TEAM CODE- “RJ-21”

REM JURIS 1ST NATIONAL VIRTUAL MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE DISTRICT & SESSION COURT

IN THE MATTER OF –

STATE ............... (PROSECUTION)

V/S

MR. VISHNU PANDEY & OTHERS ............... (DEFENDANT)

MEMORANDUM ON BEHALF OF THE DEFENDANT

MEMORANDUM for DEFENDANT [TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF ABBREVIATIONS............................................................................................. II
INDEX OF AUTHORITIES ................................................................................................ III
STATEMENT OF JURISDICTION .................................................................................. VII
STATEMENT OF FACTS ................................................................................................ VIII
STATEMENT OF ISSUES .................................................................................................... X
SUMMARY OF ARGUMENTS .......................................................................................... XI
ARGUMENTS ADVANCED .................................................................................................. 1
ISSUE [I] WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 498A,
304B OF THE INDIAN PENAL CODE, 1860 R/W SECTION 113B OF INDIAN
EVIDENCE ACT, 1872? ...................................................................................................... 1
1. The charges against the accused under section 498A is not maintainable ............. 1
2. The accused person had not caused any severe cruelty to the deceased ................ 2
3. Accused persons has not caused dowry death of victim .......................................... 3
4. It will not raise a presumption under section 113B................................................. 5
ISSUE [II] WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 376
AND 354 OF INDIAN PENAL CODE, 1860? .................................................................... 6
1. Inconsistencies Between Medical Report And Dying Declaration .......................... 6
2. No Independent Witness. ......................................................................................... 8
3. Benefit Of Doubt ...................................................................................................... 9
4. Confession Of The Co-Accused ............................................................................... 9
ISSUE [III] WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 322,
323, 326 AND 506 OF INDIAN PENAL CODE 1860?..................................................... 11
1. Grievous hurt was not caused by the accused ....................................................... 12
2. Dangerous weapons or means were not used by the accused ............................... 12
3. There was no threat to assault............................................................................... 13
4. Hurt to the victim was not caused by the accused ................................................. 13
ISSUE [IV] WHETHER THE ACCUSED ARE NOT GUILTY UNDER SECTION
299 AND 302 OF INDIAN PENAL CODE 1860? ............................................................ 14
1. Direct or Circumstantial evidence is not there ..................................................... 14
2. Understanding dying declaration .......................................................................... 15
3. Statement of co-accused ........................................................................................ 16
PRAYER ............................................................................................................................. XIII

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MEMORANDUM for DEFENDANT [LIST OF ABBREVIATIONS]

INDEX OF ABBREVIATIONS

ABBREV. FULL FORM

& And

AIR All India Reporter

All Allahabad High Court

Cal Calcutta High Court

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

Del Delhi High Court

DW Defence Witness

Ed Edition

Guj Gujarat High Court

IPC Indian Penal Code

IC Indian Cases

Mad Madras High Court

n. Foot Note no.

Ori Orissa High Court

p. Page Number

P&H Punjab and Haryana High Court

Pat Patna High Court

PW Prosecution Witness

Raj Rajasthan High Court

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

SCJ Supreme Court Journal

Sec. Section

v. Versus

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MEMORANDUM for DEFENDANT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

CASES PAGE NO.

Administrator, Josgiri hospital v Government of Kerala (2008) ILR 3 Ker 381 11
Akula Ravinder v. State of AP., AIR 1991 SC 1142 3
Amar Singh v. State of Punjab, AIR 2010 SC 3391 3
Appu Ramani v. State, 1993 Cr. L.J. 1974 (AP) 2
Arbind Kumar Ambastha v. State of Jharkahnd, 2002 CrLJ 3973 (Jhar) 4
Arvind v. State (Delhi Admn.), 1999 (4) SCC 4861 14
Ashok v. State of Maharashtra, 2015 CrLJ 2036 15
Baijnath v. State of Madhya Pradesh, 1966 AIR 220, 1966 SCR (1) 210 4
Balbir Singh v. State of Punjab, AIR 1957 SC 216 10
Balwant singh v. State of Punjab, (2004) 7 SCC 724 5
Darshan Singh v. State of Punjab, (2016) 3 SCC 37 15
Delhi Bitumen Sales Agency v. State of A.P, 1989 Cr. L.J. 722 (PH) 2
Devkinandan v. State of M.P, 2003 CrLJ 1502 (MP) 5
Emperor v. Bhojo A.I.R. (21) 1934 Sind. 172 12
Gunadhar Majhi v. State of Jharkhand, 2011 CrLJ 2536 (Jhar) 14
Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 9
Harjit Singh v. State of Punjab, 2006 Cr.LJ 554 (SC) 6
Indrajit Suresprasad Bind v. State of Gujart, (2013) 14 SCC 678 4
Jagjit Singh v. State of Punjab, AIR 2018 SC 5719 6
K.P. Thimmappa Gowda v. State of Karnataka, (2011) 14 SCC 475 10
Kaliyaperumal v. State of Tamil Nadu, 2003 Cri. L.J. 4402 (S.C.) 4
Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 15
Kashmir Kaur and another v. State of Punjab, AIR 2013 SC 1039 4
Kedar Nath v. State of Madhya Pradesh ; AIR 1991 SC 1224 17
Kishore Chand v. State of H.P: 1990 CrLJ 2290 (SC) 17
Krishan Kumar Malik v. State of Haryana, AIR 2011 SC 2877 8
Kuhiabdullah v. State of Kerala, 2004 Cr LJ 5005 (SC) 4
Lokanath Behara v. State of H.P; 1975 CrLJ 1346(HP):ILR (1975)HP 54 12
Manik Lal Jain v. State of M.P, 2012 CrLJ 613 (SC) 3

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MEMORANDUM for DEFENDANT [INDEX OF AUTHORITIES]

Manohar Lal v. State of M.P, (2014) 15 SCC 587 6

Munna Raja v. State of M.P., AIR 1976SC 2199 15
Noble Mohandas v. State of T.N., 1989 CrLJ 669 (Mad) LW (Cr) 178 13
Padala Veera Reddy v. State of A.P; (1990) I SCJ 44 15
Pandurang Sitaram Bhagwat v. State of Maharashtra, (2005) Cr. L.J 880 (SC). 11
Radhu v. State of Madhya Pradesh, 2007 Cri. LJ 4704 9
Rajoo & Ors v. State of Madhya Pradesh, AIR 2009 SC 858 8
Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677 11
Rakesh Chhabra v. State (NCT of Delhi), 2017 SCC OnLine Del 9334 8
Rakesh Gujar and others v. State of Madhya Pradesh 13
Ram Das v. State of Bengal, AIR 1954 SC 711 11
Ramilaben v.State of Gujarat (2001) 1 GLR 783 7
Rosamma Kurian v. State of Kerela, 2014 CrLJ 2666 (Ker) 3
Sahoo v. State of U.P; AIR 1966 SC 40 16
Sanjay Jain v. State of Madhya Pradesh, 2013 CrLJ 688 (Chh) 3
Sarla Prabhakr Waghmare v, State of Maharastra, 1990 CrLJ 407 (BOM) 3
Shivaji Sahabrao Bobade v. State of Maharashtra, AIR 1973 SC 2622 9
State of Gujarat v. Mohonlal Kuberdas Upadhya, 1975 Guj LR 263 17
State of H.P v. Gian Chand, (2013) 14 SCC 420 7
State of Maharashtra v. Satyendra Dayal Khare, (2005) 12 SCC 485 11
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 7
State of Punjab v. Sarwan Singh, 1981 Cr. L.J. 722 (S.C.) 1
State of U.P. v. Madan Mohan AIR 1989 SC 1519 7
State v. Udhao Pandurang Aglawe, 2005 CrLJ 989 (Bom.) 14
Subash Chand v. State of Rajasthan, (2001) 1 SCC 702 9
Subramanian Swamy (Dr.) v. State. 2011 CrLJ NOC 48 (Mad) 13
Sudhir Kumar v. State of U.P., (1989) 3 Crimes 583 16
Surendra Singh v. State of Rajasthan,(1989) 3 Crimes514 (Raj) 15
Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566 8
Tomaso Bruno v. State of U.P; 2015 CrLJ 1690 17
Tukaram Govind Yadav v State of Maharashtra (2011) Cr LJ 1501(Bom) 11
Wilson Gilbert Viegas v. State, 2010 SCC OnLineBom 969 9

