memorial cases dependent on circumstantial evidence, in order to justify the inference of, Study notes of Environmental Law

Download memorial cases dependent on circumstantial evidence, in order to justify the inference of and more Study notes Environmental Law in PDF only on Docsity! PUSSGRC Inter-College Moot Court Competition - 2017 i MEMORIAL ON BEHALF OF PETITIONER TEAM CODE: SG - 95 BEFORE THE HON’BLE SUPREME COURT OF SPARTA CRIMINAL APPELLATE JURISDICTION REVIEW PETITION (CRIMINAL) NO. ___ OF 2017 I N CRIMINAL APPEAL NO. ___ OF 2017 STATE OF DASTAR. ………….………..……..…………………………….………..PETITIONER v. JORA .……………………………………………….…………….…………………. RESPONDENT UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE SUPREME COURT OF SPARTA PUSSGRC Inter-College Moot Court Competition - 2017 ii MEMORIAL ON BEHALF OF PETITIONER TABLE OF CONTENTS Table of Contents....................................................................................................................... ii List of Abbreviations................................................................................................................. iv Index of Authorities.................................................................................................................... v Statement of Jurisdiction.......................................................................................................... viii Statement of Facts .......................................................................................................................ix Arguments presented................................................................................................................. xi Summary of Arguments ............................................................................................................ xii Arguments Advanced................................................................................................................... 1 I. Whether The Review Petition Is Maintainable ....................................................................1 I.1. Requirements for maintainability of criminal review petition...............................................1 I.2. Error apparent on the face of record ......................................................................................2 II. Whether Mens Rea To Cause Injury No. 2 Was Present...................................................3 II.1. Circumstances of the case indicates clearly towards the guilt of the accused…..................3 II.2. Gravity of injury no. 1 and its consequences…....................................................................6 II.3. Actus Reus and Mens Rea of injury no. 2….........................................................................6 III. Whether The Accused Is Liable Under Section 302 DPC................................................7 III.1. Liability for Injury no. 1......................................................................................................7 III.2.Liability for Injury no. 2.....................................................................................................10 III.3. Combination of injuries that lead to the death of the victim…..........................................11 IV. Whether Conviction Is Possible On The Basis Of Circumstantial Evidence…............11 IV.1. Liability on the basis of Circumstantial Evidence.............................................................12 IV.2. The series of events that conclude the guilt of the accused…...........................................13 V. Whether The Following Relevant Principles Were Neglected By The Court. ..............14 V.1. Rule against hearsay evidence ….......................................................................................14 V.2. Victim escape cases and rules of causation........................................................................16 PUSSGRC Inter-College Moot Court Competition - 2017 v MEMORIAL ON BEHALF OF PETITIONER INDEX OF AUTHORITIES CASES 1. Ashish Batham v. State of Madhya Pradesh AIR 2002 SC 3206 2. Bakhora Chowdhary v. State of Bihar, 1991 Cr LJ 91 (Pat.) 3. B.F. Pushpaleela Devi v. State Of A.P., 2002; (5) ALD 1, 2002 (5) ALT 103 4. Bhagat Ram v. State, 1854 SC 621 5. Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] 3 SCC 217. 6. Bhugdomal v State of Gujrat, (1984)1 SCC 319: AIR 1983 SC 906: 1983 Cr LJ 1276 7. Bodhraj alias Bodha v. State of J & K, (2002) 8 SCC 45 : (2002) Cri LJ 4664 : AIR 2002 SC 3164 8. Causation: Forseeability v Natural Consequences’ (1992) 55 MLR 584, 586. 9. Channu v. E., 1948 Cal 125. 10. Devender Pal Singh v. State NCT of Delhi, AIR 2003 SC 886 11. H. Kondal Reddy Vs. Central Bank Of India, Hyderabad. 12. Hanumant Govind Nargundkar case, AIR 1952 SC 343 : (1953 Cri LJ 129); 13. Hazara Singh v. Attar Singh, AIR 1976 PUNJ 24 14. Jadoo Singh v. Malti Devi, AIR 1983 All 87 15. Lily Thomas v. Union of India, AIR2000 SC 1650 16. Majendran Langeswaran vs State (N Of Delhi) & Anr; Criminal Appeal No. 1300 OF 2009 17. Mana, (1930) 32 BOM LR 1143 18. Niru Bhagat v. E., 24 Cr LJ 91 19. Q.E. v. Hos Nath, 1941 ALJ 416 : 1952 SC 343, Mangalashwari, 1954 SC 715; 20. R v David Keith Pagett [1983] 76 CAR 279, 288 21. R v Kirikiri [1982] 2 NZLR 648; 22. R v Smith [1959] 2 QB 35; 23. Rafiq v State of Uttar Pradesh [1980] 4 SCC 262. 