Defense Memo
Defense Memo
Defense Memo
In the matter of
State of Rajasthan
Appellant
v.
Respondent No. 1
Respondent No. 2
Respondent No. 3
TABLE OF CONTENTS
Sr. No.
1.
Particulars
Page No.
Index of Authorities
02
A. Books
B. Websites
C. Judicial Decisions
D. Dictionaries & lexicons
2.
03
3.
04
4.
Statement of Jurisdiction
08
5.
Statement of Facts
09
6.
12
7.
Arguments
8.
Issue 1
13
Issue 2
18
Prayer
39
Ratanlal and Dhirajlal, The Code of Criminal Procedure, 21stEdition 2013, Lexus Nexis
by B. M. Prasad, Manish Mohan
Ratanlal&Dhirajlal, The Indian Penal Code, 34thEdition 2013, Lexis Nexis by Justice K.
T. Thomas, M. A. Rashid
Texbook on Indian Penal Code, 5th Edition 2015, Universal Law Publishing by K. D.
Gaur
STATUTES:
ONLINE RESOURCES:
www.legalpundits.com
www.judis.nic.in
www.indiankanoon.org
www.advocatekhoj.com
www.lawkhoj.com
LIST OF ABBREVIATIONS
Abbreviation
Full Form
1.
v.
2.
AIR
3.
CrLJ
4.
CrPC
5.
Honble
6.
IPC
7.
Pg
PAGE
8.
SC
SUPREME COURT
9.
Supra
10.
Volume
VOLUME
11.
ETC
ETCETRA
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SCR
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No.
NUMBER
14.
SCC
15.
IEA
VERSUS
HONOURABLE
AS MENTIONED ABOVE
F.N.
No.
Page
No.
Citation
13
R v. Bertrand
14
(1867) 1 PC 520
Reil v. Queen
14
10 AC 675
14
(1894) AC 57
Dillet, Re
14
(1887) 12 AC 459
10
14
AIR 1917 PC 25
10
14
10
14
AIR 1925 PC 59
10
14
10
10
14
AIR 1944 PC 54
11
12
14
12
13
15
(2011) 8 SCC 65
13
14
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14
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15
15
16
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17
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20
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21
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(2003) 11 SCC 58
21
22
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23
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23
24
16
25
16
25
N. Suriyakal v. A. Mohandoss
26
17
26
26
17
27
27
17
(2008) 13 SCC 17
28
27
17
AIR 1955 SC 65
29
28
18
30
28
18
AIR 2007 SC 31
31
30
19
32
31
19
33
Bibi chachha
33
20
34
34
20
35
Laxmi v. Om Prakash
36
21
36
37
21
37
38
22
39
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40
23
40
41
23
41
42
24
42
43
24
43
44
24
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45
24
45
46
25
46
47
25
(2003) 7 SCC 56
38
39
48
25
48
49
25
49
50
25
50
51
25
51
52
26
(1997) 11 SCC 26
52
53
27
53
54
28
54
55
28
55
State v. Manjunathegouda
56
28
56
57
29
57
58
29
58
58
29
59
59
29
60
62
30
61
63
30
62
64
30
63
65
31
64
Majbabu v. St of MP
66
31
65
66
31
66
67
31
67
69
32
(1994) 1 SCC 73
68
70
32
69
71
33
70
72
33
71
73
33
72
74
33
State of Gujarat v.
SunilkumarKanaiyalal Jani
75
33
74
76
34
75
78
34
79
34
77
80
34
78
81
35
79
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76
STATEMENT OF JURISDICTION
The State of Rajasthan has approached this Honble Supreme Court under Article 136 of the
Constitution of India, 1950 as a Special Leave Petition challenging the judgement of the
Rajasthan High Court. The counsel for the respondents humbly submits that the present case
doesnt merit admission under the Article 136 of the Constitution of India, 1950.
11
13
14
Prior to the commencement of the Constitution, the practice of the Privy Council was not to
Chandra Mohan Tiwari v. State of Madhya Pradesh, AIR 1992 SC 891; Sec on 379 CrPC
Ar cle 134(1) (b) Cons tu on of India, 1950
Cons tu on of India, 1950
Ar cle 134(1) (c) Cons tu on of India, 1950
Cons tu on of India, 1950.
Code of Criminal Procedure 1973.
