cri LJ (NOC) 50 (Utr)
7. G. Khan v. State of Bihar, AIR 2004 SC 210
8. Kedar Singh v. State of Bihar, 1999 CrLJ 601 (SC)
9. Suresh Chandra Bahri vs State Of Bihar, 1994 CrLJ 3271
10. Rameshkumar Soni v. State of Madhya Pradesh, 1997 CrLJ 3418 (MP);
11. State of M.P. v. Manka, 1960 MP C 216
12. Gunjua Manjhi v. State of Jharkhand, 2015 Cri LJ 4303.
13. Mohd Hussain v. State (2012) 2 SCC 584.
14. State of Kant. v. Rapanaika, AIR 2004 SC 4967 (4971)
15. Ishwar Singh v. State of U.P., 1976 CrLJ 1883(93)
16.Shyam Nandan Singh v. State of Bihar, 1991 Cr.L.J. 3350
17.Sawal Das v. State of Bihar, AIR 1974 SC 778
18.Algupamdi v. State of Tamil Nadu, AIR 2012 SC 2405
19.State of U.P. v. Babu Ram, AIR 2000 SC 1735
20.Alijan Paras Ram v. State, 1970 ALJ 149
21.Harish Chandra v. Emperor, AIR 1947 PC 135
22.Sella Muthu v. Palla Muthu, ILR (1912) 35 Mad 186
23.Munshi v. State, AIR 1960 Bombay 290
24.Sriniwasamall v. Emperor, AIR 1947 PC 135
25.Rex v. Rhoder, (1889) 10 B 77
26. State v. Jasbir Chauhan,
27. Sushil Sharma v. State (Nct) Of Delhi,
28. Ashish jain v. Makrand singh and ors.
29. Anvar P.V vs P.K.Basheer & Ors
30. K. Ramajayam @ Appu vs The Inspector Of Police,
31. State of M.P. v. Naveen
32. Suresh Kalmadi v. CBI
33. State v. Arif khan & ors.
BOOKS & ONLINE RESOURCES REFERRED:
1. SC Sarkar, Commentary on the Indian Penal Code, 1860, 3rd Edition, 2011, Vol. 1 &2.
2. RA Nelson’s, Indian Penal Code, 1860, 11th Edition, 2016, Vol. 1 & 2.
3. Woodroffe & Amir Ali, Law of Evidence, 20th Edition, 2017, Vol 1 & 2.
4. Sarkar, Law of Evidence, 19th Edition, 2016, Vol 1 & 2.
5. Batuk Lal, The Law of Evidence, 22nd Edition, 2017.
6. http://www.findlaw.com
7. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
8. http://www.scconline.com
9. https://indiankanoon.org.in
10. www. lexisnexis.com
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860

(MEMORIAL ON BEHALF OF PROSECUTION) 4


STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section 209
of the Code of Criminal Procedure, 1973.

Section 177:

‘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:

‘ 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.’

