9th Meom Moot

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

GROUP NO. 5 ROLL NO. 537

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

IN THE HON’BLE SESSION COURT CRIMINAL CASE. NO. …/2014 [UNDER SEC. 302 THE INDIAN PENAL CODE, 1860]

STATE OF MAHARASHTRA

.

PROSECUTION V.

DEFENCE

SHANKAR

MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF THE PROSECUTION

STATE OF MAHARASHTRA

Memorial for Prosecution

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

TABLE OF CONTENTS LIST OF ABBREVIATIONS ..................................................................................................... III INDEX OF AUTHORITIES ...................................................................................................... IV STATEMENT OF JURISDICTION ...................................................................................... VIII STATEMENT OF FACTS ......................................................................................................... IX ISSUES RAISED.......................................................................................................................... X SUMMARY OF ARGUMENTS ................................................................................................ XI 1.

WHETHER THE ACCUSED CAN BE CONVICTED UNDER SECTION 302 OF

THE INDIAN PENAL CODE, 1860?...................................................................................... XI WHETHER THE DYING DECLARATION OF THE DECEASED, “SHAM” CAN

2.

BE BASIS FOR CONVICTION OF THE ACCUSED UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860? .............................................................................................. XI ARGUMENTS ADVANCED ....................................................................................................... 1 1.

THAT THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 302 READ

OF THE INDIAN PENAL CODE, 1860. .................................................................................... 1 1.1.

THE ESSENTIAL REQUISITES OF MURDER UNDER SECTION 300 OF IPC. .................... 1

1.2.

DEATH OF THE DECEASED, RAM, IS PRIMA FACIE CLEAR FROM THE FACTS OF THE

CASE. 2 1.3.

ACTUS REUS OF MURDER IS PROVEN. ........................................................................... 2

1.4.

MENS REA OF MURDER IS ESTABLISHED. ..................................................................... 2

1.4.1.

Intention of the accused established. ..................................................................... 3

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1.4.2.

Accused taking undue advantage of his position. ................................................ 3

1.4.3.

Intention evident from previous threat to deceased. ........................................... 4

1.5.

INJURIES INFLICTED INTENTIONALLY AND SUFFICIENT IN ORDINARY COURSE OF

NATURE TO CAUSE DEATH. ....................................................................................................... 4 1.6.

ACCUSED HAD MOTIVE TO KILL. ..................................................................................... 5

1.7.

CIRCUMSTANTIAL EVIDENCE PROVES THE CASE BEYOND REASONABLE DOUBT. .......... 6

1.8.

NON

RECOVERY OF WEAPON OF OFFENCE DOES NOT AFFECT THE CASE OF

PROSECUTION. ............................................................................................................................. 7

2.

THAT THE DYING DECLARATION OF THE DECEASED, “SHAM” CAN BE

BASIS FOR CONVICTION OF THE ACCUSED UNDER SECTION 302 OF INDIAN PENAL CODE, 1860. ................................................................................................................... 8 2.1.

ESSENTIALS FOR ADMISSIBILITY OF DYING DECLARATION FULFILLED. ........................ 8

2.2.

ORAL DYING DECLARATION OF THE DECEASED IS VALID............................................... 9

2.2.1.

Oral dying declaration given without any loss of time. ....................................... 9

2.2.2.

Deceased could not have mistaken about the identity of the assailant............. 10

2.3.

TECHNICAL

OBJECTION AS TO THE ABSENCE OF DOCTOR’S CERTIFICATION AND

ENDORSEMENT AS TO MENTAL FITNESS OF THE DECEASED IS LIABLE TO BE REJECTED. ....... 10

PRAYER ...................................................................................................................................... XI

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LIST OF ABBREVIATIONS

1.

AIR

All India Reporter

2.

Anr.

Another

3.

AP

Andhra Pradesh

4.

Art.

Article

5.

Cal.

Calcutta

6.

CWN

Calcutta Weekly Note

7.

Del

Delhi

8.

Govt.

Government

9.

HC

High Court

10.

