Memorial For The Petitioner - F-2

JAGANNATH UNIVERSITY NATIONAL MOOT COURT JU-39
[Year]
COMPETITION-2017
Jagannath University National Moot Court Competition, 2017
IN THE HON’BLE SESSION COURT OF JAIPUR
In the Matter
of
STATE………………………………………………………….PROSECUTION
versus
VISHNU PANDEY AND ORS…………………….......………....RESPONDENTS
Memorial on Behalf of the Prosecution
COUNSELS FOR PROSECUTION

JAGANNATH UNIVERSITY NATIONAL MOOT COURT COMPETITION 2017
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
 TABLE OF CASES
 STATUTES REFERRED
 BOOKS REFERRED
 JOURNALS AND REPORTERS
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
1. WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?

1.1 THAT DEATH OF DHANLAXMI OCCURRED WITHIN 7 YEARS OF HER MARRIAGE
1.2 THAT THE DEATH OF DHANLAXMI WAS CAUSED BY BODILY INJURY OR

OTHERWISE THAN UNDER NORMAL CIRCUMSTANCES
1.3 THAT DHANLAXMI WAS SUBJECTED TO CRUELTY OR HARASSMENT BY HER

HUSBAND OR ANY OTHER RELATIVE OF HER HUSBAND
1.4 THAT CRUELTY OR HARASSMENT WAS IN CONNECTION WITH THE DEMAND OF

DOWRY
1.5 THAT CRUELTY OR HARASSMENT HAVE BEEN METED OUT TO DHANLAXMI

BEFORE HER DEATH
2. WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?

2.1 SEXUAL INTERCOURSE
2.2 THREE ACCUSED BEING THE ABSCONDER INITIALLY
MEMORANDUM DRAWN AND FILED BY THE PROSECUTION2

2.3 ADMISSIBILITY OF DYING DECLARATION

2.4 INCRIMINATING CIRCUMSTANCES AND EVIDENCES LINKED TOGETHER
PRAYER
LIST OF ABBREVIATIONS
Abbreviation Definition
& And
¶ Paragraph
AIR All India Reporter
Anr Another
Art Article
CA. Criminal Appeal
CIT Commissioner of Income Tax
CrLJ Criminal Law Journal

SC Supreme Court
SCC Supreme Court Cases
UOI Union of India
V Versus
KSA Kormi Shrines Act, 1925
HPRA Hidamb Province Reorganisation Act, 1966
Gau Guwahati
Cr.PC Code of Criminal Procedure
SCR Supreme Court Report
DV DomesticViolence
DW Defence Witness
FIR First Information Report
HC High Court

i.e. That is
IPC Indian Penal Code
IEA Indian Evidence Act
FD Fixed Deposit
NCT National Capital Territory
Mad Madras
Ors Others
PC Privy Council
P&H Punjab & Haryana
PW Prosecution Witness
PMR Post Mortem Report
SC Supreme Court
SCR Supreme Court Record
SLP Special Leave Petition
UOI Union of India
v. Versus

INDEX OF AUTHORITIES
TABLE OF CASES
S.No. Case Citation

1 Satbir Singh v. State of Haryana AIR 2005 SC 3546 : (2005) 12 SCC 72
2 Hans Raj v. State of Punjab 2000 (3) RI 556
3 Sarwan Kumar v. State of Himachal

Pradesh AIR 2000 HP 239
4 State of Karnataka v. M.V. AIR 2003 SC 809: (2003) 2 SCC 188
Manjunathegowda
5 Kesari Madhav Reddy v. State of Andhra 2011 (1) Supreme 628
Pradesh
6 State of Punjab v. Amarjit Singh AIR 1988 SCC 2013: Supp SC 704:
1989 Cr LR 722
7 Lichhamadevi v. State of Rajasthan AIR 1988 SC 1785: (1988) 4 SCC 456
8 Shobha Rani v. Madhukar Reddi AIR 1988 SC 121: (1988) SCC 105
9 State of Uttar Pradesh v. Ashok AIR 1992 SC 840: (1992) 2 SCC 86
KumarSrivastava
10 Pradeep Kumar v. Union Administration, (2006) 10 SCC 608, AIR 2006 SC 2992
Chandigarh
11 Uttam Kumar v. State of Maharashtra (1991) CrLJ 1644 (Bom)
12 Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204

13 Satyapal v. State of Haryana (2009) 6 SCC 635, AIR 2009 SC 2190.
14 Wahid Khan v. State of Madhya Pradesh (2010) 2 SCC 9
15 State of U.P v. Babulnath (1994) 6 SCC 29