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MEMORANDUM for DEFENDANT [INDEX OF AUTHORITIES]

STATUES
Code of Criminal Procedure Act, 1973.
Constitution of India, 1950
Indian Evidence Act, 1872
Indian Penal Code, 1860

BOOKS
K D Gaur, A Textbook on the Indian Penal Code, 4th Edn.
P S A Pillai, Criminal Law, 11th Edn
Ratanlal & Dhirajlal, The Indian Penal Code, 33rd edn
Hari Singh Gour, Penal Law of India, vol 4, 11th edn
Ratanlal & Dhirajlal, The Law of Crimes, 23rd edn.
S.N.Mishra, India Penal Code, 16th edn
Dr. N.V Paranjape, The Code of Criminal Procedure, 2nd ed.,
M.D Chaturvedy, Code of Criminal Procedure, 4th ed.,
R.V Kelkar, Criminal Procedure, 5th ed.,
Ratanlal And Dhirajlal, Code of Criminal Procedure, 17th ed.,
Butterworths Wadhwa & Co., Nagpur, 2008
Batuk Lal, The Law of Evidence., 1, 2015
Ratan Lal and Dhiraj Lal, Law of Evidence Edition: 27TH, 2019
Avtar Singh, Priciple of The Law of Evidence Edition: 22, 2016
Vepa Sarathi, Law of Evidence Edition: Seventh, 2017
M Monir, The Law of Evidence Edition: 11th edn, 2018

ARTICLES
Ahmad N. Dowry deaths (bride burning) in India and abetment of suicide: a socio-legal
appraisal. J. East Asia Int. Law. 2008;1(2):275–289. [Google Scholar]
Van Willigan J, Channa V. Law, custom, and crimes against women: the problem of dowry
death in India. Hum. Organ. 1991;50(4):369–377. [Google Scholar]
Ravikanth N. Dowry deaths: proposing a standard for implementation of domestic legislation
in accordance with human rights obligations. Mich. J. Gend. Law. 2000;6:449–497. [Google
Scholar]

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MEMORANDUM for DEFENDANT [INDEX OF AUTHORITIES]

Ahrens, C. E. , & Campbell, R. (2000). Assisting rape victims as they recover from rape:
The impact on friends. Journal of Interpersonal Violence, 15, 959-986. Google Scholar |
SAGE Journals | ISI
Campbell, R. (2002). Emotionally involved: The impact of researching rape. New York:
Routledge. Google Scholar
Russell, D. E. H. (1983). The prevalence and incidence of forcible rape and attempted rape
of females. Victimology: An International Journal, 7, 1-4.Google Scholar

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MEMORANDUM for DEFENDANT [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section
209 of the Code of Criminal Procedure, 1973.

SECTION 177 OF CODE OF CRIMINAL PROCEDURE, 1973:

‘177. Ordinary place of inquiry and trial

Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.’

Read with SECTION 209 OF CODE OF CRIMINAL PROCEDURE, 1973:

‘209. Commitment of case to Court of Session when offence is triable exclusively by it.

When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during,
and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are
to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

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MEMORANDUM for DEFENDANT [STATEMENT OF FACTS]

STATEMENT OF FACTS

1. Mr. Satya Prakash was looking for a groom for his daughter, Dhanlaxmi and found Mr.
Vishnu Pandey, who also worked in his office, as a suitable match and the marriage was
solemnized on 29th of December, 2007. Mr. Prakash was against the concept of Dowry and
only provided some jewelery and a Rado watch to his son-in-law.

2. On 9th January, 2010, Mr. Prakash scolded Mr. Pandey for being late, who routinely came
to the office late, which turned Mr. Pandey livid and he warned Mr. Prakash that his
daughter would have to bear the consequences. When he came back home, he started
shouting at his wife for not bringing a car as dowry. This became a routinely affair which
was joined by the other family members as well.

3. The whole society knew about this but Dhanlaxmi did not say anything to her family, she
only discussed this with her friend Vijaylaxmi that her husband was physically abusing
her for not bringing enough dowry.

4. On 5th of July, 2014, all the family members had left for a wedding except the couple.
When Vishnu came to the house at night in a drunken state with his friends Jayesh and
Rahul, Dhanlaxmi started scolding him for misbehaving with the guard. This humiliation
made Vishnu hatch a plan with his friends to rape her. When Vishnu went to her room the
other day, he found her lying unconscious and took her to the hospital where she told the
doctors that she was raped thrice while her face was covered with a cloth throughout the
heinous act.

5. A criminal complaint was lodged by the police officials against Vishnu and his two friends
who were by then absconded. The doctors informed her in-laws that she would not be able
to live more than an hour. When her in-laws came to visit her in the hospital, they started
abusing her for making allegations of rape and her mother-in-law even kicked her in the
stomach.

6. Dhanlaxmi gave a statement to the Police in front of a Magistrate that she was raped thrice
and she was not able to recognize the rapists and that even her mother-in-law attacked her
a few minutes ago and kicked her stomach.

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MEMORANDUM for DEFENDANT [STATEMENT OF FACTS]

7. Dhanlaxmi succumbed to her injuries soon. The police started conducting the investigation
and got hold of Rahul who accepted his role in the rape and subsequently Vishnu and
Jayesh were also arrested.

8. Charges have been framed against Mr. Vishnu, Mr. Jayesh, Mr. Rahul, Mrs. Laxmi, Mr.
Rohan under section –37, 323, 322, 326, 376, 302, 498(À), 304 (B), 506 rw. s. 34, s.120B,
s. 354, s. 299 of Indian Penal Code, S. 113A of Indian Evidence Act. Now the case is listed
before the Sessions Court for Final argument.

Vishnu A1

Jayesh A2

Rahul A3

Laxmi Devi A4

Rohan A5

Security Guard PW1

Mr. Satya Prakash PW2

Mr. Rafiq PW3

Ms. Vijayalaxmi PW4

Mrs. Sharma PW5

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MEMORANDUM for DEFENDANT [STATEMENT OF ISSUES]

STATEMENT OF ISSUES

_____________ ISSUE: [1] _____________

WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 498A, 304B OF THE INDIAN PENAL
CODE, 1860 R/W SECTION 113B OF INDIAN EVIDENCE ACT, 1872?