ILR

Indian Law Reporter

11.

Ker.

Kerala

12.

Mad.

Madras

13.

Mah LJ

Maharashtra Law Journal

14.

MP LJ

Madhya Pradesh Law Journal

15.

Ors.

Others

16.

P&H

Punjab and Haryana

17.

para.

Paragraph

18.

Sec.

Section

19.

S.C.

Supreme Court Cases

20.

Vol.

Volume

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INDEX OF AUTHORITIES

CASES Ananta Mahanta v. State of Orissa (1979) 48 CLT 515 (SC). ...................................................... 18 Bakhtawar v. State of Haryana, A.I.R. 1979 SC 1006.................................................................. 14 Balkar Singh v. State of Uttarakhand, (2009) 15 SCC 366. ......................................................... 13 Balvinder Singh v. State of Punjab MANU/SC/0160/1986 : 1987CriLJ330 . ............................. 15 Bhanu Dei and Joginath Pradhan v. State, (1985) 2 Cr.L.C. 189. (Orissa). ................................. 17 Chhotka v State of WB, AIR 1958 Cal 482. ................................................................................. 14 Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4. ............... 12, 17 Dayaram Singh v. State of Madhya Pradesh, 1981,Cr.L.J. 530. .................................................. 20 Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 : AIR 1983 SC 446............................ 15 Gajaraj Singh v. State of Madhya Pradesh, 1985, Cr.L.R., 300. .................................................. 19 Gambhir v. State of Maharashtra MANU/SC/0067/1982 : 1982CriLJ1243 ............................... 15 Gian Singh v. State of Punjab MANU/SC/0173/1986 : 1987CriLJ1918 ..................................... 15 Gopal Pandhu v. State of Orissa, (1991) 33 Orissa J.D. 194. ....................................................... 16 Gouridas Namasudra v. Emperor, I.L.R 34 Cal. 698. ................................................................... 18 Jaswant Singh v. State (Delhi Administration), AIR 1979 SC 190 .............................................. 19 Kachhwa v. State of Rajasthan 1986 Cr.L.J. 306. ........................................................................ 18 [IV] Memorial for Prosecution

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Kammalavva and another v. State of Karnataka, (2009) 11 SCC 614. ........................................ 20 Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 ............................................... 11 Kushal Rao v. State of Bombay, AIR 1956 SC 22. ...................................................................... 20 Laxman v. State of Maharashtra, AIR 1974 SC 1803. ................................................................. 12 N. Scmasekhar v. State of Karnataka, ILR 1992 Karn. 754. ........................................................ 14 Narendran Nair alias Unni v. State of Kerala, 1989 Cr. L.R. 370. ............................................... 12 P.V. Radhakrishna v. State of Karnataka, AIR 2003 S.C. 2859 ................................................... 17 Prem Thakur v. State of Punjab MANU/SC/0097/1982 : 1983CriLJ155 .................................... 15 Rama Nand v. State of Himachal Pradesh MANU/SC/0209/1981 : 1981CriLJ298 .................... 15 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC). ....................................................... 12 Shantabai and Ors. v.State of Maharashtra, MANU/SC/7274/2008 ............................................ 15 Shashidhar Singh and Anr. v. State of M.P., 1998 Cr.L.J. 2676. ................................................. 18 Sohan Lal v. State of Punjab, AIR 2003 SC 4466. ....................................................................... 20 Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142 .................................................................. 14 State of Maharashtra v Meyer Hans George, AIR 1965 SC 722. ................................................. 12 State v Dinakar Bandu (1969) 72 Bom LR 905. ........................................................................... 14 Subhash Ramkumar Bind @ Vakil and Anr. v. State of Maharashtra, AIR 2003 SC 269. .......... 14 Virsa Singh v. State of Punjab, A.I.R. 1958 SC 465. ................................................................... 13

