TEAM CODE: R14

PADMA SHRI DR. N.N. JAIN NATIONAL VIRTUAL

MOOT COURT COMPETITION 2021

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

MEMORANDUM FOR RESPONDENTS

IN THE MATTER OF:

ARUN MEHTA & ORS.....................................................................Appellants

V.

STATE OF MAHARASHTRA............................................................Respondents

FILED UNDER ART. 136 OF THE INDIAN CONSTITUTION.

MOST RESPECTFULLY SUBMITTED BY THE COUNSELS APPEARING

ON BEHALF OF RESPONDENTS

i
3rd SETH JAGANNATH BAJAJ MEMORIAL RNBGU NATIONAL MOOT COURT
1
COMPETITION, 2020
PADMA SHRI DR. N.N. JAIN NATIONAL VIRTUAL MOOT COURT COMPETITION 2021
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TABLE OF CONTENTS

I. LIST OF ABBREVIATIONS 3

II. INDEX OF AUTHORITIES 4

• Cases Referred 4
• Books Referred 7
• Statutes Referred 7
• Online Databases 7

III. STATEMENT OF JURISDICTION 8

IV. STATEMENT OF FACTS 9

V. STATEMENT OF ISSUES 11

VI. SUMMARY OF ARGUMENTS 12

VII. ARGUMENTS ADVANCED 13

1. Whether the petition, filed before the Hon’ble supreme court under
Art. 136 of the constitution is maintainable ?
1.1. The appellants have not made an exceptional case 13
1.2.Appellants do not have any substantial question of law 14

1.3.The Apex court interference with the concurrent findings

of the lower courts 14

2. Whether the appellants are liable to be charged under § 304B of IPC

and § 113B of IEA?

2.1. Ingredients of § 304 IPC are satisfied 15

2.2. § 113B of IEA act operates 18

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3. Whether the offence under § 3 and. 4 of the DPA has been

proved against the accused?

3.1. Ingredients of §3 of DPA is satisfied 19

3.2. Ingredients of §4 of DPA is satisfied 19

4. Whether the power of the Hon’ble court to consider the

addition of alternative charges can be pursued?

4.1. Appellants are liable to be convicted under §498-A of the IPC 21

4.2. Appellants are liable to be convicted under §302 r/w. §34 of IPC 22
4.3.Appellants are liable to be convicted under § 6 of the DPA 24

VIII. PRAYER 25

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MEMORANDUM FOR THE RESPONDENTS

LIST OF ABBREVIATIONS

SYMBOL ABBREVIATION
¶ Paragraph

§ §

& And

A.I.R All India Reporter

Art. Article

Hon’ble Honourable

Id Ibid

MANU Manupatra

S.C Supreme Court

S.C.C Supreme Court Cases

S.C.R Supreme Court Reporter

IPC Indian Penal Code 1860

IEA Indian Evidence Act 1872

DPA Dowry Prohibhition Act 1961

Cri LJ Criminal Journal

CrPC Code of Criminal Procedure 1973

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MEMORANDUM FOR THE RESPONDENTS

INDEX OF AUTHORITIES

(A) CASES REFERED:

PAGE
SL.NO CASE LAWS CITATION NO.
1 A.R. Antulay vs. R.S. Nayak ; AIR 1988 SC AIR 1988 SC 1531. 13
1531
2 Pritam Singh v. State AIR 1950 SC 169. 13
3 Hem raj v. the state of Ajmer 1954 SCR 1133. 13

4 In Panchanan Misra v. Digambar Mishra AIR 2005 SC 1299. 12

5 Haripada Dey v. State of West Bengal AIR 1956 SC 757. 14

6 Jindal Industries Ltd. V. State of Haryana 1991 Supp (2) SCC 587. 14

7 Nain Singh Bhakuni v. Union of India AIR 1998 SC 622. 14

8 In Mehar Singh v. Shri Moni Gurudwara AIR 2000 SC 492. 14

Prabandhak Committee

9 Asst. Controller, Central Excise v. N T Co AIR 1972 SC 2563. 14

10 State of HP V. Kailash Chand Mahajan (1992) AIR 1277 SC. 14

11 DCM v. Union of India AIR 1987 SC 2414. 15

12 N. Suriyakala v. A. Mohandoss (2007) 9 SCC 196. 15

13 Kunhayammed& ors v. state of kerala &Anr, (2000) 6 SCC 359. 15

14 Jamshed Hormusji wadia v. Board of trustees, AIR 2004 SC 1815. 15

port of Mumbai

15 Wazir Chand v. State of Haryana, 1994 (6) S.C.C. 727. 15

16 Dhian Singh v. State of Punjab., 2004 (7) S.C.C. 759. 16

17 Kans Raj v. State of Punjab, 2005 (5) 207. 16

18 Ram Badan Sharma v. State of Bihar, 2006 (10) S.C.C. 115. 16

19 Bachni Devi v. State of Haryana, (2011) 4 SCC 427. 16

20 Raminder singh V. State of Punjab (2014) 12 SCC 16

582.
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21 Gurbachan Singh V. Satpal Singh (1990) 1 SCC 445. 16

22 Rupali Devi v. State of Uttar Pradesh and (2019) 5 SCC 384. 16

Others
23 In Sirajmohmedkhan janmohamadkhan v. 16
hafizunnisa yasinkhan 1981 4 SCC 250.

