Indian Penal Code- Murder moot memorial, Study Guides, Projects, Research of Criminal Law

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Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT AHMEDABAD CRIMINAL APPEAL NO…/2023 --IN THE MATTER OF-- STATE OF GUJARAT……………………………………………………….APPELLANT VERSUS GAURI SINGHAL………………………………………………………...RESPONDENT 1 MAHESH SINHGAL……………………..…………………………….....RESPONDENT 2 RAMU……………………………………………………………………RESPONDENT 3 BEFORE SUBMISSION TO THE HON`BLE CHIEF JUSTICE AND COMPANION JUSTICES OF THE HON`BLE HIGH COURT BY THE COUNSEL FOR THE RESPONDENT Akriti Mishra 1 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship Roll No. 20 TABLE OF CONTENTS TABLE OF CONTENTS…………………………………….……………………………..2 INDEX OF ABBREVIATIONS…………………………………………………………….3 INDEX OF AUTHORITIES……………………………………………………...……..…. 4 CASES CITED BOOKS REFERRED WEBSITES STATUTES JURISDICTION…………………………………………………….………………..…… 6 STATEMENT OF FACTS……………………………….……………..…………..………7 STATEMENT OF ISSUES………………………………………………..……………….. 9 SUMMARY OF ARGUMENTS………………………………………………………...…10 ARGUMENTS ADVANCED…………………………………………………………....…11 PRAYER…………………………………………………….………………………………20 2 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship 3. 4. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011) 4. Lal, Batuk, The Law of Evidence, (18th Ed. 2010) 5. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011) 6. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006) WEBSITES 1. https://www.casemine.com 2. https://www.indiankanoon.com 3. https://www.scconline.com 4. https://www.livelaw.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) 5 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship STATEMENT OF JURISDICTION The humbly submits this memorandum for the appeal filed before this Honourable Court. The petition invokes the jurisdiction of this court on matters against acquittal. It sets forth the facts and the laws on which the claims are based. 378. An appeal in case of acquittal. (1) Save as otherwise provided in sub-section (2) and subject to the provisions of subsections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offense has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to the High Court from the order of acquittal. (3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub- section (2). 6 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship STATEMENT OF FACTS A. THE BACKGROUND Ananya Deshmukh (deceased) was an advocate who had married Mr. Monty Deshmukh, a leading entrepreneur. Everybody adored Ananya and she was known for her delicate and calm nature. Gauri Singhal (Respondent No. 1) was Ananya’s cousin. She was wedded to Mahesh Singhal (Respondent 2) a Fashion Designer. Gauri and Ananya shared cordial relations as they had both grown up together. B. MONEY TRANSACTION The sisterly relationship developed into a fiduciary relationship. On 22 June 2019 Ananya loaned Rs. 45 Lakhs to her sister to help her in her clothing business, 'GM Garments'. Gauri, while promising to return the amount in 5 months. In spite of giving numerous reminders, the loan remained unpaid. The business was somewhat low because of the COVID-19 pandemic all over the world and Gauri was finding it hard to support her Garment business. On 10th July 2020, Gauri persuaded Ananya, against Monty’s wishes, into putting another Rs. 30 Lakhs into the business. Again, Gauri failed to repay the loan amount. C. FINAL ULTIMATUM Ananya was frustrated because of the money owed to her. On 11th August 2020, a last final ultimatum was given to Gauri to pay the loan amount by the end of November as they needed it to rebuild their home. Gauri felt humiliated by the treatment meted out to her and wanted to avenge the humiliation. On 19 September 2020, Gauri called up Ananya and invited her to her home at City Pinnacles, Trench Street, Surat at 08:00 p.m. that day. Ananya promptly called Monty and informed him about the same. D. ANANYA MISSING On the evening of 19th September 2020, Ananya finished her office work and left her office by 8:15 p.m. She called up Monty and let him know that she was headed toward Gauri`s home. This was the last call recorded by the telephone company that was made using Ananya's number. At half-past 12 AM, Monty began to get anxious as Ananya had not yet gotten back. He called up Gauri to which she answered that Ananya had never made it to her home at the decided time so she felt that their meeting had been canceled. As the whereabouts of Ananya 7 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship SUMMARY OF ARGUMENTS I. THE PRESENT APPEAL FILED IS NOT MAINTAINABLE BEFORE THE HONORABLE HIGH COURT. It is humbly submitted before the Hon`ble High court that the present appeal is not maintainable. The trial court has rightly acquitted the respondents considering the evidence presented by the appellants. It is submitted that the remedy under the section need not be exercised in cases where substantial justice is already done. The Apex court has already reiterated in many of its judgments that the circumstances must induce the court to interfere with the decision under challenge only if extraordinary flaws or grave injustice or other recognized grounds are made out. In the instant case, no miscarriage of justice is done on the part of the judiciary. II. THE ACCUSED 1, 2 & 3 ARE NOT GUILTY UNDER SECTION 302 AND HAS NO COMMON INTENTION It is humbly submitted before the hon`ble court that Gauri Singhal, Mahesh Singhal, and Ramu cannot be held guilty of the murder of Ananya Deshmukh (deceased). The counsel submits that the confession by the co-accused is not reliable, the deficiency in finding by police, and the documentary evidence is not conclusive to attribute criminal liability. Further, there is no common intention between the respondents. III. WHETHER THE CONFESSION MADE BY THE CO-ACCUSSED IS ADMISSIBLE? It is humbly submitted that Respondent 3 confession is inadmissible and conviction cannot be made on the basis of this statement. The session court has passed the appropriate remedy and delivered justice to the respondents. 