K.K. LUTHRA MEMORIAL MOOT COURT COMPETITION, 2020.

before

K.K. LUTHRA MEMORIAL MOOTCOURT

THE HIGH COURT COMPETITION,
OF EREWHON 2019

before
STATE OF EREWHON ………………………………………….. APPLICANT

V.
THE HIGH COURT OF EREWHON
ELEZABETH BROWN……………………......................RESPONDENT

DIANA WHITE…………………………………………..APPLICANT

V.

ELEZABETH BROWN……………………......................RESPONDENT

M MEMORIAL for APPLICANT

MEMORIAL for APPLICANT

MEMORIAL FOR THE APPLICANT TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................................................

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1
 TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………………..3

STATEMENT OF JURISDICTION…………………………………………………………5

STATEMENT OF FACTS .....................................................................................................6

ISSUES ADVANCED..............................................................................................................9

SUMMARY OF ARGUMENTS.............................................................................................10

WRITTEN PLEADINGS .........................................................................................................12

PRAYER……………………………………………………………………………………....32

MEMORIAL FOR THE APPLICANT

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 INDEX OF AUTHORITIES

Cases

1. M. P. Sharma And Others vs Satish Chandra 1954 AIR 300, 1954 SCR 1077
2. Pooran Mal Etc vs Director Of Inspection ...: 1974 AIR 348, 1974 SCR (2) 704
3. Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri: 1971 AIR 1162, 1971 SCR (1) 399
4. S. Pratap Singh vs The State Of Punjab: 1964 AIR 72, 1964 SCR (4) 733
5. Venkata Reddy And Anr. vs Income-Tax Officer,
6. The State Of Bombay vs Kathi Kalu Oghad And Others:1961 AIR 1808, 1962 SCR (3) 10
7. Dr. Sailendra Nath Sinha And Anr. vs State And Anr.:AIR 1955 Cal 29, 1954 24 CompCas
539 Cal, 1955 CriLJ 790, 59 CWN 1
8. State Of Kerala vs K.K. Sankaran Nair AIR 1960 Ker 392, 1960 CriLJ 1603
9. State Of Mysore vs C.V. Gopala Rao: 1952AIR 1954 Kant 117, AIR 1954 Mys 117
10. Pakhar Singh v. The State, AIR 1958 Punj 294
11. Ram Swarup v. State, AIR 1958 All 119
12. K. N. Mehra vs The State Of Rajasthan:1957 AIR 369, 1957 SCR 623
13. Pyare Lal Bhargava vs State Of Rajasthan: 1963 AIR 1094, 1963 SCR Supl. (1) 689
14. Barindra Kumar Ghose And Ors. vs Emperor: (1910) ILR 37 Cal 467
15. R. M. Malkani vs State Of Maharashtra: 1973 AIR 157, 1973 SCR (2) 417
16. State Of U. P vs Deoman Upadhyaya: 1960 AIR 1125
17. Suvvari Sanyasi Apparao And Anr vs Boddepalli Lakshminarayana : 1962 AIR 586, 1962
SCR Supl. (1) 8
18. V. C. Shukla vs State Through C.B.I: 1980 AIR 962, 1980 SCR (2) 380

19. Ramratan AIR 1965 SC 926 : (1965) 2 Cri LJ 18 (SC): Madaree Chowkeedar( 1965) 3
WR (Cr) 2, 3 ;

20. LaiMohammadk\K 1931 Pat 337 : (1931) 32 Cri LJ 739 (Pat); BburaswgAIR 1935 Sind
115 : (1935) 36 Cri LJ 1310 (Sind)

21. Birla Corporation Ltd. vs Adventz Investments And Holdings 2019 SCC OnLine SC 682

22. Emperor vs Allahdad Khan on 19 March, 1913: (1913) ILR 35 All 358

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Legislation

1. The Constitution of India,1949

2.The Indian Penal Code,1870

3.Indian Evidence Act,1872

4. Code of Criminal Procedure, 1973

Books, Commentaries, Journals

1. R.V Kelkar‟s Criminal Procedural Code

2. The Code of Criminal Procedure 21st Edn, Ratanlal&Dhirajlal

3. Andrew Ashworth, Principles of Criminal Law

4. S.C. Sarkar, The Code of Criminal Procedure

5. Smith & Hogan’s Criminal Law 29 (David Ormerod ed., 13th edn., 2011)

6. K.D. Gaur Textbook on Indian Penal Code

7. The Indian Penal Code, Ratanlal&Dhirajlal

8. M.P. Jain‟s Indian Constitutional Law

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 STATEMENT OF JUSRISDICTION

The appellant approach this Hon’ble High Court of Erewhon under Section 3771 of the CrPC
against the judgment of the District Court of Erewhon. The appellant most humbly and respectfully
submit to the jurisdiction of the Hon’ble Supreme Court of Erewhon.

1
Criminal Procedure Code of 1973.

5
 STATEMENT OF FACTS

1.Diana white and Elizabeth Brown joined the offices of BFG with the former joining it at the
recommendation from the later who was convinced of her abilities and whose father was a partner
in the firm.

2.Elizabeth; well known and acquainted with senior management was thereby given a role in the
strategy team that intended to make a BFG app to chart expansion plans and make its presence in
the digital field through user friendly interface.

3.Despite pooling in substantial resource for that cause the strategy team lagged behind and had to
set a date of June 2019 as a deadline .Most of Elizabeth’s ideas were held to be non viable by the
team. She thus turned to her friend.

4.Diana then working as copy editor in one of BFGs fortnightly magazines disillusioned with
business decided to pseudonymously pursue her talents by publishing series on law cinema and a
set of vigenettes based on her experience as a member of LGBTQ community and also reviewing
obscure movies.

5.On May 19 after a discussion Elizabeth met with Diana while also being hinted at in the text that
Diana had something to discuss with her. Upon reaching her house Elizabeth spend time going
around the place during which she saw stacks marked with vigenette and a post it.She went back
into the room containing them on pretext of going to the bathroom .She was caught peering over
them by Diana who realized she hadn’t told her the way to the bathroom .Diana made an excuse
and moved away.