Lectures on Administra ve Law; (2008); pp. 390-94
15
by some violation of the principles of natural justice, or otherwise, substantial and grave
injustice has been done (emphasis supplied)
In Dal Singh v. King Emperor,10 after referring to earlier decisions, their Lordships made the
following pertinent observations;
The exercise of the prerogative takes place only where it is shown that injustice of a serious
and substantial character has occurred. A mere mistake on part of the courts below, as for
example, in the admission of improper evidence, will not suffice if it has not led to injustice
of a grave character. Such questions are, as a general rule, treated as being for the final
decision of the courts below.(Emphasis supplied)
After commencement of the Constitution of India, the Supreme Court became the highest
court in the judicial hierarchy. Article 13611 conferred very wide and extensive powers on the
court in granting special leave in the wide range of matters. It, however, took note of the
practice the Privy Council followed in granting special leave in criminal cases.
In Pritam Singh v. State of Punjab,12 speaking for the constitution bench, Fazl Ali, J stated;
Generally speaking, this court will not grant special leave unless it is shown that
exceptional and special circumstances exist, that substantial and grave injustice has been
done and that the case in question presents features of sufficient gravity to warrant a review
R v. Bertrand, (1867) 1 PC 520; Reil v. Queen, (1885) 10 AC 675; Makin v. A orney General for New South
Wales, (1894) AC 57
(1887) 12 AC 459
AIR 1917 PC 25; Ibrahim v. King Emperor, AIR 1914 PC 155; Taba Singh v. King Emperor, AIR 1925 PC 59;
Mohinder Singh v. King Emperor, AIR 1932 PC 234; Eswaramurthi v. King Emperor, AIR 1944 PC 54
Cons tu on of India, 1950
AIR 1950 SC 169
16
Against an order of acquittal, an appeal by the State is maintainable to this Court only with
the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court
is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or
imprisonment for more than 10 years, then the right of appeal of the accused is treated as an
absolute right subject to the provisions of Articles 134(1) (a) and 134(1)(b) of the
Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of
this, it is obvious that an appeal against acquittal is considered on slightly different
parameters compared to an ordinary appeal preferred to this Court.(Emphasis supplied)
When an accused is acquitted of a criminal charge, right vests in him to be a free citizen and
this Court is very cautious in taking away that right. The presumption of innocence of the
accused is further strengthened by the fact of acquittal of the accused under our criminal
jurisprudence. The courts have held that if two views are possible on the evidence adduced
in the case, then the one favourable to the accused, may be adopted by the court.14
In State of M.P. v. Bacchudas,15the Court was concerned with a case where the accused had
been found guilty of an offence punishable under Section 304 Part II read with Section 34
IPC by the trial court but had been acquitted by the High Court of Madhya Pradesh. The
appeal was dismissed by this Court, stating that the Supreme Court's interference was called
for only when there were substantial and compelling reasons for doing so. (Emphasis
Supplied)
The principle to be followed by the appellate court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and substantial reasons
for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a compelling reason for
interference.
(2011) 8 SCC 65
State Of Rajasthan v. Shera Ram @ Vishnu Du a,CRIMINAL APPEAL NO.1502 OF 2005
AIR 2007 SC 1236
17
when the court has to exercise its discretion in an appeal arising against an order of
acquittal, the court must remember that the innocence of the accused is further
re-established by the judgment of acquittal rendered by the High Court. Against such
decision of the High Court, the scope of interference by this Court in an order of acquittal
has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v.
State of Rajasthan.(Emphasis supplied)
In the present case the impugned judgment of acquittal recorded by the High Court does not
suffer from any legal infirmity and, therefore, does not call for any interference. The
Supreme Court in exercise of its discretionary jurisdiction under Article 136 of the
Constitution should not interfere and reopen the findings of fact arrived at by the High
Court, particularly in a casewhere the accused were acquitted. Article 136 of the
Constitution does not confer a right of appeal on any party from the decision of a Court; but
it confers a discretionary power on the Supreme Court to interfere in suitable cases.This
discretionary power is exercised when there is a grave failure and miscarriage of justice to
18
ISSUE II
Whether the decision of the High Court should be upheld?
a) Whether the accused persons areguilty for murder and hence can be punished
under Sec. 302 of the Indian Penal Code, 1890?
N. Suriyakal v. A. Mohandoss, (2007) 9 SCC 196; State of Assam v. Barga Dewani, (1970) 3 SCC 236.
Central Bank of India v. Madhulika Guruprasad Dahir, (2008) 13 SCC 17; Dhakeswari Co on Mills Ltd. v. CIT,
AIR 1955 SC 65.