(MEMORIAL ON BEHALF OF PROSECUTION) 5


STATEMENT OF FACTS

There was one, Mr. Harish Rawat who used to live with his wife, Mrs. Janki Devi in Hazratganj,
Lucknow. He was around 38 years old and had been married for around 15 years. He was a
businessman and had a business partner named, Mr. Mangal Singh who lived in Gomti Nagar,
Lucknow. Mangal used to visit them frequently and had good relations with their family. Things did
not take long for things to turn sour. All was going well until one day, when Harish refused to sign a
business deal which Mangal kept on insisting. This led to a feeling of personal animosity in Mangal
against Harish and he started threatening him through phone calls and text messages. On 20 Dec,
2018, Mangal called and threatened Harish, “You wait and watch, you’ll have to face the
repercussions of not signing the deal”.
On 22 Dec, 2018, at around 12:00 pm, Harish and his wife, Janki went to Krishna Nagar for some
work. The metro station was quite crowded as usual. There were people coming and going. As they
exited the gate of the metro station, they saw a man on a black pulsar coming, wearing a black
helmet. The man on bike stopped right in front of them. He pulled out a gun from his pocket and
fired a bullet through the chest of Mr. Harish. Mr. Harish fell on the ground and died on spot. The
biker sped away and could not be caught. Mrs. Janki could not see the murderer but she identified
the bike of the murderer and the same belonged to Mr. Mangal Singh.
Ms. Aana Sharma who was an eye-witness of the incident quickly went and informed the police
about the same. The police lodged an FIR and on investigation, Mr. Mangal Singh was arrested for
the murder of Mr. Harish. The whole incident was recorded on a CCTV camera installed at a pole
near the place of occurrence. Blood was spattered on the ground of scene of crime. Also, a 4mm
bullet shell was recovered along with wallet of the deceased.
The Post mortem of the deceased was conducted on 22 Dec, 2018 by the CMO, King George
Medical College, Lucknow and it was found that the chest and rib cage was damaged, and cause of
death was excessive blood loss through chest and heart. After conducting the post mortem, the body
of the deceased was handed over to his wife, Mrs. Janki Devi in order to perform rites and rituals.
On 23 Dec, 2018, Mr. Mangal Singh was arrested at around 12:00 pm. A FLOBERT ALPHA 420
BLACK pistol was seized from his possession along with a mobile phone. His pulsar bike and black
helmet was also taken into custody by the police. Accused was sent to police custody for 4 days.
The bullet, wallet, mobile of deceased and cctv footage that was seized was sent for forensic
examination.

(MEMORIAL ON BEHALF OF PROSECUTION) 6


Forensic examination was conducted on 24 Jan, 2019 by Dr. Hemant Pathak and it was found that
the 4mm bullet was fired from FLOBERT ALPHA 420 BLACK pistol and the blood on the bullet
matched the sample of the deceased’s blood. Also, wallet containing ID’s of the deceased belonged
to the deceased. Moreover, the mobile of the deceased traced a no. through which threat calls and
text messages were received and it was found that the number belonged to some Mangal Singh. The
CCTV footage sent for forensic examination was also found to be original and non-doctored.
Mr. Mangal Singh is accused of the murder of Mr. Harish Rawat U/S. 302 IPC and S. 25 Arms Act.
The chargesheet was perused and cognisance was taken on 27 Dec, 2018. The case was committed
to public prosecutor by D.S. Bajaj, Addl. CJM, Krishnanagar court on 5th Jan, 2019. That the
charges u/s 302 IPC were framed against the accused, Mangal Singh by S.M. Singh, Sessions
Judge, Lucknow.
That the evidence of the PW’s was taken before the Sessions Judge on 21 Jan, 2019.

Janki Devi - PW-1


Aana Sharma - PW-2
Rahul Gupta - PW-3
Sarita Yadav - PW-4
Amit Kumar - PW-5

All the witnesses have seen the crime happen in front of their eyes and the statement of evidence
attached for reference.
The case is to be heard before the Sessions Judge, Lucknow on 5 Oct, 2019.

(MEMORIAL ON BEHALF OF PROSECUTION) 7


SUMMARY OF ARGUMENTS

ISSUE 1
WHETHER THE TESTIMONY OF THE EYE-WITNESSES SUPPORTED BY THE POST-
MORTEM REPORT IS ENOUGH TO CONVICT THE ACCUSED?
(ADHAR GUPTA)
The testimony of the eye-witnesses supported by the post mortem report is enough ground to
convict the accused for the murder of Mr. Harish Rawat. The oral testimony of PWs is admissible
and they are competent witnesses u/ S 118 IEA. The statements of PWs is corroborated by the post
mortem report as well as the forensic examination and thus acts as conclusive proof.

ISSUE 2
WHETHER THE CASE OF PROSECUTION WAS SUFFICIENTLY ESTABLISHED BY
THE ELECTRONIC EVIDENCE SUPPORTED BY THE FORENSIC REPORT?
(CM ASHISH)
The electronic evidence and the gun recovered from the accused. the evidences produced supports
the prosecution story and forms enough ground/consideration to prove the guilt of accused Mr.
Mangal Singh.