6.Soon on 1st of June the beta version of BFG app was released on all platforms.Its contents were
same both content and prespective wise(LGBTQ) to the work of Diana and the set of vigenettes
were lauded across by people.

7.Diana upon shock and recommendations from her friend Max filed a complaint for theft against
Elizabeth and following which there was a search and seizure at Elizabeth’s house whereby her

6
phone and other digital devices were seized. The reasoning behind the act was the possibility of
destruction of evidence by her.

8.Diana complied with the search and handed over the digital devices .There was no written
documentary evidence collected that would be of incriminating nature. BFG offices too were
raided and a desktop was seized.

9.Upon forensic analysis released on 15th august it was found that digital devices seized from
Diana’s home were registered in her name but the ones from office weren’t and all of them were
locked requiring the appropriate passwords /biometrics for access and also that the phones camera
could be accessed without unlocking it and showed thumbnail of images last taken which here
appeared to be of printouts with a post it with some markings .On August 30 ,2019 Elizabeth was
called for questioning where she admitted seeing the printouts at Diana’s home but she denied
making copies of the same. She refused to give passwords .She left but was to return the next day
.Upon advice from prosecutors office she was made to give to the police dummy fingerprints which
were used to access her phones which led to the confirmation by Diana that the photographs of
print outs retrieved were Diana’s and were taken without her consent.

10.Chat history revealed that Diana had been willing to share her writings and stories with
Elizabeth .After obtaining duly certified copies a case was filed against by prosecutors office under
section 380 of EPC and also under section 411 of EPC.

11.On September 11 the case was heard and the defence challenged the admissibility of the
evidences procured through illegal means and coercion thereby pleading the exclusion of the
same on grounds of them being excluded for being fruits of poisonous tree .The court held that the
message exchange and chat was not convincing enough to be included in the proceedings and the
prosecutor invoked section 173 and section 207 of CrPc which required only relied upon materials
to be filed .The court agreed to it.

12.The pretrial court excluded fingerprints and all derivative evidences and also held the seizures
not bad for want of warrant and excluded the calls of defence for the inclusion of text messages.
On October 15 before a different judge it was established that on May 19 ,2019 Elizabeth had gone
into Diana’s house and if not for being found she would have moved the papers. She wasn’t

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charged under section 378 as the court found that remembering or taking photograph was not
moving anything .

13.On Novemeber 15,Eelizabeth was found guilty of attempting to commit offence under section
380 . On 17th November she was convicted under section 511 read with section 380 EPC .

14.Aggrieved by the decision Elizabeth decided to challenge the pre trial ruling which excluded
the chat history as well as the trial ruling which convicted her for attempting to commit theft .The
Prosecution also challenged the pre trial ruling which excluded fingerprints and all derivative
evidences and also the final judgement that acquitted Elizabeth from theft .

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 ISSUES ADVANCED

I. State’s appeal against pre-trial ruling

II. State’s appeal against acquittal on section 380 EPC

III. Elizabeth’s appeal against pre-trial ruling

IV. Elizabeth’s appeal against her conviction under section 511 read with 380
of the EPC

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 SUMMARY OF PLEADINGS

[Issue 1] State’s appeal against pre-trial ruling

It is humbly submitted that the present appeal is being filed to challenge the following pre trial
rulings :-

i) exclusion of fingerprints and all derivative evidence

The pretrial court failed to consider the probative value of evidence in contrast to the manner in
which it was obtained . It is most humbly submitted that the doctrine of fruits of poisonous tree
as well as the exclusionary rule of evidence in line with the due procedure model are foreign with
no legal sanctioning in India .In India the probative value of evidence is the overriding factor in
line with crime control model as held by numerous cases which would be expanded in the advance
arguments. The framers of constitution while abreast with the doctrine didn’t find it conducive
enough to be applied in Indian context thereby such a doctrine finds no legal parallel in India .The
fingerprints are vital evidences exclusion of which would render the whole procedure of
incrimination futile which would be a major failure of the justice delivery mechanism if allowed
to be excluded .Through the procurement of fingerprints only it was possible to extract vital
evidences of incriminating nature and thereby delivering justice and retribution in magnitude of
the crime committed. The exclusion negates the magnitude of crime and lets the respondent go
without indictment for the crime which she actually committed.

[Issue 2] State’s appeal against acquittal on section 380

It is humbly submitted before this Honorable court that Elizabeth has committed a theft under
section 380 as the word movable property in section 378 dealing with theft has been replaced by
anything whether animate or inanimate. It is evident from the facts of the proposition that Elizabeth
had dishonestly taken pictures of the documents and printouts without the prior consent of Diana
and had reproduced the same in her App under her own name .Here the moving of picture an
inanimate object by Elizabeth in the form of photograph as per section 378 constitutes theft of an
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inanimate object .Hence the pre trial court erred on its part whilst it held “remembering of content
or taking of a photographs is not movable property under section 378 .

[Issue 3] Elizabeths appeal against pre-trial ruling

It is humbly submitted before this honorable court that there was no suppression of evidence as
the pre trial court had agreed with the prosecution when it invoked section 173 (5) and section
207 which required for filing relied upon materials and copies of the same.

[Issue 4] Elizabeth’s appeal against conviction under section 511 read with 380 of the EPC

It is humbly submitted before this honorable court that by taking out in form of an inanimate object
(in form of photograph of the document) document belonging to Diana Elizabeth not only
attempted the theft but also the act of the appellant have conclusively satisfied the requisite
essential for committing theft under section 378 EPC .

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 WRITTEN PLEADINGS

I. State’s appeal against the exclusion of fingerprints and all derivative evidence.
1. Admissibility of evidences obtained in search and seizure.