10 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship ARGUMENT IN DETAIL I. THE PRESENT APPEAL FILED IS NOT MAINTAINABLE BEFORE THE HONORABLE COURT. It is contended before the hon`ble High Court that the present appeal is not maintainable because the session court has passed the appropriate and justified judgment. The principle settled by way of practice and the procedure is that the High court would not disturb the decision of specially constituted authorities or tribunals, as an appeal court, and would not review findings of facts except where they are perverse or shocking to the judicial conscience.1 The power of the High court is of the widest amplitude and the court would only interfere in exceptional cases e.g. violation of the principles of natural justice or because the appeal raises an important principle of law that requires the interference of a constitutional court.2 A. The appeal lacks a valid question of law The right to appeal is also not a natural or inherent right. In the absence of substantial question of law, allowing an appeal would rather damage the original plaintiff and lead to miscarriage of justice by unnecessary delaying in the justice delivery process of dispute.3 The Apex court has already reiterated in many of its judgments that the circumstances must induce the court to interfere with the decision under challenge only if extraordinary flaws or grave injustice or other recognized grounds are made out.4 It is only when some glaring error leading to a grave failure of justice is made out, that the supreme court would allow its jurisdiction to be invoked.5 In the instant case, the appellant has failed to show that there exist special grounds to appeal against acquittal. The session court has passed the appropriate acquittal as the respondents are 1 Kishanchand Narsingh Bhati vs. State Transport Appellate Authority, AIR 1968 SC 1468 (3) SCR 605; Concord of India v. Nirmala Devi, AIR 1979 SC 1666: (1979) 4 SCC 365 2 Associated Cement Cos. V. Cement Workers Kamgar Union, AIR 1972 SC 1552: (1972) 4 SCC 23 3 Tripati Balaji Developers Pvt. Ltd. V. State of Bihar, AIR 2004 SC 2351. 4 Shivannad Gaurishankar Baswati v, Laxmi Vishnu Textile Mills (2008) 13 S.C.C. 323 5 Rajendra Kumar Chaturvedi v. State of Maharashtra, (1974) 4 S.C.C. 327; Gian Singh v. State of Punjab A.I.R. 1974 S.C. 1024 11 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship of clean minds and there is no conclusive evidence that question the intention of all the respondents. It is submitted that the remedy under the section need not to be exercised in cases where substantial justice is already done.6 The Hon`ble High Court can interfere only when the finding is erroneous, perverse, and results in a miscarriage of justice.7 Thus, it is humbly submitted before this Honourable Court that it should not entertain this appeal by exercising the discretion conferred upon it by Section 378 and in the process turn this proceeding into a mere fact-finding inquiry. B. No Special Leave granted by the High court Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of ‘special leave’ as against sub-section (3) relating to other appeals which speak of ‘leave’. Thus, the complainant’s appeal against an order of acquittal is a category by itself. This is evident from sub-section (5) which refers to an application filed for ‘special leave’ by the complainant. "If the State is to prefer an appeal against the order of acquittal it has to follow the procedure as laid down under Section 378 of Cr.P.C., namely, that unless the leave is granted by the High Court, the such appeal would not be entertained. It is only after the application for leave is made and such leave is granted by the High Court, the appeal shall be entertained by the High Court against the order of acquittal. In the present case, it is nowhere stated that the application for leave has been granted by the High court. The appellants must follow the procedure led by the code. Hence on such grounds, the appeal against acquittal is not maintainable. 6 SDS Shipping (P) Ltd. V. Jay Container Services Co. (P.) Ltd. (2003) 9 S.C.C. 439 7 Ezhil v. State of Tamil Nadu A.I.R. 2002 S.C. 2017 12 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship “document” imply that the document has to be used by some party against another.15 If it is so used there should be intrinsic evidence in the document itself of some particular party or parties being associated with the same.16 The documents marked as exhibits without proof can’t form the basis of judgment. 17 Now in this present matter, Respondent 1, Respondent 2, and Respondent 3 can not be held guilty of the offense because of the inconclusiveness of (a). Post Mortem Report (b) DNA Analysis report a. Post Mortem Report The post-Mortem Report is a fracture to the hyoid bone. The wound is located on the neck. It is caused by unnatural causes which are caused due to an external force or pressure upon the neck. The opinion further reveals that the cause of death to the best of my knowledge and belief is asphyxia due to strangulation. There are chances of an accident while driving to the 15 Section 3 Interpretation Clause. "Court."-- "Court" includes all Judges1 and Magistrates2 and all persons, except arbitrators, legally authorized to take evidence. "Fact."-- "Fact" means and includes-- (1) anything, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. "Relevant".-- 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,3 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. "Document."