24. Rama Nand v. State of Himachal Pradesh, AIR 1981 SC 738 (743) PUSSGRC Inter-College Moot Court Competition - 2017 vi MEMORIAL ON BEHALF OF PETITIONER 25. Ratanlal v. Rex, 1949 A 222; 26. Royall v R [1991] HCA 27 [21]. 27. S. Nagaraj v. State of Karnataka, (1993) Supp. 4 SCC 595 28. Sattemma Vs. Vishnu Murthy, , M. Srinivas Vs. Jawaharlal Nehru Technological Unviersity, Hyderabad 29. Shripad Shivram, Kulkarni v. state of Maharashtra,, AIR 1981 SC 34 (38) 30. State Collector Of Central Excise v. Papas Kumar Shome, 1985, Cr LJ 871 (Ori) 31. State of Uttar Pradesh v Chhoteylal [2011] (1) SCALE 454. 32. State of Uttar Pradesh v. Satish , 2005 (2) Scale 33 33. State of West Bengal & Ors vs Kamal Sengupta & Anr, CIVIL APPEAL NO. 1694 OF 2006; 34. State v. Shankar Prasad 1052 A 1776 :1952 Cr LJ 1334 ; 35. Stephenson v State 205 Ind. 141 36. The High Court of judicature at Patna and anr. V. Rakesh Kumar, Civil Review no.153 of 2015 STATUTES 1) Indian Penal Code, 1860 2) The Indian Evidence Act, 1872 3) Criminal Procedure Code, 1973 RULES 1) Supreme Court Rules, 2013 MISCELLANEOUS 1) Constitution of India PUSSGRC Inter-College Moot Court Competition - 2017 vii MEMORIAL ON BEHALF OF PETITIONER PUBLICATIONS AND REPORTS 1) HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University Press 2002) 329. 2) Rebecca Williams, ‘Policy and Principle in Drugs Manslaughter Cases’ (2005) 64 CLJ 66, 70. 3) Lawrence Crocker, ‘A Retributive Theory of Criminal Causation’ (1994) 5 JCLI 65, 85– 89; 4) Timothy H Jones, ‘Causation, Homicide and the Supply of Drugs’ (2006) 26 LS 139, 142.p 5) Alan Norrie, ‘A Critique of Criminal Causation’ (1991) 54 MLR 685, 694. 6) Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press 2017) 40–45. 7) The Justice Verma Committee on Amendments to Criminal Laws 2013. 8) Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (2nd edn, Lexis Nexis 2012) 109–110, 128–29 9) Stanley Yeo, ‘Causation in Civil and Criminal Negligence’ (2007) 25 SLR 108, 120–22. 10) Eric Colvin, ‘Causation in Criminal Law’ (1989) 1 BLR 253, 254; 11) John E Stannard, ‘Criminal Causation and the Careless Doctor’ (1992) 55 MLR 577, 579 PUSSGRC Inter-College Moot Court Competition - 2017 x MEMORIAL ON BEHALF OF PETITIONER of considerable amount of blood resulted in anoxic brain damage arising out of falling out of the train. 7. On conclusion of the final hearing in trial court, the prosecution stated that this case should be considered as a rarest of rare in the light of scientific and circumstantial evidences. Absence of eyewitnesses should not be a lacuna in awarding maximum punishment as the man had no qualm of conscience in committing rape and murder together. 8. The trial court found the accused guilty for Section 376 and Section 302 of Dastar Penal Code and awarded him death sentence for murder and life imprisonment for the offence of rape. On appeal by the accused, the High Court confirmed the judgment of trial court. Aggrieved by the judgment of High Court, the accused filed criminal appeal before the Supreme Court and the Supreme Court partly allowed the appeal and exonerated the accused from the charge of murder with the observation that the prosecution failed to prove that the lady was thrown out of the train by the accused and also failed to prove that the accused has Mens Rea to cause the injury which subsequently resulted in death of the victim. Supreme Court modified the judgment by convicting him under Section 325 instead of Section 302 and upheld the punishment under Section 376, of Dastar Penal Code. PUSSGRC Inter-College Moot Court Competition - 2017 xi MEMORIAL ON BEHALF OF PETITIONER ARGUMENTS PRESENTED Issue 1: Whether the review petition is maintainable. Issue 2: Whether Mens Rea to cause injury no. 2 was present. Issue 3: Whether the accused is liable under section 302 DPC. Issue 4: Whether conviction is possible on the basis of circumstantial evidence. Issue 5: Whether the following relevant principles were neglected by the court. Issue 6: Whether the court’s decision acquitting the accused from the charge of section 302 of Dastar penal code is justifiable. PUSSGRC Inter-College Moot Court Competition - 2017 xii MEMORIAL ON BEHALF OF PETITIONER SUMMARY OF ARGUMENTS Issue 1: Whether the review petition is maintainable. It is humbly submitted before the honorable Supreme Court of Sparta that; this review petition is maintainable because the review petition can be only filed when there is error apparent on the fact of record. Also, the fact that the accused is liable for injury no. 2 (because both the Mens Rea as well as the Actus Reus were present) was neglected when the accused was acquitted of the charge of murder. Issue 2: Whether Mens Rea to cause injury no. 2 was present. It is humbly submitted before the honorable Supreme Court of Sparta that Mens Rea to cause injury no. 2 was present. It can be proved by taking into consideration that an FIR was launched by the victim and her friend, and they were threatened of the dire consequences for the same by the accused. The circumstances of the case indicate clearly towards the guilt of the accused. Issue 3: Whether the accused is liable under