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(RETD.)J.S.RANA (DEFENCE) FOR OFFENCES CHARGED UNDER: SECTION 396 READ WITH SECTION 302 OF THE INDIAN PENAL CODE, 1860 UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE MEMORANDUM ON BEHALF OF THE DEFENCE ii SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 TABLE OF CONTENTS MEMORANDUM ON BEHALF OF THE DEFENCE TABLE OF CONTENTS Table of Contents ii List of Abbreviations iii Index of Authorities iv Table of Cases iv Books v Lexicons vi Websites vii Statutes vii Statement of Jurisdiction viii Statement of Facts ix Statement of Charges x Summary of Arguments xi Arguments Advanced 1 Issue-I 1 Whether Maj Rana is guilty of Dacoity? 1 Issue-II 6 Whether Maj Rana is guilty of Murder? 6 Prayer 16 v SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 INDEX OF AUTHORITIES MEMORANDUM ON BEHALF OF THE DEFENCE 23. Mohd Remzani v. State of Delhi AIR 1980 SC 1341 24. Niranjan Das and Ors. v. Giridhari Das and Anr., 68(1989)CLT746 25. R v. Moganlal 14 ILR Bom 115 26. Rai Singh Mohima v. State AIR 1962 Guj 203 27. Ram Autar v. State AIR 1954 All 771 28. Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530 29. Ram Prasad Mahton v. Emperor AIR 1919 Pat 534 30. Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36 31. Shyam Behari v. State Of Uttar Pradesh, AIR 1956 SC 320 32. Southwark Borough London Council v. Williams (1971) 2 All ER 175 33. State of AP v Kowthalam Narasimhula, 2001 Cr LJ 722 (SC) 34. State of Bihar v Hanuman Koeri, 1971 Cri LJ 182 (Pat) 35. State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868 36. State of Punjab v. Bhajan Singh AIR 1975 SC 258 37. State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC) 38. Ugar Ahir v State of Bihar, AIR 1965 SC 277 BOOKS: 1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4 th Ed 2007) 2. Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal Jurisprudence, (2 nd Ed 1989) 3. Gaur, KD, Criminal Law: Cases and Materials, (6 th Ed. 2009) 4. Gupte and Dighe, Criminal Manual, (7 th Ed. 2007) 5. Harris, Criminal Law, (22 nd Ed. 2000) 6. Hill, McGraw, Criminal Investigation, (4 th Ed. 2004) vi SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 INDEX OF AUTHORITIES MEMORANDUM ON BEHALF OF THE DEFENCE 7. I, III, IV Nelson R. A. Indian Penal Code, 10 th Ed. (2008) 8. I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6 th Ed. 2002) 9. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20 th ed. 2006) 10. II, Nandi, Criminal Ready Referencer, ( 2 nd Ed. 2007) 11. II, Princep’s Commentary on the Code of Criminal Procedure, 1973 (18 th ed. 2005) 12. III, Sarvaria, SK, Indian Penal Code, (10 th Ed. 2008) 13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1 st Ed. 2003) 14. Kelkar, R.V. Criminal Procedure, (5 th Ed. 2011) 15. Lal, Batuk, The Law of Evidence, (18 th Ed. 2010) 16. Lyons, Medical Jurisprudence & Toxicology, (11 th Ed. 2005) 17. Modi’s Medical Jurisprudence and Toxicology, (23 rd Ed. 2010) 18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology, (6 th Ed. 2002) 19. Ratanlal and Dhirajlal, The Indian Penal Code, 33 rd Ed. (2011) 20. Ratanlal and Dhirajlal, The Law of Evidence, 22 nd Ed. (2006) 21. Sarkar, Law of Evidence, (13 th Ed,1990) 22. Saxena & Gaur, Arms and Explosives, (10 th Ed. 2012) 23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4 th Ed. 2003) 24. Tyagi, Surendra Prakash, Criminal Trial (2 nd ed. 1996) 25. Varshi, H.P. Criminal Trial and Judgment, (3 rd ed. 1981) LEXICONS: 1. Aiyar, P Ramanatha, The Law Lexicon, (2 nd Ed. 2006) vii SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 INDEX OF AUTHORITIES MEMORANDUM ON BEHALF OF THE DEFENCE WEBSITES: 1. http://www.findlaw.com 2. http://www.judis.nic.in 3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx 4. http://www.scconline.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) x SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 STATEMENT OF CHARGES MEMORANDUM ON BEHALF OF THE DEFENCE STATEMENT OF CHARGES CHARGE 1 Maj. (Retd) J. S. Rana has been charged under Section 396 read with Section 302 the Indian Penal Code, 1860 for the crime of Dacoity with Murder. xi SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 SUMMARY OF ARGUMENTS MEMORANDUM ON BEHALF OF THE DEFENCE SUMMARY OF ARGUMENTS ISSUE I WHETHER THE ACCUSED IS GUILTY OF DACOITY? It is humbly submitted before this Hon’ble Court that the accused Maj. (Retd) J. S. Rana is not guilty of the offence of dacoity as he was not a party to the dacoity that had taken place on the 1 st of January 2013, nor is there any direct evidence to link him to the crime. The accused had not in any way participated in the crime as he was in charge of the security over the Montecito, furthermore he had neither intention nor motive to commit such a crime and thus, this crime cannot stand. ISSUE II WHETHER THE ACCUSED IS GUILTY OF MURDER? It is humbly submitted