Search and seizure are not a new weapon in the armory of those whose duty it is to maintain social
security in its broadest sense. The Process is widely recognized in all civilized countries Our own
'Criminal Law accepted its necessity and usefulness in sections 96 to 103 and section 165 of the
Criminal Procedure, Code. In M. P. Sharma v. Satish Chandra2 the challenge to the power of
issuing a search warrant under section 96 (1) as violative of Article 19 (1) (f) was repelled on the
ground that a power of search and seizure is in any system of jurisprudence an over-riding power
of the State for the protection of social security and that power is necessarily regulated by law. As
pointed out in that case a search by itself is not a restriction on the right to hold and enjoy property
though a seizure is a restriction on the right of possession and enjoyment of the property seized.
That however, is only temporary and for the limited purpose of investigation. Then the Court
proceeds to say "A search and seizure is, therefore, only a temporary interference with the right to
hold the premises searched and the articles seized. Statutory regulation in this behalf is necessary
and reasonable restriction cannot per se be considered to be unconstitutional. The damage, if any,
caused by such temporary interference if found to be in excess of legal authority is a matter for
redress in other proceedings. We are unable to see how any question of violation of article
19(1)(f) is involved in this case in respect of the warrants in question which purport to be under
the first alternative of section 96(1) of the Criminal Procedure Code-"

A compelled production of incriminating documents by a person against whom a First Information

Report has been made is testimonial compulsion within the meaning of art. 20(3)of the

2
M. P. Sharma And Others vs Satish Chandra 1954 AIR 300, 1954 SCR 1077

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Constitution. But a search and seizure of a document under the provisions of as. 94 and 94 of
the Code of Criminal Procedure is not a compelled production thereof within the meaning of
art. 20 (3) and hence does not offend the said Article.

A power of search and seizure is, in any system of jurisprudence, an overriding power
of the State for the protection of social security and that power is necessarily regulated by
law. When the Constitution makers have thought fit not to subject such regulation to
constitutional limitations by recognition of the fundamental right to privacy, analogous
to the American Fourth Amendment, there is no justification for importing into it, a
totally different fundamental right by some process of strained construction.
The claims of Elizabeth being self incriminated as raised by the defence cousel and agreed
too by the pre trial court judge by citing article 20 (3)of the Indian constitution which provides
protection against being compelled to produce self incriminatory evidence against oneself has
been refuted in numerous cases dealt with by the honourable apex court .It has been held in
MP Sharma vs Satish Chandra that “there is no basis for the assumption that a search or
seizure of a thing or document is itself to be treated as compelled production of the same .A
notice to produce is addressed to the party, concerned and his production in compliance
therewith constitutes a testimonial act by him within the meaning of article 20(3).But search
warrant is addressed to an officer of the government generally a police officer .Neither the
search nor the seizures are acts of the occupier of the searched premises .They are acts of
another to which he is obliged to submit and are therefore not his testimonial acts in any sense
..” . As in this case Elizabeth has not been compelled to produce evidences instead police
raided her house and sieged her phone and laptops in which photos of the alleged printouts
had been taken therefore it cannot be claimed by the defense counsel that she was compelled
to self incriminate herself.
In Barindra Kumar Ghose and Others Vs. Emperor3 the learned Chief Justice Sir
Lawrence Jenkins says For without in any way countenancing disregard of the provisions
prescribed by the Code, I hold that what would otherwise be relevant does not become

3
Barindra Kumar Ghose And Ors. vs Emperor: (1910) ILR 37 Cal 467

13
 irrelevant because it was discovered in the course of a search in which those provisions were
disregarded.

2. No legality of the doctrine ‘fruits of the poisonous tree’

The exclusion of fingerprints and derivative evidences has no judicial doctrines validating
the same.While it has been declared by the pre trial court ruling that the search and seizures
were illegal therefore all evidences procured by such an act was illegal after being claimed
to be fruits of poisonous tree by defense counsel the same does not have any legal
sanctioning in India .

The Indian Evidence Act, which like many statutes is based on English law, has an entire chapter
dedicated to the relevancy of facts, which specifies that the primary criterion for determining the
admissibility of evidence in Indian courts is its relevance. Hence, as things stand today, source is
not what takes priority.

The Supreme Court of India in case of RM Malkani v state of Maharastra4 decisively considered
the admissibility of illegally obtained evidence in 1973, whilst deliberating on the issue whether
audio recordings of a telephone call would be admissible. It was argued that admissibility of the
recorded evidence offended Articles 20(3) and 21 of the Constitution, and that the manner of
acquiring the tape-recorded conversation did not keep with the procedure established by law.
However, the appellant's conversation was voluntary, and was not extracted under duress or
compulsion. This, the Court held, rendered the evidence of such conversation admissible.

Relying on an English decision, the Court noted that, “it matters not how you get it if you steal it
even, it would be admissible in evidence.” So long it is not tainted by an inadmissible confession
of guilt evidence, even if illegally obtained, is admissible. While passing its decision the Court
also cited its dicta in another case and noted that “a document which was procured by improper or

4
R. M. Malkani vs State Of Maharashtra: 1973 AIR 157, 1973 SCR (2) 417
14
even by illegal means could not bar its admissibility provided its relevance and genuineness were
proved.”

The reasoning of defence counsel that such procurement of evidences was illegal is flawed as there
is clear provision in CrPc specifically section 165 which permits the investigating police officers
to raid and search any house without any prior warrant being issued by the magistrate if there is a
possibility of evidence being effaced by the defendant if the officer feels such a search or raid is
indispensable to garner reliable evidence for effective investigation. If such a prompt search and
seizure had not been conducted there would have been an imminent and grave possibility of
destruction of evidence by the accused in this case and had she been alerted that such a search or
seizure was to take place she would have destroyed all the evidences that had later been derived
from her phone which would have then absolved her from her offences .