24 Mohd. Hoshan vs. State of A.P 2002 crilj 4124. 16

25 Bansilal v. State of Haryana, A.I.R. 2011 S.C. 691. 17

26 Uday Chakraborty v State of West Bengal,., 2010(7) S.C.C. 518. 17

27 Satbir Singh vs State of Haryana AIR 2001 SC 2828 . 17, 20

28 Thakhan Jha v. State of Bihar (2004) 13 SCC 348. 17

29 Basisth Narayan Yadav vs Kailash Rai and 2015 SCC 755. 17

others
30 Deepak vs State of UP, (2021) SC online All 18
190.
31 Kamesh Panjiyar V. State of Bihar (2005) 2 SCC 388. 18

32 Ramesh Vithal Patil V. state of Karnataka (2014) 11 SCC 516. 18

33 Pathan Hussain Basha v. State of Andhra 2012 8 SCC 594. 18

Pradesh
34 Chaturanan vs State of UP, 2018 SCC online all 18
5819.
35 Sher Singh vs State of Haryana, (2015) 3 SCC 724. 18

36 State of Punjab v. Iqbal Singh & Ors (1991) 3 SCC 1. 18

37 B.S Joshi v. State of Haryana. (2003) 4 SCC 675. 18

38 Ujjal Maitra v. Kanchan Maitra, (1998) 1 crimes 24 19

(Orissa).
39 Mulakh Raj v. Sathish Kumar, (1992) 2 crimes (SC) 20
130 .
40 Hanumant vs. The State of Madhya Pradesh AIR 1952 SC 343 . 20

41 L.V. Jadhav vs. Shankar Rao Abasahade 1983 (4) SCC 231 . 20
Pawar

Harbans Singh v. Smt. Gurcharan Kaur alias 20

43 Sharan Kaur, (1993) Rec. Cr. R 404

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(del).

44 P. Karthikalekshmi vs. Sri Ganesh, (2017) 3 SCC 347 . 21

Dr. Nallappareddy Sridhar Reddy vs. The (2020) 1 crimes (SC) 21

45 State of Andhra Pradesh & Ors, 198 .

46 U. Suvetha v. State (2009) 6 SCC 757 . 21

47 G.V. Siddaramesh v. State of Karnataka (2010) 3 SCC 152.. 21

48 Gurucharan Singh vs. State of Punjab, (2017) 1 SCC 433 . 21

Modisab Kasimsab Kanchagar vs. State of A.I.R. 2013 SC 1504 . 21

49 Karnataka and another,

50 Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618 . 21

51 Akula ravinder v. State of Andhra Pradesh AIR 1991 SC 1142. 22

52 Kaliyaperumal V.State of Tamil Nadu AIR 2003 SC 3828. 22

53 Rajbir V. State of Haryana (2010) 15 SCC 116. 22

Prabhu v. State of Madhya Pradesh (1991) Cr LJ (SC) 22

55 1373 .

56 Ashok Kumar vs. State of Rajasthan AIR 1990 SC 2134 . 23

58 Prabhudayal v. state of Maharashtra AIR 1993 SC 2164 23

59 Swami Sharddanandha vs. State of Karnataka AIR 2007 SC 2531 . 24

60 State of Rajasthan vs. Kashi Ram (2006) 12 SCC 254. 24

2016 SCC OnLine SC 24

61 Bobbili Ramakrishna Raju Yadav v. State of 42.
Andhra Pradesh,

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(B) BOOKS REFERRED:

1. R.V. KELKAR, Lectures on criminal law, 3rd Edn. 2002 , Eastern book
company, New Delhi.
2. RATAN LAL & DHIRAJLAL, The code of criminal procedure , 14th Edn.
3. V.K.DEWAN, Law relating to Dowry Prohibhition Act , 2nd Edn. , Asian Law
House.
4. M.P JAIN, Indian Constitutional Law , 6th Edn.
5. H.M.SEERVAI, Indian Constitutional Law, 4th Edn.

(C) STATUTES/ACTS REFERRED

1. The Constitution Of India, 1950

2. The Criminal Procedure Code 1973.
3. The Evidence Act 1872.
4. The Indian Penal Code 1860.
5. The Dowry prohibhition Act 1961.

(D) ONLINE RESOURCES

➢ www.manupatra.com
➢ www.scconline.com
➢ www.indiankanoon.com.

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STATEMENT OF JURISDICTION

The respondents humbly submit to the jurisdiction of this Hon’ble court in response to the
Appellants approaching this Hon’ble Court under Art.136 of the constitution of India. However,
permission of this Hon’ble court is humbly sought by the Respondents to contend the
maintainability of this Special Leave petition under Art. 136 of the Constitution of India.