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BOOKS REFERRED 1. Hari Singh Gour’s, Commentaries on Hurt & Homicide (2nd Edition, Law Publishers (India) Pvt. Ltd.). 2. John A. Andrews & Michael Hirst, Criminal Evidence (2nd Edition, Sweet & Maxwell Ltd., 1992, London). 3. KD Gaur, Criminal Law and Criminology (Deep & Deep Publications Pvt. Ltd., 2002, New Delhi). 4. P.C.Banerjee, Criminal Trial & Investigation (4th Edition, Orient Publishing Company, 2007, New Delhi). 5. R.Gopal, Shoni’s Code of Criminal Procedure (20th Edition, Lexis Nexis Butterworths, 2005, New Delhi). 6. R.K. Nelson, Indian Penal Code (9th Edition, Lexis Nexis Butterworths, 2003, New Delhi). 7. R.P.Kathuria, Law of Crimes and Criminology (2nd Edition, Vinod Publications, 2007, Delhi). 8. Ratanlal & Dhirajlal, Law of Crimes (26th Edition, Bharat Law House, 2007, New Delhi). 9. Ratanlal & Dhirajlal, The Indian Penal CODE (31st Edition, Wadhwa & Company, 2006, Nagpur). 10. Sir John Woodroffe & Syed Amir Ali, Law of Evidence (17th Edition, Butterworths, 2001, New Delhi). 11. SP Tyagi, Law of Evidence (2nd Edition, Vinod Publications, 2008, Delhi). 12. Woodroofe, Commentaries on Code of Criminal Procedure (2nd Edition, Law Publishers Pvt. Ltd., 2005, Allahabad). 13. Vinod Nijhawan, Better Criminal Reference (2nd Edition, Vinod Publications Pvt. Ltd., 2008, New Delhi).

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DICTIONARY REFERRED 1. Aiyar, K.J., Judicial Dictionary, (New Delhi: Butterworths India, 13th edition, 2001). 2. Black, Henry Campbell, Black’s Law Dictionary, (St. Paul, Minn: West Publishing Company, 6th edition, 1990). STATUES REFERRED 1. Indian Penal Code, 1860. 2. Evidence Act, 1872. 3. Code of Criminal Procedure, 1973.

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STATEMENT OF JURISDICTION THE PROSECUTION HAS APPROACHED THE HON’BLE SESSION COURT UNDER SECTION 177 READ WITH SCHEDULE I OF THE CODE OF CRIMINAL PROCEDURE, 1973.

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STATEMENT OF FACTS -IThe Background of the case: On 10th November 2013 at about 8 PM, Ram, Sham and Ghanshyam were playing cards under a street light in Pune. At about 8.30 PM, Shankar along with his friend Kanhaiya came there and asked Ram, Sham and Ghanshyam to allow them to play cards with them. Sham objected to this alleging that Shankar always cheats in card games. This led to an altercation between Sham and Shankar. On the intervention of Ram and Ghanshyam, Shankar and Kanhaiya went away abusing Sham. -IIInflicting of injuries and causing death:. At about 9.30 PM, Shankar and Kanhaiya returned and started abusing Sham. Shankar had a pistol in his hands and he shot at Sham. -IIIWitnesses and depositions: Hari Lal who resides in neighborhood where the incident took place, deposed that he heard the sound of bullets being fired at and he came outside his house and noticed that Sham had sustained injuries and was bleeding profusely. He deposed that Sham is his neighbourer and his house is only 10 feet away from the place of incident. He claimed and deposed that Sham before his death had told Hari Lal that Shankar has fired three shots at him. According to Hari Lal, Sham died in about 10 minutes on the spot. Ram also appeared as a witness and he deposed that he had left the game in between and was going home when he heard from some passer byes that bullet shots have been fired at Sham. He claimed that on hearing the news he rushed to the spot and found that Sham was hit and was bleeding. He however deposed that altercation had taken place between Sham and Shankar at about 8.30 PM and that Shankar had threatened Sham of dire consequences. -IVThe Case : Autopsy report confirmed death due to bullet injuries in Chest and stomach. Case is filed against Shankar under section 300 read with section 302 of Indian PenalCode, 1860.