section 302 DPC. It is humbly submitted before the honorable Supreme Court of Sparta that the accused is liable under section 302 DPC as all the ingredients required are being fulfilled. Injury no.1 was sufficient to cause multiple brain hemorrhage as well as making the victim unconscious. Injury no. 2 caused anoxic brain damage. Injury no. 1 and 2 both were inflicted with the intention to murder her. Issue 4: Whether conviction is possible on the basis of circumstantial evidence. It is humbly submitted before the honorable Supreme Court of Sparta that conviction is possible on the basis of circumstantial evidence. As the arguments and authorities cited further establish, conviction is possible on the basis of circumstantial evidence when those circumstances satisfy the tests established by the Supreme Court for the same. PUSSGRC Inter-College Moot Court Competition - 2017 2 MEMORIAL ON BEHALF OF PETITIONER hearing of the suit or not, whenever the Court considers that it is necessary to correct an evident error or omission and it is immaterial how the error or omission occurred. Also the mere admission of an application for review and the issue of a rule therein does not in itself, disturb the finality of the judgment or the proceeding. It only means that the Court is tentatively satisfied about the merits of the application, but after hearing the parties, the Court can reaffirm its earlier judgment and reject the application. It is only when the application is allowed that the proceeding is reopened and the earlier judgment is put in jeopardy.7 The court has ruled that it is precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice.8 The court has emphasized that the basic fundamental of the administration of justice is that no man should suffer because of the mistake of court. Ex debito justitiae, the court must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice, the wrong must be remedied. I.2. Error apparent on the face of record The counsel most respectfully showeth; review petitioners seek modification mainly of the charges imposed on the accused. The main contention of the prosecution counsel, appearing on behalf of the state of Dastar, is that the accused is liable for the charge of murder and acquitting him of the same is a decision uncalled for and it leads to grave miscarriage of justice. The prosecution council therefore invokes the broad parameters and powers of the Supreme Court to review this petition because in this review petition the court is requested to reconsider its judgment of acquitting the accused of the charge of murder by stating that the prosecution was unable to prove it. There was error on the face of record because the Supreme Court was unable to take into consideration the following fundamental flaws9:  Rule against hearsay evidence;  The liability of the accused regarding the whole as one sequential crime and not as separate crimes in the light of motive of the accused to take revenge on the accused regarding the FIR launched by the victim regarding a prior incident;  Escaping the causation conundrum; 7Sattemma Vs. Vishnu Murthy, Fb, M. Srinivas Vs. Jawaharlal Nehru Technological Unviersity, Hyderabad (Supra) And H. Kondal Reddy Vs. Central Bank Of India, Hyderabad. 8 S. Nagaraj v. State of Karnataka (1993) Supp. 4 SCC 595. 9 Refer Issue no. 5 PUSSGRC Inter-College Moot Court Competition - 2017 3 MEMORIAL ON BEHALF OF PETITIONER  That the victim was rendered unconscious and practically immobilized due to injury no. 1 and could not have jumped off the train, providing enough evidence that the accused pushed her off the train. All these ultimately establish; 1. The victim was pushed off the train 2. The accused had the Mens Rea to murder the victim from the very beginning I.e. this case does not fall under section 325 and falls under section 302. The counsel most humbly considers it necessary to bring to the notice of the hon’ble court, the previous facts of the case:  The trial court found the accused guilty for Section 376 and Section 302 of Dastar Penal Code and awarded him death sentence for murder and life imprisonment for the offence of rape.  On the appeal by the accused, the High Court confirmed the judgment of trial court.  The Supreme Court partly allowed the appeal and exonerated the accused from the charge of murder with the observation that the prosecution failed to prove that the lady was thrown out of the train by the accused and also failed to prove that the accused has Mens Rea to cause the injury which subsequently resulted in death of the victim. Supreme Court modified the judgment by convicting him under Section 325 instead of Section 302 and upheld the punishment under Section 376, of Dastar Penal Code. From the facts and circumstances of the case as highlighted before this honorable court, the dislodgment of the conviction entered and sentence passed under Section 302 IPC does not appear to be legally sustainable and thus review of the same is most respectfully requested. II: Whether Mens Rea to cause injury no. 2 was present. It is humbly submitted before the honorable Supreme Court of Sparta that Mens Rea to cause injury no. 2 was present. It can be proved by taking into consideration the following facts: II.1. Circumstances of the case indicate clearly towards the guilt of the accused.  