It is humbly submitted before this honorable court that court in case of Pooran Mal V. Director
of Inspection5 refuted the viability of this doctrine as it held , that seizure of books of account
and other documents which were afterwards found to be not relevant, along with the documents
relevant for the enquiry, does not make the search and seizure illegal. It may at the most be an
irregularity.In this case,it has been held by the Constitution Bench that even in case of illegal
search and seizure, the documents obtained cannot be shut out from consideration as long as they
are relevant to the matters in issue.
The Constitution Bench also noted that no provision of the Act was challenged as violating the
Constitution and the Act considered relevance as the only test of admissibility. In fact, the
Constitution Bench authoritatively stated that it was not open to them to strain the language of our
Constitution, because some Judges of the “American Supreme Court have spelt out certain

constitutional protections from the provisions of the American Constitution.” The Bench
concluded by noting “neither by invoking the spirit of our Constitution nor by a strained
construction of any of the fundamental rights can we spell out the exclusion of evidence obtained
on an illegal search.”

5
Pooran Mal Etc vs Director Of Inspection ...: 1974 AIR 348, 1974 SCR (2) 704

15
Applying the above, the Supreme Court most recently while hearing a petition on Rafale deal6
upheld that evidence illegally obtained is not liable to be shut out and observed that every detail
should be placed before it to examine the guilt of an accused and more importantly to reach a just
conclusion.
Courts in India and in England have consistently refused to exclude relevant evidence merely on
the ground that it is obtained by illegal search or seizure. Where the test of admissibility of
evidence lies in relevancy, unless there is an express or implied prohibition in the Constitution
or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out.
In Emperor V. Allahdad Khan7 , the Superintendent of Police and a Sub-Inspector searched the
house of a person suspected of being in illicit possession of excisable articles and such articles
were found in the house searched. It was held that the conviction of the owner of the house under
section 63 of the United Provinces Excise Act, 1910, was not rendered invalid by the fact that no
warrant had been issued for the search, although it was presumably the intention of the legislature
that in a case under section 63, where it was necessary to search a house, a search warrant should
be obtained beforehand.
3.Taking of fingerprints for comparison are not evidences per se for incriminating the accused
The Kerala High Court in the case of State of Kerala v. K.K. Sankaran Nair8. In that case, Ansari
C. J., who delivered the opinion of the Court, has made reference to and examined in detail the
pronouncements of the different High Courts. Ultimately he came to the conclusion that the
decision of this Court in Sharma's Case (2) also covered the case of a specimen handwriting given
by an accused person, under compulsion. "To be a witness" may be equivalent to "furnishing
evidence" in the sense of making oral or written statements, but not in the larger sense of the
expression so as to include giving of thumb impression or impression of palm or foot or fingers or
specimen writing or exposing a part of the body by an accused person for purpose of identification.
"Furnishing evidence" in the latter sense could not have been within the contemplation of the
Constitution-makers for the simple reason that-though they may have intended to protect an
accused person from the hazards of self- incrimination, in the light of the English Law on the

6
Manohar Lal Sharma v. Narendra Damodar Das Modi and others 2018 SCC OnLine SC 1920
7
Emperor vs Allahdad Khan on 19 March, 1913: (1913) ILR 35 All 358
8
State Of Kerala vs K.K. Sankaran Nair AIR 1960 Ker 392, 1960 CriLJ 1603

16
subject-they could not have intended to put obstacles in the way of efficient and effective
investigation into crime and of bringing criminals to justice. The taking of impressions or parts of
the body of an accused person very often becomes necessary to help the investigation of a crime.
It is as much necessary to protect an accused person against being compelled to incriminate
himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders
to justice. Further more it must be assumed that the Constitution-makers were aware of the existing
law, for example, s.73 of the Evidence Act or sec 5 and 6 of the Identification of prisoners Act
(XXXIII of 1920).Section 5 authorises a Magistrate to direct any person to allow his
measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of
any investigation or proceeding under the Code of Criminal Procedure to do so Measurements'
include finger impressions and foot-print impressions. If any such person who is directed by a
Magistrate, under s. 5 of the Act, to allow his measurements or photographs to be taken resists or
refuses to allow the taking of the measurements or photographs, it has been declared lawful by s.
6 to use all necessary means to secure the taking of the required measurements or photographs.
Similarly, s.73 of the Evidence Act authorizes the Court to permit the taking of finger impression
or a specimen handwriting or signature of a person present in Court, if necessary for the purpose
of comparison. It is well-established that cl.(3) of Art.20 is directed against self-incrimination by
an accused person. Self-incrimination must mean conveying information based upon the personal
knowledge of the person giving the information and cannot include merely the mechanical process
of producing documents in court which may throw a light on any of the points in controversy, but
which do not contain any statement of the accused based on his personal knowledge. For example,
the accused person may be in possession of a document which is in his writing or which contains
his signature or his thumb impression. The production of such a document, with a view to
comparison of the writing
or the signature or the impression, is not the statement of an accused person, which can be said to
be of the nature of a personal testimony. When an accused person is called upon by the Court or
any other authority holding an investigation to give his finger impression or signature or a
specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'.
The giving of a "personal testimony' must depend upon his volition. He can make any kind of
statement or may refuse to make any statement. But his finger impressions or his handwriting, in
spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic

17
character. Thus, the giving of finger impressions or of specimen writing or of signatures by an
accused person, though it may amount to furnishing evidence in the larger sense, is not included
within the expression to be a witness'. That is why it must be held that by giving these impressions
or specimen handwriting, the accused person does not furnish evidence against himself, So when
an accused person iscompelled to give a specimen handwriting or impressions of his finger,palm
or foot, it may be said that he has been compelled to be a witness ; it cannot however be said that
he has been compelled to be a witness against himself.

The Allahabad High Court in Ram Swarup v. State9, has held that writing obtained by the Court
from the accused under Section 73, would not come within the expression 'evidence' as it would
not be a document produced for the inspection of the Court and that an order directing an accused
to furnish specimen writing under Section 73, Evidence Act, would not be hit by the provisions
of Article 20 (3).