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ISSUES RAISED

1. WHETHER THE ACCUSED CAN BE CONVICTED UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860? 2. WHETHER THE DYING DECLARATION OF THE DECEASED, “SHAM” CAN BE BASIS FOR CONVICTION OF THE ACCUSED UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860?

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SUMMARY OF ARGUMENTS

1.

WHETHER THE ACCUSED CAN BE CONVICTED UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860?

It is humbly submitted before this Hon’ble court that the accused in the case namely- Shankar has committed an offence of murder covered under Sec. 300 of the Indian Penal Code, 1860(hereinafter IPC) for which punishment is prescribed under Section 302 of the code as he has intentionally caused the bodily injury to the deceased “Ram”, which is sufficient in the ordinary course of nature to cause death. The prosecution humbly submits before this Hon’ble court that in the instant case there is no lack of circumstantial evidence to prove the guilt of the accused for the offence of murder as given under section 302 of the Indian Penal Code, 1860. 2.

WHETHER THE DYING DECLARATION OF THE DECEASED, “SHAM” CAN BE BASIS FOR CONVICTION OF THE ACCUSED UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860?

It is humbly submitted before this Hon’ble Court that the statement given by Deceased, “Sham”, to Hari Lal just before succumbing to death is a valid, reliable and truthful dying declaration given under section 32(1) of Indian Penal Code 1860 and it should be made basis for the conviction of the accused. The law relating to dying declarations is currently encoded under Sections 32 and 33 of the Indian Evidence Act, 1872. The Hon’ble Apex Court has held in several cases that there is no bar for basing conviction solely on the Dying Declaration but the same should be tested about the voluntaries and truthfulness.

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ARGUMENTS ADVANCED 1. THAT THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 302 READ OF THE INDIAN PENAL CODE, 1860. It is humbly submitted before this Hon’ble court that the accused in the case namely- Shankar has committed an offence of murder covered under Sec. 3001 of the Indian Penal Code, 1860(hereinafter IPC) for which punishment is prescribed under Section 3022 of the code as he has intentionally caused the bodily injury to the deceased “Ram”, which is sufficient in the ordinary course of nature to cause death. It is humbly contended that the accused is guilty for committing the offence of murder under Sec. 302, IPC. Sec. 302 prescribes the punishment for committing murder. In order to bring a successful conviction under this charge, however, it is pertinent to refer to Sec 300, IPC which elucidates the essentials of murder 1.1.

THE ESSENTIAL REQUISITES OF MURDER UNDER SECTION 300 OF IPC.

It is submitted that for the purpose of convicting under Section 302 of the IPC that the burden on the prosecution is to prove that the murder has been committed by the accused. And to prove murder it is essential that culpable homicide is caused and further it is essential for the prosecution to prove that the act by which the death is caused (i)

is done with the intention of causing death, or

(ii)

is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the offence is caused, or

(iii)

is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflected is in ordinary course of nature is sufficient to cause death, or

1

The Indian Penal Code, § 300 (1860).

2

The Indian Penal Code, § 302 (1860).

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(iv)

is so imminently dangerous that it must, in all probability cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such bodily injury.3

1.2.

DEATH OF THE DECEASED, RAM, IS PRIMA FACIE CLEAR FROM THE FACTS OF THE CASE.

It is humbly submitted that the deceased was declared dead on his arrival in hospital4. Further the autopsy report confirmed death due to the bullet injuries in chest and stomach.5 1.3.

ACTUS REUS OF MURDER IS PROVEN.

Actus reus is any wrongful act6. Thus, in a case of murder, actus reus would be the physical conduct of the accused that causes death of the victim. In the instant case actus reus has been proved by the medical examination report after considering the other circumstances of the case. The post mortem report becomes important in cases where the cause of death is to be established and is a matter of controversy.7 In the instant case further it is humbly submitted that the medical examination report of deceased body clearly shows the presence bullet injuries in chest and stomach of deceased.8 And further it is pertinent to mention that the deceased has identified the accused Shankar firing three shots9 at him and told about this fact to Harilal before dying. 1.4.