The motive of the accused to take revenge in the light of the FIR launched by the victim and her friend and the dire consequences they were threatened of One pointing issue of the case to be considered is that the victim was known to the accused. A few days before this incident took place, the accused, according to the police investigation, was PUSSGRC Inter-College Moot Court Competition - 2017 4 MEMORIAL ON BEHALF OF PETITIONER found teasing a female friend of the victim to which the victim objected. The accused then threatened the victim of dire consequences if any of them complained to the police. However, the victim, not surrendering to the threat, filed a complaint against the accused at the Sherpur police station and the police registered an FIR against the accused and the police investigation was going on in this matter. The accused was a habitual offender and aggravated by this complaint made by the victim, decided to take revenge on her. If his intent would have been simply to rob a person, he could have robbed anyone but the fact that the accused specifically went to the women’s compartment when the victim was alone implies that his intention was not merely to rob her but much more than that.10  Knowledge that victim was alone in that train compartment alone at that time It is not a mere coincidence that the victim wass found alone by the accused in the train compartment. Neither can any prudent man establish that a person goes with the intention to rob and mean while commits murder and rape as well. The accused had the intention to kill the victim from the beginning and to fulfil his intentions, he was frequently searching for her at the Sherpur bus stop since the day of the FIR launched (people has noticed him near the Sherpur bus stop) and while he was observing her daily routines, he concluded that she was a regular passenger of the train from Shergarh to Sherpur district and on 1st June 2017, he got a chance when he finally found her alone in the women compartment. Section 8 in The Spartan Evidence Act, 1872- Motive, preparation and previous or subsequent conduct. —Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Previous conduct here is relevant.  Infliction of injuries without any provocation 10 Refer Argument II.1 PUSSGRC Inter-College Moot Court Competition - 2017 7 MEMORIAL ON BEHALF OF PETITIONER Issue III: Whether the accused is liable under section 302 DPC. It is humbly submitted before the honorable Supreme Court of Sparta that the accused is liable under section 302 DPC as all the ingredients required are being fulfilled here. 300(1) DPC defines murder. – “Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death.” The accused is liable under section 302 DPC as he is liable for both injury no.1 and injury no.2 III.1 Liability for Injury no. 1 III.1.1 Medical jurisprudence provides: According to the Dr. Priya injury no. 1 was ‘lacerated wound with a surrounding abraded contusion on left side of forehead above eye brow, abraded contusion on right side of fore head just above eye brow and contusion of left temporalis muscle, involving its whole thickness. The left orbital margin showed a fissured fracture. The floor of left side of anterior cranial fossa also showed fracture. There is traumatic disruption of stem of pituitary gland and left frontal lobe of brain showed multiple areas of hemorrhage and this was out of the hitting of her head at the wall of compartment of train’. Supreme Court has already acknowledged that the attack inside the train was brutal. Section 325 (voluntarily causing grievous hurt) was invoked by the apex court which itself has recognized injury no. one on the victim's body as a major reason for her death.  Frontal Lobe The frontal lobe13 is the part of the brain that controls important cognitive skills in humans, such as emotional expression, problem solving, memory, language, judgment etc. It is, in essence, the “control panel” of our body. Damage to frontal lobe14 13 Salardani Arash & Jose Bil ler, The Hospital Neurology Book. 14 Salardani Arash & Jose Bil ler, The Hospital Neurology Book. PUSSGRC Inter-College Moot Court Competition - 2017 8 MEMORIAL ON BEHALF OF PETITIONER As a result of a brain injury, frontal lobe damage may impair your attention span, motivation, judgment, and organizational capacity. Frontal lobe damage will affect language, verbal skills and positive emotions, while right frontal lobe damage will affect non-verbal communication and negative emotions.  Temporalis Muscle15 The temporalis muscle covers the side of the head in front, above and behind the ear. It is a very large muscle that attaches at the top of the mandible and fans out on both sides of the head along the side of the skull. The temporal muscle can be divided into two functional parts; anterior and posterior. The anterior portion runs vertically and its contraction results in elevation of the mandible (closing the mouth). The posterior portion has fibers which run horizontally and contraction of this portion results in retrusion of the mandible.  