16 Tarkeshwar Sahu v. State of Bihar (now (2006) 8 SCC 560
Jharkhand)
17 Fateh Chand v. State of Haryana (2009) 15 SCC

18 Rajinder@ Raju v. State of Himachal (2009) 16 SCC 69, AIR 2009 SC 3022
Pradesh
19 O M Baby (Dead) by LRs v. State of (2012) 11 SCC 362, (2012) Cr LJ 3794
Kerela (SC)
20 Bhupinder Sharma v. State of Himachal (2003) 8 SCC 551; AIR 2003 SC 4684
Pradesh
21 Raju v. State of Madhya Pradesh (2008) 15 SCC 113: AIR 2009 SC 858
22 Bharwada Bhoginbhai v. State of Gujara AIR 1983 SC 753
23 Moti Lal v. State of Madhya Pradesh (2008) 11 SCC 20
23 Pakala Narayana Swami v. Emperor (1939) 26 AIR PC 47

24 Atbir v. Govt. of N.C.T. of Delhi (2010)
25 Munnu Raja and Another v. The State of (1976) AIR 2199, 1976 SCR (2) 764
Madhya Pradesh
26 Muthu Kutti and Anr. v. State By (2005) 9 SCC 113
Inspector of Police, T.N
27 Paneerselvam v. State of Tamil Nadu (2008) 17 SCC 190
28 Paniben v. State of Gujarat (1992) 2 SCC 474
29 State v. Dayal Sahu (2005) CrLJ 4375 (SC)
STATUTES REFERRED
 THE DOWRY PROHIBITION ACT, 1961.
 THE CODE OF CRIMINAL PROCEDURE, 1973.
 THE INDIAN EVIDENCE ACT, 1872.
 THE INDIAN PENAL CODE, 1860.
 THE PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE ACT, 2005.
BOOKS REFERRED
 Batuk Lal, LAW OF EVIDENCE, (21st Ed., Central Law Agency, 2016)

 Justice UL Bhatt, LECTURES ON INDIAN EVIDENCE ACT,(Universal LawPublication,2015)

 KD Gaur, CRIMINAL LAW: CASES & MATERIALS, (6th Ed., Lexis Nexis, 2009)
 KD Gaur, THE INDIAN PENAL CODE, (15th Ed. , Law Publishers India Pvt. Ltd., 2016)
 KD Gaur, COMMENTARY ON THE INDIAN PENAL CODE, (2006 edition, Universal Law
Publishing Co. Pvt. Ltd., New Delhi.)
 N.K. Acharya, PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE (6th Ed. Asia
Law House,2013)
 Prof. Arthur Best, WIGMORE ON EVIDENCE, (Aspen Publishers; 13-Volume Ed.December
31, 1995)
 P.K. Majumdar & R.P. Kataria, LAW RELATING TO DOWRY PROHIBITION CRUELTY &
HARASSMENT, (3rd Ed. Orient Publication,2015)
 Ram Jethmalani & DS Chopra, THE INDIAN PENAL CODE (Vol. II , Thomson Reuters)
 Ram Shelkar, LAW RELATING TO DOWRY DEATH, (1st Ed. , Kamal Publishers, 2010)
JOURNALS AND REPORTERS
 All India Reporter

 Lexis Nexis Academicia
 Manupatra Online Resources
 Lexis Nexis Legal
 SCC online

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.
Section177:
‘177. Ordinary place of inquiry and trial-
Every offence shall ordinarily be enquired into and tried by a Court within whose jurisdiction it
was committed.’
Read with Section 209:

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

STATEMENT OF FACTS
Background:
Mr. Satya Prakash was the Executive Editor of the magazine ‘The Dawn’ and was finding a
suitable groom for his daughter Dhanlaxmi. He got in close terms with Mr. Vishnu Pandey, a
journalist who recently joined the magazine as a Junior Editor. Mr. Prakash as a journalist with a
reformative stance was never in support of dowry and hence gave no gifts to her daughter on her
marriage. Vishnu Pandey though a sincere journalist was not a punctual person and was in habit
of arriving late in the office , which when reported to Mr. Prakash resulted in serious humiliation
for Mr. Pandey and made a good office gossip for the day.
Timeline of Events:
Dates Events
29th December 2007 Marriage of Vishnu Pandey and Dhanlaxmi was solemnized
observing all the customery rites. Mr. Satya Praksah gifted some
jewelry and a Rado watch to his son-in-law Vishnu Pandey.
9th January 2010 Mr. Prakash scolded Vishnu Pandey in front of the whole office
staff. Vishnu then went to his chamber and in the presence of his
Secretary warned him that he is not ready to bear anymore such
humiliations and if such a thing happens in future then Mr. Prakash
must remember that his daughter is married to him and must be
ready to bear the after effects of it. Vishnu reached home and started
shouting on her wife for not getting a car from paternal home.
19th October 2010 A distant relative of Laxmi Devi called her and told her that they are
getting a lot of cash and a car in dowry. Laxmi Devi slapped
Dhanlaxmi as she broked some glass.
5th July 2014 When Dhanlaxmi was alone in the house, Vishnu came with 2 of
his friends namely Jayesh and Rahul in drunken condition and
misbehaved with the security guard to which Dhanlaxmi scolded
him in front of his friends. Vishnu was seriously willing to take
revenge and they started talking that they would rape her as she

needs a lesson.
In the morning, Vishnu saw the gate open and went inside and saw
Dhanlaxmi lying unconscious on the floor and took her to the
nearest hospital. Laxmi and Rohan as soon as they entered the ICU
started abusing her by saying that her allegations against Vishnu
and his friends are false and in that moment of anger Laxmi kicked
Dhanlaxmi’s stomach for a several times.
At 12:49 PM Dhanlaxmi succumbed to her injuries. After that the
police officials conducted an investigation in the matter and
recorded several statements along with that of the doctors who were
looking after Dhanlaxmi.
30th March 2015 The police got hold of Rahul who accepted his role in rape and
subsequently Vishnu and Jayesh were also arrested. 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. 354, s. 299 of Indian Penal Code,
S. 113A of Indian Evidence Act.
Dying Declaration:
Mrs.Dhanlaxmi: I was raped three times at around 3:00 am, while I was sleeping. The rapists
covered my face using thick piece of cloth. When my mother-in-law came inside along with my
brother-in-law, she kicked me on my stomach.
Medical Report of Dhanlaxmi:
All the clothes were blood stained, nails wound on back and neck were present. Under internal
examination it was found that she was habitual to sex, no semen was found and there was no
wounds on vaginal part. The cause of death was due to internal bleeding, hyovolemia and
dyspnea.

STATEMENT OF ISSUES
Issue 1.
WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?
Issue 2.
WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?

SUMMARY OF ARGUMENTS
Issue 1.
WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?
It is humbly submitted before this honorable court that Laxmidevi, Vishnu Pandey and Rohan
are liable for the offence of dowry death. It is clearly evident from the facts of the case that the
marriage of Dhanlaxmi was solemnized with Vishnu Pandey on 29th December 2007 and her
death occurred within seven years of her marriage. It was caused by bodily injury or otherwise
than under normal circumstances and she was subjected to cruelty or harassment by her husband
Vishnu Pandey and his relatives in connection with the demand of dowry. Also, the cruelty or
harassment have been meted out to Dhanlaxmi before her death by her in-laws.
Issue 2.
WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?
It is humbly submitted before this honorable court that gang rape has been committed by Vishnu
Pandey along with his two friends, Rahul and Jayesh. The three of them planned to rape
Dhanlaxmi in order to teach her a lesson and later absconded. Dhanlaxmi even in her dying
declaration stated that she had been raped three times on the night of 5th July 2014. According to
the medical examination all her clothes were blood stained and she had nail wounds on her back
and neck. Rahul even admitted that he along with Vishnu and Jayesh had brutally raped her and
had also tied her body, closed her mouth and covered her face so that she could not see their
faces or make any noise.