_____________ ISSUE: [2] _____________

WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 376 AND 354 OF INDIAN PENAL CODE,
1860?

_____________ ISSUE: [3] _____________

WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 322, 323, 326 AND 506 OF INDIAN

PENAL CODE 1860?

_____________ ISSUE: [4] _____________

WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 299 AND 302 OF INDIAN PENAL CODE
1860?

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MEMORANDUM for DEFENDANT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE: [1] WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 498A, 304B OF THE
INDIAN PENAL CODE, 1860 R/W SECTION 113B OF INDIAN EVIDENCE ACT, 1872?

The alleged incident of cruelty took place in the year 2010 and the complaint is filed on 8th July
2014.The complainant himself admit that the till 6th July 2014 he heard nothing about any kind
of harassment against her daughter. So, it is humbly submitted before the hon’ble session court
that the by the virtue of above mention section the court is bar to take cognizance in the present
matter. Even if one of the ingredients is not made out, the presumption under section 113B of
the Evidence Act would not be available to the prosecution and the onus would not shift to the
defence. The one of the most important ingredient that soon before her death victim had been
subject to cruelty or harassment by her husband or his relatives is missing and earlier it has
been established by the defence so it is humbly submitted before the hon’ble court that in the
instant case presumption under section 113B could not be raised. The expression “soon before
death” is very relevant and the prosecution is required to show that soon before the occurrence
there was cruelty or harassment to the victim. Here in the instant case there is no evidence per
se to show that the victim was subject to cruelty soon before her death. The case also alleged
incident of cruelty took place in the year 2010 and the death of the victim took place on 6th July
2014. So, in there is no proximate and live link between alleged incidents of cruelty based on
dowry demand and the concerned death. Therefore, it is humbly submitted before the hon’ble
session court that the accused persons have not caused dowry death of the victim.

ISSUE: [2] WHETHER THE ACCUSED ARE NOT GUILTY UNDER SECTION 376 AND 354 OF

INDIAN PENAL CODE, 1860?

The defense humbly submits that though as a matter of law, the sole testimony of the
prosecutrix can sufficiently be relied upon to bring home the case against the accused, it is very
dangerous to convict the accused especially when the all that we have on her behalf is a sole
declaration and that too is inconsistent with the medical reports as there have been no injuries
in the private parts and is not in consonance with the statements given by A-3. Accused cannot
convict the accused solely on the belief that they “might” have raped her. At the same time,
the statements of the prosecution witnesses have not been able to establish the same and the
medical reports vis-à-vis the dying declaration is inconsistent with each other. The statements
of the witnesses only signify assumptions and unreasonable apprehensions. Thus,

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MEMORANDUM for DEFENDANT [SUMMARY OF ARGUMENTS]

inconsistency in the medical report, lacunae in the declaration and fabrication by witness gives
a presumption of innocence in the favour of accused as the charges cannot be proved beyond
reasonable doubt. So, in the light of the aforesaid statements, the defence humbly denies the
charges u/§ 354 and §376 and must be acquitted for the same.

ISSUE: [3] WHETHER THE ACCUSED ARE NOT GUILTY UNDER SECTION 322, 323, 326 AND
506 OF INDIAN PENAL CODE 1860?

It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul (are not guilty
under section 323,326 and 506 of IPC and Laxmi Devi. Therefore, the respondent humbly
submits that the accused is hereby innocent. The respondent contends that at the time of the
occurrence the accused namely A1, A2 & 3 was admittedly without any weapon. The
ingredients of section 326 of IPC are lacking. So, the petitioner humbly submits to set aside so
far as it relates to Section 326 of IPC. Mere words are not punishable because there no
harassment against the victim nor any such things was heard by PW2 Also prosecution has not
established the fact nor there is any proof that overt act was shown by A1, A2 & A3.So the
accused is not guilty under section 503. there is no corroborative evidence on record that any
further injuries were caused by A4. Therefore, the story of prosecution is purely made to falsely
the accuse who are very innocent person. So A4 is not liable under section 323 of I.P.C.

ISSUE: [4]: WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 299 AND 302 OF INDIAN
PENAL CODE 1860?

So it is humbly submitted before this honorable session court that merely by her statement the
identity of the assailment is difficult to be determined. So, upon such incoherent statement
accused should not be convicted. the reason has not been given that what actually caused the
problem nor there is external mark of injury which will cast the serious doubt that the accused
has raped the deceased or tried to murder her so the benefit of doubt should be given to the
accused.Also there is no direct or circumstantial evidence that proves that the accused are guilty
for the murder of the victim.

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

ISSUE [I] WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 498A,
304B OF THE INDIAN PENAL CODE, 1860 R/W SECTION 113B OF INDIAN
EVIDENCE ACT, 1872?

(¶ 1.) It is humbly submitted that the accused Mr. Vishnu, Mrs. Laximidevi and Mr. Rohan
(hereinafter will be referred as A1, A4 AND A5 respectively) are not guilty under section
498A1, 304B 2of IPC r/w section 113B3 of IEA.

(¶ 2.) The defence would divide the contentions into 4 sub issues to deal with this issue [1]
The charges against the accused under section 498A is not maintainable; [2] The accused
persons had not caused any severe cruelty to the deceased; [3] Accused persons has not caused
dowry death of victim; [4] It will not raise a presumption under section 113B.

1. THE CHARGES AGAINST THE ACCUSED UNDER SECTION 498A IS NOT MAINTAINABLE

(¶ 3.) Section 4684 of the Code of Criminal Procedure lays down the period of limitation for
taking cognizance of an offence. According to this Section, if an offence is punishable with
imprisonment for a term exceeding one year but not exceeding three years, the period of
limitation shall be three years.5

(¶ 4.) The alleged incident of cruelty took place in the year 2010 and the complaint is filed
on 8th July 2014.The complainant himself admit that the till 6th July 2014 he heard nothing
about any kind of harassment against her daughter. So it is humbly submitted before the hon’ble
session court that the by the virtue of above mention section the court is bar to take cognizance
in the present matter.

(¶ 5.) The hon’ble Supreme Court in the case of State of Punjab v. Sarwan Singh 6observes
that it is of utmost importance that any prosecution whether by state or a private complainant
must be abide by letter of law or take the risk of the prosecution failing on the ground of
limitation.

1
§498A of Indian Penal Code, 1860
2
§ 304B of Indian Penal Code, 1860
3
§ 113B of Indian Penal, 1860
4
§ 468 of Code of Criminal Procedure, 1973
5
S.N Misra, The Code of Criminal Procedure,1973 (Central Law Publication, 26 th Edition)
6
State of Punjab v. Sarwan Singh, 1981 Cr. L.J. 722 (S.C.)

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

(¶ 6.) Even the government has no power to grant permission to institute a prosecution after
the expiry of the statutory period of limitation7.

(¶ 7.) In the case of Appu Ramani v. State8 it was held that whenever a complaint or a charge
sheet is filed the court must see whether it is within the period of limitation or not and if it is
found to be not within the period of limitation court should not register the case but give an
opportunity to the person or police officer who filed the complaint or charge sheet to satisfy on
the question of limitation for the purposes of condonation of delay. In the instant case also
complaint has been filed beyond the period of limitation.