It has been held in State v. C. V. Gopala Rao10, that the Court can direct the accused to give his
writing in Court for the purposes of comparison by the Handwriting Expert and make such use of
it as the Court is entitled to, and In re, Govinda Reddy, AIR 1958 Mys 150, the learned Judges
observed:"Even if it is assumed that the Sub Inspector of Police and the Daffedar compelled the
appellants to give their thumb impressions or forcibly took their impressions on the sheets of paper
during the course of the investigation, in our opinion, it is not hit by Article 20 (3) of the
Constitution of India since it does not amount to testimonial compulsion".

Tekchand J., in Pakhar Singh v. The State11, has held that taking thumb impression of" the
accused in Court by the Magistrate under his direction, was not in contravention of Article 20 (3),
and the learned Judge observes:-"The true scope of the Constitutional inhibition seems to me to

9
Ram Swarup v. State, AIR 1958 All 119

10
State Of Mysore vs C.V. Gopala Rao: 1952AIR 1954 Kant 117, AIR 1954 Mys 117

11
Pakhar Singh v. The State, AIR 1958 Punj 294

18
prohibit compulsion in the matter of testifying either by word of mouth or in writing. What is
forbidden is the use of force in the process of disclosure by oral statements or by written words of
testimonial character. The danger, prevention of which the Constitution visualises, is the
interference with the volitional faculties of a person so that he may not be terrified into making
depositions as a witness."

The Court in the case of Sailendra Nath Sinha v. The State12 , which had laid down that a mere
direction under s.73 of the Evidence Act to a person accused of an offence to give his specimen
writing did not come within the prohibition of Art. 20 (3) of the Constitution.

Section 27 in The Indian Evidence Act, 1872

“ How much of information received from accused may be proved.—Provided that, when any fact
is deposed to as discovered in consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered, may be proved”.

The question whether s. 27 of the Evidence Act was unconstitutional because it offended Art.
14 of the Constitution was considered by this court in the, case of State of U.P v.Deomen
Upadhyaya13. It was held by this Court that s. 27 of the Evidence Act did not offend Art. 14 of
the Constitution and was, therefore, intra vires. But the question whether it was unconstitutional
because it contravened the provisions of el. (3) of Art. 20 was not considered in that case. That
question may, therefore be treated as an open one. The question has been raised in one of the cases
before us and has, therefore, to be decided. The information given by an accused person to,, a
police. officer leading to the discovery of a fact which may or may not prove incriminatory has
been made admissible in evidence by that Section. If it is not incriminatory of the person giving
the information, the question does not arise. It can arise only when it is of an incriminatory
character so far as the giver of the information is concerned. If the self- incriminatory information
has been given by an accused person without any threat, that will be admissible in evidence and

12
Dr. Sailendra Nath Sinha And Anr. vs State And Anr.:AIR 1955 Cal 29, 1954 24 CompCas 539
Cal, 1955 CriLJ 790, 59 CWN 1

13
State Of U. P vs Deoman Upadhyaya: 1960 AIR 1125
19
that will not be hit by the provisions of el. (3) of Art. 20 of the Constitution for the reason that
there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence
Act14 are not within the prohibition aforesaid, unless compulsion has been used in obtaining the
information.

Section 73 of the Indian Evidence Act15 empowers the court to, obtain specimen writing or
signature and finger impressions of an accused person for purposes of Comparison. Sections 5
and 6 of the Identification of Prisoners Act empower a Magistrate to obtain the photograph
or measurements of an accused person. Section 27 of the IndianEvidence Act permits the reception
in evidence of statements made by an accused person in police custody which lead to a discovery.
It was contended by the accused persons that the obtaining of evidence in any of these ways
amounted to compelling the person accused of an offence "to be a witness against himself" in
contravention of Art. 20(3) of the Constitution.It was further contended that it was implicitly
the fact that the accused was in police custody when' the specimen signatures or thumb impressions
etc. were obtained that compulsion was used. It was held in case of state of Bombay v. Kathi Kalu
Oghad 16that there was no infringement of Art. 20(3) of the Constitution in compelling an accused
person to give his specimen handwriting or signature, or impressions of his thumb, fingers,
palm or foot to the investigating officer or under orders of a court for the purposes of
comparison.Held, further, that the provisions of s. 27 of the Indian Evidence Act did not offend
Art. 20(3) unless compulsion was used in obtaining the information.Compulsion was not inherent
in the receipt of information from an accused person in the custody of a lice officer; it will
be a question of fact in each case to be determined by the court on the evidence before it whether
compulsion had been used in obtaining the information.

The contention of the defence counsel that her client was coerced into giving fingerprints for
unlocking the phone therefore she shall have protection against self incrimation is in contrast with
rulings by the supreme courts in case of State of Bombay vs Kathi kalu Oghad whereby the court
noted that fingerprints or handwriting samples did not themselves incriminate an accused .It was

14 Indian Evidence Act,1872

15 Ibid.
16
The State Of Bombay vs Kathi Kalu Oghad And Others:1961 AIR 1808, 1962 SCR (3) 10

20
only when they were matched against say , fingerprint found at the scene of crime or a forged
document with the accused persons signature that they became salient as evidence .the concurring
and partially dissenting opinions in kathi kalu deepened this argument by noting that even if it
could be said that finger prints or handwriting sample fell within the definition of being a witness
, the individual was not being compelled to become a witness against himself this was because as
reasoned above , it was not the sample that incriminated him but the fact that the sample was
successfully matched with another piece of evidence .

As Elizabeths fingerprints here were merely taken to obtain photos from her phone to compare the
same with the original printouts obtained by the police through Diana therefore merely taking of
fingerprints doesn’t amount to be self incriminatory evidence.Morever it was necessary and
rational to gain access to the phone which could only be done through procurement of elizabeths
fingerprints as the thumbnail depiction of the last picture taken clearly appeared to be of a printout
with a post it marking on top which was later in the process of investigation found to be the same
as that of the copies submitted by Diana to the police thereby proving without any doubt that
Elizabeth had taken the photographs of the printouts without her consent and published the same
as her ideas in the beta version of the app which was launched.