Orbital Margin16 Orbital Margin is mostly the sharp edge of the orbital opening that is the peripheral border of the base of the pyramidal orbit. The superior half of the orbital rim is the supraorbital margin; the inferior half is the infra orbital margin. It is the edge of the socket that contains the eyeballs. Damage to orbital margin17 Orbital fractures are commonly seen with mid-facial trauma. Fracture severity ranges from small minimally displaced fractures of an isolated wall that require no surgical intervention to major disruption of the orbit.  Cranial Fossa18 The anterior cranial fossa is a depression in the floor of the cranial base which houses the projecting frontal lobes of the brain. It is formed by the orbital plates of the frontal, the cribriform plate of the ethmoid, and the small wings and front part of the body of the sphenoid; it is limited behind by the posterior borders of the small wings of the sphenoid and by the 15 Thompson Jon C., Netter’s Concise Orthopaedic Anatomy. 16 Blumenfeld Hal, Neuroanatomy Through Clinical Cases 17 Blumenfeld Hal, Neuroanatomy Through Clinical Cases 18 Maheshwari J., Essential Orthopaedics PUSSGRC Inter-College Moot Court Competition - 2017 9 MEMORIAL ON BEHALF OF PETITIONER anterior margin of the chiasmatic groove. The lesser wings of the sphenoid separate the anterior and middle fossae.  Pituitary Gland19 The pituitary gland, or hypophysis, is an endocrine gland about the size of a pea and weighing 0.5 grams (0.018 oz) in humans. It is a protrusion off the bottom of the hypothalamus at the base of the brain. The hypophysis rests upon the hypophysial fossa of the sphenoid bone in the center of the middle cranial fossa and is surrounded by a small bony cavity (sella turcica) covered by a dural fold (diaphragma sellae). III.1.2. Infliction of injury no. 1 Injury no. 1 was inflicted without any provocation and purely to kill the victim as he intended. Her head was smashed multiple times against the wall of the compartment which damaged the major parts of her brain, taking away her power to react and defend herself leading her into a state of unconsciousness. The gravity of injuries inflicted severely negates the contention that, the intention of the accused was only to hurt the victim. The sole motive of the accused seems to inflict such injuries on the victim, which under ordinary course, would lead to death of the victim. Accused's assault on the victim was so violent that not only did she fracture her head, but she sustained deep injuries. III.1.3. Mens rea The accused, as the prosecution counsel has submitted above, was observing the victim and her daily routines for the past few days. On that unfortunate day, he finally got a chance to take his revenge on her and relieve himself from the grudge he had since the FIR was filed against him by the victim. He entered the women’s compartment when she was alone there. Firstly, he snatched her phone, thereby making her incapable of getting any kind of help. Secondly, smashed her head multiple times resulting in multiple head injuries and rendering the victim unconscious. 19 Blumenfeld Hal, Neuroanatomy Through Clinical Cases PUSSGRC Inter-College Moot Court Competition - 2017 12 MEMORIAL ON BEHALF OF PETITIONER conviction is possible on the basis of circumstantial evidence when those circumstances satisfy the tests established by the Supreme Court for the same. IV.1. Liability on the basis of Circumstantial Evidence The Apex Court has held that there is no doubt that conviction can be based solely on circumstantial evidence26, but it should be tested by touch stone of law relating to circumstantial evidence laid down by Supreme Court27. It is well established that victims may lie but circumstances do not28. A prosecution case may rest on circumstantial evidence only but conviction is only possible when those circumstances are firmly established and further points definitely towards the guilt of the accused29. There are four essentials that must be fulfilled for conviction of the accused solely on the basis of the circumstantial evidence, the conditions are:  That the circumstances from which the 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 must be of a conclusive nature and tendency;  That the circumstances should, to a moral certainty, actually exclude every hypothesis except the one proposed to be proved.30 All these four essentials are being fulfilled in this present case and thus, conviction solely on this basis is possible and is hereby humbly sort. In a case, the conviction was based on circumstantial evidence as no one saw the accused committing murder of the deceased and paucity of direct evidence cannot justify acquittal of a guilty person31 . While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court. 