2. THE ACCUSED PERSON HAD NOT CAUSED ANY SEVERE CRUELTY TO THE DECEASED

(¶ 8.) For the purpose of this section, “cruelty9” means—

a) 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.

(¶ 9.) In furtherance of afore-stated explanation of cruelty it is humbly submitted before the

hon’ble court that the acts of the accused persons doesn’t fall in ambit of the alleged offense
on reasonable ground which are mention below:

(¶ 10.) A1 admits that he shouted PW2 in the moment of anger and when he returns home he
was really upset because PW2 scolded him and in that moment of frustration he shouted on his
wife.10

(¶ 11.) It has been alleged by the prosecution that there has been demand of dowry by the
accused persons. It has been admitted by the accused A4 and A5 that though some quarrels
happened at home but they were very general in nature and all of them are verbal nothing
physical and they never demand dowry from her.11 It is like usual and common domestic
discord and the usual and common domestic discord in any matrimonial home cannot amount

7
Delhi Bitumen Sales Agency v. State of A.P, 1989 Cr. L.J. 722 (PH)
8
Appu Ramani v. State, 1993 Cr. L.J. 1974 (AP)
9
§498A of Indian Penal Code,1860
10
Annexure 4, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
11
Annexure 4, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

to cruelty within the meaning of s. 498A of IPC12 and also mere demand of dowry will not
attract an offense under section 498A13.

(¶ 12.) In the case of Sarla Prabhakar Waghmare v. State of Maharastra 14 it was held that
it is not every harassment or every type of cruelty would attract s. 498A. The complainant has
conclusively to establish that the beating or harassment in question was with a view to force
her to commit suicide or to fulfil the illegal demand of dowry. But here the complainant (PW2)
himself admit that he heard nothing about any kind of harassment against her daughter.15 It was
also admitted by PW5 that A1 love his wife a lot, and even A4 told her that her daughter-in-
law is a perfect housewife.16

(¶ 13.) In the case of Sanjay Jain v. State of Madhya Pradesh17, though evidence reflects
that there used to be some quarrel between the deceased and accused, yet there is no evidence
on record that he used to subject her to harassment or cruelty such as causing grave injury or
danger to her life or limb. Accused is entitled to be acquitted. In the instant case also there is
no such material evidence to show that victim has danger to her life or limb.

(¶ 14.) In the case of Maniklal Jain v. State of M.P 18where mother of deceased had admitted
in her evidence that there was no demand of dowry had been made by mother-in-law of the
deceased, she is entitled to benefit of doubt. In the instant case also father of the deceased
(PW2) admitted that he heard nothing about any kind of harassment against his daughter.

3. ACCUSED PERSONS HAS NOT CAUSED DOWRY DEATH OF VICTIM

(¶ 15.) The essential ingredients for conviction under section 304B are as follows:

(¶ 16.) The death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances19.

(¶ 17.) Such death should have occurred within seven years of her marriage.20 In the instant
the husband of victim when found her wife lying unconscious on the floor, he immediately

12
Rosamma Kurian v. State of Kerela, 2014 CrLJ 2666 (Ker) : 2014 (2) KHC 64
13
Amar Singh v. State of Punjab, AIR 2010 SC 3391 : (2010) 3 SCC (Cri) 1130
14
Sarla Prabhakr Waghmare v, State of Maharastra, 1990 CrLJ 407 (BOM)
15
Annexure 4, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
16
Ibid of 15
17
Sanjay Jain v. State of Madhya Pradesh, 2013 CrLJ 688 (Chh)
18
Manik Lal Jain v. State of M.P, 2012 CrLJ 613 (SC) :2011 AIR SCW 6471
19
Akula Ravinder v. State of AP., AIR 1991 SC 1142: 1991 SCC (Cr) 990
20
Arbind Kumar Ambastha v. State of Jharkahnd, 2002 CrLJ 3973 (Jhar)

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

took her to the nearest hospital.21 The other accused persons were even not presence at home
at the alleged date of incidence22. Although the death was not natural and also occurs within
seven years of marriage but it is not necessary that it is a dowry death.

(¶ 18.) The hon’ble Supreme Court in the case of Baijnath v. State of Madhya Pradesh 23

observes that the factum of unnatural death in the matrimonial home and that too within seven
years of marriage therefore is thus ipso facto not sufficient to bring home the charge under
Sections 304B and 498A of the Code against them.

(¶ 19.) She must have been subject to cruelty or harassment by her husband or any relative of
her husband soon before her death.

(¶ 20.) Such cruelty or harassment should be for or in connection with demand of dowry. 24In
the instant case also no cruelty has been caused to the victim.

(¶ 21.) The hon’ble Supreme court in the case of Indrajit Suresprasad Bind v. State of
Gujart 25 observes that to establish the offense of dowry death under section 304B of IPC, the
prosecution has to prove beyond reasonable doubt that the husband or his relative had subjected
the deceased to cruelty or harassment in connection with demand of dowry soon before her
death. As far as the expression “soon before her death is concerned” the legislature has not
specified anytime which would be the period prior to death, therefore, concept of reasonable
time would be applicable to determine ‘soon before death’.26 The expression “soon before
death” is very relevant and the prosecution is required to show that soon before the occurrence
there was cruelty or harassment to the victim. 27Here in the instant case there is no evidence
per se to show that the victim was subject to cruelty soon before her death. Even the victim’s
father (PW2) admits in his statement that till the alleged incident of dowry death he heard
nothing about any kind of harassment against his daughter.28

(¶ 22.) The apex court in the case of Kuhiabdullah v. State of Kerala29observes that there
must be existence of a proximate and live link between the offence of cruelty based on dowry
demand and the concerned death. If the alleged incident of cruelty is remote in time and stale

21
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
22
Ibid of 21
23
Baijnath v. State of Madhya Pradesh, 1966 AIR 220, 1966 SCR (1) 210
24
Kashmir Kaur and another v. State of Punjab, AIR 2013 SC 1039; 2013 CrLJ 689
25
Indrajit Suresprasad Bind v. State of Gujart, (2013) 14 SCC 678 : (2013) 2 SCR 931
26
AIR 2015 S.C 684.
27
Kaliyaperumal v. State of Tamil Nadu, 2003 Cri. L.J. 4402 (S.C.).
28
Annexure 4, Rem Juris 1st National Virtual Moot Court Competition
29
Kuhiabdullah v. State of Kerala, 2004 Cr LJ 5005 (SC)

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

enough not to disturb mental equilibrium of the women concerned it would be of no

consequence. The section was not attracted where there had been no harassment for about 15
months prior to the occurrence of death30. In the instant case also alleged incident of cruelty
took place in the year 2010 and the death of the victim took place on 6th July 201431. So in there
is no proximate and live link between alleged incidents of cruelty based on dowry demand and
the concerned death. Therefore it is humbly submitted before the hon’ble session court that
the accused persons has not caused dowry death of the victim.

(¶ 23.) In the case of Dekinandan v. State of M.P32, death of the women was unnatural and
under mysterious circumstance within seven years of marriage. It could not be proved beyond
reasonable doubt there was a demand for a motor cycle and double bed. The father of the
women did not state in his evidence that there was a demand for a motor cycle. Conviction
under the section was set aside. In the instant case also father of the victim did not mention any
kind of demand of dowry.