ARGUMENTS ADVANCED
1. WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?
It is humbly contended that the accused is guilty for committing the offence of dowry death
under Section 113A of Evidence Act1 which states that if it shown that soon before the death of a
woman such woman has been subjected to cruelty or harassment for, or in connection with, any
demand for dowry, the court shall presume that such person has caused the dowry death under
Section 304B of IPC. Thus, as stated by the Apex Court in the case of Satbir Singh v. State of
Haryana2, once the prosecution is able to establish the ingredients of dowry death under Section
304B of IPC, the burden of proof of innocence shifts to defence.
Meaning of dowry is defined under Dowry Prohibition Act, 1961, which states that ‘dowry’
means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent or the either party to a marriage or by any other person, to the either party
to the marriage or to any other person.
Clause (1) of the section 304B, IPC defines ‘dowry death’ and clause (2) prescribes punishment
for dowry death.The Prosecution humbly contends that death was caused by bodily injury or
otherwise than under normal circumstances [1.1], death occurred within 7 years of her marriage
[1.2], deceased had been subjected to cruelty or harassment by her husband or by any relative of
her husband [1.3], cruelty or harassment was in connection with the demand of dowry [1.4],
cruelty or harassment had been meted out to the woman before her death [1.5].
1.1 THAT DEATH OF DHANLAXMI OCCURRED WITHIN 7 YEARS OF HER MARRIAGE
It is evident that the marriage ceremony of Dhanlaxmi d/o Mr. Satya Prakash with Vishnu
Pandey was solemnized on 29th December, 2007 observing all customary rites. Mr. Prakash was
never in support of dowry and hence gave no gifts to her daughter on her marriage except some
jewelry and a Rado watch to the son-in-law3. Also, Dhanlaxmi died because of internal bleeding,
hypovolemia and dyspenia as stated in the Medical Report of the victim released on 6th July,
1
The Evidence Act, 1872, sec 113B, Presumtion as to Dowry Death, Inserted by Act 43 of 1986, sec. 12 (w.e.f. 5-1-
1986).
2
AIR 2005 SC 3546 : (2005) 12 SCC 72.
3
Moot Preposition ¶ 3.
2014. On further examination of the victim’s body, it was found that the entire clothes were
blood stained and there were nail wounds on her back as well as on her neck which shows that
the death was caused by some bodily injury or otherwise than under normal circumstances4. The
total number of days of the existence of the marriage was around six and a half years and within
7 years which reflects the presence of unnatural death of deceased within seven years of her
marriage.
It was held in the case of State of Karnataka v. M.V. Manjunathegowda5 by the Apext Court:
“To establish the offence under Section 304B,IPC the prosecution is obliged to prove that the
death of woman is caused by any burns or bodily injury or occurs otherwise than under normal
circumstances and such death occurs within 7 years of her marriage and if it shown that soon
before her death she was subjected to cruelty or harassment by her husband or by any relative of
her husband, such harassment must be in connection with any demand for dowry . If the
prosecution is able to prove this, then the presumption under Section 113 of The Evidence Act
will operate.”
1.2 THAT THE DEATH OF DHANLAXMI WAS CAUSED BY BODILY INJURY OR OTHERWISE THAN
UNDER NORMAL CIRCUMSTANCES
According to the Medical Report of the victim which states that on external examination it was
found that there was blood stains on all the clothes of the victim and there was nail wound on her
back and neck. The Medical Report also mentions the cause of the death of the victim which is
because of the internal bleeding, hypovolemia and dyspnea. It is clear that the death was not
under any normal circumstances and was caused by some bodily injury, especially by nails of a
person. Also, in the Dying Declaration of the victim, she states that she was raped 3 times in the
hospital while she was sleeping. She also mentioned that rapists covered her face by using a
thick piece of cloth in the hospital and her mother-in-law, Laxmi Devi, kicked her in the stomach
in the presence of her brother-in-law Rohan.
In the case of Kesari Madhav Reddy v. State of Andhra Pradesh6, accused persons husband and
in-laws of deceased were prosecuted under Sections 498A, 304B and 302 read with Section 34,
4
Hans Raj v. State of Punjab, 2000 (3) RI 556. The term ‘otherwise than normal circumstances’ means not the
natural death. Sarwan Kumar v. State of Himachal Pradesh, AIR 2000 HP 239.
5
AIR 2003 SC 809: (2003) 2 SCC 188.
6
2011 (1) Supreme 628.
IPC and Section 6 of Dowry Prohibition Act, 1961, for pouring kerosene on the deceased and
setting her on fire thereby causing her death.
1.3 THAT DHANLAXMI WAS SUBJECTED TO CRUELTY OR HARASSMENT BY HER HUSBAND OR