ISSUE 3
WHETHER THERE WAS MOTIVE ON PART OF ACCUSED AND THE ESSENTIALS OF
MURDER FULFILLED?
(VISHWAJEET SINGH)

It can be said that the accused had motive to murder Mr. Harish. All the essentials of murder are
fulfilled in this case. The accused through his conduct leads us to infer that he had intention to
commit the murder of Mr. Harish. Hence, he is liable to be punished for murder.

(MEMORIAL ON BEHALF OF PROSECUTION) 8


ARGUMENTS ADVANCED

ISSUE I
WHETHER THE TESTIMONY OF THE EYE-WITNESSES SUPPORTED BY THE POST-
MORTEM REPORT IS ENOUGH TO CONVICT THE ACCUSED?
Facts under law of Evidence include the factum probandum i.e. the principal fact to be proved and
factum probans, i.e. evidentiary fact from which the principal fact follows immediately or by
inference.1

EYE WITNESSES

It is most respectfully submitted before this Hon’ble court that on 22 Dec, 2018 at around 12:15 pm,
Mr. Harish Rawat was murdered by a man on a black pulsar bike with his gun. He was shot dead in
front of Krishna Nagar Metro Station in front of many people. PW-1 to PW-5 have all witnessed the
murder of Harish Rawat in broad daylight. The evidence of all these eye-witnesses is important u/S
9 IEA as they are a direct evidence which help in identifying the accused. Also, they help explain
that the accused was present at the scene of the crime and he committed it. Also, the testimony of
the eye witness support the fact in issue that whether the murder was caused by the accused. PW-1
is the wife of the deceased and her evidence is of very important nature. In the case of State of
Rajasthan v. Smt. Kalki & Anr2 the court held that “Related is not equivalent to interested witness. A
witness may be called interested only when he or she derives some benefit from the result of a
litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a
natural one and is the only possible eye witness in the circumstances of a case cannot be said to be
interested.” Though they are related/interested witnesses but in the case of Seeman v. State3 the
Supreme Court has held that “the evidence of the witness cannot be discarded merely on the
grounds that he is related witness or the sole witness or both if the same is found credible. The

witness could be related but that does not mean his statement should be rejected in totality. In such a
case, it is the paramount duty of the court to be more to be more careful in the matter of scrutiny of
evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of

1 Andhra S v. Sriramulu, A 1957 AP 130


2 1981 SCC (2) 752.
3 (2005) 11 SCC 142.

(MEMORIAL ON BEHALF OF PROSECUTION) 9


such interested sole witness is worth credence, the same would not be discarded merely on the
grounds that the witness is an interested witness.” Where wife of the deceased was natural witness
and her evidence was corroborated by other evidence, it cannot be discarded.4 In her testimony, she
has clearly stated that she recognised the accused with the help of his bike and did not see his face
as his face was covered with helmet. The murderer also matched the description of the accused.

It was held in Vikram Singh v. State of Punjab that, “In a case of evidence of an eye witness a chain
of circumstances is not required and one good eye-witness is sufficient to record a conviction.”5
Consistent direct evidence of eye-witness is sufficient to prove guilt of the accused.6 Where accused
caused death by firing gun shoots, it is not reasonable to expect that the scared eye-witnesses would
be able to give a meticulous and precise account of details of shots that landed on deceased.7 Here
in the present case, the evidence is reliable and credible.
Now regarding Modes of identification- A person can be identified through the shape of his body,
clothes, gait, manner of walking etc. Identification is possible by face too.8 In the present case, the
PW-2 to PW-5 identified the accused based on his body shape. CCTV had recorded the whole
incident on camera and also, according to the forensic report, CCTV footage is not doctored and so
is an important piece of evidence in this case. It is also important to note that the murderer was on
his bike which was bore the same registration no as that of the accused’s bike. More so, PW-1
recognised the bike of the murderer as that of Mangal. All the PW’s have recognised the accused
through his body shape.
In S.C. Babri’s case, the Supreme court in regard to value of evidence of identification observed
that: “ It is well settled that substantive evidence of the witness is his evidence in the court but when
the accused person is not previously known to the witness concerned then identification of the
accused person by the witness soon after his arrest is of great importance because it furnishes an
assurance that the investigation is proceeding on the right lines in addition to furnishing
corroboration of the evidence to be given by the witness later in court at trial.”9 PW-2 to PW-5 have
all testified in their statements that the physique of the accused matched that of the murderer.