26 Bodhraj alias Bodha v. State of J & K, (2002) 8 SCC 45 : (2002) Cri LJ 4664 : AIR 2002 SC 3164 27 Hanumant Govind Nargundkar case, AIR 1952 SC 343 : (1953 Cri LJ 129); Ashish Batham v. State of Madhya Pradesh AIR 2002 SC 3206 28 State of Uttar Pradesh v. Satish , 2005 (2) Scale 33 29 Shripad Shivram, Kulkarni v. State of Maharashtra,, AIR 1981 SC 34 (38) 30 State v. Shankar Prasad 1052 A 1776 :1952 Cr LJ 1334 ; Ratanlal v. Rex, 1949 A 222; Q.E. v. Hos Nath, 1941 ALJ 416 : 1952 SC 343, Mangalashwari, 1954 SC 715; Bhagat Ram v. State, 1854 SC 621 31 Majendran Langeswaran vs State (NCT of Delhi) & Anr; Criminal Appeal No. 1300 OF 2009 PUSSGRC Inter-College Moot Court Competition - 2017 13 MEMORIAL ON BEHALF OF PETITIONER Circumstantial evidence is merely a direct evidence indirectly applied. And direct evidence when closely analysed, is found to possess interential quality.32 The principle of circumstantial evidence is simply that every link in the circumstantial evidence must be proved.33 IV.2. The series of events that conclude the guilt of the accused are as following  The victim had launched an FIR against the accused and the accused, infuriated by the same, threatened the victim of dire consequences.  The accused wanted to relieve his grudges against the victim and started to take notice of the victim daily routines and from that he found out that the victim was a daily passenger of the train from Shergarh to Sherpur district.  On 1st June 2017, the accused found the victim alone in the women’s compartment and decided to execute his plans of murdering the victim.  He barged into the women’s compartment and started banging her head into the walls of the train without any provocation and purely to kill the victim.  The victim sustained multiple fractures in the skull which rendered her unconscious.  To make sure the victim did not make it out alive, the accused pushed her out of the speeding train.  To check whether she was dead or not, the accused himself jumped out of the train.  The accused found her lying in a pool of blood, with huge amount of blood flowing out of the victim’s body and the injuries sustained, the accused presumed her to be dead.  He took her to the woods, raped the presumed dead victim (which shows the accused is a necrophile), resulting in multiple organ dysfunction and anoxic brain damage due to aspiration of blood into the trachea.  After raping her, he left her in the woods as according to the accused she was already dead, and fled the crime scene. The accused, who is a habitual offender, could notice that the deceased was left alone in the compartment. When the train moved towards Sherpur, the accused swiftly hoisted into that ladies’ compartment, and rushed to the victim. The screaming victim frantically ran here and 32 Burrill, Alexander M., Circumstantial Evidence, Rama Nand v. state of Himachal Pradesh, AIR 1981 SC 738 (743) 33 Per Adam J., in Niru Bhagat v. E., 24 Cr LJ 91 PUSSGRC Inter-College Moot Court Competition - 2017 14 MEMORIAL ON BEHALF OF PETITIONER there in a fury in the limited space available in the compartment, in order to escape from the clutches of the accused. She resisted but failed. She was caught and her head was forcibly hit repeatedly on the walls of the compartment. On sustaining fatal injuries, she became practically immobilized. Her screams died down in the compartment. She was dropped from the running train down to the track. The side of her face forcibly hit on the crossover of the railway line. The accused jumped down from the running train on the other side, rushed to her, and lifted her to a shady place in the woods at the side of the track. He hurriedly raped the poor girl whose face was full of blood, oozing out from the injuries on her head. He acted as a necrophile. After satisfying his lust, the accused fled the scene leaving the victim. It is the humble view of the prosecution that, it is a rarest of rare case and all necessary evidence including circumstantial evidence is sufficient enough to prove that the accused was the murderer. Section 136 SEA, 1872- 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. Issue V. Whether the following relevant principles were neglected by the court. V.1. Rule against hearsay evidence Section 60 of SEA34 deals with oral evidence and excludes hearsay evidence. The underlying principle regarding ‘hearsay’ evidence is that hearsay evidence is no evidence35. The rejection of hearsay evidence is based on its relative untrustworthiness for judicial purposes owing to, 34 Spartan Evidence Act, 1872 (Sec. 60- Oral evidence must be direct) PUSSGRC Inter-College Moot Court Competition - 2017 17 MEMORIAL ON BEHALF OF PETITIONER and “legal” causation. It assumed that if the acts of the defendant lead to a consequence, he will also be criminally responsible for that consequence. Although causation is an essential element in all crimes, it is only in rare cases that questions of causation are in dispute.46 One such case is where multiple causes lead to the eventual result.47 The role of each actor/event becomes relevant in such a case.48 Interventions by third parties, by natural events, or by the victim herself raise questions as to whether the intervention breaks the causal chain initiated by the defendant.49 In this case, the Court ruled that unless the prosecution proves that the defendant had pushed the victim off the train, he would not be responsible for the injuries she sustained from the fall. Thereby, it implied that the victim jumping off the train, or falling off accidentally would break the chain of causation. While arriving at this conclusion, the Court failed to take note of the law with respect to interventions by victims. Interventions by victims In common law, the general rule that governs interventions by victims is that the defendant will