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STATEMENT OF FACTS

[A] BACKGROUND

1. Arun Mehtha (A1) was a small time cloth broker at the Mulji Jetha Textile Market. His
father, Bhanji bhai (A2) and mother (A3) elder brother, Suhas, were also brokers like him.
They lived in a small run down building in an overly crowded locality of Mumbai’s
Pydhonie. A1 was not in a position to earn sufficient money to eke their livelihood. A1 and
Nita’s marriage took place on 27th January 2019 and Nita’s mother (PW1) and father (PW2)
gave hefty dowry of utensils, clothes for everybody, suits, sarees, undergarments, gold
jewelry, all amounting to Rs. 7 Lakhs.
[B] RELEVANT FACTS
2. After marriage Nita had to live in the joint family house of A1 and had to do all the household chores
as a single person as the maid was discharged immediately on Nita’s arrival. On complain about the
heft work, A1’s parents exclaimed that she was bought in to do free work instead of the maid.
Witnessing Nita’s situation, Nita’s brother Ramesh(PW 3) offered his newly purchased 2-
BHK flat at a distant Mumbai suburb of NallaSopara for their private residence. A1’s family
demanded the flat to be transferred to A1’s name which was refused by Ramesh.

3. A1 was not providing enough for the family and hence Nita, also started tuitions of the
neighborhood children to augment A1’s scant income in a room of their flat. In the meantime,
Nita got pregnant and delivered a baby girl, Tejasvini on 1st December, 2019.A1’s family was
behind the couple even after they moved to NallaSopara. As A1 was not desirous of
travelling all the way from Nalla Sopara to Mulji Jetha Textile Market, he requested for help.
He wanted a small stall to be purchased for him at NallaSopara as demand and wanted the
stall in his name at the behest of his parents.

4. Nita unable to put up with A1 and his family wanted to seek divorce on the grounds of
cruelty under Hindu Marriage Act but it was not filed yet . For their daughter’s birthday they
had decided to paint their house with bright colors and remaining quantity of Kerosene which
was used for the removal of paint was kept in the house.

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5. On 5th of January 2020, Nita’s (deceased) mother received a telephone call from Feroz Khan,
stating that Nita is admitted to Kasturba Hospital at Borivali. She found critically burnt Nita
at the ICU. A Local Police Constable, Ratan Kamble was also present recording statements.
A1’s parents walked away from the hospital washing off their hands from all responsibilities.
Nita succumbed to the burn injuries on 8th January 2020. The autopsy report revealed that
Nita had blood in her nails which matched the blood groups of Bhanji Bhai and A1 and has
small injury on the back of her head.

6. Nita’s parents filed a formal complaint on 10th of January, 2020 of dowry death at Borivali
Police Station. The criminal record was transferred from Borivali Police Station to
Nallasopara Police Station for further investigation. On further investigation it was held that
the spouses lived an unhappy married life and quarrel took place within the four walls of the
flat between Nita and A1. Bhanji bhai had not been seen at the site. Thereafter, there was a
sound of blast. Ms. Asha Afroz, neighbor of the couple had noticed the quarrel. A1’s family
were arrested for dowry death.

[C] LOWER COURT’S JUDGEMENT

7. The Hon’ble Session’s Court at Vasai tried and convicted all the Accused with utmost
severity under § 304-B of the IPC, r/w §113-B of the IEA and § 3 and 4 of DPA. The
Accused persons appealed before the Hon’ble Bombay High Court and the appellate Court
confirmed the sentence.

8. The Accused persons claiming absolute innocence, the Accused have appealed to the
Supreme Court of India against their sentences. The matter is now listed for final hearing.

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STATEMENT OF ISSUES

I. WHETHER THE PETITION, FILED BEFORE THE HON’BLE SUPREME

COURT OF INDIA UNDER ART. 136 OF THE INDIAN CONSTITUTION
IS MAINTAINABLE ?

II. WHETHER THE APPELLANTS ARE LIABLE TO BE CHARGED

UNDER § 304B OF IPC AND § 113B OF IEA?

III. WHETHER THE OFFENCE UNDER § 3 AND. 4 OF THE DPA HAS BEEN
PROVED AGAINST THE ACCUSED?

IV. WHETHER THE POWER OF THE HON’BLE COURT TO CONSIDER

THE ADDITION OF ALTERNATIVE CHARGES CAN BE PURSUED?

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SUMMARY OF ARGUMENTS

I. WHETHER THE SLP FILED BEFORE THE HON’BLE SUPREME COURT

OF INDIA UNDER ART. 136 OF THE INDIAN CONSTITUTION IS
MAINTAINABLE ?
Two basic elements of a special leave petition are that it must involve a substantial question
of law and a gross miscarriage of justice. The counsel for the respondents humbly submit
that, present Special Leave sought for setting aside the impugned orders of the High court
and trial court, does not invoke any substantial question of law and charges framed are good
in law.

II. WHETHER THE APPELLANTS ARE LIABLE TO BE CHARGED UNDER §

304B OF IPC AND § 113B OF IEA?
The counsel for the respondents humbly submit that the ingredients under§ 304 B has been
sufficiently proved by the prosecution by establishing the demand for dowry from the victim
during the marriage, cruelty and harassment by the husband and his family, in connection to
the demand for dowry. All of these atrocities happened soon before the death of the victim
and she succumbed to third degree burns.