4 Sewaka v. State of M.P., AIR 2002 SC 50 (52-53)


5 Vikram Singh v. State of Punjab, AIR 2010 SC 1007
6 Ganesh Bahadur v. State of of Uttarakhand, 2015 Cri LJ (NOC) 50 (Utr)
7 G. Khan v. State of Bihar, AIR 2004 SC 210 (214)
8 Kedar Singh v. State of Bihar, 1999 CrLJ 601 (SC)
9 Suresh Chandra Bahri vs State Of Bihar, 1994 CrLJ 3271

(MEMORIAL ON BEHALF OF PROSECUTION) 10


“If after a thorough scrutiny there appears to be nothing on record to suspect the testimony of the
identification witnesses, the court ought not to feel shy of basing a conviction on such evidence
alone, because of the bare possibility that there could be honest though mistaken identification.”10
The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is
shown to be untruthful or unreliable in any particular respect and no such thing has been brought up
by the defence. Witnesses solemnly deposing on oath in the witness box during a trial upon a grave
charge of murder must be presumed to act with a full sense of responsibility of the consequences of
what they state.
Further the defence has not denied the statements of PW-1 to PW-5 during the cross-examination
regarding the identification. All the four witnesses except PW-1 uniformly testified that, ‘physique
of accused matches that of murderer’ This testimony of all the four witnesses was not denied by the
defence in the cross-examination. The defence has also not taken any plea of alibi which leads us to
believe that as his bike was present there and the physique of the murderer matched that of the
accused, the accused is the murderer. The Court in the case of Gunjua Manjhi v. State of
Jharkhand11 in relation with Sec. 137 of the IEA has held that a witness should be cross examined
on each and every point. If a party fails to cross examine him/her on a particular point, it would
entail a presumption that party not cross examining the witness had accepted such evidence. The
principle regarding this is that, the part of the statements which is not denied during cross-
examination that part stands admitted. Cross-examination is an acid test to determine the veracity of
the witness.12 Each witness has recognised the accused through his physique and there is no
embellishments.

POST MORTEM REPORT

The post mortem of the deceased was conducted on 22 Dec, 2018 and it was found that the
death of the deceased was caused due to excessive blood loss from heart and chest. The
4mm bullet was found to have pierced through the chest and damaged the chest and heart.
As per the forensic report, the 4mm bullet was fired from FLOBERT ALPHA 420 pistol
which was recovered from the accused. The expert evidence is admissible u/s 45B of IEA
Where in post-mortem report all the injuries received by the deceased were given in detail

10Rameshkumar Soni v. State of Madhya Pradesh, 1997 CrLJ 3418 (MP); See also State of M.P. v. Manka, 1960 MP C
216
11 Gunjua Manjhi v. State of Jharkhand, 2015 Cri LJ 4303.
12 Mohd Hussain v. State (2012) 2 SCC 584.

(MEMORIAL ON BEHALF OF PROSECUTION) 11


and the said injuries received by the deceased correspond with the version of the
prosecution witnesses, there was no reason to disbelieve the post-mortem report.13
In the case of Katarey v. State of U.P., the SC observed, “We take this opportunity of emphasising
the importance of eliciting the opinion of the medical witness, who had examined the injuries of the
victim, more specifically on this point for the proper administration of justice, particularly in a case
where injuries found are forensically of the same species and the ques is whether they have been
caused by single weapon. It is the duty of the prosecution and no less of the court to see that the
alleged weapon for the offence, if available is shown to medical witness and has opinion invited.”14
In cases where injuries are caused by fire arms, the opinion of the ballistic expert is of a