4. IT WILL NOT RAISE A PRESUMPTION UNDER SECTION 113B

(¶ 24.) To draw a presumption under Section 113B in order to bring home the guilt under
Section 304B of IPC, the following ingredients are necessary33:

a) Death should be of burns or bodily injury or has occurred otherwise than under normal
circumstances.
b) Within seven years of the marriage
c) That soon before her death she had been subjectd to cruelty or harassment by her
husband or his relatives.

(¶ 25.) Even if one of the ingredients is not made out, the presumption under section 113B of
the Evidence Act would not be available to the prosecution and the onus would not shift to the
defence. Even while constructing this provision strictly, care will have to be taken to see that
its object is not frustrated. In the instant one of the most important ingredient that soon before
her death victim had been subject to cruelty or harassment by her husband or his relatives is
missing so it is humbly submitted before the hon’ble court that in the instant case presumption
under section 113B could not be raised.

30
Balwant singh v. State of Punjab, (2004) 7 SCC 724: AIR 2004 SC 1411.
31
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
32
Devkinandan v. State of M.P, 2003 CrLJ 1502 (MP)
33
Ratanlal & Dhirajlal, The Law of Evidence,1872 (LexisNexis, 27 th Edition)

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

(¶ 26.) The hon’ble Supreme Court in the case of Jajit Singh v. State of Punjab34 observed
that the presumption under section 113B is rebuttable and it has been open to prove that the
ingredients of section 304B of IPC are not satisfied. In the instant case the ingredients of section
304B are not satisfied so no presumption could be drawn under section 113B of the evidence
act.

(¶ 27.) In the case of Harjit Singh v. State of Punjab 35 where the death of deceased wife was
alleged to have been caused by poisoning, in the absence of any proof showing that the
deceased was subjected to cruelty or harassment by the appellant husband or any of his relatives
for or in connection with the demand of dowry, the provisions of section 113B cannot be
invoked against the appellant husband. In the instant case there has no cruelty caused to the
victim.

ISSUE [II] WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 376 AND
354 OF INDIAN PENAL CODE, 1860?

(¶ 28.) It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul
(Hereinafter will be referred as A1, A2, and A3 respectively, are not guilty of rape under section
376 and s. 354 of IPC.

(¶ 29.) It is humbly submitted that the accused plead not guilty as there was no physical contact
between the accused and the victim as the [1] medical reports are inconsistent [2] no
independent witness to the incident giving the accused, [3] the benefit of doubt,[4] Confession
of the Co-Accused. [5] Outraging the Modesty.

1. INCONSISTENCIES BETWEEN MEDICAL REPORT AND DYING DECLARATION

(¶ 30.) The defense humbly submits that though as a matter of law, the sole testimony of the
prosecutrix can sufficiently be relied upon to bring home the case against the accused, 36it is
very dangerous to convict the accused especially when the all that we have on her behalf is a
sole declaration and that too is inconsistent with the medical reports as there have been no
injuries in the private parts and is not in consonance with the statements given by A-3 (which
will be dealt separately)37

34
Jagjit Singh v. State of Punjab, AIR 2018 SC 5719 : 2018 (105) ACC 613
35
Harjit Singh v. State of Punjab, 2006 Cr.LJ 554 (SC) : AIR 2006 SC 680 : (2006) 1 SCC 463
36
Manohar Lal v. State of M.P, (2014) 15 SCC 587.
37
Annexure 2, Rem Juris 1 National Virtual Moot Court Competition.

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

(¶ 31.) As a general rule if evidence of the prosecution inspires confidence, it must be relied
upon without seeking corroboration of her statement in material particulars,38 which is clearly
not the scenario here. In the case of in the case of State of U.P. v. Madan Mohan39 the Apex
Court held that:It is for the court to see that dying declaration inspires full confidence as the
maker of the dying declaration is not available for cross-examination. In Ramilaben v.State
of Gujarat40the court did not find the dying declaration to be admissible as it lacked confidence
and was inconsistent with the medical reports.

(¶ 32.) The Hon’ble SC in the case of State of H.P. v. Gian Chand41 held that conviction for
an offence of rape can be based on the sole declaration of the prosecutrix corroborated by
medical evidence and other circumstances such as the report of chemical examination, etc. if
the same is found to be natural, trustworthy and worth being relied on. The contrary is the
scenario here as in the instant case, the contentions in the dying declaration and the medical
reports stand poles apart.

(¶ 33.) While the dying declaration states that she was raped thrice and the statements of A-342
state that she was hit on the private parts and other body parts, the medical reports state that
she had no injuries in private parts & there was no semen found regarding the same. Other body
parts also had some injuries only related to the nail marks of which no proper investigation or
DNA test has been done. More than a forced rape, the marks signify the signs of consensual
sex that could have happened between her and any other individual. The report signify clear
inconsistencies and one cannot convict the accused solely on the belief that they “might” have
raped her.

(¶ 34.) The possible reasons for her death here are Hypovolemia and Dyspnea. 43 While the
former is a condition of significant and sudden blood or fluid losses within your body caused
due to bleedings from digestive tract or overtly sensitive vaginal bleeding or prolonged
diarrhea& consistent vomiting, etc. & the latter is a condition of a state of breathlessness severe
than the usual and the causes for the same could be gastritis, bleeding disorder etc.

(¶ 35.) Also, assuming but not conceding to the fact that dying declaration hold some
referential value, though it doesn’t, the possible reason for the death is also internal bleeding

38
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.
39
State of U.P. v. Madan Mohan AIR 1989 SC 1519.
40
Ramilaben v.State of Gujarat (2001) 1 GLR 783.
41
State of H.P v. Gian Chand, (2013) 14 SCC 420.
42
Annexure 4, Rem Juris 1 National Virtual Moot Court Competition.
43
Id. at 2.

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

which could have been a result of she being kicked by her in-laws and it does not make it a fact
that the rape was ever committed by A1, A2 and A3. The blood stains on the cloth could also
be a possible outcome of consensual sex.

(¶ 36.) To conclude, each fact and collection of assumptions corroborating with the fact clearly
signify that the rape was never committed by the accused and the medical report concedes to
this fact while the dying declaration does not corroborate with the facts, hence the accused is
hereby innocent.

2. NO INDEPENDENT WITNESS.

(¶ 37.) Rape causes the greatest distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation and damage to the accused as
well.44It is true that in a case of rape the evidence of the prosecutrix must be given predominant
consideration, but to hold that this evidence has to be accepted even if the story is improbable
and belies logic,45would be doing violence to the very principles which govern the appreciation
of evidence in a criminal matter.46

(¶ 38.) While the statements of PW2, PW3, PW4, and PW5 lead to mere assumptions and
apprehensions and again as mentioned signify that the rape might be a scenario, the accused
cannot be convicted on mere assumptions and in a conflict between “did” and “might have
done”, actuality must be given its due consideration.47 While PW1 statement does signify the
presence of the accused at the prosecutrix’s house but the same is not to be admitted for the
alleged offence.48There is no presumption or any basis for assuming that the statement of such
a witness is always correct or without any embellishment or exaggeration.49

(¶ 39.) Several statements by prosecution witness are on hearsay evidence50 and they have no
first-hand knowledge of the same making the same in admissible. In Arguendo, in the case of
Krishan Kumar Malik v. State of Haryana51 the Supreme Court said that §6 of the Evidence
Act69 is an exception to the general rule where-under hearsay evidence becomes admissible.
The prosecution witnesses in their examination has laid down that they have no first-hand

44
Rajoo & Ors v. State of Madhya Pradesh, AIR 2009 SC 858.
45
Rakesh Chhabra v. State (NCT of Delhi), 2017 SCC OnLine Del 9334.
46
Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566.
47
Supra note. 7.
48
Id. at 12
49
Supra note. 9.
50
S. 60, The Indian Evidence Act 1872, No. 1, Acts of Parliament, 1872
51
Krishan Kumar Malik v. State of Haryana, AIR 2011 SC 2877.