III. WHETHER THE OFFENCE UNDER § 3 AND 4 OF THE DPA HAS BEEN
PROVED AGAINST THE ACCUSED?
The counsel for the Respondent humbly submits that the Appellants/Accused received hefty
dowry in connection with the marriage and demanded the apartment and stall soon after
marriage as dowry, hence offence under §3 & 4 of DPA has been made against the
appellants.

IV. WHETHER THE POWER OF THE HON’BLE COURT TO CONSIDER THE

ADDITION OF ALTERNATIVE CHARGES CAN BE PURSUED?
The respondent humbly submits that § 216 (1) of the Code of Criminal Procedure, 1973
empowers any court to alter or add any charge at any time before the judgment is
pronounced and that this Hon’ble Court may take into consideration to add charges under
§302, 498-A of IPC and § 6 of the DPA.

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ARGUMENTS ADVANCED

1. WHETHER THE PETITION, FILED BEFORE THE HON’BLE SUPREME

COURT OF INDIA UNDER ART. 136 IS MAINTAINABLE .

( ¶1 ) The Counsel for the Respondents Humbly submits that the present special leave
petition filed under Art. 136 of the Indian Constitution is not maintainable as there has been
no miscarriage of justice and reasonable procedural adherence has indeed been followed
which is the fundamental of maxim actus curiae neminem gravabit1.

1.1. The appellants have not made an exceptional case

( ¶2 ) The counsel humbly submits that there has been no such injustice in the instant case
and the High court and trial court has dealt the case with reasonable procedural adherence
placed the concurrent charges against the accused. The appellants have not made out an
exceptional case to which the special leave must be granted. This Hon'ble Court is the Apex
court of the country, one cannot expect it to look at every matter with extreme minuteness
and subjectivity. The powers conferred on this Hon'ble Court cannot be used for a sufficiently
settled matter. Therefore the appeal is liable to be dismissed.

( ¶3 ) In Pritam Singh v. State2, the Supreme Court held that the “power under Article
136 is to be exercised sparingly and in exceptional cases only where grave injustice is done.
It was held in Hem raj v. the state of Ajmer3, Unless it is shown that exceptional and special
circumstances exist that substantial and grave injustice have been done and the case in
question presents features of sufficient gravity to warrant a view of the decision appealed
against, the supreme court does not exercise its overriding powers under Art.136 of the
constitution.

( ¶4 ) Hence the counsel humbly prays that Hon’ble Court held that since no sufficient
reasons has been meted out by Appellants and since there has been no gross miscarriage of
1
A.R. Antulay vs. R.S. Nayak ., AIR 1988 SC 1531.
2
AIR 1950 SC 169.
3
1954 SCR 1133.
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justice or departure from the legal procedure, such as, which vitiates the whole trial or if the
finding of fact were such as shocking to the judicial conscience of the Court4.

1.2. Appellants do not have any substantial question of law

( ¶5 ) The respondents humbly submit that the present case has been dealt wholly and
completely by the lower courts and there is no void in the case or any question that is
unanswered. To be “substantial”, a question of law must be debatable, not previously settled
by the law of the land or any binding precedent, and must have a material bearing on the
decision of the case and/or the rights of the parties before it, if answered either way.

( ¶6 ) In Panchanan Misra v. Digambar Mishra5, Though Article 136 is conceived in

widest terms, the practice of the Supreme Court is not to interfere on questions of fact except
in exceptional cases when the finding is such that it shocks the conscience of the court. There
is no substantial question of law or any question of law involved and the interference is
sought by the appellants only on the basis of pure question of fact. In the instant case a
malafide plea has been raised as the respondents humbly prays to this Hon’ble court that
there is no valid substantial question of law or even a question of law for this present appeal
to be maintainable6.

1.3. The Apex court interference with the concurrent findings of the
lower courts.

( ¶7 ) The appellants have not established any error in application of law or findings of the
Hon’ble high court and the trial court. Therefore there is no reason why this Hon'ble Court
has to interfere with the decisions of the lower courts. Substantial justice has been done in the
present case.

( ¶8 ) In the instant case the respondents hereby plead that no interference by this Hon’ble
court in this subject matter is required as the lower courts have come to this view after
considering all important piece of evidence7 and there being no error of law8. Special leave
shall not be granted when substantial justice is done, though the decision suffers from some
4
Haripada Dey v. State of West Bengal., AIR 1956 SC 757.
5
AIR 2005 SC 1299.
6
Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622; Asst. Controller, Central Excise v. N T Co., AIR
1972 SC 2563; Jindal Industries Ltd. v. State of Haryana, 1991 Supp (2) SCC 587.
7
In Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492.
8
In State of HP V. Kailash Chand Mahajan (1992) AIR 1277 SC.
14

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legal errors9. Hence adhering to the aforementioned submissions, the Hon’ble High court and
trial court have exercised proper jurisdiction in the framing of these charges and hence this
present special leave petition is not maintainable.