considerable importance and is sufficient to prove the guilt of the accused. The gun which was

recovered from the accused is the same as the gun from which the bullet was fired as per the
forensic report.
Thus, concluding the above submissions it can be said that the testimony of the eye-witnesses
supported by the post mortem report is enough ground to convict the accused for the murder of Mr.
Harish Rawat. The oral testimony of PW’s is admissible are they are competent witnesses u/ S 118
IEA. The statements of PW’s is corroborated by the post mortem report as well as the forensic
examination and thus acts as conclusive proof. Hence, keeping in view the facts mentioned and the
cases decided, the accused is to be convicted for the murder of Mr. Harish Rawat.

13 State of Kant. v. Rapanaika, AIR 2004 SC 4967 (4971)


14 1976 CrLJ 13 at 18; See also Ishwar Singh v. State of U.P., 1976 CrLJ 1883

(MEMORIAL ON BEHALF OF PROSECUTION) 12


ISSUE 2

• Whether the case of prosecution was sufficiently established by the relevant evidences
as supported by the Forensic Report?

"Evidence in its broadest sense includes everything that is used to determine or demonstrate
the truth of an assertion. Giving or procuring evidence is the process of using those things that are
either (a) presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion's
truth. Evidence is the currency by which one fulfills the burden of proof." Lord Kenyon rightly gave
all that is included and is considered as an Evidence by a Court of Law. As per section 3 of The
Indian Evidence Act, "Evidence" can be defined in the following words-

Evidence means and includes-

(1) All the statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under enquiry; such statements are called Oral evidence;

(2) All the documents including electronic records produced for the inspection of the court; such
documents are called documentary evidence;

As per section 102 of Indian Evidence Act, 1872, the onus of proving the issues lies with the
Prosecution. Due to the Cardinal Principle of Criminal Jurisprudence i.e., the Presumption of
Innocence, the prosecution has to prove the guilt of the accused procul dubio rationabiliter
i.e.,beyond any reasonable doubt. It is humbly submitted the Court that the case has direct evidence
which will prove the guilt of the accused beyond reasonable doubt. To discharge this burden the
prosecution has submitted following points.

1. PISTOL AND BULLET SEIZED

It is humbly submitted before the Honorable Court that after filing of an written complaint by
PW-1 which was lodged as FIR no.1693/18 at 12:15 PM on 22rd December, 2018, at Krishna Nagar
Police Station, Investigating officer started investigation. On 23rd Dec, 2018 at around 12 PM, a
FLOBERT ALPHA 420 BLACK pistol was recovered from the accused's possession while making
his arrest from his residence in presence of two witnesses. The Pistol so seized by the Investigating
Officer, Mr. Rajpal Yadav are relevant under section 9 of Indian Evidence Act(hereinafter referred
as IEA)as it supports the inference suggested by the fact in issue. The fact that the gun was found in
the possession of the accused and no rebuttal or justification of this fact has been provided by the
(MEMORIAL ON BEHALF OF PROSECUTION) 13
accused makes the suggestion of prosecution strong. Secondly this is humbly submitted before the
court that the section 9 of evidence act this evidence as it's about the identity of the thing or weapon
used in the offence.

It is also humbly submitted before the Court that the bullet pellet found near the body of the
deceased Mr. Harish Rawat was shot from the same Pistol recovered from the house of the accused
by the IO, as Exhibit P1 Seizure Memo which is a publiic document under section 74 of IEA and
relevant under section 35 of the same act. It is also presumed to be a genuine document under
section 79 of IEA.