be liable for the consequences that ensue due to her intervention if two conditions are fulfilled – first, that the victim’s conduct is a reaction to the acts of the defendant, and secondly, the victim’s reaction was reasonably foreseeable.50 why the defendant is at fault is not an important or relevant factor in relation to the injury that the child sustains. See: HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University Press 2002) lxiii]; third, in case where there are multiple causes operating, the defendant will be liable if at the time of the consequence ensuing (death in case of homicide), the defendant’s acts continue to be a “significant and operating cause”. - See: Simester and others (n 11) 86–87; Stannard (n 12) 579; R v Smith [1959] 2 QB 35. The Indian Penal Code in Explanations 1 and 2 to Section 299, states two principles governing causation in homicide – first, that a person who causes bodily injury to another person, labouring under a disorder, disease or bodily infirmity and accelerates his/her death will be liable for causing death; second, if death is caused by a bodily injury, the person who causes such injury will be liable for causing death, although death could have been prevented by “resorting to skilful remedies and proper treatment”. The Code reflects common law rules on causation at the time of its drafting. 46 See: Stannard (n 12) 577; R v David Keith Pagett [1983] 76 CAR 279, 288; Brenda Midson, ‘Teaching Causation in Criminal Law: Learning to Think Like Policy Analysts’ (2010) 20 LER 109, 111. 47 Colvin (n 10) 255 48 See for instance: R v Kirikiri [1982] 2 NZLR 648; Stephenson v State 205 Ind. 141 49 See: Simester and others (n 11) 86–103 50Ibid 101. PUSSGRC Inter-College Moot Court Competition - 2017 18 MEMORIAL ON BEHALF OF PETITIONER This test was formulated by the Court of Appeal (Criminal Division) in R v. Roberts. 51 The Court also ruled that the test was “objective”, in the sense that “reasonable foreseeability” should be assessed from the perspective of a “reasonable man”, and not the defendant in question.52 Hence, unless the victim’s response is out of the ordinary, it will not break the chain of causation initiated by the acts of the defendant. In R v. Williams, 53 the Court of Appeal articulated the test again, when it held that the chain of causation does not break where the victim is killed while fleeing from violence if two requirements are satisfied.54 First, the conduct of the deceased victim must be foreseeable by a “reasonable and responsible man in the assailant’s shoes”. 55 Secondly, the unlawful act by the defendant “must be such that all sober and reasonable people would inevitably recognise must subject the other person to some harm resulting therefrom, albeit not serious harm”.56 The Court noted that the nature of the threat was an important consideration in assessing the foreseeability of the harm to the victim, as well as the conduct of the deceased victim.57 The Court laid down tests relating to victim intervention in Royall v. R.58. (The facts of Royall are somewhat similar to this case, making it relevant here). The victim was killed when she fell from the window of the bathroom of a sixth-floor apartment that she shared with the defendant. The defendant had been violent towards the deceased in the days preceding the incident. He admitted that on the day of the victim’s death, there had been a violent argument between the two of them. He punched the victim in her face, pulled her hair and shook her. Blood was found in various parts of the apartment, including the bathroom. There was also evidence of forced entry into the bathroom, and of a struggle there. The jury had to determine whether the victim had jumped, fallen off, or had been pushed out of the window by the defendant. 51 [1971] 56 CAR 95, 102. 52 R v.Roberts [1971] 56 CAR 95, 102 53 [1992] 1 WLR 380. 54 Ibid 388. 55 Ibid. 56 Ibid. 57 Ibid.389 58 [1991] HCA 27. PUSSGRC Inter-College Moot Court Competition - 2017 19 MEMORIAL ON BEHALF OF PETITIONER In the first two scenarios, the question was whether the acts of the victim in self-preservation break the chain of causation between the violence and the victim’s death. The trial judge, in directing the jury, had stated that the causal link does not break if the victim has a “well- founded and reasonable apprehension” of life-threatening violence, and had jumped out of the window to escape from such violence.59 Four tests were suggested in Royall to determine the liability of the defendant60:  the reasonable act test;  the well-founded apprehension test;  the natural consequence test; and  the foresight test.61 Although the majority in Royall used the “natural consequence test” 62 in arriving at its decision, Yeo argues that “foresight” test should be applied in cases of escape/fright.63 The foresight test posits that the defendant’s liability will continue if he could have reasonably foreseen that the victim would act in the manner in which she did in order to avoid the acts of the defendant. Thus, the focus is solely on the defendant, and it can be assessed either through the perspective of the defendant (subjective test) or from the perspective of a reasonable third person (objective test).64 In their authoritative treatise on causation, Hart and Honoré argue that the determination of whether the victim’s acts breaks the chain of causation should be made based on the voluntariness of such acts.65 They argue that if the victim’s acts are fully voluntary, the chain will break; if involuntary, the defendant will continue to be responsible .66 59Ibid [18] 60Stanley Yeo, ‘An Australian Evaluation of Causation in Fright Cases’ (1993) 57 JCL 390, 391 61 Ibid. For a critique of the tests developed by the High Court in Royall, see: Stephen Shute, ‘Causation: Forseeability v Natural Consequences’ (1992) 55 MLR 584, 586.. 