( ¶9 ) This Hon'ble Court has the discretionary power to dismiss the present appeal. In N.
Suriyakala v. A. Mohandoss10, Article 136 does not confer a Right of Appeal, but merely, a
discretionary power to the Supreme Court to be exercised for satisfying the demands of
justice under exceptional circumstances11. It is the argument of the respondents that this is a
frivolous appeal as there are no exceptional circumstances regarding a question of law of
general public importance or a decision that disrupts judicial conscience which urges this
Hon’ble court to exercise this residual provision.12

( ¶10 ) The council for the respondents humbly submit that the present case does not arise
of an extraordinary situation nor does it seek to address any substantial question of law and
hence cannot be maintainable.

2. WHETHER THE APPELLANTS ARE LIABLE TO BE CHARGED UNDER § 304B

OF IPC AND § 113B OF IEA ?

( ¶11 ) It is the humble submission of the respondents that the ingredients under § 304B is
satisfied, thereby the presumption under § 113B of IEA operates and hence the apellants are liable to
be convicted under § 304B of IPC and § 113B of IEA .

2.1. Whether ingredients of § 304B IPC are satisfied?

( ¶12 ) The ingredients to prove § 304B of IPC are, the death of the victim was caused by
any burns or bodily injury or occurred otherwise than under normal circumstances 13. The
death was caused within seven years of her marriage14 & soon before her death, she was
subjected to cruelty or harassment by her husband or any of his relatives in connection with

9
DCM v. Union of India, AIR 1987 SC 2414;
10
(2007) 9 SCC 196.
11
Kunhayammed& ors v. syate of kerala&Anr, (2000) 6 SCC 359.
12
Jamshed Hormusji wadia v. Board of trustees, port of Mumbai AIR 2004 SC 1815.
13
Wazir Chand v. State of Haryana, 1994 (6) S.C.C. 727.
14
Dhian Singh v. State of Punjab, 2004 (7) S.C.C. 759., Kans Raj v. State of Punjab, 2005 (5) 207.
15

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any demand for dowry15. The above mentioned ingredients are sufficiently proved in the
present case.

( ¶13 ) It is an admitted fact that the death of the victim occurred within one year of her
marriage, which is obviously less than seven years. During the subsistence of the marriage,
the victim was continually subject to repeated demands for transfer of her brother's property
to her husband's name. The husband (A1) of the victim did not make any effort to earn for the
maintenance of his wife and daughter. Therefore she was forced to rely on her family for
living. A1 insisted on transferring the title of the stall and the house in his name.

( ¶14 ) There was no support from A1's family, in fact his family only triggered him every
now and then to ask for the property to be registered in his name. All of these events caused a
lot of emotional damage to Nita. The Nita's family were the only support for her,
emotionally and financially. The demand for the property16 and the conduct of the accused
persons have caused a huge deal of mental cruelty to the victim17. Cruelty includes both
physical as well as mental torture done upon a woman by her husband or his relatives18.

( ¶15 ) In Sirajmohmedkhan janmohamadkhan v. hafizunnisa yasinkhan19 , this Hon'ble

court stated that, It is not necessary that physical violence be linked to cruelty. Continuous ill
treatment, studied neglect and indifference on the part of the husband can also amount to
cruelty. In Mohd. Hoshan vs. State of A.P20, the Hon'ble court held that mental cruelty varies
from person to person depending on the intensity of the sensitivity, degree of courage and
endurance to withstand such cruelty. Each case has to be decided on its own facts whether
mental cruelty is made out”. Taking into consideration the conduct of the accused persons as
under § 8 of IEA, the counsel for the respondents humbly submit that the action and conduct
of accused persons is harassment and cruelty in itself.

15
Ram Badan Sharma v. State of Bihar, 2006 (10) S.C.C. 115.
16
Bachni Devi v. State of Haryana, (2011) 4 SCC 427; Raminder singh V. State of Punjab (2014) 12
SCC 582.
17
Gurbachan Singh V. Satpal Singh ., (1990) 1 SCC 445.
18
Rupali Devi v. State of Uttar Pradesh and Others, (2019) 5 SCC 384.
19
1981 4 SCC 250.
20
2002 crilj 4124.
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( ¶16 ) The counsel submits that the harassment against the victim happened soon before
her death. The marriage itself was short-lived and lasted only for one year. She was subject to
cruelty and harassment right from the beginning of the marriage, till the moments before her
death for demand relating to the property i.e flat. Therefore, there is a proximate and live link
between the cruelty and the consequential death of the victim. Based on the facts and
circumstances of the case, it is for the court to decide if there is sufficient link between the
harassment or cruelty and the death of the deceased person21. The counsel for the respondents
humbly pray that this Hon'ble court uphold the same.

( ¶17 ) The counsel humbly submits that in the case Uday Chakraborty v State of West
Bengal22,., wherein the deceased died of burn injuries within a period of two years of her
marriage, the Supreme Court considered the entire period of two years as “soon before”, as
the marriage did not survive for even two years.