II. Elizabeth’s appeal against acquittal on 380

1. Dishonest Intention on part of Elizabeth

Theft is defined in a. 378 of the Indian Penal Code as follows:

" Whoever, intending to take dishonestly any movable property out of the possession of any' person
without that person's consent, moves that property in order to such taking, is said to commit theft.
"

Commission of theft, therefore, consists in

21
(1) moving a movable property of a person out of his possession without his consent,

(2) the moving being in order to the taking of the property with a dishonest intention.

Thus, (1) the absence - of the person's consent at the time of moving, and

(2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of
the offence of theft. In the Courts below a contention was raised, which has also been pressed here,
that in the circumstances of this case there was implied consent to the moving of the aircraft
inasmuch as the appellant was a cadet who, in the normal course, would be allowed to fly in an
aircraft for purposes of training. It is quite clear, however, that the taking out of the aircraft in the
present case had no relation to any such training. It was in an aircraft different from that which
was intended for the appellant's training course for the day. It was taken out without the authority
of the Flight Commander and, before the appointed time, in the company of a person like Phillips
who, having been discharged, could not be allowed to fly in the aircraft. The flight was persisted
in, in spite of signals to, return back when the unauthorised nature of the flight was discovered. It
is impossible to imply consent in such a situation. The main contention of the learned counsel for
the appellant, however, is that there is no proof in this case of any dishonest intention, much less
of such an intention at the time when the flight was started. It is rightly pointed out that since the
definition of theft requires that the moving of the property is to be in order to such taking, " such
" meaning " intending to take dishonestly ", the very moving out must be with the dishonest
intention. It is accordingly necessary to consider what " dishonest " intention consists of under the
Indian Penal Code. Section 24 of the Code says that " whoever does anything with the intention of
causing wrongful gain to one person or wrongful loss to another person is said to do that thing
dishonestly". Section 23 of the Code says as follows:

 Wrongful gain' is gain by unlawful means of property to which the person gaining is not
legally entitled.
 'Wrongful loss' is the loss by unlawful means of property to which the person losing it is
legally entitled.

A person is said to gain wrongfully when such person retains wrongfully, as well as when such
person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully
kept out of any property, as well as when such person is wrongfully deprived of property. " Taking

22
these two definitions together, a person can be said to have dishonest intention if in taking the
property it is his intention to cause gain, by unlawful means, of the property to which the person
so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the
person so losing is legally entitled.

It is further clear from the definition that the gain or loss contemplated need not be a total
acquisition or a total deprivation but it is enough if it is a temporary retention of property by the
person wrongfully gaining or a temporary " keeping out " of property from the person legally
entitled.

The respondent was made aware of the fact that the appellant had been writing stories and
vigenettes as mentioned under statement of facts paragraph 16 that Diana willingly told Elizabeth
about her stories and later thanked her for reading them as well .Then upon invitation as mentioned
in paragraph 7 of statement of facts of the proposition elizabeth spend some time going around the
place and upon coming across a stack of papers with marking of vigenettes upon it returned to peer
over the same after tea under the pretext of going to the bathroom and upon being found out by
Diana she made excuses and proceeded to the bathroom .This shows a clear dishonest intention
whereby the respondent being aware of the material facts of the documents wanted to steal them
in an inanimate form and move the possessions away as is it evident that the same was replicated
in her works for the app later which were entirely based on dianas work.

In the present case there can be no reasonable doubt that taking of the photographs of printouts by
the Respondent for the unauthorized publication has in fact given the respondent the temporary
use of the information contained in the documents for her own purpose and has temporarily
deprived the owner of using them , viz., the Appellant, of its legitimate use for its purposes, i.e.,
the use of this document for publishing the same by her own name. Such use being unauthorised
was clearly a gain or loss by unlawful means. Further, the unlawful aspect is emphasised by the
fact that the same document and information contained in them was in an unauthorized manner
replicated in the app that was released where she published a set of vigenettes under her own name
contents of which were derived from the work of the diana. Therefore it is a clear case of theft
being commited as stated under section 378 of the ipc .

23
In case of Pyare Lal Bhargava v. State of Rajasthan17 the court held that ………To commit
theft, one need not take movable property permanently out of the possession of another with the
intention not to return it to him. It would satisfy the definition if he took any movable property out
of the possession of another person though he intended to return it later on……..”. In the light of
the ratio laid down in Pyare Lal Bhargava, temporary removal of original documents for the
purpose of replicating the information contained in them in some other medium would thus fulfill
the requirement of “moving” of property which is the actus reus of the offence of theft as defined
under Section 378 IPC.

Information contained in a document, if replicated, can be the subject of theft and can result in
wrongful loss, even though the original document was only temporarily removed from its lawful
custody for the purpose of extracting the information contained therein.

In case of K.N. Mehra vs. State of Rajasthan18, this Court held that gain or loss contemplated
need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention
of property by the person wrongfully gaining or a temporary keeping out of property from person
legally entitled.

In case of Birla Corporation Ltd. V. Advent Investmenst and Holdings Ltd.19,the Supreme
Court held that One of the foremost components of theft is that the subject matter of the theft needs
to be a “moveable property”. “Moveable property” is defined in Section 22 IPC which includes a
corporeal property of every description. It is beyond doubt that a document is a “moveable
property” within the meaning of Section 22 IPC which can be the subject matter of theft. A
“document” is a “corporeal property”. A thing is “corporeal” if it has a body, material and a
physical presence. As per Section 29 IPC, “Document” denotes “any matter expressed or described
upon any substance by means of letters, figures or marks or by more than one of those means,
intended to be used, or which may be used as evidence of that matter”. The first Explanation
to Section 29 IPC provides that it is immaterial by what means or upon what substance these are

17
Pyare Lal Bhargava vs State Of Rajasthan: 1963 AIR 1094, 1963 SCR Supl. (1) 689

18
K. N. Mehra vs The State Of Rajasthan:1957 AIR 369, 1957 SCR 623

19
Birla Corporation Ltd. vs Adventz Investments And Holdings 2019 SCC OnLine SC 682

24
formed. This definition would include within its ambit photocopy of a document. As per
Explanation No.2 of Section 29 IPC, letters, figures or marks shall be deemed to be expressed by
such letters, figures or marks within the meaning of the Section. Such letters, figures or marks thus
have a material and physical presence. Therefore, it can also be inferred that the said information
would be deemed to fall within the purview of “Document” – a corporeal property. The documents
and the replication of the documents and the contents thereon have physical presence and therefore,
are certainly “corporeal property” and the same can be the subject matter of theft.