19
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, or
Secondly.If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or
Thirdly.If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or
Fourthly.if the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
Section 300 deals with murder. It does define murder. Section 299 explains culpable
homicide. This section sets out circumstances when culpable homicide amounts to murder.
The first question to be considered before murder can be proved is whether the accused has
done an act by doing of which he has caused the death of another. This basically means that
the Actus Reus is the first ingredient that needs to be proved.
In any crime, the essential elements of the guilt must be proven by the prosecution beyond
reasonable doubt. Suspicion, however strong it may be, cannot take the place of proof.28
By virtue of the Indian Evidence Act 1872, section 101, the onus of proving the criminal
charge beyond reasonable doubt against the accused lies on the prosecution. A person is
presumed to be innocent until his guilt is established.
Meaning of beyond reasonable doubt: The standard that must be met by the prosecution's
evidence in a criminal prosecution: that no other logical explanation can be derived from the
facts except that the defendant committed the crime, thereby overcoming the presumption
that a person is innocent until proven guilty.29
When a case rests purely on circumstantial evidence, such evidence must satisfy three tests.
Dhananjaya Reddy v. State of Karnatka. AIR 2001 SC 1512; Avtar Singh v. State of Punjab AIR 2007 SC 31
h p://legal-dic onary.thefreedic onary.com/Beyond+a+Reasonable+Doubt.
20
21
22
In State of Maharashtra v. Sanjay D Rajhans, the Supreme Court held thatwhen two
incredible versions confront a court, the court has to give benefit of doubt to the accused
and its not safe to sustain a conviction. The version of homicide set up by the prosecution
as well as the version of suicide set up by the accused appear to be highly improbable and
did not inspire confidence in the mind of the court to believe either version. Hence the
court upheld the acquittal.37
b) Whether the accused persons are guilty for Dowry Death under Sec. 304-B of the
Indian Penal Code, 1890?
A reading of Section 304-B of the Indian Penal Code, 1860 clearly shows that if a married
woman dies otherwise than under normal circumstanceswithin seven years of her
marriage and it is shown that soon before her death she was subjected to cruelty or
harassmentby her husband or any relative of her husband in connection with demand for
dowry, such death shall be called a dowry death and such a husband or relative shall be
deemed to have caused the death.
In the case of Mustafa Shahadal Shaikh v. State of Maharashtra,38 the court held that in
order to convict an accused for the offence punishable under Section 304-B IPC, the
following ingredients must be satisfied:
i. the death of a woman must have been caused by burns or bodily injury or
otherwise than under normal circumstances;
ii. such death must have occurred within seven years of marriage;
iii. soon before her death, the woman must have been subjected to cruelty or
harassment by her husband or any relatives of her husband;
iv. Such cruelty or harassment must be for, or in connection with, demand for dowry.
In the present case, there is no dispute that the first two ingredients have been fulfilled,
that is, death occurred otherwise than under normal circumstances and the death occurred
within seven years of the marriage. However, it is humbly asserted that there is no
23
Any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether mental
or physical) of the woman; or
(b)
harassment of the woman where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.
In the case of Ram Singh v. State of Haryana39 , the SC laid down the principle that it is
well settled that facts are to be proved and no fact can be said to be proved merely by
surmise or conjecture.
In any marital life it cannot be said that there is total harmony and it is not uncommon
between the wife and husband to have some petty quarrels, which cannot be termed as
'cruelty' to attract the provisions of Section 498-A, IPC.40
(2008)4 SCC 70
Vadala Vinay Kumar v. St. of A. P. 2006 (1) ALD Cri 530, 2006 CriLJ 1710
24
In the case, Kaliyaperumal v. State of Tamil Nadu41, the petitioner had harassed his
deceased wife and had treated her with cruelty which is evident from the evidence of a
number of witnesses from the neighbourhood. It was held that the petitioner could not
save himself from the offence under sec 498-A for which there is overwhelming evidence.
The situation in the present case is markedly different. The defence produced three
witnesses who testified that she was treated as a daughter and that there were cordial
relations between the accused and the deceased. Also, though it has been stated by the
prosecution that the servants witnessed the cruelty meted out to the deceased, none of the
servants have testified about the same.
Mere omnibus statement regarding demand of money does not ipso facto make out a case
under 498-A of IPC. Prosecution is required to prove over acts attributed by accused
beyond reasonable doubt.