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

information of the incident but is saying what prosecutrix had told her or other circumstancial
statements. But for bringing such hearsay evidence within the ambit of §6 of the Evidence Act,
what is required to be established is that it must be almost contemporaneous with the acts and
there could not be an interval which would allow fabrication.52

3. BENEFIT OF DOUBT

(¶ 40.) The counsel for the defence humbly submits before this Hon’ble Court that in criminal
trials, as opposed to civil proceedings where preponderance of probabilities is sufficient, the
burden of establishing the charge against the accused rests on the prosecution and the standard
of proving the same is always beyond all reasonable doubts.53 Suspicion, however, grave,
cannot take place of proof & the Court must dispassionately scrutinize the evidence on record,
so as to ensure that the findings regarding the guilt of a person are not based on conjecture
suspicion.54 Criminality is not to be presumed and so there exists a presumption of innocence
in favour of the accused until the charge is proven.55

(¶ 41.) In the instant case the accused reaped at night when Dhanalaxmi was asleep they
covered her face so that she could not be identified & her modesty was outraged too (under s.
376 and 354 of the IPC). At the same time, the statements of the prosecution witnesses have
not been able to establish the same and the medical reports vis-à-vis the dying declaration is
inconsistent with each other. The statements of the witnesses only signify assumptions and
unreasonable apprehensions.

(¶ 42.) It is pertinent to note that false charges of rape are not uncommon. There have also been
rare instances where a person has persuaded a gullible or obedient daughter to make a false
charge of a rape either to take revenge or extort money or to get rid of financial liability.56Thus,
If the court is of the opinion that on evidence, two views are possible ,one that the accused is
guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the
accused.57

4. CONFESSION OF THE CO-ACCUSED

52
Id at 16.
53
Wilson Gilbert Viegas v. State, 2010 SCC OnLineBom 969.
54
Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade v. State of
Maharashtra, AIR 1973 SC 2622.
55
Subash Chand v. State of Rajasthan, (2001) 1 SCC 702.
56
Radhu v. State of Madhya Pradesh, 2007 Cri. LJ 4704.
57
K.P. Thimmappa Gowda v. State of Karnataka, (2011) 14 SCC 475.

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

(¶ 43.) According to section 30 of the Indian Evidence Act, 1872, when several people are
being tried for the same offence, the court must take into consideration the statements of the
accused but not to the extent of solely convicting him or the co-accused. Also, such statements
should not be made under force or fraud58 which is a grey area and in no way clear in the instant
case. Such statements are considered ‘weak’ and lack evidence as they have not been recorded
on oath, nor it is given in the presence of accused and nor can the truth be established by cross
examination.

(¶ 44.) In the instant case, A-3 has agreed with the allegations but his statements are
inconsistent with the report and dying declaration as stated that the act was brutal and they had
hit the deceased in private parts and several other body parts, but the the medical reports and
the dying declaration do not show any such signs.

(¶ 45.) The evidence should stand the test of corroboration. The following dangers of
accepting ‘uncorroborated testimony’ are: a) he is participes criminis, hence evidence comes
from a tainted source; b) He has been faithless to his companions and may be faithless to the
court. According to s. 114 (b) of the Indian Evidence Act, the court shall presume that an
accomplice is unworthy of credit if it is not in consonance with the material facts. Therefore,
the two-fold tests are: a) his evidence must be relatable; b) and the evidence must be materially
corroborated.

5. OUTRAGING THE MODESTY

(¶ 46.) Sec 354 IPC, as states that whoever assaults or uses criminal force to any woman,
intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall
be punished for the same. Thus, physical advances or contact as well as a clear evidence is
necessary for the aforementioned charge which is clearly not the case here as the medical report
shows no such signs and the dying declaration too fails to establish that the same has occurred.

(¶ 47.) In Ram Das v. State of Bengal59 the court ruled that no person, in the absence of any
clear or unimpeachable as his intention to outrage modesty of a woman or as his knowledge he
was likely to outrage the modesty of a woman, can be convicted under s. 354 of the IPC. In the
instant case if we clearly analyse the given set of facts, there is no unimpeachable evidence to
prove that the modesty of Dhanalaxmi has been outraged. In State of Maharashtra v. Satyendra

58
Balbir Singh v. State of Punjab, AIR 1957 SC 216.
59
Ram Das v. State of Bengal, AIR 1954 SC 711.

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

Dayal Khare60 it was ruled that credible, cogent and unimpeachable evidence is adequate to
convict a person for outraging the modesty of a woman.

(¶ 48.) In Raju Pandurang Mahale v. State of Maharashtra61 it was ruled that the ultimate test
of checking the outraging of the modesty of a woman is to see whether the assault or use of
criminal force is capable of shocking the sense of decency in a woman. However, in the instant
case, there has been no use of criminal force or assault and no evidence of outraging her
modesty can be unimpeachably evident from the given set of facts. All the facts signify a here
say presumption that they might have been involved in the act which is not a valid ground for
conviction.

(¶ 49.) Each case according to SC needs to be determined on the touchstone of factual matrix
thereof, as instance of false implications of persons in cases involving rape and sexual
harassment are not unknown to the courts.62

(¶ 50.) Thus, inconsistency in the medical report, lacunae in the declaration and fabrication by
witness gives a presumption of innocence in the favour of accused as the charges cannot be
proved beyond reasonable doubt. So, in the light of the aforesaid statements, the defence
humbly denies the charges u/§ 354 and §376 and must be acquitted for the same.

ISSUE [III] WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 322, 323,
326 AND 506 OF INDIAN PENAL CODE 1860?

(¶ 51.) It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul
(hereinafter will be referred as A1, A2 AND A3 respectively) are not guilty under section
32363,32664 and 50665 of IPC and Laxmi Devi (hereinafter will be referred as A4).

(¶ 52.) The prosecution would divide the contentions into 4 sub issues to deal with this issue
[1] Grievous hurt was not caused; [2] Dangerous weapons or means were not used; [3] There
was no threat to assault; [4] Hurt to the victim was not caused.