III. Elizabeth’s appeal against pre trial ruling

It is humbly submitted before the honourable court that Elizabeths appeal challenging the pre trial
ruling and arguing that the suppression of evidence by the prosecution vitiated the trial is not based
on any sound legal principle or reasoning and lacks exonerative value .Evidence as defined under
section 3 of the Indian evidence act Evidence means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation
to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court], such
documents are called documentary evidence. “Proved” .—A fact is said to be proved when, after
considering the matters before it, the Court either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it exists. “Disproved”. — A fact is said to be disproved when, after considering
the matters before it, the Court either believes that it does not exist, or considers its non-existence
so probable that a prudent man ought, under the circumstances of the particular case, to act upon
the supposition that it does not exist. “ Not proved”. — A fact is said not to be proved when it is
neither proved nor disproved.

Evidence thus is a body of facts indicating whether a belief or proposition is valid and here clearly
the evidence being claimed to have been excluded in form of willful exchanges of stories on part
of diana to Elizabeth on messages does no good in absolving Elizabeth of theft .Thus it cannot be
considered fit enough to be admitted as it neither mitigates the previous courts ruling of not
considering the same nor does it call for the prosecutors to have included it nor does it negate any
of the crime which Elizabeth committed. It was neither related to fact in issue which has been

25
defined One fact is said to be relevant to another when the one is connected with the other in any
of the ways referred to in the provisions of this Act relating to the relevancy of facts. “Facts in
issue”. —The expression “facts in issue” means and includes— any fact from which, either by
itself or in connection with other facts, the existence, non-existence, nature, or extent of any right,
liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.— Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer
to such issue, is a fact in issue.Here the fact that Diana had shared her works to Elizabeth does in
no way imply that she gave consent to her to move the documents in an inanimate form or to
reproduce the works in her own name ;on the contrary her actions do constitute a theft .Thus the
assertion by the appellant regarding exclusion of evidence holds no merit of any kind as it lacks
substance and evidentiary value as it is by no manner a relevant fact under section 3 nor is it even
related remotely to the facts in issue which has been defined under section 3 .They are but a meek
attempt by the appellant to put a smoke screen and mitigate the seriousness of the crime that was
committed.

Section 136 of the Indian evidence act does allow the judge to decide as to admissibility of an
evidence but the same act speaks about relevancy of the alleged fact with relation to the fact in
issue . section 136 reads as Judge to decide as to admissibility of evidence.—When either party
proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence
in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the
evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact
proposed to be proved is one of which evidence is admissible only upon proof of some other fact,
such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless
the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If
the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge
may, in his discretion, either permit evidence of the first fact to be given before the second fact is
proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Cleary in this case the incrimination of Elizabeth for crime of theft and her being told the stories
are not at all related or any ways do they undermine dishonest intention or the commissioned crime
on part of Diana her acts in entirety do satisfy all the essentials for the crime of theft under section
378 EPC. The appellant thus through claims of exclusion of evidence is undermining the judicial

26
proceedings by reducing the severity of nuances involved and misleading it in a direction by
attempting to negate incrimination resulting from her acts through false claims.

Also under section 170crpc which deal with Cases to be sent to Magistrate, when evidence is
sufficient.

(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police
station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall
forward the accused under custody to a Magistrate empowered to take cognizance of the offence
upon a police report and to try the accused or commit him for trial, or, if the offence is bailable
and the accused is able to give security, shall take security from him for his appearance before
such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until
otherwise directed.

And also under section 173 (5) of CrPc

(5) When such report is in respect of a case to which section 170 applies, the police officer shall
forward to the Magistrate alongwith the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than
those already sent to the Magistrate during investigation;

(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes
to examine as its witnesses.

Thus in light of these two sections the prosecution merely followed statutory sanctioning while
including only relied upon materials for being filed in the court of law as it has to rely upon only
facts which are related and essential for incriminating the accused for the crime. It is reasonable
for the prosecution to rely only on relevant facts in light of just, fair and expeditious deliverance
of justice.

27
IV. Elizabeth’s appeal against her conviction under section 380 read with sec
511.

This court in Criminal Appeal in Sanyasi Apparao v. Boddepallin Laksminarayana20 ,

observed as follows: It is settled law that where a bond fide claim of right exists, it can be a
good defence to a prosecution for theft. An act does not amount to theft, unless there be not
only no legal right but no appearance of colour of a legal right. By the expression "colour of a
legal right is meant not a false pretence but a fair pretence, not a complete absence of claim
but a bonafide claim, however weak.

The claim here on part of Diana is a bonafide one as her legal rights have been violated and
theft is inferable both prima facia as well as circumstancially . It is beyond reasonable doubt
that the app and its contents were derived from dianas works after stealing and moving her
property in an inanimate manner.

CIRCUMSTANTIAL EVIDENCE SUGGESTS THAT ELIZABETH IS GUILTY OF THEFT.

To prove the mens rea levels of “purposely” or “knowingly,” the prosecution must usually resort
to circumstantial evidence. As pointed out by Fazal Ali, J, in V.C. Shukla vs. State21 in most cases
it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even
from circumstances giving rise to a conclusive or irresistible inference of an agreement between
two or more persons to commit an offence.