To decide the question of cruelty, the relevant factors are the matrimonial relationship
between the husband and wife, their cultural and temperamental state of life, state of
health and their interaction in daily life.42The effect of cruelty depends on a number of
factors such as sensitivity of the individual, the social background, the environment,
financial positions, social status etc.43
Furthermore, the comments about the childless state of the couple do not constitute
cruelty. In State of Andhra Pradesh v. Kalidindi Sahadevudu,44 it was alleged that, as the
deceased did not beget children for a period of three years after the marriage, accused
harassed the deceased by calling her barren woman. It was held that mere commenting
that deceased was not begetting children does not amount to subjecting the deceased to
cruelty within the meaning of sections 498A IPC.
In the case Suresh Kumar v. State of Haryana45, the court said The domestic work that a
25
A basic principle of criminal law is that the prosecution must prove that the offence has
been committed beyond reasonable doubt. If there is even a little doubt in the mind of any
reasonable person as to whether the Accused had committed the offence, the benefit of
doubt must go to the accused.
In Ashok Debbarma v. State of Tripura46, the Honble Supreme Court held as under:
would be called reasonable if they are free from a zest for abstract speculation. Law
cannot afford any favourite other than truth and to constitute reasonable doubt, it must be
free from an overemotional response. Doubts must be actual and substantial doubts as to
the guilt of the accused persons arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a
merely possible doubt, but a fair doubt based upon reason and common sense. It must
grow out of the evidence in the case.(Emphasis supplied)
In the cases
1. Gurditta Singh v. State of Rajasthan48
2. Gurnam Singh v. State of Haryana49
3. Raj Rani v. State of Haryana50
4. Devinder Singh v. State of Punjab51
26
treat his wife properly because her father was not willing to give more money had for that
reason on one occasion he had driven her out of his house and also because she had given
birth to a female child. The facts and circumstances which can be accepted as proved no
doubt create a strong suspicion that on the fateful day the respondent had, after some
27
quarrel, poured kerosene over her and put her to flames. But this is a case of
circumstantial evidence and on re appreciation of the evidence the High Court has found
it fit to acquit the respondent. Therefore, unless, we come to the conclusion that the view
taken by the High Court is so unreasonable as to warrant interference by this court it will
not be proper to interfere with the order of acquittal, only because on re-appreciation of
evidence it is possible to take a different view. (Emphasis supplied)
Furthermore, in the same above mentioned case the court held that Even with respect to
the evidence of harassment and cruelty, the High Court has held that it is insufficient for
holding that Vibha was driven to commit suicide because of harassment and cruel
treatment by the respondent. The fact that after the incident of 26.11.1983 the respondent
had approached Vibha and her parents on the very next day and apologised and no other
incident either demand of money or ill treatment had taken place after that date makes it
doubtful if harassment and cruel treatment given by the respondent was the immediate
cause of committing suicide. (Emphasis supplied)
Demand for dowry
The Dowry Prohibition Act, 1961 defines dowry as follows:
Dowry means any property or valuable security given or agreed to be given either
directly or indirectly:
a.
b.
by the parents of either party to a marriage or by any other person, to either party
to the marriage or to any other person; at or before or any time after the marriage in
connection with the marriage of said parties but does not include dower or mehr in the
case of persons to whom the Muslim Personal Law (Shariat) applies.
In the present case it is alleged by the prosecution that accused no. 2 demanded a
Mercedes Benz Classic Car and a fixed deposit of Rupees 1 crore. This demand can be
understood to be for the purpose of recovering the deficit of the high taxes paid by the
Goyal family after the raid of the Income Tax Department for the wedding reception.
Goyal family were found to have spent Rs. 7.5 Crores while the Gupta family spent only
28
29
30
c) Whether the accused persons are guilty for abetment of suicide under Sec.306 of
the Indian Penal Code, 1890?
In order to convict the Accused Persons for abetting the Deceased to commit suicide
Section 306 of the IPC must be attracted.
Section 306 states the following:
If any person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description for a term which may extend to
ten year, and shall also be liable to fine.