MENS REA OF MURDER IS ESTABLISHED.

3

HARI SINGH GOUR, COMMENTARIES ON HURT & HOMICIDE 5 (2006).

4

Moot proposition ¶ 1 at line 16-17.

5

Moot proposition ¶ 1 at line 17-18.

6

Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed. 2006).

7

Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883.

8

Moot proposition ¶ 1 at line 17-18.

9

Moot proposition ¶ 1 at line 15.

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Mens rea is considered as guilty intention10, which is proved or inferred from the acts of the accused11. It is submitted that the intention to kill is established and there is presence of clear-cut motive of the accused. 1.4.1. Intention of the accused established. It is humbly submitted that every sane person intends the result that his action normally produces and if a person hits another on a vulnerable part of the body, and death occurs as a result, the intention of the accused can be no other than to take the life of the victim and the offence committed amounts to murder.12 Moreover, the intention to kill is not required in every case, mere knowledge that natural and probable consequences of an act would be death will suffice for a conviction under sec. 302 of IPC.13The intention to kill can be inferred from the murder and nature of the injuries caused to the victim.14 1.4.2. Accused taking undue advantage of his position. It is pertinent to mention here that the accused was armed with dangerous weapon and caused death of deceased who was unarmed, which clearly shows that the accused acted in cruelly manner and took undue advantage of his position and therefore intention to kill should be attributed to the accused. For this purpose reliance can be placed upon Narendran Nair alias Unni v. State of Kerala15, where it was held that “In a case there is evidence that the accused acted in a cruel manner taking undue advantage of the position that he was armed with a dangerous weapon whereas the deceased was unarmed. When a person causes an injury on vital 10

Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4.

11

State of Maharashtra v Meyer Hans George, AIR 1965 SC 722.

12

Balkar Singh v. State of Uttarakhand, (2009) 15 SCC 366.

13

Santosh v. State of Madhya Pradesh, 1975 Cr.L.J. 602 (SC).

14

Laxman v. State of Maharashtra, AIR 1974 SC 1803.

15

Narendran Nair @ Unni v. State of Kerala, 1989 Cr. L.R. 370.

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part of the body, the intention to kill can be attributed to him. When serious injury has been caused on a vital part with dangerous weapon, it must necessarily lead to the inference that the accused intended to kill the deceased.” 1.4.3. Intention evident from previous threat to deceased. It is humbly brought before the notice of this Hon’ble court that the accused before killing the victim had threatened deceased of dire consequences when the first altercation took place between accused and deceased at about 8:30 p.m.16 as deposed by Ram. It is humbly submitted before this Hon’ble court that where the act of inflicting bullet injuries and killing of person is connected to the threat unmistakably clearly shows that the accused had intent to kill.17 It is therefore humbly submitted that accused had intention to kill the deceased. It is therefore humbly submitted that on the basis of facts stated and cases cited it can be easily proved beyond reasonable doubt that the accused have intentionally caused the death of the deceased “Sham”. 1.5.

INJURIES INFLICTED INTENTIONALLY AND SUFFICIENT IN ORDINARY COURSE OF NATURE TO CAUSE DEATH.

In the case of Virsa Singh v. State of Punjab18, the supreme court established and settled the essentials of clause 3rd of Sec. 300 of IPC as following : (i)

There must be bodily injury caused by the accused

(ii)

The accused must have intended that particular injury and no other, and

(iii)

The bodily injury must be sufficient in the ordinary course of nature to cause death.

16

Moot proposition ¶ 1 at line 22-23.

17

HARI SINGH GOUR, COMMENTARIES ON HURT & HOMICIDE 55 (2006).

18

Virsa Singh v. State of Punjab, AIR 1958 SC 465, Balkar Singh v. State of Uttarakhand, (2009) 15 SCC 366.