( ¶18 ) In Satbir Singh vs State of Haryana23, The court said, " Therefore, Courts should
use their discretion to determine if the period between the cruelty or harassment and the death
of the victim would come within the term "soon before". What is pivotal to the above
determination, is the establishment of a "proximate and live link" between the cruelty and the
consequential death of the victim."24. It is also an admitted fact that the death of the victim
occurred due to third degree burns. Therefore the death of the victim is well within the
meaning of occuring otherwise than under circumstances as there is no suicide or accidental
death.

( ¶19 ) In Basisth Narayan Yadav vs Kailash Rai and others25, the apex court while
upholding the conviction of the accused held that the post mortem report has revealed the
physical assault on the victim before her death. Therefore, the burden of proof shifts on the
accused person to explain the death of the deceased. The entire conduct of the accused
persons is very suspicious and by no reasonable means they have discharged their burden of
proof26.

21
Bansilal v. State of Haryana, A.I.R. 2011 S.C. 691.
22
2010(7) S.C.C. 518.
23
AIR 2001 SC 2828 .
24
Thakhan Jha v. State of Bihar , (2004) 13 SCC 348.
25
2015 SCC 7 555.
26
Deepak vs State of UP, (2021 SC online All 190)
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( ¶20 ) The evidence include one feroz Khan, the local jeweller, the doctor at Kasturba
Hospital Dr.Siddh Dave, the local constable Ratan Kaamble, Neighbor Ms. Asha Afroz §(PW
5), Investigation report of Borivali police station and Nallasapora police station, the autopsy
report, Panchnama containing saree and paraphernalia27. Therefore, the counsel for the
respondents humbly submit that offence under § 304 B has been sufficiently proved by the
prosecution.

2.2. § 113B of IEA act operates

( ¶21 ) The legislature has applied the concept of deeming fiction to the provisions of §
304-B. Where other ingredients of § 304- B are satisfied, in that event, the husband or all
relatives shall be deemed to have caused her death. Once the prosecution proves its case with
regard to the basic ingredients of § 304-B, the Court will presume by deemed fiction of law
that the husband or the relatives complained of, has caused her death. Such a presumption can
be drawn by the Court keeping in view the evidence produced by the prosecution in support
of the substantive charge under § 304-B of the Code28. Even if the ingredients are established
merely through Preponderance of probability29, the presumption of innocence is converted
into assumption of guilt of the accused30.

( ¶22 ) Dowry death is a serious threat to society and the Parliament intended such a case
to be treated as a very serious offence punishable even up to imprisonment for life in
appropriate cases and hence there is no interference needed in this case as the concurrent
31
decisions are taken by the lower court considering the gravity of the offence . It is for the
said purpose that such cases are separated from the general category of offences 32. Therefore
it is humbly prayed that this Hon'ble court dismiss the appeal and uphold the conviction of
the lower court.

27
Kamesh Panjiyar V. State of Bihar ., (2005) 2 SCC 388; Ramesh Vithal Patil V. state of Karnataka., (2014)
11 SCC 516.
28
pathan hussain basha v. state of andhra Pradesh., 2012 8 SCC 594.
29
Chaturanan vs State of UP, (2018 SCC ONLINE ALL 5819).
30
Sher Singh vs State of Haryana, (2015) 3 SCC 724).
31
State of Punjab v. Iqbal Singh & Ors.(1991) 3 SCC 1) .
32
B.S Joshi v. State of Haryana.,(2003) 4 SCC 675.
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MEMORANDUM FOR THE RESPONDENTS

3. WHETHER THE APPELLANTS CAN BE CHARGED UNDER § 3 AND 4 OF

THE DPA ?

( ¶23 ) The counsel humbly submits that the appellants have committed the offence under § 3
and 4 of the DPA as they satisfy the ingredients as depicted under DPA act

3.1. Ingredients of § 3 of the DPA are satisfied.

( ¶24 ) It is coherently admitted that the Appellants/Accused received a hefty dowry
worth Rs. 7 lakhs from Nita’s family which comes under the ambit of property prescribed
under § 2 of the DPA during the marriage. Hence the agreement to procure the dowry is
established and the parties acted in furtherance of the agreement therefore the ingredient
under §3 of DPA is satisfied.

( ¶25 ) It is also pertinent to note that before the couple started their marital life in the
2BHK apartment, A1’s family members abetted A1 and there was a continuous demand that
the flat and stall to be transferred to A1’s name which clearly indicates there is abetment on
the side of accused. The dowry given during the marriage was entirely held by the appellants
and used for their benefit. Subsequently the continuous demand for flat amounts to unlawful
demand made by the appellants also amounts to dowry punishable under § 3 of DPA.
3.2. Ingredients of § 4 of the DPA are satisfied.

( ¶26 ) The counsel for the Respondents humbly submits that the crucial element under
§4 of DPA is evident by the Appellants action of express denial of sharing marriage
expenditure, post marriage demand of transferring the Apartment and stall in the name of A1.
It is seen that the burden would shift to the accused to show that he had not demanded
directly or indirectly any property or valuable security in connection with the marriage of the
said parties. The burden of proving non-existence of such dowry demands should be in
consonance with § 8-A of the act.33

33
Ujjal Maitra v. Kanchan Maitra, (1998) 1 crimes 24 (Orissa).
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( ¶27 ) The appellants had not been able to show any material which would merit the
interference of this court in the concurrent findings of the courts below34. In Hanumant vs.
The State of Madhya Pradesh,35 held that when the court of first instance and the court of
appeal arrive at concurrent findings of fact after believing the evidence of a witness, this
court as the final court does not disturb such findings, save in most exceptional cases.