-- "Document" 4means 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, for the purpose of recording that matter. "Evidence."-- "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)6[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 means 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, 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. 7["India".-- "India" means the territory of India excluding the State of Jammu and Kashmir.] 16 The law of Evidence, Ratanlal and Dhirajlal, 46 (23rd edn.) 17 A. Manuswami v. R. Sethuraman, AIR 1995 Mad 375 (para 10) 15 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship Respondent`s home. This creates reasonable doubt since the post-mortem report is inconclusive and ambiguous. b. DNA analysis Report The result of the DNA analysis concluded that no doubt in concluding that the two hair samples obtained belonged to the same individual. However, no documentary evidence presented has proved beyond a reasonable doubt that the accused were involved in the murder of the deceased in furtherance of common intention. It is humbly submitted before the Honourable High Court there is nothing to suggest there was pre-arranged plan and prior concert between the accused persons for the commission of the offense apart from the confession of respondent 3 which is in itself inadmissible. A reasonable doubt must not be imaginary, trivial, or merely possible doubt; but a fair doubt based upon common sense arising out of the evidence of the case.18 The appellant’s arguments are leaning towards the facts that the crime “may have been committed by the accused”, however, they have failed to make the link between ‘may have committed the crime’ and ‘must have committed the crime and that gap must be filled by the prosecution by legal, reliable and unimpeachable evidence before a conviction can be sustained.19 III. THE CONFESSION MADE BY THE RESPONDENT 3 IS NOT ADMISSIBLE. 18 Ramakant Rai v. Madan Rai Cr. LJ 2004 Sc 36 19 Nelson R.A. Indian Penal Code,p,2905, (10th Ed.2008) 16 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship The counsel submitted that the confession made by the co-accused is not admissible enough to convict the other accused at the session court. Hence the respondents can`t be charged with murdering and causing hurt to the deceased Ananya in the present case. While deciding the reliability which can be placed on by the court in the confessions of the co-accused, the Supreme Court has held20 that the confession of a co-accused cannot be treated as substantive evidence, and can be pressed upon only when the Court is inclined to accept other evidence, and feels the necessity of seeking assurance in support of its conclusion’s deductible from other evidence. In criminal cases, where evidence is adduced insufficiently to prove a person guilty, such a person cannot be held guilty relying on the confession of a co-accused. The presumption of innocence comes to his rescue and compels the court to render the verdict that the charge is not proven and the accused is not guilty. The word “may” in section 30 of the Evidence Act is very important to interpret. The presence of this term indicates that such a confession cannot be said to be “evidence” in its technical sense and thus can only support a conviction. Rather, the section gives discretion to the Court either to use it against a co-accused or not to do so. The same was reiterated by Jackson, J. in the case of R. v. Chandra. A. No evidentiary value of confession The Supreme Court in the case held that confessions of a co-accused aren’t the substantive piece of evidence and that they can only be used to confirm the conclusion drawn from other evidence in a criminal trial.21 The court further stated that the trial court cannot begin on the basis of the confession of the co-accused to form its opinion in a case. Rather, the courts must analyze all the evidence which are being adduced, and on being satisfied with the guilt of the accused, might turn to the confession in order to receive assurance to the conclusion of guilt which the court has reached on the said evidence. Referring to previous apex court verdicts, the court said it is not obligatory to take the confession into account and that it is the discretion of the court. Hence the session court has not erroneous in acquitting all respondents. B. Respondent 3 statements is not reliable 20 Hari Charan Kurmi v. State of Bihar (A.I.R. 1964 S.C. 1184) 21 Pancho v. State of Haryana, 17 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship PRAYER WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE COURT MAY BE PLEASED TO ADJUDGE AND DECLARE: WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE COURT MAY BE PLEASED TO ADJUDGE AND DECLARE: o The appeal filed before the Honourable High Court of Gujarat is not maintainable. o That there is no common intent on the part of the respondents. o That Respondents cannot be held guilty of the murder of Ananya Deshmukh. 20 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship o That the statement made by respondent 3 is inadmissible. o The order of acquittal by the Session court should be upheld. o AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE o INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. o AND FOR THIS, APPELLANT AS IN DUTY BOUND SHALL HUMBLY PRAY. o o o RESPECTFULLY SUBMITTED BY 21 | P a g e Memorial on the behalf Respondents Veer Narmad South Gujarat University, Department of Law (Sem-10) Moot Court Exercise and Internship o COUNSELS ON BEHALF OF THE APPELLANT o AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE o INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. o AND FOR THIS, APPELLANT AS IN DUTY BOUND SHALL HUMBLY PRAY. o o 22 | P a g e Memorial on the behalf Respondents