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It is humbly submitted before this Hon’ble court that in the instant case it is undisputed fact and proved to this effect that bodily injury has been caused by the accused intentionally. It is humbly submitted before this Hon’ble court that it is now well settled that if it is proved that the accused had the intention to inflict the injuries actually suffered by the victim and such injuries are found to be sufficient in the ordinary course of nature to cause death, the ingredients of clause thirdly of Sec.300 of the IPC are fulfilled and the accused must be held guilty of murder punishable under Sec.302 of the IPC. Further the reliance can be placed upon Bakhtawar v. State of Haryana.19 Further it has been held in Subhash Ramkumar Bind @ Vakil and Anr. v. State of Maharashtra20 that bullet injuries on chest and abdomen are sufficient in the ordinary course of nature to cause death and the case against the appellant would fall squarely within the ambit of clause “thirdly” of Sec. 300 of the Indian Penal Code.” 1.6.

ACCUSED HAD MOTIVE TO KILL.

Sec 8, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or preparation for any fact in issue or relevant fact. Thus, previous threats or altercations between parties are admitted to show motive.21 It is further pertinent to note that if there is motive in doing an act, then the adequacy of that motive is not in all cases necessary. Heinous offences have been committed for very slight motive.22 It is pertinent to mention that in the instant case Sham objected to Shankar playing games of card with him alleging that he always cheats in card games. 23 This led to the altercation between

19

Bakhtawar v. State of Haryana, AIR 1979 SC 1006.; N. Scmasekhar v. State of Karnataka, ILR 1992 Karn. 754.

20

Subhash Ramkumar Bind @ Vakil and Anr. v. State of Maharashtra, AIR 2003 SC 269.

21

Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482.

22

State v. Dinakar Bandu, (1969) 72 Bom. L.R. 905.

23

Moot proposition ¶ 1 at line 4-5.

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Sham and Shankar24, and accused went away abusing Sham25 and threatened of dire consequences26 for his insult, which forms the motive in the case at hand. 1.7.

CIRCUMSTANTIAL EVIDENCE PROVES THE CASE BEYOND REASONABLE DOUBT.

The prosecution humbly submits before this Hon’ble court that in the instant case there is no lack of circumstantial evidence to prove the guilt of the accused for the offence of murder as given under section 302 of the Indian Penal Code, 1860. Supreme Court of India recently in Shantabai and Ors. v. State of Maharashtra27 discussed the tests relating to circumstantial evidence as follows: (i)

the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii)

those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii)

the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.28

24

Moot proposition ¶ 1 at line 5.

25

Moot proposition ¶ 1 at line 6.

26

Moot proposition ¶ 1 at line 6.

27

Shantabai and Ors. v.State of Maharashtra, AIR 2008 SC 1571.

28

Gambhir v. State of Maharashtra, 1982 Cr.L.J. 1243 ], Rama Nand v. State of Himachal Pradesh, 1981 Cr.L.J 298 , Prem Thakur v. State of Punjab,1983 Cr.L.J. 155 , Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 , Gian Singh v. State of Punjab, 1987 Cr.L.J. 1918 , Balvinder Singh v. State of Punjab, 1987 Cr.L.J. 330 .

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It is humbly submitted before this Hon’ble court that in the case at hand, circumstances like altercation between deceased and accused at about 8:30 p.m., deceased threatened of dire consequences by the accused, hearing of sound of bullets firing by Hira Lal and him rushing to the crime scene and finding the deceased bleeding profusely, deceased telling him the name of assailant, passerby informing Ram about the incident and him also finding the deceased bleeding and presence of no other person in crime scene and absence of any enmity between deceased and any other person other than accused are complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 1.8. NON

RECOVERY OF WEAPON OF OFFENCE DOES NOT AFFECT THE CASE OF

PROSECUTION.

It is humbly submitted before this Hon’ble court that the non-recovery of pistol will not lead to affect the prosecution case since all other evidences are sufficient to point out the guilt of the accused. Reliance can be placed upon Gopal Pandhu v. State of Orissa29, in which it was held that the production of the arms with which the offence is committed is always salutary… but it is not an uniform rule in all cases that where the weapon of offence is not produced the prosecution must fail, as it depends on circumstances of each case. It is therefore humbly submitted before this Hon’ble court that the accused is liable to be convicted under section 302 of Indian Penal Code.