"Modern pistols, revolvers, rifles have what are called rifling in their barrels. Rifling consists of
grooves cut or formed in a spiral nature, lengthwise down the barrel of a firearm. Rifling is placed
in the barrels of firearms to impart a spin on the bullets that pass through it. Because bullets are
oblong objects, they must spin in their flight, like a thrown football, to be accurate. Firearms can be
manufactured with any number of lands and grooves in their barrels. The lands are the raised areas
between two grooves. They can also spiral either left or right. Whenever, any bullet is fired through
the barrel of any such firearm, it leaves the impression of such lands and grooves on such bullet.
Therefore, another bullet is fired through such gun by forensic expert to compare the rifling
marks."15 As per the Forensic Report Exhibit P2 given by State Forensic Science Laboratory,
Lucknow,U.P. examined by Dr. Hemant Pathak which clearly shows that the 4mm bullet has been
fired from the Flobert Alfa 420 Black and even the Blood found on the bullet matched the with the
blood sample of deceased.16 These all are relevant facts and are in the form of incriminating
materials/inculpatory evidence which are sufficient for court to find the accused gulty beyond
reasonable ground.17

2. CCTV CAMERA

It is humbly submitted before the honorable Court that a substantial evidence that is a CCTV
camera was installed near the crime scene which is of huge importance and will guide the way to
justice is admissible under section 65B (5) of IEA 1872. which reads as follows:

(5) For the purposes of this section,—

15 State v. Jasbir Chauhan, Cri. A. No. 1472 of 2013.


16 Sushil Sharma v. State (Nct) Of Delhi, Criminal Appeal No.693 OF 2007.
17 Ashish jain v. Makrand singh and ors.

(MEMORIAL ON BEHALF OF PROSECUTION) 14


(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate
form and whether it is so supplied directly or (with or without human intervention) by means of any
appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view
to its being stored or processed for the purposes of those activities by a computer operated
otherwise than in the course of those activities, that information, if duly supplied to that computer,
shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced
by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.—For the purposes of this section any reference to information being derived from
other information shall be a reference to its being derived therefrom by calculation, comparison or
any other process.

As the closed circuit television (CCTV) surveillance becomes employed as a crime control
technique the footage generated by security cameras will turn become a progressively important
source of evidence in criminal proceedings. 18

"In any cases the Court Reason that the CCTV footage constituted the best evidence. Production of
scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act
is of great help to the investigating agency."Anvar P.V vs P.K.Basheer & Ors,19

It is humbly submitted before the court that the video content is substantial piece of evidence as its
authenticity has also been proved by Exhibit P2 forensic report where it has been said that the video
content is not doctored and so there is no editing in that video content and this is relevant as expert
opinion under section 45 of IEA. The Forensic Report is relevant under section 45 of IEA and is
also directly admissible under 293 of Criminal Procedure Code.

Secondly this is humbly submitted before the honourable court that the video content is not
doctored and very well make it clear that the bike is of Mr. Mangal Singh and he used gun to shoot
the victim and this is a directly proving the guilt of the accuse beyond reasonable grounds.

18Thomas Murphy, The Admissibility of CCTV Evidence in Criminal Proceedings, International Review of Law,
Computers & Technology(1999), (4 Oct; 2019) https://www.tandfonline.com/doi/abs/10.1080/13600869955044?
journalCode=cirl20.
19 Civil A. No. 4226 OF 2012.

(MEMORIAL ON BEHALF OF PROSECUTION) 15


“the law, it is said, walk a respectable distance behind science, but courts try to keep abreast. The
criminal is quick to use science to commit ingenious crimes, and so the police and the courts should
be no less innovative; and courts should always encourage the police to do so and admit the
evidence collected by any innovative method. It is axiomatic that CCTV footage does not suffer
such ills and human frailties, and they are indubitably superior to human testimony of facts.20 This
is not the first time when court has admit and relied on the CCTV footage and use it as the good
piece of evidence. In the case of State of M.P. V. Naveen21 Court has admit CCTV footage collected
from various place during investigation and near the place of occurrence

3. CALL RECORDS

It is to be duly noted by the Hon'ble Court that on search and seizure we have found mobile of the
Victim and forensic report clearly mention in parcel No. 3 that the mobile phone contains
threatening phone calls and messages from same number. These Phone Calls are relevant under
section 8 of Indian Evidence Act as it shows the previous conduct of the Accused and the number
(9654332209) from which those threats and messages received has been traced and it found to be
registered in the name of some “Mangal Singh” which in our cases in none other than the accused
itself. In Suresh Kalmadi V CBI22 court take into consideration call detail records to reveal the close
nexus of phone calls and SMS shared between Parties to case and same goes for State v. Arif khan
& ors.23 Thus concluding the above submission it can be said that the evidences produced supports
the prosecution story and forms enough ground/consideration to prove the guilt of accused Mr.
Mangal Singh.