In the famous case of Bodh Raj V. State of Jammu & Kashmir22 , Court held that circumstantial
evidence can be a sole basis for conviction provided the following conditions are fully satisfied.
Them being: The circumstances from which guilt is established must be fully proved; That all the
facts must be consistent with the hypothesis of the guilt of the accused; That the circumstances

20
Boddepalli Lakshminarayana vs Suvvari Sanyasi Appa Rao And Ors.: AIR 1959 AP 530, 1959
CriLJ 1141

21
V. C. Shukla vs State: 1980 AIR 962, 1980 SCR (2) 380

22
2017 SCC OnLine J&K 928

28
must be of a conclusive nature and tendency. It is not necessary that proof beyond reasonable doubt
should be perfect in all criminal cases. Circumstantial evidence consists of evidence of various
other facts which are so closely associated with the fact in issue that taken together they form a
chain of circumstances from which the existence of the principal fact can be legally inferred or
presumed82. A single circumstance when strong, weighty and conclusive if not explained may be
sufficient to record the conviction of the accused .

That as suggested in the facts of the proposition a clear chain of events has been established in a
sequential manner. Elizabeth upon being aware of dianas stories agreed to meet her and she on her
part refused to tell her about the app she was working on .It is worth noting that all this while
Elizabeth had been seeking approval of stategy team related to ideas of app but was being turned
down which in place was the reason that she turned to her friend. Upon visiting her home it is
worth pointing out before the honourable court that Elizabeth spent a lots of time going around
places and keenly observing .Then after tea she made a pretext of bathroom and was caught peering
on papers with a phone in her hand .She made an excuse and moved away .Later the same contents
of the documents she was peering over was replicated in the content of the app. Thus the
circumstances and the chain of events prove without any doubt that being aware of contents
Elizabeth came to dianas house in dire need of ideas and moved about the place with an intention
to know of the location of documents and then lied about her needing to use the bathroom so as to
somehow move them in animate or inanimate form which later was found to be the case when the
images were corroborated with dianas documents. Dishonest Intention can be established without
any doubt through the events that followed.

Elizabeth has committed theft and not merely attempted theft

An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the
commission of the offence, unless something, which the doer of the act neither foresaw nor
intended, happens to prevent this. An attempt may be described to be an act done in part execution
of a criminal design, amounting to more than mere preparation, but falling short of actual
consummation, and, possessing, except for failure to consummate, all the elements of the
substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling
short of, its actual commission or consummation/completion. It may consequently be defined as
that which if not prevented would have resulted in the full consummation of the act attempted. The

29
illustrations given in Section 511 clearly show the legislative intention to make a difference
between the cases of a mere preparation and an attempt.

Held, that under s. 511 of the Indian Penal Code a person commits the offence of attempting to
commit a particular offence, when he intends to commit that particular offence and, having
made preparations and with the intention to commit that offence, does an act towards its
commission; such an act need not be the penultimate act towards the commission of that
offence but must be an act during the course of committing such offence. It is not necessary
for the offence under s. 511 that the transaction commenced must end in the crime or offence, if
not interrupted. In the present case, the preparation was complete when the appellant had
prepared the application for the purpose of submission to the University, and the moment he
dispatched it, he entered the realm of attempting to commit the offence of cheating.
But here not only was there an attempt but a completion of all the ingredients of the crime of theft
as clearly the photograph taken lies within the definition of theft under epc 378 which includes
animate and inanimate object .The photograph here is an inanimate object .

Intending to take Dishonestly

Intention is the gist of the offence. It is the intention of the taker which must determine whether
the taking or moving of a thing is theft. The intention to take dishonestly exists when the taker
intends to cause wrongful gain to one person or wrongful loss to another person23. Where an
aircraft was taken out of India to Pakistan without the permission of the Government to whom it
belong it was considered to cause loss to the Government and the act of the accused was held to
be a theft24. Where, the accused, acting bona fide in the interest of his employers, finding a party
of fishermen poaching on his master’s fisheries took charge of the nets, and retained possession of
them, pending the orders of his employers, it was held that the accused was not guilty of theft25..

23
Ramratan AIR 1965 SC 926 : (1965) 2 Cri LJ 18 (SC): Madaree Chowkeedar( 1965) 3 WR (Cr) 2, 3 ;
LaiMohammadk\K 1931 Pat 337 : (1931) 32 Cri LJ 739 (Pat); BburaswgAIR 1935 Sind 115 : (1935) 36 Cri LJ 1310
(Sind)
24
' Mehra K N AIR 1957 SC 369 : 1957 Cri LJ 552 (SC) : (1957) SCR 623.
25
Nobin ChunderHolder( \866) 6 WR (Cr) 79. See SheomeshurRai(im) 8 AWN 97.

30
Where a respectable person pinched away the cycle of another person, as his own cycle at the time
was missing, and brought it back and there was no criminal intention and he did not intend by his
act to cause wrongful gain to himself, it was held that his act did not amount to theft.26

Sucha Singh vs. State of Punjab27

"It is pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of
its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply
to cases where the prosecution has succeeded in proving facts for which a reasonable inference
can be drawn regarding the existence of certain other facts, unless the accused by virtue of special
knowledge regarding such facts failed to offer any explanation which might drive the court to draw
a different inference"

26
RameshwarSingh (1936) 37 Cri LJ 456 : (1936) 12 Luck 92.
27
(2001) 4 SCC 375 at page 381:

31
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this honourable court may be pleased to declare that

-I-

The evidences which had been excluded by the pre trial court be included .

- II -

The respondent be prosecuted be prosecuted for theft and not for attempt to theft.

- III –

The appeal by Elizabeth citing suppression of evidence be dismissed on grounds of no

reasonability

- IV -

The appeal by Elizabeth absolving her from attempt to theft be dismissed and she be prosecuted
for theft.

And pass any order, direction or relief that this Honourable Court may deem fit in the

interests of justice, equity and good conscience.

All of which is humbly prayed,

Counsels for the APPLICANT

32