29

Gopal Pandhu v. State of Orissa, (1991) 33 Orissa J.D. 194.

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2. THAT THE DYING DECLARATION OF THE DECEASED, “SHAM” CAN BE BASIS FOR CONVICTION OF THE ACCUSED UNDER SECTION 302 OF INDIAN PENAL CODE, 1860. It is humbly submitted before this Hon’ble Court that the statement given by Deceased, “Sham”, to Hari Lal just before succumbing to death is a valid, reliable and truthful dying declaration given under section 32(1) of Indian Penal Code 1860 and it should be made basis for the conviction of the accused. The law relating to dying declarations is currently encoded under Sections 32 and 33 of the Indian Evidence Act, 1872. The Hon’ble Apex Court has held in several cases that there is no bar for basing conviction solely on the Dying Declaration but the same should be tested about the voluntaries and truthfulness. The principle on which dying declaration is admitted in evidence is indicated in legal maxim” nemo moriturus proesumitiur mentiri” i.e. a man will not meet his maker with a lie in his mouth.30 2.1.

ESSENTIALS FOR ADMISSIBILITY OF DYING DECLARATION FULFILLED.

The statement of a dead person can be admitted if such statements relates (i) To the cause of the death of the deceased or; (ii)To any of the circumstances of the transaction which had resulted in death and not otherwise.31 In the case at hand the deceased told the neighbor that Shankar has fired three shots at him.32This statement indisputably refers to the cause of death of the deceased and is therefore admissible as dying declaration under section 32 of Indian Evidence Act, 1872.

30

P.V. Radhakrishna v. State of Karnataka, AIR 2003 S.C. 2859.

31

Bhanu Dei and Joginath Pradhan v. State, (1985) 2 Cr.L.C. 189. (Orissa).

32

Moot proposition ¶ 1 at line 15.

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2.2.

ORAL DYING DECLARATION OF THE DECEASED IS VALID.

It is humbly submitted before this Hon’ble Court that the oral dying declaration of the deceased is valid as it has been testified by the Harilal to whom it was given. Reliance can be placed upon Gouridas Namasudra v. Emperor33, it was conceded that an oral statement of a deceased person as to the cause of his death, if made in the absence of the accused, may be proved by anyone who heard it made. Further it has been held by the courts that where only close relations arrived on the spot on hearing the shout of the victim and no independent witness arrived on the spot, oral dying declaration made to the relation- witnesses was believed and the accused was convicted.34It is pertinent to mention here that in the instant case the Harial is a neighbor and not related to the deceased and therefore there is no reason why oral dying declaration given to him should be discarded. Further the reliance can be placed on Kachhwa v. State of Rajasthan.35 2.2.1. Oral dying declaration given without any loss of time. It is humbly submitted before this Hon’ble court that the deceased in the instant case gave oral dying declaration without any loss of time and stated the name of assailant and therefore it should be believed and should be made basis for the conviction of the accused. Reliance can be placed upon Shashidhar Singh and Anr. v. State of M.P.36, where, the deceased had not narrated the details of the incident. He had only stated the names of the assailants. The deceased had given the oral dying declaration without any loss of time, and therefore, it cannot be said that oral dying declaration was not possible to be given by the deceased. There is also nothing on record to disbelieve the prosecution witnesses PW 4 Ramendra Singh and PW 5 Ummed Singh on that count.

33

Gouridas Namasudra v. Emperor, I.L.R 34 Cal. 698.

34

Ananta Mahanta v. State of Orissa (1979) 48 CLT 515 (SC).

35

Kachhwa v. State of Rajasthan 1986 Cr.L.J. 306.

36

Shashidhar Singh and Anr. v. State of M.P., 1998 Cr.L.J. 2676.