A Person abets the doing of a thing, who
i. instigates any person to do that thing; or
ii. Engages with one or more other person or persons in any conspiracy for the doing
of that thing, if an act or an illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
iii. Intentionally aids by any act or illegal omission, the doing of that thing60
Instigation is the only way a person can abet the commission of a suicide. One of its
synonyms is abet which means in law to aid, promote, or encourage of an offence.61 To
make out a case of abetment, there must be some active suggestion or instigation,
provocation, incitement or encouragement by the accused to a person to do an act.62
Instigate is to goad, urge forward, provoke, incite or encourage to do an act. To satisfy
the requirement of instigation though it is not necessary that actual words be used to that
effect or what constitutes instigation must necessarily and specifically be suggestive of
the consequence. Yet a reasonable certainty to indicate the consequence must be capable
31
32
Majbabu v. State of MP AIR 2008 SC 3212; Sohan Raj v. State of Haryana (2008) 11 SCC 215
Satvir Singh v. St of Punjab (2001) 8 SCC 633
Hans Raj v. St of Haryana (2004) 12 SCC 257
State of WB v. Orilal Jaiswal (1994) 1 SCC 73
33
34
Where the married life of the husband and the wife was quarrelsome and it led to the
dejection and mortification of the wife, resulting into her committing suicide, it could not
be said that the husband abetted the wife to commit suicide. The mere fact that the
husband did not treat the wife properly and treated her with cruelty was not sufficient to
establish abetment. 75
In a case of suicide, the only allegation against the husband being that he used to come to
the house in a drunken state, used to beat her and abuse her and once he told her that he
did not bother if she lived or died and asked her to die, the court held that the attribution
of these acts to the accused husband does not constitute his abetting the commission of
suicide by the deceased wife.76
In Hansraj v. State,77 the only fact proved was frequent quarrels between husband and
wife, sometimes involving physical assault but no evidence was forthcoming to show that
the husband either aided or instigated the deceased to commit suicide. Accordingly, there
was no conviction under Sec. 306.
In case of alleged abetment of suicide there must be proof of direct or indirect acts of
incitement to the commission of suicide. Even the mere fact that the husband treated the
deceased wife with cruelty is not enough.78
In the case of Chanchal Kumari v. Union territory Chandigarh,79 the Supreme Court
observed that in the absence of dependable evidence in regard of actual abetment by any
one of the accused for the deceased to commit suicide, the accused are held entitled to be
acquitted.
In the case of Davender Singh v. State,80where purported demand made by the husband
had no direct nexus or immediate cause for commission of suicide by his wife, same
35
Sec 34 IPC: When a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it were
done by him alone
To apply section 34, apart from the fact that there should be two or more accused, two
factors must be established:
There are two essentials which need to be satisfied for the application of this section:
1. Common intention to commit the crime
2. Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability.81
If participation of the accused in the crime is proved and common intention is absent,
Section 34 cannot be invoked.82
36
85
Before a court can convict can convict a person for any offence read with section 34, it
should come to a definite conclusion that the said person had a prior concert with one or
more other persons named for committing the said offence.
86
The Supreme Court in Amrik Singhs Case laid down that presence of clear and
87
Ratanlal and Dhirajlal- The Indian Penal Code (33rd edi on, reprint 2013, pg no. 39)
Harjit Singh v. State of Punjab AIR 2002 SC 3040
Santosh Desai v. State of Goa, (1997) 2 Crimes 666 (Bom)
Krishna Govind v. State of Maharastra, (1963) Bom LR SC 789
Amrik Singh V. State Of Punjab,1972 CrLJ 465 SC
37
2. Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability
Existence of a common intention in several persons, who commit the criminal act, and
the doing of criminal act in furtherance of that common intention are the essential
requirements for the applicability of Section 34. When these two requirements are
satisfied, each of such persons is liable for the entire criminal act in the same manner as if
he alone had done it irrespective of the fact whether he was present at the spot or not. The
essence of Section 34 is a simultaneous consensus of the minds of the persons
participating in the criminal action to bring about a particular result.88
Common intention can be proved either from direct evidence or by inference from the
acts or attending circumstances of the case and conduct of the parties.89Mere presence
along with the principal actor at the spot in the absence any premeditation or of a
pre-arranged plan amongst the accused themselves is not sufficient to prove or infer
common intention.90
In the present case, the deceased committed suicide and there was no cruelty or
harassment meted out to her and hence there was no participation of the accused person in
any sort of crime.
Arjun Thakur Alias Singh And Anr. v. State, 1994 CriLJ 3526
Pradeep v. Union Admin. (2006)10 SCC 608
Ram Nath v. State of Madhya Pradesh, AIR 1953 SC 420; Banwari v. State of U ar Pradesh AIR 1962 SC 1198
38
PRAYER
Wherefore it is humbly prayed before this Honble Court that in the light of facts presented,
39
40