ANY OTHER RELATIVE OF HER HUSBAND
Even after doctors informed the family members of Vishnu Pandey about her medical status of
not being able to live for more than an hour on account of the internal bleeding in the stomach,
Laxmi Devi and Rohan, mother and brother of Vishnu Pandey respectively, went inside the ICU
and started abusing and kicked Dhanlaxmi in her stomach for a several times. Even in the
statement given by Dhanlaxmi in her Dying Declaration, Dhanlaxmi mentioned about the cruelty
and harassment by Laxmi Devi and Rohan as they kicked her in the stomach for several times.
The demand of dowry by Laxmi Devi and Rohan was followed by quarrel for months and one
fine day i.e. 19th October 2010, when one distant relative Laxmi Devi called her and told her
getting car and cash in dowry, her anger crossed the limit as she slapped Dhanlaxmi.
As per Section 498A of IPC, the word ‘cruelty’ includes both physical and mental torture. The
word cruelty in the Explanation clause attached to the section has been given wider meaning to
include-
(a) any willful conduct which is of such nature as likely to drive the women to commit
suicide, or to cause a grave a in hurry or danger to life, limb or mental or physical health of the
woman, or
(b) harassment of the woman in a view of coercing her or any person related to her to meet
any unlawful demand for any property or valuable security or on account of failure by her or any
person related to her to meet such demand7
1.4 THAT CRUELTY OR HARASSMENT WAS IN CONNECTION WITH THE DEMAND OF DOWRY
It is clear from the facts of the case that the cruelty was present as contended in the above
arguments. Dhanlaxmi was slapped by Laxmidevi when she got to know about her friend getting
a lot of cash and a car in dowry. She could not resist this fact and due to this quarrels between
them took place on a daily basis. As per the statements given by Mrs. Sharma that the whole
colony of Laxmidevi knew that they were torturing Dhanlaxmi. Also on the 5th of July 2014,
7
Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121: (1988) SCC 105. Held, demand of dowry amounts to cruelty.
Laxmidevi and Rohan entered into the hospital where Dhanlaxmi was admitted and kicked her
on her stomach which was already bleeding.
In the case of State of Punjab v. Amarjit Singh8, the husband who set his newly wedded wife
Balwinder on fire for the sake of money. The accused, who having returned from abroad, wished
to again, demanded his wife money for this. The hon’ble court convicted him for his cruelty due
to which the murder took place and sentenced him to life imprisonment.
Also, in the case of Lichhamadevi v. State of Rajasthan9, Pushpa, a young wife was constantly
harassed and sclolded by the greedy and dominating mother-in-law for not bringing sufficient
dowry to satisfy her greed for wealth. Her son remained a mute spectator to all harassment and
cruelty to his wife. One evening, the deceased was washing utensils, her mother-in-law hit her
hard on the head with a pan and later neighbours saw flames and shouts of Pushpa. It was held
that by the Supreme Court that it is desirable to give life imprisonment to the accused.
1.5 THAT CRUELTY OR HARASSMENT HAVE BEEN METED OUT TO DHANLAXMI BEFORE HER
DEATH
In State of Uttar Pradesh v. Ashok KumarSrivastava10, Meeera Srivastava, a 25years old wife
of Ashok Kumar was married in May 1973 at Varanasi. She was set ablaze by her father-in-law
and sister-in-law in the two room apartment in Lucknow on July 1973. She alleged that accused
persons were unhappy about the cash and articles given in the dowry. The accused tortures,
taunted and tormented the deceased for the insufficiency of the dowry. They locked and left the
house and absconded. The Apex Court held that court would not hesitate to interfere when a
gruesome crime is committed which has resulted in the extinction of a young mother. The very
fact that the accused instead of saving the life of the women left the house, locked and
disappeared clearly indicate their involvement in crime and thus, should be held liable for the
same.
Similarly, in the present case, there were instances when Laxmidevi even after knowing the fact
that her daughter-in-law would not survive for not more than an hour, she kicked her constantly
in her stomach which shows that the cruelty and harassment have been meted out to Dhanlaxmi
8
AIR 1988 SCC 2013: Supp SC 704: 1989 Cr LR 722
9
AIR 1988 SC 1785: (1988) 4 SCC 456
10
AIR 1992 SC 840: (1992) 2 SCC 86
before her death. Also, in her Dying Declaration, she stated about being raped for three times.
The medical report also mentions the wounds on her neck and back.