before this Hon’ble Court that the accused is not guilty of murder as the alleged crime which he had committed was done in exercise of his right to private defence under section 103 of the IPC read with sections 80 and 81 of the IPC and thus he lacks the requisite mens rea to commit such a crime. Furthermore the issue as to whether or not he had committed the actus reus must be put into question as the direct evidence has several infirmaries and inconsistencies. Hence the crime of murder cannot stand against the accused. SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 1 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE ARGUMENTS ADVANCED ISSUE-I WHETHER MAJ RANA IS GUILTY OF DACOITY? It is humbly contended before this Hon’ble Court that Maj. (Retd) J.S. Rana (hereinafter to be referred to as the ‘accused’) is not guilty of the offences under Sec. 396/302 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). In the matter at hand, it has been wrongfully alleged that the accused has committed murder in course of committing dacoity. The matter of a dacoity will be dealt with in the present issue (Issue I), while the charge of murder will be disproved in the subsequent issue (Issue II). Dacoity 1 is robbery 2 committed by five or more persons, with abettors who are present and aiding when the crime is committed are counted in the number. To establish a charge under this section, the prosecution must prove the following elements, beyond a reasonable doubt 3 :  The accused committed or attempted to commit robbery  Persons committing or attempting to commit robbery and present and aiding must not be less than five; and  All such persons should act conjointly. It is humbly contended that the accused did not commit or attempt to commit robbery [1.1] nor did he act conjointly with the others [1.2] and that there are major discrepancies in the oral testimony [1.3], coupled with heavy reliance by the Prosecution on unreliable circumstantial evidence [1.4] 1 Sec 391, IPC 2 Sec 390, IPC 3Shyam Behari v. State Of Uttar Pradesh, AIR 1956 SC 320 SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 4 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE ii. Witness statement of Ms. Zareen Malik (hereinafter to be referred as DW-2) stated that as the accused were running on the deck, making their escape when it was nearing 12’o clock. 11 iii. Witness statement of Mr. Shekhar Subramniyam (hereinafter to be referred as DW-3) states that he was taken hostage by one of the accused and heard the accused firing a shot at around 11’o clock. 12 iv. Confession of PW-2 states that the accused persons started commission of dacoity post 11:30 p.m.when the guards changed their post 13 . From the above, a discrepancy of half an hour can be clearly made out between the confession and three of the witness statements. This half hour leaves enough time for some- one else to have perpetrated the crime. It is thus clear that prosecution cannot make out a proper chain of event of the offence. Where the prosecution heavily rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence is given to the accused person and if such confession cannot be properly corroborated proving beyond reasonable doubt then the accused person is entitled to the benefit of doubt. 14 Thus, it is submitted before this Hon’ble Court that the statement given by PW-2 not be taken into consideration since if the sole eye-witness contradicts himself, it would lead to an acquittal. 15 11Ibid, P. 15 12Ibid. P. 16 13Case Details, Annexure 8, P. 17 14Jaffar v. State,2013(2) JCC 1175; Hari Charan Kurmi and Anr v.State Of Bihar, AIR 1964 SC 1184 15 Haipal V State, AIR 1998 SC 2787 SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 5 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE 1.4 CIRCUMSTANTIAL EVIDENCE IS UNRELIABLE It is a well settled principle that where the case is mainly based on circumstantial evidence, the court must satisfy itself that various circumstanced in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused 16 . When even a link breaks away, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. 17 When attempting to convict on circumstantial evidence alone the Court must be firmly satisfied of the following three things: 18 i. The circumstances from which the inference of guilt is to be drawn, must have fully been established by unimpeachable evidence beyond a shadow of doubt ii. The circumstances are of determinative tendency, unerringly pointing towards the guilt of the accused iii. The circumstances taken collectively, are incapable of explanation on any reasonable hypothesis except that of the guilt sought to be proved against him The prosecution fails to pinpoint how the accused is solely responsible for securing entrance to the accused or instigating the commission of the crime, notwithstanding that the entire case rests solely upon uncorroborated circumstantial evidence. Therefore, it is humbly submitted before this Hon’ble Court that the charge of dacoity against the accused cannot be made in the present matter. 