[9] Memorial for Prosecution

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

2.2.2. Deceased could not have mistaken about the identity of the assailant. Further it is humbly submitted before this Hon’ble court that deceased had good opportunity to identify the assailant as the incident took place under a street light which leaves not a single iota of doubt that the deceased could not have been mistaken about the identity of the assailant. Reliance can be place upon Gajaraj Singh v. State of Madhya Pradesh37, in which it was held that when there is absolutely no doubt that the deceased had good opportunity of knowing who the assailant was and could not have been mistaken about his identity, and there is no possible reason for his falsely accusing him as responsible for causing injury or injuries which later proved fatal to him, dying declaration would constitute good evidence and may, by itself, form basis of conviction. It is humbly submitted that in the case where the dying declaration is not recorded by a magistrate and if the court is satisfied on the close scrutiny of the dying declaration that it is truthful, it is open to the court to convict the accused on its basis without any independent corroboration. Reliance can be placed to this effect upon Jaswant Singh v. State (Delhi Administration). 38 It is therefore humbly submitted before this Hon’ble court that the oral dying declaration in the case at hand is sufficient to form the basis for conviction of the accused. 2.3.

TECHNICAL OBJECTION AS TO THE ABSENCE OF DOCTOR’S CERTIFICATION AND ENDORSEMENT AS TO MENTAL FITNESS OF THE DECEASED IS LIABLE TO BE REJECTED.

It is humbly submitted before the Hon’ble court that the absence of doctor’s certificate does not affects the case of prosecution in the instant case. Further the courts have observed that the

37

Gajaraj Singh v. State of Madhya Pradesh, 1985, Cr.L.R., 300.

38

Jaswant Singh v. State (Delhi Administration), AIR 1979 SC 190.

[10] Memorial for Prosecution

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

doctor’s certification and endorsement as to mental fitness of deceased is a mere rule of prudence and not ultimate test as to decide whether or not dying declaration was truthful or voluntary.39 Further in the case of Sohan Lal v. State of Punjab40 the court held, the absence of doctor’s certificate as to fitness of the deceased to make dying declaration or failure to examine that doctor who had given the certificate does not make the declaration unreliable. Further in the case of Dayaram Singh v. State of Madhya Pradesh41 a serious argument was advanced regarding the ability of the injured to make oral dying declaration. There was the testimony of witness who testified to the oral dying declaration which has also mentioned in the F.I.R.. The court held that when there was direct oral testimony on this point, it could not be rejected on the ground that it was not supported by the medical evidence. The technical objection raised by the appellants regarding the unavailability of doctor’s certification and endorsement as to mental fitness of the deceased is liable to be rejected in as much as the same has been held by supreme court in numerous decision as a mere rule of prudence and not the ultimate test as to whether or not the said dying declaration was truthful or voluntary. It is humbly submitted before this Hon’ble court that the dying man may at times in a conscious moment, make some statement to persons around him which may or even may not be recorded by any individual and quite likely may die soon thereafter giving no chance to doctor to attend on him. It cannot be said in absence of the certificate that the whole statement should be rejected for want of it, even if otherwise found to be an honest statement, so in judging the same the totality of the circumstances should be looked into. Reliance can be placed upon Kushal Rao v. State of Bombay42.

39

Kammalavva and another v. State of Karnataka, (2009) 11 SCC 614.

40

Sohan Lal v. State of Punjab, AIR 2003 SC 4466.

41

Dayaram Singh v. State of Madhya Pradesh, 1981,Cr.L.J. 530.

42

Kushal Rao v. State of Bombay, AIR 1956 SC 22.

[11] Memorial for Prosecution

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

PRAYER

Wherefore, in the light of above, it is most humbly prayed that this Hon’ble Court may be pleased to adjudge that: 1. THE ACCUSED NAMELY- SHANKAR HAS COMMITTED AN OFFENCE UNDER SEC. 300 OF IPC AND THEREFORE SHOULD BE CONVICTED UNDER SEC. 302 OF IPC.

Pass any other order as this Hon’ble Court may deem fit in the light and interest of justice.

Counsel for Prosecution. Date: ______________

_____________________

Place: ______________

[XI] Memorial for Prosecution

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

[XII] Memorial for Prosecution