20 K. Ramajayam @ Appu vs The Inspector Of Police, Criminal Appeal No.110 of 2015 .


21 Cri.A. No.5513/2018.
22 Crl.M.C. No.2143/2015.
23 2014 CRL.M.C. 3563/2015.

(MEMORIAL ON BEHALF OF PROSECUTION) 16


ISSUE III

WHETHER THERE WAS MOTIVE ON PART OF ACCUSED AND THE ESSENTIALS OF


MURDER FULFILLED?
F.I.R. when res gestae

If a witness present at the scene of occurrence sees the whole occurrence from beginning to end,
makes cry about the offence being committed when people from vicinity reach, he tells the story of
occurrence and then after some time goes to the police station and makes first information report,
the making of the report, the making of the report is part of the transaction and so it amounts to res
gestae. The fact that some time has elapsed between the occurrence and the report is immaterial24.

In the present case Aana Sharma was present on the very spot of the incidence, witnessed the whole
of the occurrence from her own eyes of the shooting incident between 12:15 p.m. and 12:30 p.m.
and the information was received at 12:40 p.m. on the same day. Hence the first information report
should be admissible under section 6 of the Indian Evidence Act. As there was very minimal time
gap between the occurrence of the alleged crime and the receiving of the information and is forming
the part of the same transaction.

Proving the motive of the accused

Section 8 of the evidence act talks about the fact relevant which shows or constitutes a motive or
preparation for any act in issue is relevant fact.

Motive meaning of a motive is that which moves a man to do a particular act. It is that which is in
the mind of a man which moves him to act. It is that which is in the mind of a man and which
moves him to act. “The common inducements to acts, the desires of revenging some real or fancied
wrong; get rid of rival, or an obnoxious connection, or of escaping from the pressure of pecuniary
or other obligation or burden; of obtaining plunder or other converted object; of preserving
reputation or of gratifying some other selfish or malignant passion.25”

There is hardly any act without a motive. Motive is the moving power which impels one to do an
act. Harish and Mangal singh were business partners. Mangal visited the house of Harish frequently.
But the things did not take too long to turn sour and hostile.

24 Shyam Nandan Singh v. State of Bihar, 1991 Cr.L.J. 3350; Sawal Das v. State of Bihar, AIR 1974 SC 778
25 BATUK LAL, THE LAW OF EVIDENCE 119 (22nd ed. CENTRAL LAW AGENCY 2018) (1990)

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Just a week before the incident of the death occurred, he was getting frequent threatening calls from
Mangal regarding the signing of a business deal which Harish refused to sign. Two days earlier too
Harish got a threatening call from Mangal regarding not signing of the deal and warned of paying
for the repercussions of not signing the deal. These calls from Mangal clearly make the motive of
the murder of Harish visible and provide a strong ground for Mangal to murder Harish.

Existing of a motive for committing a crime is not an absolute requirement of law but it is always a
relevant factor26 .

“It cannot be laid down that the motive may not be very important in cases depending upon direct
evidence whereas motive is very much material only in the case that depends upon circumstantial
evidence. There is no legal warrant to making such a hiatus. Motive is relevant in all criminal cases
weather based on testimony of eye witnesses or circumstantial evidence. The question in this regard
is, weather the prosecution must fail because it failed to prove the motive, would weaken the
prosecution to any perceptible limit. No doubt if the prosecution proves the existence of motive, it
will be well and good for it. Particularly in a case depending on circumstantial evidence for such
motive could then be counted as one of the circumstances27. “

If the evidence on record suggests that sufficient/ necessary motive to commit a crime, it may be
conceived that the accused has committed the same.