16 Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144 17 Janar Lal Das v. State of Orissa, 1991 (3) SCC 27; A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128. 18 Mahmood v. State of UP AIR 1976 SC 69 SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 6 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE ISSUE-II WHETHER MAJ RANA IS GUILTY OF MURDER? It is humbly contended before this Hon’ble Cour that the accused is not guilty for committing the offence of murder under Sec 302 read with Sec 300, IPC, considering that the accused was acting in private-defence [2.1], accident [2.2] and necessity [2.3]. Furthermore, the Prosecution’s case must be dismissed because of heavy reliance on uncorroborated confession [2.4], improper ballistic evidence [2.5] and faulty investigation [2.6], all creating the existence of a reasonable doubt [2.7]. 2.1. The Accused was acting in Private Defence The Defence humbly submits that the circumstance under Sec 103, IPC is fulfilled [A], private defence was warranted [B] and reasonable force was used [C] in the instant matter. A. Circumstance under Sec 103 is made out Section 103 of the IPC enumerates that the right to private defence of property can extend to causing death to causing in circumstances which have been listed in the provisions of section 103 19 and robbery is clearly mentioned in said provision of the act 20 and dacoity is robbery committed by 5 or more people at once 21 would enable this defence. In the case at hand the crime that took place cannot be misconstrued as theft as there was harm caused to Mr. Shekar Subramaniam (DW 3) and in such circumstances wherein the thief is carrying away the 19 Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530 20 Sec 103, IPC 21 Ratanlal & Dhirajlal, Indian Penal Code, p. 835 ( 33rd Ed. 2012) SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 9 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE 2.2. THE ACCUSED’S ACTIONS WERE AN ACCIDENT Under Sec 80, IPC, a criminal act which is an accident is not punishable as it is excuses the accused from punishment due to a lack of mens rea, and it for the prosecution to prove requisite intention or knowledge in cases of murder 33 . The word ‘accident’ is something that happens unexpectedly or happens unintentionally 34 . The purely accidental result of a man’s voluntary conduct will not be imputed to him if 35 - i. He had no criminal intention or knowledge ii. His conduct was lawful iii. His consequences were purely lawful The amount of caution that is to be followed under this section is not that which is of the highest order, but that which is a reasonable precaution when seeing the facts of each case 36 . In the case at hand it could be seen that-  While exercising his private defence it can be argued that Accused had accidently ended Brij Gopal’s death unintentionally 37 .  It can be inferred from the statements of Accused that his alleged criminal actions were an accidental one and he had no mens rea to commit such a crime 38 , and without intent a conviction cannot be made against the accused. 33 Chakru Sattiah v. State of AP AIR 1960 AP 153 34 Supra, n. 32, p. 528 35 Mohan Singh v. State of Punjab AIR 1965 Punj 291 36 Supra, n. 34, p. 533 37 Case Details, Annexure 7, p. 15 38 Ibid SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 10 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE 2.3. THE ACCUSED’S ACTIONS WERE A NECESSITY To attract the defence under section 81 of the IPC it has to be proven that the actions of the accused were done in good faith to prevent any other harm to the person or property of others 39 and due to an absence of mens rea the action or crime committed is excused 40 . The 3 prerequisites to this section are- i. The Presence of the particular motive specified ii. The existence of good faith iii. The absence of intention to commit the crime; i.e. Criminal Intention 41 If the situation warrants harm, the harm must not be intentional or with criminal intent 42 . Thus looking at the facts-  The actions of Accused were necessary for the safety of the people and the property of the people aboard the Montecito.  As seen in the facts of the case the shot fired by Accused was done in good faith with a motive to prevent the robbery from taking place, furthermore barring Bhaskar Sanyal’s statement 43 there is no other allegation of criminal intent of Accused to commit such a crime in cold blood 44 .  