Issue 2. WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?
It is humbly submitted before this honorable court that the accused, Vishnu Pandey along with
Rahul and Jayesh are liable of punishment for committing gang rape under section 376D of the
Indian Penal Code. In order to constitute guilt of committing gang rape, the following ingredients
must be fulfilled:
a) There must be more than one person

b) They must have common intention
It must also be taken into consideration that the aforesaid ingredients are also laid down in the
case of Pradeep Kumar v. Union Administration, Chandigarh11in which the SC has stressed
that the prosecution is required to prove bring the offence of rape as gang rape that: (i) there was
a group of persons that decided to act in concert with the common intention to commit rape on
the victim, (ii) more than one person from the group, in furtherance of the common intention, has
acted or participated in concert in the commission of rape with pre arranged plan, and (iii) one or
more persons (not necessarily everyone) of the group, in pursuance of common intention, has
actually committed the offence of rape and thereby to hold them guilty of gang rape.
Involvement of a group of persons is not necessary.12 It is clearly established by the prosecution
as per to the facts of the present matter that they have acted in furtherance of the common
intention in order to commit gang rape of the deceased.13
More importantly, in order to constitute an offence of rape criteria laid down in S. 375 must be
fulfilled in the first place. Sexual intercourse as perceived by S. 375 of IPC implies penetration
to any extent of penis into the vagina, mouth, urethra or anus of a female. The phrase “ to any
extent,” used in the said provision, makes it evident that mere slightest or partial penetration of a
male organ within the vagina, mouth, urethra or anus a case may be, is sufficient to constitute
sexual intercourse.14 The depth of penetration is immaterial.15
11
(2006) 10 SCC 608, AIR 2006 SC 2992.
12
Uttam Kumar v. State of Maharashtra (1991) CrLJ 1644 (Bom).
13
Fact sheet.
14
Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204; Satyapal v. State of Haryana (2009) 6 SCC 635, AIR
2009 SC 2190.
15
Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9.
The Supreme Court in State of U.P v. Babulnath16, while dwelling into the essential ingredients
of rape observed:
…[T]o constitute the offence of rape it is not at all necessary that there should be complete
penetration of male organ with emission of semen and rupture of hymen. Even partial or slightest
penetration would be quite enough for the purpose of S. 375 and 376 of the IPC. That being it is
quite possible to commit legally the offence of rape even without causing any injury to the
genitals or leaving any seminal stains.17
The present issue has been further explained under several sub-issues:
a) Sexual Intercourse [2.1]

b) Three accused being the absconder initially [2.2]
c) Dying Declaration [2.3]
d) Incriminating circumstances and evidences linked together [2.4]
2.1 SEXUAL INTERCOURSE
In the present matter, the medical report, dying declaration of the deceased and the confession
made by Rahul must be taken into consideration simultaneously in order to prove that the gang
rape found and on the other hand the deceased stated in her dying declaration that she was raped
three times by covering her face using thick piece of cloth. Thus, it is very pertinent to note that
while covering the face of the deceased it eventually resulted in the nail wounds around neck and
at the back. Also, it is wrong to say that since she was habitual to sex, no wounds on the vaginal
parts were found and no semen was found; she was not subjected to rape. Moreover, the facts are
very explicit on the point that all the three accused in the present case were talking to rape her as
they wanted was committed. The medical report suggests that Nail wound on the back and neck
were to teach her a lesson. Thus, it also establishes that all the three accused had a common
intention to commit rape.
16
(1994) 6 SCC 29.
17
Tarkeshwar Sahu v. State of Bihar( now Jharkhand) (2006) 8 SCC 560.
Mere fact that the private part of the accused did enter into the person of woman is enough to
constitute rape. It is not essential that there should be injuries on her private part.18 As per the
medical report that there was no semen found, it is not necessary that seminal stains must be
there as was held in the case of Tarkeshwar Sahu v. State of Bihar19, that being so it is quite
possible to commit legally the offence of rape even without causing an injury to the genitals or
leaving any seminal stains.
Therefore, in the light of the incriminating medical evidence and facts of this case, it
agglomerated to the fact that there was sexual intercourse which amounts to gang rape.
2.2 THREE ACCUSED BEING THE ABSCONDER INITIALLY
The present matter depicts a very clear picture that all three accused had a common intention to
commit rape20. Very soon when the deceased told the doctors that she has been raped three times,
all the three accused absconded thereafter. It is also clear that Mr. Vishnu Pandey took
Dhanlaxmi to the hospital for the sake of showing the concern towards Dhanlaxmi to escape
from the liability. It is evident from the fact that the friends of Vishnu Pandey, namely Jayesh
and Rahul absconded the police investigation as they were the prima facie witnesses after
Dhanlaxmi gaining her consciousness which was stated in her dying declaration. This clearly
indicates the mal intention of the three accused. Also, when Rahul was arrested and taken into
the police custody, he stated the police about their role in the rape.
2.3 ADMISSIBILITY OF DYING DECLARATION