62 The natural consequence test was articulated by Chief Justice Mason as follows: “[W]here the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct”. Royall v R [1991] HCA 27 [21]. 63 Yeo (n 28) 397. 64Ibid 395–397. 65HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University Press 2002) 329. 66 Ibid 329–330. PUSSGRC Inter-College Moot Court Competition - 2017 22 MEMORIAL ON BEHALF OF PETITIONER Another case relevant here is Joginder Singh v. State of Punjab81. In this case, the two defendants attacked the deceased man and his family in their house. Anticipating danger to his life and limbs, the victim ran out of the house, and then jumped into a well, when the defendants were 15–20 feet behind him.82 The victim hit his head against the wall of the well, lost consciousness, and drowned. The Court absolved the defendant of the liability of the victim’s death, holding that death was not homicidal. However, the Court ruled that if the victim had jumped into the well since there was no other option before him, they may have held that defendant liable for homicide .83 Thus, the Court recognised the “foreseeability” principle in escape cases, and ruled that it did not apply in the case before it. And in the present case, Supreme Court completely ignored the line of the judgment of the above cited case (where the Court itself had previously articulated the principle in escape cases).  So the prosecution most humbly raises the question that though, the victim was unconscious, how does it matter if she jumped out of the moving train or was pushed out? She was trying to escape a “murderous assault”. Do we expect the girl to stay on the train and die?”  The grievously injured and “half-dead” victim may have even staggered out of the compartment door. V.3. One Sequential Event The prosecution most humbly pleads that it did not matter whether the victim “fell off” the running train or “jumped off”; and that the court previously failed to view a complete picture of the criminal antecedents of the accused. The apex court should have first considered the accused’s presence in the train, his intention to cause her harm and the brutal assault in the train which culminated in her rape and death. The accused's assault on the victim inside and outside the train should be treated as one sequential crime and not as separate crimes as is being treated by the Supreme Court, which thus held that the murder charge is not proved. 81 [1980] 1 SCC 493. 82 Ibid 497. 83 Ibid 498. PUSSGRC Inter-College Moot Court Competition - 2017 23 MEMORIAL ON BEHALF OF PETITIONER Issue VI: Whether the court’s decision acquitting the accused from the charge of Section 302 of Dastar Penal Code is justifiable. It is humbly submitted before the honorable Supreme Court of Sparta that the court’s decision acquitting the accused from the charge of Section 302 of Dastar Penal Code is not justified because: VI.1. The fact, regarding the Mens Rea to cause the injury no.2 was present, was neglected by the Supreme Court of Sparta. The actual intention of the accused was to kill the victim and injury no. 2 was inflicted on her to make sure that the unconscious victim dies. This whole scenario was portrayed as a robbery by the accused. VI.2. Injury no.1 and injury no.2 were the cause of the death of the victim, and both of them were intentionally inflicted by the accused on the victim. It has already been discussed above that the accused had the Mens Rea and is liable for the Actus Reus of both injuries which constituted the reason of death of the victim and thus he is absolutely liable for murder. VI.3. This case does not fall under section 325 DPC. The Hon’ble Supreme Court was mistaken about the liability of the accused regarding injury no. 2 and that is why placed the case in section 325 DPC making the accused liable for only injury no. 1. But as our counsel humbly submits, he is clearly and absolutely liable for murder and thus punishable with death penalty under section 302 DPC. PUSSGRC Inter-College Moot Court Competition - 2017 24 MEMORIAL ON BEHALF OF PETITIONER PRAYER In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to: 1. Hold the accused liable under the charge of murder in accordance with section 302 DPC read with section 300 DPC. 2. Award death penalty to the accused under section 302 DPC. 3. Fine the accused in regards to the provisions of section 302 DPC. 4. Award compensatory damages to the relatives of the accused in regards to this offence so established. AND/OR Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Petitioner as in duty bound, shall humbly pray. COUNSEL ON BEHALF OF THE PETITIONER