60
State of Maharashtra v. Satyendra Dayal Khare, (2005) 12 SCC 485.
61
Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677; Administrator, Josgiri hospital v
Government of Kerala (2008) ILR 3 Ker 381, 2008 (2) KLJ 951, Tukaram Govind Yadav v State of Maharashtra
(2011) Cr LJ 1501(Bom).
62
Pandurang Sitaram Bhagwat v. State of Maharashtra, (2005) Cr. L.J 880 (SC).
63
Section 322 of Indian Penal Code, 1860
64
Section 326of Indian Penal Code, 1860
65
Section 506 of Indian Penal Code, 1860

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

1. GRIEVOUS HURT WAS NOT CAUSED BY THE ACCUSED

(¶ 53.) In order to attract Section 322, the court has to see that the accused intended to cause
hurt or that he knew that grievous hurt was likely to be caused and that such grievous hurt is
actually caused.66 In the instant case the victim medical examination report tells that the patient
was having only nail wound on back and neck 67and there is no proof that A1,A2 &A3 has any
role in doing it. Therefore, the respondent humbly submits that the accused is hereby innocent.

2. DANGEROUS WEAPONS OR MEANS WERE NOT USED BY THE ACCUSED

(¶ 54.) That the essential ingredients to attract Section 326 are: That In the matter of
imposition of proper sentence for the offence under Section 326 I.P.C. the nature of injury, the
weapon used and the part selected for causing injury, are important factors to be taken into
consideration.68 That the medical expert specifically stated on the basis of external and internal
examination that there was only nail wound on back and neck. Nail wound on back and neck
are not sufficient to cause death in the normal course. Moreover, victim’s clothes were blood
stained but there is no evidence on record that the blood was of the deceased and also there is
no evidence that injury was caused by the accused.

(¶ 55.) That to prove the offence under Section 326 of IPC, the prosecution has to establish.

a) That, the accused caused grievous hurt as contemplated in Section 320 of IPC.

b) that the accused caused it voluntarily as envisaged in Section 322 of IPC.

c) That causing of such grievous hurt was made by means of instrument for shooting etc.
or by means of any instruments which can be used as a weapon is likely to cause death
or by means of fire etc. or by means of any poison or any substance which is deleterious
to the human body to inhale etc. or by means any animal.69

(¶ 56.) Upon examination of the medical report it can be concluded that the statement made by
A3 is not true because on internal examination there was no wounds on vaginal part and on
external examination there was only Nail wound on back and neck.70 Bearing in mind the

66
Lokanath Behara v. State of H.P; 1975 CrLJ 1346(HP):ILR (1975)HP 54.
67
Moot Proposition & Annexure 2 of Rem Juris 1 st National Virtual Moot Court Competition
68
Emperor v. Bhojo A.I.R. (21) 1934 Sind. 172 : (36 Cr. L.J. 223)
69
Rakesh Gujar and others v. State of Madhya Pradesh
70
Moot Proposition & Annexure 4 of Rem Juris1st National Virtual Moot Court Competition

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

underlying principles of Section 326 the question is whether the accused in this case intended
to cause or had the knowledge of the likelihood of causing grievous hurt. The respondent
contends that at the time of the occurrence the accused namely A1, A2 & 3 was admittedly
without any weapon. The ingredients of section 326 of IPC are lacking. So, the petitioner
humbly submits to set aside so far as it relates to Section 326 of IPC.

3. THERE WAS NO THREAT TO ASSAULT

(¶ 57.) For being an offence within the meaning of Section 503, I.P.C, and punishable under
Section 506, I.P.C., the threat should be real one and not just a mere word. When a person
uttering it does not exactly mean what he says and when the person at whom threat is launched
does not feel threatened actually the offence of criminal intimidation punishable under Section
506, I.P.C. goes out of the way.71 The accused had only given the threats to cause death or
grievous hurt but did not an act in pursuance thereof. It was held that offence of criminal
intimidation was not made out and the accused would be entitled to the acquittal.72

(¶ 58.) A1 had warned PW2 that if he continued strict behaviour with him then he must be
ready to face the consequences of it but mere words are not punishable because there no
harassment against the victim nor any such things was heard by PW2 73 Also prosecution has
not established the fact nor there is any proof that overt act was shown by A1, A2 & A3.

4. HURT TO THE VICTIM WAS NOT CAUSED BY THE ACCUSED

(¶ 59.) The accused allegedly abused the victim and gave her back while she had gone to well
to fetch water. There was no evidence to corroborate the evidence of eye witness. Acquittal of
accused was held proper.74

(¶ 60.) There is no corroborative evidence that injuries found on person of informant was
caused none other than by the appellant. The offence under Section 323 of I.P.C could not be
proved beyond doubt. Conviction recorded against appellant is improper and liable to be set
aside.75 That in the instant case victim was unconscious and after conducting several test and
medical examination the doctors had already informed that victim will not be able to survive

71
Noble Mohandas v. State of T.N., 1989 CrLJ 669 (Mad) LW (Cr) 178 : (1988) 2 All Cr LR 248.
72
Subramanian Swamy (Dr.) v. State. 2011 CrLJ NOC 48 (Mad).
73
Moot Proposition & Annexure 4 of Rem Juris1st National Virtual Moot Court Competition
74
State v. Udhao Pandurang Aglawe, 2005 CrLJ 989 (Bom.)
75
Gunadhar Majhi v. State of Jharkhand, 2011 CrLJ 2536 (Jhar).

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

more than an hour on account of internal bleeding so it can be reasonably assumed that she
died because she was already suffering and there is no corroborative evidence on record that
any further injuries was caused by A4. Therefore, the story of prosecution is purely made to
falsely the accuse who are very innocent person.

ISSUE [IV] WHETHER THE ACCUSED ARE NOT GUILTY UNDER SECTION 299
AND 302 OF INDIAN PENAL CODE 1860?

(¶ 61.) It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul
(hereinafter will be referred as A1, A2 AND A3 respectively) are not guilty under section 29976
& 30277 of IPC.

(¶ 62.) The prosecution would divide the contentions into 4 sub issues to deal with this issue
[1] Direct or Circumstantial evidence is not there [2] Understanding dying declaration [3]
Statement of co-accused [4] Benefit of doubt.

1. DIRECT OR CIRCUMSTANTIAL EVIDENCE IS NOT THERE

(¶ 63.) Chain of evidence must be complete with fully established circumstances not to leave
any reasonable ground for a conclusion consistent with the innocence of accused. It should be
of conclusive nature.78

(¶ 64.) In Padala Veera Reddy v. State of A.P79 the Supreme Court held that when a case
rests upon circumstantial evidence, such evidence must satisfy in order to sustain conviction,
that the circumstantial evidence, must be complete and incapable of explanation of any other
hypothesis other than that of the guilt of the accused and such evidence, should not be
consistent with the guilt of the accused but should be inconsistent with his innocence and the
fact that there are other hypothesis possible and that such hypothesis are more strong and
supported by evidences than that of the prosecution, quashes the hypothesis of the prosecution
that the accused persons have murdered the deceased.

(¶ 65.) That the circumstances of the last seen together, does not, by itself and necessarily leads
to the inference that it was the accused who committed the crime. There must be something
more, establishing the connectivity between the accused and the crime. Mere non-explanation

76
Section 299 of Indian Penal Code, 1860
77
Section 302 of Indian Penal Code, 1860
78
Arvind v. State (Delhi Admn.), 1999 (4) SCC 4861: 1999 (3) JT 554
79
Padala Veera Reddy v. State of A.P; (1990) I SCJ 44: 1989 Supp (2) SCC 706 : AIR 1990 SC 79

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on the part of the accused by itself cannot lead to the proof of guilt against the accused.80 A2
made the statement under that he was present there at the time of incidence but there is no
connectivity that he had done the crime and also that night he had slept after drinking and he
was too drunk to even walk so the charges against A1 is fraudulent.81 That the plea of alibi is
taken by the defence is required to be proved only after the prosecution has proved its case
against the accused82. In the instant case there is no strong evidence that establishes the guilt
of A2 so his plea of guilt stands good.