In every rape case, the evidence of the prosecutrix is a very crucial piece of testimony to prove
the case against the accused persons. Her evidence is entitled to great weight even without
corroboration. Ordinarily, no injured witness tells the lie or implicates a person falsely.21 Dying
declaration is considered as conclusive evidence in itself. Refusal to act on the testimony of the
18
Fateh Chand v. State of Haryana (2009) 15 SCC.
19
(2006) 8 SCC 560.
20
Id.
21
In the context of Indian culture, a victim of sexual assault would rather suffer in silence than to falsely implicate
somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of
sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of prosecutrix, the court
must always keep in mind that no self respecting woman would put her honor by falsely alleging commission of
rape on her and therefore ordinarily look for corroboration of her testimony is unnecessary and uncalled for. See
Rajinder@ Raju v. State of Himachal Pradesh (2009) 16 SCC 69, AIR 2009 SC 3022: O M Baby (Dead) by LRs v.
State of Kerela (2012) 11 SCC 362, (2012) Cr LJ 3794 (SC).
victim of the sexual assault in the absence of corroboration as a rule is adding to the insult to
injury.22 View in to the evidence of a victim of rape with the aid of spectacles fitted with lenses
tainted with doubt, disbelief or suspicion justifies the charge of chauvinism in a male dominating
society. In fact, the very nature of the offence of sexual assault negatives the possibility of
finding direct witnesses and courts should not insist unless for it unless probability factor is
found to be out to be out of tune.23
The leading case on the admissibility of the dying declaration in Pakala Narayana Swami v.
Emperor24 in which the first question with which their lordships propose to deal is whether the
statement of the deceased was admissible under Section 32(1) of the Indian Evidence Act, 1872.
That Section provides;
statements written or verbal, of relevant facts made by person who is dead…are themselves
relevant facts in the following cases:
(1) When it relates to the cause of death. – When the statement is made by person as to the cause
of his death, or as to any of the circumstances of the transaction which resulted his death, in
cases in which the cause of that person that comes into question.
Such statements are relevant whether the person who made them was or was not at the time
when they were made under expectation of death and whatever may be the nature of the
proceedings in which the cause of death comes into question which is clearly been established by
the prosecution by connecting the chain of evidences in the present matter.
Another leading case on the recording of the dying declaration is Atbir v. Govt. of N.C.T. of
Delhi25, in which it was held that it is true that in case on hand conviction was based solely on
the dying declaration made by the deceased and recorded by the Investigating Officer in the
presence of a Judicial Magistrate first class and further it was held that the dying declaration
cannot be acted upon unless it is corroborated.
22
Bhupinder Sharma v. State of Himachal Pradesh (2003) 8 SCC 551; AIR 2003 SC 4684; Raju v. State of Madhya
Pradesh (2008) 15 SCC 113: AIR 2009 SC 858.
23
Bharwada Bhoginbhai v. State of Gujara AIR 1983 SC 753; Moti Lal v. State of Madhya Pradesh (2008) 11 SCC
20
24
(1939) 26 AIR PC 47.
25
(2010)
In Munnu Raja and Another v. The State of Madhya Pradesh26, this court held that:- “It is well
settled that though a dying declaration must be approached with caution for the reason that the
maker of the statement cannot be subject 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 a declaration cannot be acted
upon unless it is corroborated….”
In Muthu Kutti and Anr. v. State By Inspector of Police, T.N.27, the following discussion and
the ultimate conclusion are relevant which read as under:
“this is a case where the basis of conviction of accused is dying declaration. The situation in
which a person is on the deathbed is so solemn and serene when he is dying that the grave
position in which he is placed, is the reason in law to accept veracity of his statement. It is for
this reason that the requirements of oath and cross-examination are dispensed with. Besides,
should the dying declaration be excluded, it will result in miscarriage of justice because victim
being generally the only eye witness in a serious crime, the exclusion of the statement would
leave the court without a scrap of evidence. It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.”
The same view has been reiterated by a three judge bench decision of this court in Paneerselvam
v. State of Tamil Nadu28, and also the principle governing the dying declaration is summed up in
Paniben v. State of Gujarat29. The analysis of the above decisions clearly shows that, where the
court is satisfied that the declaration is true and voluntary, it can base its conviction without any
further corroboration. It cannot be laid down that the dying declaration cannot form the sole basis
of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of
prudence. Merely because a dying declaration does not contain all the details as to the
occurrence, it is not to be rejected. Even if it is a brief statement, it is not to be discarded.
Further, in State v. Dayal Sahu30, the SC reversing the acquittal order of the high court, recorded
conviction of the accused solely on the confidence inspiring testimony of the prosecutrix. The
26
(1976) AIR 2199, 1976 SCR (2) 764
27
(2005) 9 SCC 113.
28
(2008) 17 SCC 190.
29
(1992) 2 SCC 474.
30
(2005) CrLJ 4375 (SC).
apex court observed:

Once a statement of prosecutrix inspires confidence and is accepted by court as such,
conviction can be based on the solitary evidence of the prosecutrix and no corroboration would
be required… Corroboration of the testimony of the prosecutrix as a condition for judicial
reliance is not a requirement of law but a guidance of prudence.
2.4 INCRIMINATING CIRCUMSTANCES AND EVIDENCES LINKED TOGETHER
It has been established in the above arguments that there has been sexual intercourse between the
accused and the deceased and thereafter all the three accused absconded immediately after the
deceased told the doctor about the rape. Moreover, the dying declaration and the statement of
Rahul adds to the confirmation of rape. Thus, these incriminating evidences and statement
proves gang rape in the present matter.

PRAYER
Wherefore, in the light of the issues raised, arguments advanced, and authorities cited, the
counsels for the prosecution humbly prays to this Honorable Court to Declare:
A. That, Laxmidevi, Rohan and Vishnu Pandey are liable of punishment under Section 498A
and 304B of the Indian Penal Code,1860.
B. That, Rahul along with Vishnu Pandey and Jayesh are liable of punishment under section
376D of the Indian Penal Code, 1860.
And
Pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience. And for this act of kindness, the Counsels for the Prosecution shall duty bound
forever pray.
Date: S/d 1
Place: 2
(Counsels For The Prosecution)

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JAGANNATH UNIVERSITY NATIONAL MOOT COURT JU-39

Jagannath University National Moot Court Competition, 2017

IN THE HON’BLE SESSION COURT OF JAIPUR

VISHNU PANDEY AND ORS…………………….......………....RESPONDENTS

Memorial on Behalf of the Prosecution

COUNSELS FOR PROSECUTION

1. WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?

1.2 THAT THE DEATH OF DHANLAXMI WAS CAUSED BY BODILY INJURY OR

1.3 THAT DHANLAXMI WAS SUBJECTED TO CRUELTY OR HARASSMENT BY HER

1.4 THAT CRUELTY OR HARASSMENT WAS IN CONNECTION WITH THE DEMAND OF

1.5 THAT CRUELTY OR HARASSMENT HAVE BEEN METED OUT TO DHANLAXMI

2. WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION2

2.3 ADMISSIBILITY OF DYING DECLARATION

CrLJ Criminal Law Journal

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION3

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION4

S.No. Case Citation

2 Hans Raj v. State of Punjab 2000 (3) RI 556

3 Sarwan Kumar v. State of Himachal

12 Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204

15 State of U.P v. Babulnath (1994) 6 SCC 29

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION5

23 Pakala Narayana Swami v. Emperor (1939) 26 AIR PC 47

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION6

 Justice UL Bhatt, LECTURES ON INDIAN EVIDENCE ACT,(Universal LawPublication,2015)

JOURNALS AND REPORTERS

 All India Reporter

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION7

Read with Section 209:

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION8

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION9

Medical Report of Dhanlaxmi:

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION10

WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?

WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION11

WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?

WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION12

1. WHETHER THE ACCUSED IS GUILTY OF DOWRY DEATH OR NOT?

1.1 THAT DEATH OF DHANLAXMI OCCURRED WITHIN 7 YEARS OF HER MARRIAGE

1.3 THAT DHANLAXMI WAS SUBJECTED TO CRUELTY OR HARASSMENT BY HER HUSBAND OR

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION17

Issue 2. WHETHER GANG RAPE HAS BEEN COMMITTED OR NOT?

a) There must be more than one person

a) Sexual Intercourse [2.1]

2.1 SEXUAL INTERCOURSE

2.2 THREE ACCUSED BEING THE ABSCONDER INITIALLY

2.3 ADMISSIBILITY OF DYING DECLARATION

apex court observed:

2.4 INCRIMINATING CIRCUMSTANCES AND EVIDENCES LINKED TOGETHER

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION23

(Counsels For The Prosecution)

MEMORANDUM DRAWN AND FILED BY THE PROSECUTION24

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