( ¶28 ) In L.V. Jadhav vs. Shankar Rao Abasahade Pawar,36 this court held that after
marriage dowry should be prohibited and punishable by law. In the case of Satbir Singh and
another vs. State of Haryana37, The Hon’ble Apex Court held that the pestiferous nature of
dowry harassment, wherein married women are subjected to cruelty because of covetous
demands by husband his relatives has not gone unnoticed and the DPA was introduced to
curb such evil.

( ¶29 ) Demand of dowry under § 4 is not a continuing offence but every demand of
dowry whenever repeated constitutes another offence and the date of commission of offence
under § 4 would be when the demand was made initially and also when the said demand was
repeated afresh. The offence of demanding dowry stood committed even before the marriage
was performed and also when the demand was repeated again and again after the
performance of marriage in respect of the same items of dowry.38

( ¶30 ) It is humbly submitted that since all the circumstances provided under § 3 & 4
of the DPA are satisfied, this Hon’ble Court may upheld the conviction pronounced by the
lower courts § 3 and 4 of the DPA.

34
Mulakh Raj v. Sathish Kumar, (1992) 2 crimes (SC) 130 (India).
35
AIR 1952 SC 343 .
36
1983 (4) SCC 231 .
37
Id.
38
Harbans Singh v. Smt. Gurcharan Kaur alias Sharan Kaur, (1993) Rec. Cr. R 404 (del).
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4. WHETHER THE POWER OF THE HON’BLE COURT TO CONSIDER THE ADDITION OF

ALTERNATIVE CHARGES CAN BE PURSUED?

( ¶31 ) It is the humble contention of the respondent that there exist cogent and
corroborative circumstances and evidence to convict the appellants under § 302 r/w § 34,
498A of IPC and § 6 of DPA, 1961 by excercising this Hon’ble courts power under § 216 of
CrPC. In the cases of P. Karthikalekshmi vs. Sri Ganesh,39and Dr. Nallappareddy Sridhar
Reddy vs. The State of Andhra Pradesh & Ors,40this Hon’ble Court held that Court trying the
offence may alter the charges at any stage if there is an omission which prejudice either
parties. In the instant case the respondents would like to bring to the notice of this Honble
court the following addition of charges which can be excercised in contingent circumstances
by placing all material evidences.

4.1. Appellants/Accused are liable to be convicted under § 498-A of the

IPC, .
( ¶32 ) The counsel for the Respondent humbly submits before this Hon’ble Court that
the deceased Nita had been subjected to cruelty by the Appellants/Accused. For commission
of an offence under § 498-A, the necessary ingredients being marriage, cruelty or harassment
by the husband or his relatives 41.

( ¶33 ) In the instant case there is a valid marriage as per the Hindu marriage act
between the deceased and the Appellant . Considering the next ingredient, It is difficult to
straitjacket the term cruelty by means of a definition because cruelty is a relative term. What
constitutes cruelty for one person may not constitute cruelty for another person and is based
on social and economic status to which the person belongs.42 It can be established from the
facts that Nita sought divorce from her husband claiming cruelty. The unlawful demand and
appellant’s reckless attitude by not providing for the family and being dependent on the respondents
and her being subject to take up tuition classes to fend herself has affected the victim mentally 43. The

39
(2017) 3 SCC 347 .
40
(2020) 1 crimes (SC) 198 .
41
U. Suvetha v. State, (2009) 6 SCC 757 .
42
G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152.
43
Gurucharan Singh vs. State of Punjab, (2017) 1 SCC 433 ; Modisab Kasimsab Kanchagar vs. State of

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third ingredient is also satisfied as this mental cruelty was inflicted by the appellants in connection
with the marriage44 .

( ¶34 ) In the case of Satbir Singh and another vs. State of Haryana,45 the Hon’ble
Court condemned the act of dowry harassment and as a measure to curb the evil 498-A was
introduced. In this case it is clearly seen that the dowry death is the result of cruelty under §
498A and since cruelty is meted out under both § hence the appellants can be convicted under
both §46. The Counsel humbly submits that as all the conditions pertaining to § 498-A is
proved beyond all reasonable doubts by the Respondents. It is humbly submitted that
additional charge under § 498-A of IPC may be added against the Appellants/Accused.

4.2. Appellants/Accused are liable to be convicted under § 302 r/w. § 34

of the IPC.
A. BRIDE BURNING AMOUNTING TO MURDER :

( ¶35 ) The counsel humbly submits that this Hon’ble Court may add a charge of § 302
r/w. § 34 of the IPC, against the Appellants/Accused and they may be convicted under § 302
r/w § 34 of the IPC,47.