The accused’s alleged criminal acts are those which are done out of necessity to prevent a greater evil and he had under this section chosen the evil in which less harm 39 Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102 40 R v. Moganlal 14 ILR Bom 115 41 State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868 42 Ibid 43 Case Details, Annexure 8, p. 17 44 Case Details, Annexure 7, p. 14, 15, 16 SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 11 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE would have been caused or inflicted to others, hence excusing his acts under this section 45 .  Therefore as Head of Operations (Security) Accused had shot Brij Gopal in order to prevent any further damage or harm to the other people and the property of the Montecito thus making his act an excusable one under section 81 of the IPC. 2.4 CONFESSION IS UNRELIABLE The confession made by PW 2 is unreliable as it is of low evidentiary value [A],lacks corroboration [B] and he is an interested witness [C]. A. Confession by co- accused is weak evidence PW 2’s confession cannot be seen as reliable as the confession by a co- accused is considered as a very weak form of evidence which is on a very low footing 46 , the reason for this scrutiny and caution is being: i. He has motive to shift guilt from himself ii. He is immoral person likely to commit perjury on occasion iii. He hopes for pardon or has secured it, and so favours the prosecution 47 The Apex Court has held that confessions of a co- accused cannot be used against the accused unless the Court is morally satisfied on other evidence that the accused is guilty 48 . In the immediate matter before this court we can see that all of the aforementioned 3 principles 45 Southwark Borough London Council v. Williams (1971) 2 All ER 175 46 State of Punjab v. Bhajan Singh AIR 1975 SC 258 47 Lal Chand v. State of Haryana AIR 1984 SC 226 48 Badal Sheik v. State 1986 (2) Crimes- 316 SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 14 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE evidence and the oral evidence do not match to create the same story it would be unsafe for the courts to maintain a conviction on the same 58 and thus, the accused ought to be acquitted. 2.6 FAULTY INVESTIGATION The fact that the deceased’s body was found in the prone position 59 and not in the supine position, coupled with the fact that the deceased’s upper body turned towards the accused (as opposed to away from the accused, had he been shot in the frontalis) shows that the position of the body was either improperly recorded by Inspector Aamir Bashir (PW4) or was shifted, showing serious contamination of the crime scene. There is thus a grave possibility that vital evidence such as fingerprints, DNA, hair, residue on the victim’s clothes or other material piece of information may have been lost by virtue of callous and/or faulty investigation techniques. Moreover, no blood or footprints were recovered from the crime scene. Given that the accused was also persent at the scene of crime, a gunshot-residue test could have been conducted and his finger prints could also have been taken. Thus, no proper handling of investigation ,would lead to an acquittal 60 The Apex Court has held that in cases where there are a number of infirmaries in the evidence of the eyewitnesses the benefit of the doubt is given to the accused 61 , bearing in mind that DW 2, 3, 4 had not seen the accused commit the actus reus. It would be thus be highly unsafe to convict the accused for the crime. 58 Awdhesh & Ors v. State of MP AIR 1988 SC 1158 59 Case Details, Annexure 1, p. 3 60 State of AP v Kowthalam Narasimhula, 2001 Cr LJ 722 (SC) 61 State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC) SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 15 ARGUMENTS ADVANCED MEMORANDUM ON BEHALF OF THE DEFENCE 2.7 REASONABLE DOUBT In light of all the aforementioned arguments, the accused humbly submits that there exists reasonable doubt and hence he should be acquitted of the alleged crime. A reasonable doubt must not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason and common sense arising out of the evidence of the case 62 . The prosecution’s arguments are leaning towards the fact 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 63 . Therefore, it is humbly submitted before this Hon’ble Court that the charge under section 302 of the IPC has not been made out due and he should be acquitted of the same. 62 Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36 63 IV. Nelson R. A. , Indian Penal Code, p. 2905 , (10th Ed. 2008) SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 16 PRAYER MEMORANDUM ON BEHALF OF THE DEFENCE PRAYER Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble Court be pleased to: 1. Acquit Maj (Retd) J.S.Rana of the offence of committing dacoity with murder under Sections 396/302 of the Indian Penal Code, 1860. AND/OR Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. All of which is most humbly and respectfully submitted Place: Goa S/d_____________ Date: May 29, 2013 COUNSEL FOR THE DEFENCE