2. UNDERSTANDING DYING DECLARATION

(¶ 66.) In a case it was held that “though a dying declaration must be approached with caution
for the reason that the maker of the statement cannot be subjected to cross-examination, there
is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying
declaration cannot be acted upon unless it is corroborated. Thus, Court must not look for
corroboration unless it comes to the conclusion that a dying declaration suffered from any
infirmity by the reason of which, it was necessary to look out for corroboration.83

(¶ 67.) That, for a dying declaration wants to be admissible under Section 32(1) of Indian
Evidence Act, 187284, there should be a medical certificate of a doctor to certify that the person
making the declaration is fit to do so, but here in this case there was no certificate issued by
any doctor to say whether the deceased was fit to make a dying declaration or not. Thus, for
this lack of certificate, which is immensely essential for declaration to be admissible, the
statement given to the police officials at 12:35 PM in the presence of a judicial magistrate 1st
Class that even A4 kicked the deceased stomach several times85 the declaration is not
admissible.

(¶ 68.) That In a case, the identity of the assailant stated in the dying declaration could not be
established. The dying declaration was not accepted and the prosecution failed.86 That deceased
in her dying declaration only told that “I was raped three times at around 3:00 am, while I was

80
Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715: 2014 (3) SCALE 598: Ashok v. State of Maharashtra,
2015 CrLJ 2036: 2015 (3) SCALE 530: (2015) 4 SCC 393
81
Moot Proposition & Annexure 4 of Rem Juris1st National Virtual Moot Court Competition
82
Darshan Singh v. State of Punjab, (2016) 3 SCC 37, para 17.
83
Munna Raja v. State of M.P., AIR 1976SC 2199:(1976) 3 SCC 104 : 1976 CrLJ 1718; Surendra Singh v. State
of Rajasthan,(1989) 3 Crimes514 (Raj)
84
Section 32(1) of Indian Evidence Act, 1872
85
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86
Sudhir Kumar v. State of U.P., (1989) 3 Crimes 583 :1990 CrLJ 119 (All)

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

sleeping. The rapists covered my face using thick piece of cloth.”87 So it is humbly submitted
before this honorable session court that merely by her statement the identity of the assailment
is difficult to be determined. So, upon such incoherent statement accused should not be
convicted.

3. STATEMENT OF CO-ACCUSED

(¶ 69.) A confessional soliloquy is a direct piece of evidence. It may be an expression of

conflict of the emotion; a conscious effort to stifle the pricked conscience an argument to find
an excuse or justification for his act; or penitent or remorseful act of exaggeration of his part
in the crime. Before such evidence can be accepted, it must be established by a cogent evidence
what were the exact words used by the accused. Even if so, much was established, prudence
88
and justice demand that such evidence cannot be made the sole ground of conviction. That
even if A3 has established its guilt but still prudence and justice demand that such evidence
cannot be made the sole ground of conviction as he specifically told that he, along with A1 &
A2 had hit victim badly into her body parts and other parts of body and doing all these act A1
was very brutal but looking upon the medical evidence there is conflict because there is no
such grievous injuries sign on the body and also no semen was found and also there was no
wound on vaginal part.89

4. BENEFIT OF DOUBT

90
(¶ 70.) In Kedar Nath v. State of Madhya Pradesh it was held that when there was no
evidence as to how death came about, evidence relating to charge of murder was held to be
insufficient and unacceptable. In a recent case where the cause of death is recorded as ‘asphyxia
as a result of strangulation’ but there was no external mark or symptoms of strangulation on
the body of the deceased, the Supreme Court gave the benefit of doubt to the accused.91 When
the court is called upon to arrive at a finding as to the real intention of the accused in committing
a particular offence, the Court is expected to consider every available circumstance and should
accept only that conclusion which could be arrived at beyond reasonable doubt.92

87
Moot Proposition & Annexure 3 of Rem Juris1st National Virtual Moot Court Competition
88
Sahoo v. State of U.P; AIR 1966 SC 40 : 1996 CrLJ 68.
89
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90
Kedar Nath v. State of Madhya Pradesh ; AIR 1991 SC 1224, 1991 CriLJ 989, 1993 Supp (1) SCC 7
91
Tomaso Bruno v. State of U.P; 2015 CrLJ 1690 : 2015 (1) SCALE 498
92
State of Gujarat v. Mohonlal Kuberdas Upadhya, 1975 Guj LR 263.

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MEMORANDUM for DEFENDANT [ARGUMENTS ADVANCED]

(¶ 71.) The Supreme Court, reiterating the principle in the case of Kishore Chand v. State of
H.P93 held that whether the facts leads to the inference of the guilt of the accused or not is
another aspect and in dealing with the aspect of the problem, the doctrine of benefit would
apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the
innocence of the accused and are consistent only with the guilt. In order words there must be
chain of evidence so far consistent and complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such, as to show that
within all probability, the act must have done by the accused and the accused alone.

(¶ 72.) That in the instant case also the cause of death of the deceased is Internal Bleeding,
Hypovolemia, Dyspnea94 but the reason has not been given that what actually caused the
problem nor there is external mark of injury which will cast the serious doubt that the accused
has raped the deceased or tried to murder her so the benefit of doubt goes in the favour of the
accused.

93
Kishore Chand v. State of H.P: 1990 CrLJ 2290 (SC) : (1990) 3 Crimes 341
94
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MEMORANDUM for DEFENDANT [PRAYER]

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

1. Mr. Vishnu is not guilty for voluntarily causing grievous hurt, voluntarily causing
grievous hurt by dangerous weapons or means, criminal intimidation, assaulting or
using criminal force to women with intent to outrage her modesty, dowry death, rape,
gang rape murder, cruelty, criminal conspiracy defined under the section 322, 326,503
read with 37/34 ,354, 376D 3o4-B, 375,300, 498A,120-A read with 37,37 of I.P.C.

2. Mr. Jayesh and Rahul is not guilty for voluntarily causing grievous hurt, voluntarily
causing grievous hurt by dangerous weapons or means, criminal intimidation,
assaulting or using criminal force to women with intent to outrage her modesty rape,
gang rape, murder defined under section 322, 326, 503 read with 37/34, 354, 375, 376D,
300, 120-A of I.P.C.

3. Laxmi Devi is not guilty for cruelty, dowry death, voluntarily causing hurt defined
under the section 498A, 304-B, 321 of I.P.C.

4. Mr. Rohan is not guilty for cruelty, dowry death defined under the section of 498A,
304-B of I.P.C.

And declare them free from all the charges

AND/OR

Pass any other order that it may deem fit in the favour of the defendant to meet the ends of
equity, justice and good conscience.

For this act of kindness, the defendant shall duty bound forever

PLACE: sd/-

DATE: COUNSEL for the DEFENDANT

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