( ¶36 ) It is humbly submitted before this Hon’ble Court that the menace of bride
burning, dowry demands and deaths have been emerged as a big threat to society. It is the
case of the respondents that this bride burning amount to murder as it satisfies the mens rea ,
actus reus and act is done in furtherance of the common intention48 as Nita’s family failed to
meet the unlawful demand made by the Appellants/Accused. It is clear from the proposition
that the death of Nita did not happen under normal circumstances and it is an unnatural death
where there is a bodily injury so grave to cause death which can be seen in the autopsy report
. Having regard to the number of injuries inflicted on the deceased it was not possible to

Karnataka and another, A.I.R. 2013 SC 1504 .

44
Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618 .
45
Id.
46
Akula ravinder v. State of Andhra Pradesh AIR 1991 SC 1142 ; Kaliyaperumal V.State of Tamil Nadu AIR
2003 SC 3828,
47
Rajbir V. State of Haryana, (2010) 15 SCC 116
48
Krishna Govind Patel v. State of Maharashtra , 1963 AIR 1413.
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uphold the contention that there was no intention to kill.49

( ¶37 ) In the case of Ashok Kumar vs. State of Rajasthan50, this court held that
Kerosene smell from the body is a remotest possibility of accident. It is the contention of the
appellants that this is a clear case of bride burning wherein she was set on fire due to the
denial of demand placed by her husband and his family. Therefore, considering the excessive
third degree burn sustained by Nita as revealed in the medical report, clearly explains that this
is a case of bride burning amounting to murder thereby praying to this Hon’ble court to
convict the accused under § 304 r/w § 34.

B. CIRCUMSTANTIAL EVIDENCE TO BE CONSIDERED:

( ¶38 ) Antecedents predict that the Correspondence showed deep attachment of Nita
on her own life she had, therefore, no reason to commit suicide. The deceased was highly
educated and she would not have chosen such a painful method for killing herself leaving her
one month old infant daughter .

( ¶39 ) Concurrently Extensive burns on the body could not have been caused in
accidental fire. Such burns would have required great intensity of heat which could occur
only by pouring Kerosene continuously. The accused, A1 never tried to save his wife as it is
clearly in the facts of the case that no injuries were sustained by A1.

( ¶40 ) The respondents argue that prudent to state that no attempt was made by A1 to
save the life of the deceased. All the circumstances herein proves that A1 with the malafide
intention to kill Nita poured Kerosene on her body and lit fire, the normal human conduct is
that every endeavour would be made to save her life, which aspect was totally missing.

( ¶41 ) The circumstances from which the Court convicted the accused in the case of
Prabhudayal vs. State of Maharashtra51, were so similar to the circumstances of this instant
case as it is seen that no eye witness was there , panchnama shall be relied as strong
circumstantial evidence by this Hon’ble court.

49
Prabhu v. State of Madhya Pradesh, (1991) Cr LJ (SC) 1373 (India).
50
AIR 1990 SC 2134 (India).
51
AIR 1993 SC 2164.
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( ¶42 ) The deceased was last seen together alive in the company of the
Appellant/Accused A1. It was also corroborated by the evidence of Ms. Asha Afroz,
neighbor, who witnessed the quarrel, took place between the couple. But the
Appellants/Accused couldn’t prove what happened to the deceased Nita when she was alive
with him on the fateful day. According to § 106 IEA when any fact is especially within the
knowledge of any person, the burden of proving the fact is upon him. The Courts below
rightly convicted the Appellants/Accused as they failed to offer a reasonable explanation in
discharge of burden52and the prosecution has proved the case beyond reasonable doubt and
also based on last seen theory.53

4.3. Appellants/Accused are liable to be convicted under § 6 of the DPA.

( ¶43 ) It is an admitted fact that the Appellants/Accused received a hefty dowry

of Rs. Seven lakhs from Nita’s parents during the time of marriage. § 6 of the DPA deals with
the Dowry to be for the benefit of the wife or heirs, the dowry received by the
Appellants/Accused comes under the purview of § 6(1) (a) of the DPA.

( ¶44 ) Therefore as per § 6 (3) of the DPA, where the woman entitled to any
property under sub-§ (1) dies before receiving it, the heirs of the woman shall be entitled to
claim it from the person holding it for the time being, if she has children, be transferred to
such children and pending such transfer, be held in trust for such children. It is humbly
submitted before this Hon’ble Court as the child is a one month old infant the dowry may be
transferred for the benefit of the child.54

52
Swami Sharddanandha vs. State of Karnataka, AIR 2007 SC 2531 .
53
State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254 .
54
Bobbili Ramakrishna Raju Yadav v. State of Andhra Pradesh, 2016 SCC OnLine SC 42 .
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PRAYER

Therefore in the light of the facts stated, evidence adduced, arguments advanced and
authorities cited, the respondents humbly pray and implore before this Hon’ble court for
the following reliefs:

1. To dismiss this Special Leave Petition filed by the Appellants.

2. To uphold the conviction by the Hon’ble High Court of Bombay.

3. To add the charges under §216 of CrPc.

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.

And for This act of Kindness, the Respondents Shall Duty Bound ever humbly Pray.

Respectfully Submitted

s/d __________________

Counsels for the Respondent

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