Previous and subsequent conduct

A conduct to be relevant under section 8 need not be contemporaneous. It may be antecedent or


subsequent to the fact in issue or relevant fact. In an adoption case deed of adoption found not to be
clinching but as an evidence of subsequent conduct of the parties is relevant. Complaints of the
deceased to the police expressing apprehension of death made two months before death are
admissible28.

Similarly in the present case after getting the call from the accused two days before the happening
of the shooting created an apprehension of some ill happening in the future causing Harish to
become serious and worried about the threat given by the accused. Similar conduct could be seen in

26Algupamdi v. State of Tamil Nadu, AIR 2012 SC 2405


27State of U.P. v. Babu Ram, AIR 2000 SC 1735
28 Alijan Munshi v. State, AIR 1960 Bombay 290

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the wife of accused. It is clear that call of the accused had caused a great fear for their lives in the
minds of the victim as well as his wife.

The conduct of the accused

It has been noted that the accused shot the victim and sped away. The subsequent conduct of the
accused throws light on the fact that the act of the accused was a guilty one and has the intention of
killing the victim. Intention is an act of the will directing an act or a deliberate omission29 .

The facts showing existence of state of mind, or of body or bodily feeling.

The fundamental principle of English Criminal Jurisprudence to use a maxim which has been
familiar to English lawyers for nearly eight hundred years is actus non facit reum nisi mens sit rea.
An act does not make a man guilty without a guilty intention to do the guilty act which is made
penal by the statue or common law. But there is generally no room for the application of this
doctrine in India. The penal statues in India define the offences precisely and contain within
themselves the precise and particular elements that go to make up the offences referred to in those
in those statues. So, in the Indian Penal Code statues where the doctrine of mens rea is intended to
come in operation and a guilty mind is deemed essential for the proof of an offence the statue itself
uses the word like “knowingly”, “willingly”, “fraudulently ”, “negligently” and so on. Such
knowledge can always be brought home by adducing circumstantial evidence. No question of mens
rea arises where the legislature has omitted to prescribe a particular mental condition as an
ingredient of an offense30.

Proof of intention

Whether a man has or not a particular intention is a fact to be inferred from the surrounding
circumstances and from the acts of the persons concerned. A man must be held to intend the
ordinary consequences of his acts, irrespective of his object in such acts, if at the time he knew what
the natural and ordinary consequences would be and that if he does an act which is prime facie
illegal, the fact that he did it with some other object will not make it legal, unless that object would,
in the circumstances make it legal31.

29 Paras Ram v. State, 1970 ALJ 149


30 Harish Chandra v. Emperor, AIR 1947 PC 135
31 Sella Muthu v. Palla Muthu, ILR (1912) 35 Mad 186

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“Section 300 of the Indian Penal Code states that culpable homicide is murder if the death is caused
is done with the intention of causing death or- …”

The accused shot the victim in broad daylight in the presence of several witnesses in the crowded
area of the metro station from a very close range. The normal consequence of such an act is
obviously death and any person would be capable of understanding the normal outcome of the act
committed as such committed by the accused.

Illustration (p) of section 14 of the Indian Evidence Act –

A is tried for a crime.

The fact they said something indicating an intention to commit that particular crime, is relevant.

The fact the accused two days ago called the victim to threaten him to bear the consequences
because of the refusal to sign on the business deal shows that the accused had the intention of the
act done by him two days later.

Section 14 of the Indian Evidence Act provides that the proximity of the subsequent events are
admissible under section 14 to prove the state of mind but previous events are admissible under this
section to prove the state of mind but previous events are more important as showing the influences
which have brought into existence the condition that was at the moment under investigation32.

The English view proximity is important to test the weight of the evidence and not their
admissibility33.

32 Sriniwasamall v. Emperor, AIR 1947 PC 135


33 Rex v. Rhoder, (1889) 10 B 77

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. Convict Mangal Singh for the offence of committing murder under Section 302 of the Indian
Penal Code, 1860.

2. Declare a sentence of imprisonment for life, and also declare a fine as the court may deem fit.

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: Lucknow

Date: October 5, 2019

PUBLIC PROSECUTORS

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